The case raised upon the agreed statement of facts depends on the construction to be given to one of the clauses in the will of Jonathan Hunt, the father of the plaintiff. Having first made a separate provision for his wife, he gives all the remaining part of his real estate and personal property to her and his five children, to them and their heirs forever, equally to be divided between them. He then gives a direction in case either should die during his life ; after which this provision follows : “ Should either of my children die unmarried, or under age, or without lawful issue, after my decease, then it is my will that the portion of such child be divided equally with his or her mother and the surviving brothers and sisters, and the legal representatives of any deceased brother or sister.”
The facts are these: The plaintiff, the only daughter of the testator, has arrived at the age of twenty one years, and now demands from her guardian that portion of the property devised to her, not invested in the Massachusetts Hospital *97Life Insurance Company. The guardian resists this demand, on the ground that the will gives her only a life estate in the portion demanded, or a conditional fee, dependent upon a contingency which has not yet happened; and consequently that she has no right to the use of any more than the income of the property.
From the indefiniteness of our language, as well as from the careless use of it, it is often difficult to ascertain with precision the meaning of a party in the words employed by him. But where the intent is ascertained, such intent must govern he construction, in accordance with the plain and established tale, that the will of the party is to be executed where it can be done consistently with the rules of law.
In the present instance, the testator, though a lawyer of distinction, did not write his will with grammatical accuracy, as is evident from the preceding clause in the same item, respecting his wife. And this may well raise the doubt whether he was any more precise in the use of the word “or,” in the clause upon which the plaintiff’s claim to the principal depends.
The defendant would read the clause'thus : “ I give to my wife and children, and their heirs, the residue of my property; provided, that if any child shall, after my decease, die unmarried, or under age, or without lawful issue, the portion of that child shall be divided among his or her mother and surviving brothers and sisters.” But this reading of the clause does not throw new light on the language of the testator. It in fact presents the same question as to the meaning to be given to the word “ or,” as used by the testator.
If the construction contended for by the defendant should prevail, then this conclusion must necessarily follow; that unless a child arrives at full age, is married, and has lawful issue, he or she can only be entitled to the income of the estate; or, to strip it of all superfluous words, it is but a gift for life; because, until the legatee dies, the contingency will always exist; for, till then, it cannot be ascertained whether he will leave lawful issue. Indeed, we cannot believe that it *98was the testator’s intention so to tie up his estate, that a son arriving at full age, and marrying, should have no control or right of disposition over the part bequeathed to him, unless he should have children; but that it was simply his intention to provide that they should not become the absolute proprietors of the principal, until they should come of age, unless, in the mean time, they should die leaving children, or should be married.
The construction put upon the clause by the defendant is, we think, inconsistent with another provision of the will, *o wit, that by which the executors are authorized “ to supenn tend and manage the estate of said children, both real and personal, until they shall respectively become of legal and full age ; ” which clearly implies that they are then to come into full and complete possession of it at that time. And we think that if any intention had existed to give no more than a right to the income after coming of age, while unmarried and without children, such intention would have been then expressed, and would not have been left by the testator to rest on the meaning to be given to the word “ or,” which in so many instances, as is well known to every lawyer, has been held to mean “ and; ” that is, it is applied often in a conjunctive sense, to carry into effect the will of the testator, though its proper office is to express the disjunctive.
This construction is in conformity with other provisions of the will, to wit, that in case of the death of any child under age, and not married, and having no issue, the limitation over should vest absolutely, and is not subject to the contingency contended for; and no preference is given to one son over another. Again; that the provision was intended only to cover the period of minority, we think is evident from the mother’s being made to inherit equally with the children ; for if it was to last during their lives, she could not have been expected to survive.
The cases are numerous, both in England and in this country, where “ or ” is construed “ and,” to give effect to the intention of the testator. See the leading case of Fairfield v *99Morgan, 2 New Rep. 38. Right v. Day, 16 East, 67. Arnold v. Buffum, 2 Mason, 208. Carpenter v. Heard, 14 Pick. 449. See also a late case in our own court, of Parker v. Parker, 5 Met. 134, which, in the terms made use of by the testator, is very similar to the case at bar, and fully justifies the construction contended for by the plaintiff.
This case might be determined simply on the ground that the defendant has no right, as late guardian of the plaintiff, to withhold the property demanded, no power being conferred on the defendant as a trustee. But the parties desiring a construction also of the terms of the will, we have considered the point raised, for the purpose of preventing any further difficulty in the settlement of the estate.
Judgment for the plaintiff.