concurring.
The fifth item of the will is as follows: “After the foregoing disposition I give and bequeath my whole estate, real andpersonal of what description soever, in manner and form following: to my beloved wife, Jane Nesbit, the sole direction of the whole with the guardianship of my several children by her until they arrive at the age of twenty-one years successively, when each of my children shall receive a share or dividend of my estate, in just proportion by appraisement of my executors, &c., reserving one third part of my estate tc the exclusive use of my beloved wife during her life, and at her demise, the said third part to revert to my children or the survivors share and share alike,” &c.
Under this item, the daughters took, I think, the fee or ab - solute interest, in the whole property, less an estate in one-third of it, to the wife for her life. I shall use the word fee, as including personalty, as well as realty.
The daughters all survived the mother, I believe, and, therefore, the word “survivors,” cannot affect the conclusion, although it may be true, that that word, might in possible events, have affected it, so far as the third given to the wife? is concerned.
*115I believe the Court is unanimous in the opinion, that this is what the daughters and the wife took, under the fourth item of the will. The reasons for this opinion will, doubtless, be stated by another member of the Court. It is, therefore, needless that they should be stated by me, I pass then, to the fifth item.
The fifth item is in these words : “Should it be the Divine Pleasure of Almighty God to take from this life my dear wife, and all my children before they arrive at maturity, 01-in case of their all dying single or childless, then in that case, what may remain of my said estate, shall go to my brothers, William, Andrew, Alexander and David, and then-heirs in four equal proportions.”
Did these words have any, and if so, what, effect, on the absolute fee given as aforesaid, to the daughters, in the fourth item ?
It is said, for the defendants.in error, that these words had no effect at all, on that absolute fee; it is said, that by the expression, “what may remain of my estate,” found in these words, a power ivas impliedly given to the daughters, to do with the property as they pleased, and, it is argued, that the gift of such a power, is, itself, a gift of the absolute fee.
Was such a power, or any power, impliedly given to the daughters, by that expression ?
The expression is susceptible of three readings: 1st, a reading, making it give to the daughters, absolute power over the property; — 2dly, ’a reading, making it give to them limited power over the property-; viz: a power limited by the interest which they took in the property; 3dly, a reading, giving to them no power at all, but merely designating an estate in remainder.
To say that the first is the true reading, is, according to the defendant's counsel themselves, to make the limitation over, void — the limitation to the brothers.
But it is a rule, that any reading that would make void, a part of an instrument, is to be rejected, if possible.
*116That the expression is quite as susceptible of the second reading, or even of the third, as it is of the first, seems to me clear. “What may remain of my estate,” may as well mean, what may remain after the daughters have done with it, only whatever the degree of interest they have in it, may authorize them to do with it, as it may mean, what may remain, if anything, after they have done with it, whatever they please.
So, “what may remain of my estate” may, as it seems to me, be as well as any way, taken to be synonymous with “the remainder of my estate.”
Suppose the testator had first used the following language : “I give all my land and negroes to my four daughters in fee, less an estate in one third of the same to my wife, for her life, and if they should die under maturity, or single, or childless;” and then had added any one of these three forms of expression — ; “then, I give the land and negroes to my four brothers;” “then, I give what may remain, of the land and negroes to my four brothers;” “then, I give the remainder of the land and negroes to my four brothers,” would he not have conveyed the same meaning? And so far as the negroes are concerned, would not this meaning be more accurately conveyed, by the expression, what may remain, than by either of the others ? The negroes might, some, or even all, be dead. All the testator could give, would be what might remain of the thing given, at the end of the first gift-
[1.] I think, then, that the first of the three readings, is not the one to be taken.
I remark too, that I do not see clearly the principle which justifies the position, that the grant of a general, power to dispose of property, is equivalent to a gift in fee of the property. A power is not a conveyance. And, feeling this to be a difficulty, I am the more disposed to insist, that at least the existence of such a power, ought, in every case to be, established by express words, or, by necessary implication.
*117It. not being true, then, as I think, that the expression,, “what may remain of my estate,” is to be construed as conferring on the daughters an absolute power over the property, the question recurs, what effect, if any, did the words off the fifth item, have on the absolute fee created, in the daughters, by the fourth item ?
And the answer must be, (if I am right as to the expression “what may remain of my estate,”) that those words reduced that fee from an absolute, to a conditional fee; that is to a fee subject to be divested, on the happening of some event, or events. I suppose this will not be denied.
The only question, then, will be as to the event or events, on which, the divesting was to take place.
The words of the item are, “should it be the Divine pleasure of Almighty God, to take from this life, my dear wife, and all my children, before they arrive at maturity, or in case of their all dying single, or childless, then in that case, what may remain of my estate shall go to my brothers,” &c.
Does this mean that the estate was to go to the brothers on the happening of any one of the three events, or, only on the happening of all or the three events ?
If the word “or,” is to be read, or, the meaning is, that the estate was to go to the brothers on the happening of any one of the three events; - and therefore, that it was to go to them on the daughters all dying childless.
Why should, “or,” not be read or ? Or, is the word used. In the context nothing is to be found requiring it not to be so read. Is the liberty given, to hunt for intention outside of the words used, when these are plain ? At least, such a liberty should not be exercised, except as a last resort.
It is however argued that if we read “ or,” or, we do that which would in a possible case defeat the testator’s intention; viz: the possible case of any or all of the daughters dying “under maturity,” but yet not dying “ childless;” it being assumed that it could not have been the testator’s intention, that his property should go to his brothers, whilst there was *118a grand-child of his alive; and, then, it is further argued, that if we read " or,” and, we do that which will make it impossible for the estate to go over to the brothers, until all of the three events have happened, and, therefore, that which will make it impossible for the estate to go over to them, if any of the daughters leave a child, whether they die over, or under, “ maturity.” Thence it is insisted, that we ought to read “ or,” and. This is the argumént; and in support of it, are read cases in which, when property was willed to one person, and if he should die under twenty-one years old, or without a child, then over to another person, it was held that “ or” was to be read, and. Most of these cases are stated in. Jarman on Wills. 1 Jar. Wills, 443.
But to the validity of this argument two things have to be assumed, of which the first is, that the word "maturity,” has tobe rendered by its meaning, of twenty-one years old, rather than by its meaning, of puberty; for dying under puberty is of necessity dying " childless;” therefore, if the daughters had died' under puberty they would have had to die " childless;” therefore if they had died under puberty the case of their dying leaving a child would have been impossible. Yet the word, " maturity,” having both meanings, may as well be rendered, puberty, as it may, twenty-one years old,.
The second is, that if the taking of a man’s words as they are, would in any possible case defeat his intention, we are not to take them as they are but to change them into others, although, in the actual case, the taking of them as they, are, would not defeat his intention.
Any of the daughters might have died under twenty-one years eld, and yet not have died “ childless.” If any of them had so died, and her child were the party prosecuting a suit of this sort, we should have tire possible case meant. The party suing, is not a child of any of them; none of them ever had a child. This, is the actual case.
Now, admit that reading "or,” or, would in the possible case, make the testator’s property go to his brothers, rather *119•than to his own daughter’s child, and that this would defeat his intention, yet, are we, thence, at liberty to conclude, that reading “ or,” or, would in the actual case defeat his intention ? In the actual case, there is no daughter’s child, but only brothers. And what is there, to justify us in assuming, •that, although, the testator intended to give his property to his brothers, on his daughters all dying childless, if they died •under twenty-one, he, yet, did not intend to do so, on his •daughters all dying childless, if they died over twenty-one ? .Nothing that I can see. On the contrary, is there not enough, to justify us in assuming, that he as much intended to give his property to his brothers in the latter of these two cases, as he did, in the former of the two ? I rather think so. There' is the word “ childless” without restriction; there is' the natural bias to one’s own issue.
Assume it then to be true, that the testator’s intention was, rto give his property to his brothers, if his daughters died childless, whether they were under, or over, twenty-one, when they so died. They all did die childless. This is the actual case. Taking “ or,” as or, would in this,-the actual case, make the property go to the brothers. That would, fulfil the testator’s intention. Changing “ or,” into and, would make the property go to others. That would defeat his intention.
Now are we permitted, to sacrifice the testator’s intention in this, the actual case, out of regard to fulfilling his intention in the possible case ? The rule allowing, or, to be changed into, and, was made merely that intention might be fulfilled. Does it not follow, then, that the rule ought to be •applied in those cases in which, it will fulfill intention, and ought not to be applied in those in which, it will defeat intention? Does it not follow, that the application of the rule should be reserved until the coming of the possible case to which, I have referred ? See Wild’s Case, 6. Co. Otherwise, this must follow, that whether the rule will, upon the whole, do more to fulfill, than to defeat, intention, will depend on, whether the cases of donees dying childless under *120twenty-one, are more numerous than the cases of donees dying childless over twenty-one. I incline to think the latter will be found to be the inore numerous. Should that bo so, then the rule if applied to the latter cases, as well as to the former, would work its own defeat. v
I am not prepared to admit then, that this second assumption made by the argument which I am noticing, is any more allowable, than the first was. There are certainly dicta, perhaps decisions, to the effect, that instruments are to be construed in reference to possible cases. This means, I suppose, that if in a possible class of cases, however small, a particular construction would defeat intention, that construction is not to be adopted, although in the actual class of cases, however large, it would fulfil intention, but that another construction is to be adopted, even one which, though it may in the small possible class fulfill intention will in the large actual cláss defeat intention. I am not prepared to give my assent to any thing susceptible of such a meaning as this.
There is nothing then in the argument under consideration that requires us to read “ or,” and.
The object to be accomplished by doing that, may be as well accomplished, by reading it as it is, or; and by taking the word, “ maturity,” by its. meaning of puberty. Changing “ or” into, and, — nay two ors, into two ands, would be a strong measure;” far stronger than taking “ maturity,” by its meaning, of puberty. Of the two measures then, the latter, I think, is the one to be chosen.
If I am right in these conclusions, and I think I am, the fifth item of the will means, that the estate was to go to the brothers on the happening of any one of the three events. All the daughters died childless. Thus one of the three events happened.
William Robertson, one of: the brothers, is dead. The complainants are his heirs. A fourth of the estate, therefore, vests in them, and the suit is brought for that fourth. No-question is made, as to whether the suit ought not to have *121been brought by his administrator, rather than by his heirs.
in my opinion then, there was equity in the bill, and consequently, error in the Court, in sustaining the demurrer.