Rogers v. Randall , 29 S.C.L. 38 ( 1843 )

Ou,ria, per

WardlAw, J.

By the will of his father, William Rogers took, in the negroes bequeathed to him, a fee simple, subject to a ^imitation, by way of executory bequest, to such of his brothers and sisters as might survive him, upon the contingency of his dying without having been married, and without leaving lawful issue; the contingency is, in effect, the same as if it had been only, “ before marriage.” If it had been “ before marriage and without issue,” as it must necessarily have happened, if at all, within the lawful period of limitations, the generality of the expression “ without issue,” would have been restrained by the superaddition of “ before marriage,” which necessarily confined the event to his lifetime, or the instant of his death. In the case before us, even if the “and,” which is omitted by ellipsis, had been supplied by “or,” so that the contingency should read, “die before marriage or without leaving lawful issue,” it would, in effect, have been the same as if it had been merely, “die without leaving lawful issue,” and so, would not have been too remote in reference to personalty.

The jury were bound to find the value and hire; they had a discretion between the highest and lowest estimates. I have, perhaps, too little regarded the circumstances which should have inclined them to the latter, but there is no departure from the prescribed bounds, which would authorize the interference of this court.

The motions are dismissed.

O’Neall, Evans, Richardson, and Butler, JJ. concurred.