deed or will, appoint, and no appointment being made, it was held, that the sisters and their children must take concurrently, not on the ground that "or" was to be construed "and," but that it was referrible only to the power given to the mother, of selection from among the class, and as that power had not been exercised, and the court could not assume its exercise, the whole class must take equally. Lord Cottenham, Chancellor, here cites, with approbation, his own words in another case, "that when there appeared to be a general intention, in favor of a class, and a particular intention, in favor of individuals of the class to be selected by another person, and the particular intention fails, from the selection not being made, the court will carry into effect the general intention in favor of the class." Longmore v. Broom,35 is here referred to, where Sir William Grant, M. R., uses this language, "a bequest to A or B, at the discretion of C, is good, for he may divide it between them.”

20. There are, no doubt, many instances, where, to prevent the divesting of a legacy, and carry out the manifest intent of the testator, the word "and" will be construed "or." Some of these cases have been already incidentally referred to, and some others will be here named.36

21. There is a class of cases, where the word "and" is used disjunctively by the repetition of the verb, in the manner we have before attempted to explain, in regard to the disjunctive "or." Thus a devise to the testator's two sons, and in case both the sons should die unmarried, and neither of them should

"Penny v. Turner, 2 Phillips, 493, s. c. 15 Sim. 368.

85

Burrough v. Philcox, 5 My. & Cr. 92.

7 Vesey, 124. His Lordship here refers, in support of his decision, to Brown v. Higgs, 4 Vesey, 708; 5 Vesey, 495; 8 Vesey, 561. See also, White's Trust, 1 Johns. 656; Jones v. Torrin, 6 Sim. 255, which is attempted to be distinguished from the other cases, and Shand v. Kidd, 19 Beav. 310.

88 Wood, V. C., in Day v. Day, Kay, 708; Maddison v. Chapman, 3 De G. & J. 536; Jackson v. Jackson, 1 Vesey, 217.

have any issue legally begotten, then over; it was held to imply, that if one of the sons died unmarried, and the other without issue, the estate over would vest.37

But the

And

22. There is a class of cases, where gifts over are based upon the fact of the first donee dying within age, unmarried and without issue, in which the courts have adhered to the strict ⚫ construction of the words, requiring that all the particulars shall concur, in order to have the devise over take effect.38 recent cases seem to agree that the words, "dying unmarried," may import, never having been married, or having no wife at the time of death, and that one or the other construction may be adopted, according to circumstances, whichever may seem most conformable to the probable intention of the testator.9 even where these words occur in regard to the wife, in a marriage settlement, which is made in contemplation of her marriage, and where it has been said, it could not have been contemplated that she should die without ever being married, it has been shown, that such words may have a sensible operation, by understanding them as descriptive of her state at the time of her decease, or as defining a state of things which would have existed, if the wife had never been married.40 In this case, the estate is required to go to "such person as the same would have gone unto by the statute of distributions, in case the wife

Wilson v. Bayly, 3 Br. P. C. Toml. 195. See also, Hepworth v. Taylor, 1 Cox, 112; Maberly v. Strode, 3 Vesey, 450; Bell v. Phyn, 7 Vesey, 450; Mackenzie v. King, 12 Jur. 787. And see Dillon v. Harris, 4 Bligh, N. s. 321, and Lord Brougham's comments upon the cases involving this question.

"Doe d. v. Cooke, 7 East, 269. Lord Ellenborough here said: "The most rational construction we can give this will, is to construe it, as Lord Hardwicke did the devise in Framlingham v. Brand, 3 Atk. 390, as one contingency, namely, dying an infant, attended with two qualifications, namely, his dying without leaving a wife surviving him, or dying without children." The same rule was adopted in Doe d. v. Rawding, 2 B. & Ald. 441.

29

* 1 Jarman, 488; Maugham v. Vincent, 4 Jur. 452.

Hoare v. Barnes, 3 Br. C. C. 316, and Mr. Eden's note.

had died unmarried," which seems clearly descriptive of a state of things, to be conceived, and not one in fact existing, so that Lord Thurlow's reductio ad absurdum has very little meaning, when he supposes "it could not be in contemplation, in a marriage settlement, that the wife should die unmarried;" and that of Mr. Eden, in his note to this case, has quite as little, that it refers to her dying, without leaving a husband surviving, for that is the very contingency contemplated in the case. The use of the term here has reference only to a supposed state of facts, that the wife had died without ever being married, in order to determine her next of kin, thus excluding her husband surviving her, who would be regarded, as next of kin,11 for many purposes, if not thus excluded. It is not uncommon, that some slight circumstance may determine, in what sense the word "unmarried" is used, and to what time it should be referred, as where the children are provided for, in another part of the will, either out of the same, or some other fund.42

23. It seems to be settled, that the term " unmarried" is to be regarded as a designatio personæ, and if the person possesses the qualification, at the time fixed for the vesting of the estate, the same will not be divested by his subsequently marrying.43 "Still unmarried," seems to imply that the person had never been married.44

24. And where it is provided, that a legacy shall lapse, if the legatee shall die in the lifetime of A and B, it has been held, that such lapse shall not take place unless the death occurs in the joint lives of the persons named.45

"See Hardwick v. Thurston, 4 Russ. 380; Pratt v. Mathew, 22 Beav. 328; In re Saunder's Trusts, 3 Kay & J. 152; In re Gratton's Trusts, 3 Jur. N. s. 684. Coventry v. Earl of Lauderdale, 10 Jur. 793; Sir Page Wood, V. C., in Mitchell v. Colls, 1 Johns. 674; Re Norman's Trust, 3 De G., M. & G. 965. 4 Jubber v. Jubber, 9 Sim. 503; Hall v. Robertson, 4 De G., M. & G. 781. "Thistlethwayte's Trust, 31 Eng. L. & Eq. 547.

15 Day v. Day, Kay, 703, and Brudenel's Case, 5 Co. Rep. 9, was cited in support of the principle.

25. The American cases seem, in the main, to have conformed, pretty nearly, to the foregoing rules, adopted by the English courts, in regard to construing conjunctive particles disjunctively, and the reverse. It is said in one case, that "and" is never substituted for "or" unless that is necessary to carry out the clear intention of the testator.46 So, also, not unless the context favors it,47 or where the plain intent of the testator will otherwise be defeated; 48 or the intent of the testator requires it.49 It may be done, either by converting "and" into "or," or the converse, to effectuate the clear intent of the testator, as apparent upon the whole will, either in regard to the first devisee, or the gift over.50 But in wills, where an estate is given over in the event of the first devisee dying under age, or without issue, the more general construction seems to be, that the estate will not take effect over, unless both events conçur, thus construing "or" as if written “and.” 51

"Holcomb v. Lake, 4 Zab. 686; Van Vechten v. Pearson, 5 Paige, 512.

47

Armstrong v. Moran, 1 Bradf. Sur. Rep. 314.

"Harrison v. Bowe, 3 Jones, Eq. (N. C.), 478; Robertson v. Johnston, 24 Ga. 102.

"Mason v. Mason, 2 Sandf. Ch. 432.

Janney v. Sprigg, 7 Gill, 197.

99

Robertson v. Johnston, 24 Ga. 102; Kelso v. Dickey, 7 Watts & Serg. 279; Shands v. Rogers, 7 Rich. Eq. (S. C.), 422. In one case, "maturity" was held equivalent to "puberty." Robertson v. Johnson, supra. And "reviving son was construed "surviving son," where such was the evident import. Pond v. Bergh, 10 Paige, 140. See Jackson v. Blansham, 6 Johns. 54.

As bearing upon the general question of changing words by construction, see Keith v. Perry, 1 Desaus. 353, where "her" was construed "their." Bowers v. Porter, 4 Pick. 198; Ellis v. Essex Merrimac Bridge, 2 Pick. 243; Brailsford v. Heyward, 2 Dessaus. 18, where "heirs" was read "children;" Morton v. Barrett, 22 Maine, 257, 264, where "heir” was held to mean “heir apparent.” Merrymans v. Merryman, 5 Munf. 440, where "children" was held equivalent to "issue," and Osgood v. Lovering, 33 Maine, 464, where the word "children" was held to include "grandchildren." It is not uncommon to construe the expression "if he should die," as meaning," when he should die." Smart v. Clark,

SECTION VII.

REMEDY WHERE THERE IS REASONABLE DOUBT IN REGARD TO THE PROPER CONSTRUCTION OF INSTRUMENT CREATING A TRUST.

1. Executors and other trustees may bring bill in equity, in nature of bill of interpleader.

2. Such bill may be brought by any party claiming an interest in the trust. 3. The precise character of the remedy.

4. Rule in regard to costs.

§ 36. 1. It seems to be settled, by the established practice of the courts of equity in England, and in many of the American states, that any executor or other trustee holding estate, real or personal, under any trust, created by a last will and testament, or any other instrument, where doubt arises in regard to the true construction of the instrument by which the trust was created, and there are different claimants, may bring his bill, setting forth the facts, and calling upon the claimants to settle their rights before the court, and praying the order of the court, in regard to the mode of executing the trust.1

2. Such bills are, in the case of wills, more commonly brought by executors, or administrators, with the will annexed. But the suit may be brought by any party, claiming an interest under the will, against the executor, or administrator, and all other parties interested in the question.2

3 Russ. 365. And "return" was construed "remain." McMurtrie v. McMurtrie, 3 Green, 276. But no change of one word for another will ever be made, except it becomes necessary, to carry into effect the clearest intent of the testator. Holcomb v. Lake, 4 Zab. 686. Words are not to be changed or rejected, unless they manifestly conflict with the plain intention of the testator, or are absurd, or unintelligible. Wootton v. Redd, 12 Grattan, 196.

'Treadwell v. Cordis, 5 Gray, 341; Shaw, Ch. J., id. 348; Dimmock v. Bixby, 20 Pick. 368; Hooper v. Hooper, 9 Cush. 127.

2 Bowers v. Smith, 10 Paige, 193.