Lessee of Elizabeth Hauer against Peter Sheetz, 2 Binn. 532

Tilghman C. J. delivered the opinion of the court. This case arises out of the will and codicil of Peter Sheetz deceased. Whether his son Francis Sheetz, also deceased, took an estate in fee-simple in the land devised to him, indefeasible on his attaining the age of twenty-one, is the question. If he did take such án estate, then the plaintiff, his heir a't law, is entitled to recover; if not, the law is with the defendant.

The testator devised to his son Francis two tracts of land, “ to have and to hold the same to him and to his heirs and “ assigns for ever,” subject to the'payment of 2300/., which he gave to his son Peter, to be paid as follows, viz: 100/. at the expiration of a year from the testator’s decease, then the sum of 100/. for three years successively, the next year the sum of 500/., the next year the sum of 150/., and then each year 150/. till the whole should be paid. He also gave the said Francis sundry horses, cattle, sheep, implements of husbandry, and'articles of household furniture.

He gave his wife Catharine an annuity of 24/. a year for her life, to be paid by the said Francis, and charged the same on the lands devised to him. He also devised to his wife a house and lot for her life,and gave the same after her death to his sons Francis and Peter their heirs and assigns for ever.

After that comes the following clause. “ But in case my said son Francis shall “ die under the lawful age of twenty-one years,,or without “ lawful issue, then and in that case I give my said-son Fran- “ cis’s share in my said xvhole estate unto my said son Peter “ and his heirs and assigns for ever; and in case my said son “ Peter shall die under the*lawful age of twenty-one years, or without lawful issue as aforesaid, then and in that case u I give apd -bequeath my said son Peter’s share in my saici “ whole estate unto my said son Francis, and to his heirs and assigns forever; but in either case, the survivor of my “ said two sons (Francis and Peter) shall then pay unto my “ said daughter Elizabeth (the plaintiff) or her heirs, the sum “ of 500/., but to be taken out of the last payments of my first “ mentioned plantation.” By a codicil dated two days after the will, “ he ordered and “ particularly requested, and did not allow his said son Fran- <£ cis to sell any part of the land which he had in his said will ££ given to him, until he arrived at the age of thirty years, “ and then he might do with the same as he pleased.” I will first consider the will, unconnected with the codicil; and then examine them together.

The first devise to Francis is a fee-simple, expressed as clearly as words can make it; accompanied too with an obligation to pay large sums of money, which is inconsistent with an intent to give any estate less than a fee-simple. Afterwards came the qualification, that in case he should die under twenty-one, or without issue, then and in that case the estate should go over to his brother Peter in fee. Here is nothing inconsistent with the fee-.simple first given to Francis. But the question is, how are these last words to be construed?

They contain two contingencies, a dying under twenty-one, and a dying without issue. Must they both concur, before the estate passes to Peter, or may he take on the happening of either? We are not without authorities to assist us in the construction. Those expressions have often been used in wills, and often received the consideration of courts of justice; and from the case of Price v. Hunt, Pollexfen 645, in the year 1684, down to that of Hawkesworth’s Lessee v.

Morgan, determined by the court of King’s Bench in Ireland, whose judgment was affirmed in 1805 by the British house of lords, the word or in cases Like the presergfchas been construed conjunctively; that is to say, it has bdSjBneld that the executory devise over did not take effect, uaress the first devisee died under twenty-one, and also without issue. The same construction was made in this court in the case of a deed, in Massey’s Lessee v. Rawle, and in the Supreme Court, according to one of the cases cited, Cheeseman’s Lessee v. Wilt, in the case of a will.

But the defendant’s counsel insist that wills are not to be construed accordingto adjudged cases,unless directly in point; that every will depends on its own circumstances, and every ' will shallbe construed so as to carry into effect the intention of the testator, provided such intent be lawful. These principles are sound, and the authorities I have mentioned are founded on them; for. in order to effectuate the intent of the testator, the word or is stripped of its usual disjunctive signification, and converted into a conjunction copulative. Why has this been done?

Because, if it was construed disjunctively, the devisee, who was the first object of the testator’s bounty, might die under twenty-one leaving children, and those children would be deprived of the estate, which would pass over to other persons.

It is very natural that a man should give his son an estate in fee, and yet provide that it should go to a third person, in case his son died without issue, and before the age at which the law permitted him to dispose of it, either by contract or by devise; but that he should give him a fee-simple, and then deprive his children of it because he happened to die before twenty-one, is altogether unnatural and improbable. The cases therefore that have been cited on this, subject, stand on a foundation not to be shaken.

But granting that these expressions are generally to be construed as I have mentioned, still it is said, if there are any other parts of this will which indicate a contrary intention, the construction may be different. Undoubtedly it may. Let us see then wha.t more there is in the will.' The defendant’s counsel rely on one fact not mentioned in the will, but found by the special verdict, which may be properly taken into consideration.

It is this, that at the time of making the will Francis was twenty years and eight days old, and therefore it is said, the probability of his having issue before twenty-one was so small, that hÍ6 father cannot be supposed to have regarded it. I do not see the force of this argument. It was very possible, and not very improbable, that Francis might marry, and either have issue, or have a wife pregnant, in twelve months from his father’s death. We are to construe this will according to the situation of things at the time it was made, without taking subsequent events into consideration.

It is worthy of remark too, that in the last adjudged case which was cited, Hawkesworth's Lessee v. Morgan in 1805, the first devisee wanted but fifteen months of being twenty-one years old, when the will was made. But no regard was paid to this objection. Let us now see what effect the codicil will have, considered as connected with the will. Francis is restrained from selling his land till he attains the age of thirty. Whether this restraint on a fee-simple estate is consistent with the principles of law, is immaterial.

We are endeavouring to discover the intent of the testator, and it is certain that he intended to lay the restraint. The defendant’s counsel contend, that the age of thirty is to be substituted for the age of twenty-one annexed to the devise to Francis in the will, and then it will stand thus: — in case Francis dies without issue or before he attains the age of thirty, then and in that case Peter shall take.

Now in the first place this is doing violence to the words of the codicil, for Francis was not to be restrained from devising the estate to whomsoever he might think proper, nor from any other act consistent with a fee-simple, save the power of selling. The testator must have had some reason for imposing this restraint.

The most obvious one is, that he had discovered symptoms of a heedless and extravagant temper in Francis, which made it prudent to put it out of his power to sell, till he arrived at a very mature age; but it might be by no means necessary to debar him of the power of devising it, in case he died before thirty. But there are other parts of the will to be considered in deciding the effect of this codicil. If Francis had survived the age of twenty-one and lived to the age of near thirty, and then died, what in the mean time was to be done with the payment of his mother’s annuity, and his brother Peter’s legacy?

They must have been paid. By the time Francis arrived at the age of twenty-nine, he would have paid 1720/. How was he to have raised this money, unless his estate in fee-simple had been absolute, on his attaining the age of twenty-one? And could the father have intended, that Peter should receive such large sums from his brother, and afterwards have all the land? It cannot be supposed.

And yet it is to support an intent of this kind, that the words of the codicil are to be perverted from their natural meaning; whereas, if they are. construed according to their obvious kense, all inconveniences are prevented, and the will and codicil átand in perfect unison. , ■ Upon the whole of this case it is the unanimous opinion of the court, that Francis Sheetz took an estate in fee-simple in the land devised to him, which became absolute when he attained the age of twenty-one years.

Consequently the plaintiff, who is his sister of the whole blood, and his heir, is entitled to recover in this ejectment. • The judgment of the Supreme Court must be reversed. Judgment reversed.