Sorver v. Berndt ( 1849 )

Coulter, J.

The testator, an illiterate man, devised Ms estate, being all personalty, to Ms brothers and sisters. The bequest on which the dispute in this case arises, is in these words: “ I give and bequeath one-fifth part thereof to the children or legal heirs of my brother, David Sorver, in equal share alike.” Did the grandchildren or grandchild of David Sorver take ?

It would seem that a plain man intended something by the use of the words “ or legal heirs of my brother David Sorver, share and share alike.” And the most obvious intent which can be imputed to him is, that he thought his children might die, and that if they did, he did not wish the legacy to fail; but that in such event, it should go to their legal heirs, apd therefore gave it to them by that description. If we do not give the words this construction, we must reject them, which would be against the plainest canon of construction. Testator intended something by the use of these words, and their natural use and import is what we have given to them. It is doing no violence to the will to construe “ or” as “and” — it was doubtless used in that sense by testator. “I give óne-fifth part to the children and legal heirs,” &c. The words are not used as in substitution or in the alternate sense, but as part of the whole phrase, indicating an intent to give to the children first, but if they were dead, then by description to the legal heirs as deseriptio persones of those entitled to take. The grandchild, therefore, came within the description, and was entitled to take.

Judgment affirmed.