under twenty-one, and without issue, which, not having happened, the limitation over did not take effect, but the estates descended to the heir at law.

12. This case seems to have been decided upon the ground, that the technical rule which has been followed in so many of the cases, that where the limitation of an estate is to one and his heirs, with a limitation over, if he dies under twenty-one or without issue, the word "or" shall be read "and," is too firmly established, to be now drawn in question. But that it is not based upon the most satisfactory grounds, and should not be extended beyond the precise limits to which its terms carry it. And that it will not control, where the testator gives an estate tail to a person and the heirs of his body, with a limitation over, if he die under twenty-one, and without issue, but the latter case, both upon principle and authority, must be construed according to the natural and ordinary import of the words.

13. Where the testator devised his estates to his son, if he should attain the age of twenty-three years, or should be married with the consent of his trustees, which should first happen, and to his heirs and assigns, absolutely, forever; and in case his son should die, without attaining such age, or, being married with such consent as aforesaid, should die without lawful issue, or such issue should die, without attaining the age of twenty-one years, then over. The son married under the age of twenty-three, with the consent of his trustees, and afterwards attained that age. It was held, that the son was seized of an absolute estate in fee, or, at the least, of an estate tail.24 14. Mr. Jarman says, in regard to the series of decisions. where "or" has been construed and: "The ground of all these decisions lay in the terms of the preceding gifts, and the incon

"Grimshawe v. Pickup, 9 Sim. 591. Sir Lancelot Shadwell, V. C., here said: "Now I cannot but think, that the court would rather struggle to make the word or be read there as and." See also, Grant v. Dyer, 2 Dow, 87; Bentley v. Meech, 25 Beav. 197; Hawkins v. Hawkins, 7 Sim. 173.

sistency which a literal construction would have caused between those gifts and the executory gifts over. Where there, is no prior gift, therefore, the ground fails; and accordingly, a gift to A. after the death of testator's mother, or second marriage, death, or forfeiture of his wife, although the testator had made life provisions for both his mother and wife, upon whose death, therefore, a certain amount of the estate would be set free, yet was held to take effect immediately upon the death of the mother," 25 without the occurrence of the other alternative, and the court refused to read "or" as and.26

15. In an early case, the court read "or" and, in favor of marriage, regarding conditions in restraint of it odious. The devise was upon condition precedent, that if the testator's son marries without competent fortune, or "without consent of trustees, the issue should not inherit," and it was held, that the consent of trustees was only required, where the son married without fortune. The words of Lord Mansfield here are striking and characteristic: "There can be but one true, legal construction of these conditions, and therefore it must be the same in the Court of Chancery, and all the other courts of Westminster Hall. The meaning of the testator, or the control which the law puts upon his meaning, cannot vary, in what court soever the question chances to be determined." "This testator considered money as the only qualification of a wife, but he still means to leave it to the judgment of the trustees, whether there might not be some equivalent for 'money; he only meant to require their sanction, in case his son married a woman without a competent fortune. This is undoubtedly a condition precedent: it must have been performed before the son could take; before his interest could vest. The construction must be to vest the estate 'in case his

20 Hawksworth v. Hawksworth, 27 Beav. 1. And the same rule obtains in regard to changing "and" into "or." Malden v. Maine, 2 Jur. N. s. 206. 27 Long v Dennis, 4 Burr. 2052.

son married a woman with a competent fortune, or had the consent and approbation of his trustees to marry one without one.' The blunder is in the penning only. The meaning is — that in either event it shall vest.” 28

16. There is a class of cases where devises and bequests to children, or the children of such children, where "or" has been construed "and," thus letting in children and grandchildren to an equal participation, even while the parents of such grandchildren were living. But there can be little question that, in fact, as has been often suggested, and as the later cases incline to hold, the alternative contemplated in such cases is, that the children only of such parents as are deceased, are properly admissible, to participate in the gift.29

It must be confessed, that his lordship deals rather summarily here, with the words of this will, and proceeds to convert the will to reason and justice, rather than to abide, very nicely, by the words, or the intent, of the testator, judging from his language, and the court had no other reliable guide. There is a kind of freshness and relish, about this arbitrary rush after justice, which is very well, in the hands of such a man as Lord Mansfield; but which would be very dangerous in the hands of either a weak or a corrupt judge. This will, unquestionably, vested the estate in the son, without any condition, either precedent or subsequent, but provided, that after his decease, it should not go to his heirs, unless the woman he married possessed a fortune, and the alliance was with the consent of the trustees. And what right courts have to defeat the intent of the testator, fairly expressed, on any ground of its unreasonableness, is more than we can comprehend. His lordship's sarcasms have more point, as it seems to us, than they have of either reason or justice. And the same is true of the great majority of the cases, where the courts have presumed to depart from the natural import of the words of the will, in search of some conceivable construction, more natural or reasonable, when there was no invincible necessity, compelling such departure. See Monkhouse v. Monkhouse, 3 Sim. 119; Hawkes v. Baldwin, 9 Sim. 355.

29 Richardson v. Spraag, 1 P. Wms. 434. In a note to this case, which is the leading case upon this point, it is said: "It seems as if it might have been agreeable to the sense of the testatrix to have understood the devise thus: To my daughters, and to the children of such of them as shall be dead,' &c. This is unquestionably the true construction of such a devise, and then the children

17. There is a class of cases, somewhat numerous, where the word "or" is interposed between the name of the first legatee, or devisee, and the heirs of such person, as to A. or his heirs forever, or in tail, in regard to which there has been considerable discussion, and where there does not seem to be a perfect coincidence. Some of the earlier cases, where this occurs, incline to treat the variation from the usual form of creating such limitations, as merely accidental, and not as being intended to create any different estate.30 The cases where the word " or,"

being named to take the share of their parents, take in substitution for them, and thus take per stirpes, and not per capita. There can be no question, that, in ninety-nine cases out of one hundred, such construction meets the intent of the testator, while a different construction is putting a meaning upon his words which never occurred to his mind, and if it had, would have induced him to give an explanation to his will by way of codicil, or otherwise, which would have precluded the forced construction which the courts have given to this class of bequests. But where such a construction is once adopted, or any other, however forced and unnatural, it requires a certain degree of a weight thereby, and will often travel down through centuries, almost, before it finds its final restingplace, among the rejected things of the law. Hence in Horridge v. Ferguson, Jacob, 583, this same construction is again reaffirmed, by Sir Thomas Plumer, M. R., upon the authority of Richardson v. Spraag, which had itself no ground to stand upon. We shall discuss this point more in detail elsewhere. See also, Eccard v. Brooke, 2 Cox, 213; Maude v. Maude, 22 Beav. 290.

30 Wright v. Wright, 1 Vesey, 409. It was here held, the heirs did not, in such case, take by way of substitution. See Read v. Snell, 2 Atk. 642; Harris v. Davis, 1 Coll. 416; Parkin v. Knight, 15 Sim. 83; Penny v. Turner, 15 Sim. 268. But the other class of cases is, where it is evident the testator, in order to prevent a lapse, by the death of the first devisee during his life, or for any other reason, chooses to substitute the heirs in the place of the first devisee. Speakman v. Speakman, 8 Hare, 180. The American cases seem to have required very clear evidence, that the word "or" was used for "and," to justify the substitution of one for the other; evidence amounting almost to certainty. See O'Brien v. Herney, 2 Edw. Ch. 242; Van Vechten v. Pearson, 5 Paige, 512; Ray v. Enslin; 2 Mass. 554; Carpenter v. Heard, 14 Pick. 449; Hunt v. Hunt, 11 Met. 88; Hawn v. Banks, 4 Edw. Ch. 664; Turner v. Whitted, 2 Hawks, 613.

being interposed between the name of the first devisee, or legatee, and his heirs, has been held to indicate the intention of substituting the latter, in the place of the ancestor, are numerous, and being more recent, as a general thing, and more in consonance with the words used, must be regarded as defining the most reliable rule.31

18. But it seems to be settled, upon the most satisfactory grounds, that where a devise is made to one, his heirs or assigns, the word heirs will be regarded, as one of limitation, and the estate created to be an absolute fee simple, since the word assigns clearly indicates an absolute ownership.32

19. And where a gift is made to two, or more persons, with a power of appointment in some other, to determine in which the property shall ultimately vest, as where the testator made a gift to his three sisters, or their children, as his mother should, by

31 Crooke v. De Vaudes, 9 Vesey, 197; Gittings v. M'Dermott, 2 My. & K. 69; Burrell v. Baskerfield, 11 Beav. 525; Montagu v. Nucella, 1 Russ. 165; Whitcher v. Penley, 9 Beav. 477; Penley v. Penley, 12 Beav. 547; Chipchase v. Simpson, 16 Sim. 485; Salisbury v. Petty, 3 Hare, 86; Doody v. Higgins, 9 Hare, App. 32; Amson v. Harris, 19 Beav. 210; Sparks v. Restal, 24 Beav. 218; In re Craven, 23 Beav. 333; Timins v. Stackhouse, 27 Beav. 434. But where a bequest or devise is made in such form to one or his heirs, as to show that the first devisee is to be alive at the time of the gift taking effect, there the word heirs, although preceded by the disjunctive "or," must be regarded as a word of limitation merely. Lachlan v. Reynolds, 9 Hare, 796. Mr. Jarman regards Newman v. Nightingale, 1 Cox, 341, as overruled by the preceding cases. But Lord Thurlow's views, there expressed; are certainly consistent with the language of the will, and not inconsistent, perhaps, with the professed principle of the more recent cases. See also, Girdlestone v. Doe, 2 Sim. 225; Corbyn v. French, 4 Vesey, 418; Tidwell v. Ariel, 3 Mad. 404; Hervey v. M'Laughlin, 1 Price, 264; Price v. Lockley, 6 Beav. 180; Salisbury v. Petty, 3 Hare, 86; the first and last of which cases favor the literal construction of the conjunction "or," and thus hold, that the words create gifts to the heirs, by way of substitution.

32 In re Walton's estate, 2 Jur. N. s. 363; 1 Jarman, 483; Jones v. Price, 11 Sim. 557.