Denn v. Woodward

By the court.

If the words of the devise (Vide Cro. Jac. 695. Dyer 330, 331. Cro. El. 525,) should be supposed to give an estate tail to John, then clearly the issue and remainders were barred by the recovery had in 1773. If he thereby took an estate in fee simple, according to the cases cited, [and Moor 464,] then it is. to be considered, whether the failure of issue on his part, vests the lands in his brother Ezekiel. The intention of the testator is the great governing rule, since a man may devise his lands as he pleases, if his disposition of them be consistent with law. In construing a will, no word is to be rejected, which is not repugnant to the general intent. Courts of justice will transpose the clauses of a will, and construe “or” to be “and,” and “and” to be “or,” only in such cases when it is absolutely necessary so to do, to support the evident meaning of the testator, . But they cannot arbitrarily expunge, or alter -words, without such apparent necessity. In the will before us, the sense of the testator is clear and entire from the words he has used. He probably intended to tempt his sons to marry, and therefore Subjected their lands to that condition. Would it be reasonable, or consonant to their father’s meaning, if either of them formed such a connection, that he should not have it in his power to make a provision for his wife, in case she survived him? The case in Cro. Car. 154, is of a condition precedent to the party taking the estate; and it is to be noted there that the haben-dum expounded the latter clause. It is mentioned in 2 Stra. 1175, to be considerable, that the case there was not a condi-*8201 tion Pre * cedent, but the proviso was to destroy an es-J tate devised by the former words in fee.

This case is as strong as that in 1 Sid. 148, and much stronger than those quoted from Pollex. 645, 2 Stra. 1175, and 1 Wils. 140, where the court found themselves under the necessity of construing as “and.” No such necessity subsists here; and following the plain words of the will, as well as the precedents, we conceive, that the circumstances of John’s dying unmarried, and also without issue, must have concurred to vest the estate in Ezekiel the brother: consequently, he is not entitled to recover. But if the plaintiff’s counsel should, on further consideration, think that the court is mistaken, they will have an opportunity of moving the point again in bank.

Cited in 16 Pa., 341. Messrs. Blair, Porter and D. Moore, pro quer. Mr. J. Ross, pro def.

The plaintiff’s counsel acquiesced herein, and did not stir the question again, on the return of the postea.

Verdict pro def.