The opinion of the court was delivered by
"Willard, C. J.The question before us involves the construction of the will of Stephen Shrewsbury. The respondents have obtained a decree establishing their right on the ground of intestacy, as it regards that portion of the estate claimed by them, under the will of Mrs. Moultrie, a daughter of the testator. The appellants deny the existence of intestacy, contending that the provisions operate as a devise to them. The clauses of the will pertinent to the question are as follows: “ I give, devise and bequeath to my dearly beloved daughters, Louisa Shrewsbury and Caroline Shrewsbury, share and share alike, to them and to each of them, during the term of their natural life, and from and after the decease of either the said Louisa or Caroline, then if my daughter aforesaid first dying shall leave a child or children living at her death, I give, devise and bequeath her share of the stock aforesaid to such child or children, his, her or their heirs, executors, administrators and assign forever; but if she shall have no child or children living at her death, but a husband surviving her, then my will is that her said husband shall have such a proportion thereof as the law gives of the wife’s estate in case of intestacy, under the legislature of this state; and the remainder *19I give to her sister, her heirs, executors, administrators and assigns forever.
“ And it is further my will, that at the death of the survivor of my said daughters, Louisa and Caroline, the stock and property hereby immediately bequeathed to such survivor, or which she may take at the death of her sister, shall go to such child or •children as she may leave living at her death, his, her or their executors, administrators or assigns forever. But if she shall leave no child living at her death, and shall leave a husband surviving her, then the husband shall have such a proportion of the said stock and property as the law gives of the wife’s estate in case of intestacy, under the act of the legislature, and the remainder shall go to the child or children of her deceased sister, if any be living at the death of my said daughter, so surviving as aforesaid, his, her or their heirs, executors, administrators or assigns forever; and if there be no child of her deceased sister, the said remainder shall go to my legal representatives in fee ■simple.”
Louisa and Caroline survived the testator and took equal life estates. Caroline (Mrs. Dickinson) died before her sister without issue, and leaving surviving her a husband, who received, at her death, a proportional part of Caroline’s share of the estate, according to the provisions of the will. The residue of Caroline’s share went by way of remainder to Louisa (Mrs. Moultrie) as surviving sister. So far the undisputed objects of the will were accomplished.
The present controversy arises out of the fact that Mrs. Moultrie, the surviving life tenant, left, at her death, neither husband nor child. She left, however, a will, under which the respondents claim. The appellants are the children of the brother of the testator, and claim that they were, at the time of the death of Mrs. Moultrie, the persons entitled to take under the description of “ my legal representatives,” contained in that clause of the will that disposes of the remainder in fee after the life estate of the surviving daughter, on the contingencies of there being no child or husband.
The first question to be considered is, whether there is a devise of the remainder after the life estate of the surviving daughter, *20on the contingency of their being living at that time neither child nor husband ? If there is such a disposition of that remainder, then it will become necessary to fix the sense of the terms “ my legal representatives,” as those terms describe the persons who are to take such remainder, and it will be necessary to ascertain the nature and extent of the estate thus devised by way of remainder. These questions will be separately considered in the order stated.
Is there, then, a devise of the remainder after the life estate of the surviving daughter, that can take effect in the case of the death of such surviving daughter, without leaving living either a child or the descendants of a child or a husband ?
This proposition is disputed by the respondents. They contend that the only devise by way of remainder, to take effect in the event of the death of the surviving daughter without issue, is made contingent on the further event of the survivorship of her husband. That no such contingency has happened, inasmuch as Mrs. Moultrie, such surviving daughter, left no husband living at her decease, consequently the remainder is undisposed of, so far as it regards the will, and must be disposed of under the statute of distributions.
The words of the will, as affecting such remainder, are as follows: “ But if she shall leave no child living at her death, and shall leave a husband surviving her, then the husband shall have such proportion of the said stock and property as the law gives of the wife’s estate in case of intestacy, under the act of the legislature, and the remainder shall go,” &c.
‘The opposing constructions of the appellants and respondents have just this difference between them, that the respondents read this clause as intending nothing more than a devise contingent on the event of there being a husband living at the decease of the surviving daughter, while the appellants read it as intending a provision for continuing the estate in the lineage and family of the testator, saving merely that which, under the statute of distributions, would have been the rights of a surviving husband.
It may be conceded at once that it is not sufficient for the purposes of the appellants to merely interpret the language in question. A resort must be had to construction. The case expressed embraces a devise of something left — of the remainder *21after something is taken out of it, viz., a provision for a surviving husband. If this expressed intent is not to be enlarged by anything whatever implied, then it must be assumed that the intention of the testator in framing these expressions was influenced by one or the other of two considerations; either that the case of his surviving daughter’s death without leaving living a husband, could not or would not arise, or in case of happening, that there is no such surviving husband, there would be neither necessity or propriety for making the provision for the family intended on the event of there being a husband surviving.
If such an intention is reasonable in itself and consistent with the general provisions of the will, then the language of the devise •ought to stand as we find it, and its expressed intent ought to prevail without yielding to enlargement on the principles of construction.
On the other hand, if such intention is not reasonable or consistent with the general scope of the testator’s intentions, as elsewhere expressed or necessarily to be implied, then it is proper to resort to construction to find the intention of the testator in an •enlarged reading of his language.
It is clear that such an intent as that just noticed cannot reasonably, or consistently with his known intentions as disclosed by the will, be ascribed to the testator. He could not have supposed the case of his surviving daughter’s death without leaving a husband living, as uulikely to occur.
The survivorship of a wife, as it regards her husband, is an ordinary contingency that must be assumed to have been, as such, before the mind of the testator. Then the' testator is brought into the position of contemplating the death of both of his daughters, the first dying leaving children, the survivor dying without issue.
Now, on the death of the survivor of his daughters without child, he wishes that part of the estate devised to her to pass to the children of his sister first dying, but contemplating the possibility of such surviving daughter dying without leaving surviving a husband, he determines that the provision made for his grandchildren, the children of his daughter first dying, shall depend wholly on the contingency of there being such a surviving *22husband of his daughter last dying, so that if there shall be no-such husband the grandchildren shall not take under such devise. Such a state of mind on the part of a testator contradicts experience and reason and cannot be assumed. ' If follows, therefore, that we must resort to construction in order to find the intent of' the testator in an enlarged sense of the terms employed by him.
To what extent, then, can the words employed yield, without denying to them their proper force and effect, and what is the-force of the considerations that compel the enlargement of their import ?
The construction contended for by the appellants is not contradictory of anything expressed in the language under consideration. It leaves in full force the expressions of the devise as it regards the contingencies uppermost in the mind of the testator, as evinced by his express language. Nor does that construction seek to undo the force of language expressly, or by necessary implication, creating a contingency, and making subsequent limitations dependent on it. The devise to the children of the-daughter first dying, in the event of the death of the surviving daughter without issue, is necessarily contingent, that contingency being a death without issue, an event possible, but uncertain. This contingency is expressly created, and is signified by the expressive words “ but ” and “ if.”
But that the provision made for the children of the daughter-first dying should be subject to the further contingency that there should be living, at the death of the surviving daughter, a husband of that daughter, so that if no such husband shall be in being at that time, the limitation to them should be defeated, is not declared as any part of the actual intention of the testator, and if found to exist must be inferred from the mere fact that the devise is silent as to what shall take place if that contingency does not arise.
It is said, however, that the events of the death of the surviving daughter without issue living and that of a husband surviving her, are coupled together by the conjunction “and,” and both subjected together to the intention to create a contingency expressed under the words “but” and “if.” Assuming such to-be the proper import of the terms, still, would that which is in *23terms made to depend upon such contingency, be altered or in any way impaired under the construction contended for by the appellants ? Certainly it would not.
What was intended by the interposition of this contingency, and all that was intended, was to diminish the quantum of the remainder by taking from it a husband’s portion, what follows, to wit, the devise to the children of the sister first dying, is of that which remains after the intention leading to the creation of the contingency is fully satisfied. In other words, the full force and effect of what is intended by the contingency, viewed in the light contended for by the respondents, is accomplished without necessarily affecting the limitations to the issue of the daughter first dying to any greater extent than diminishing the amount and value of the thing so limited.
But it is said that all the provision made for children of the daughter first dying, is that which remains after the events intended by the contingency have happened, and the direct purpose of creating the contingency is satisfied, namely, a portion set apart for a husband, and that as this event has not happened they take nothing.
The question, whether words can be found sufficient to carry an intention, that the estate shall go to the children of the daughter first dying, even though the events that are contemplated by the contingency never occur, will be considered in another connection; at present the definite object is to show, as already stated, that the construction contended for by the appellants, will not undo the force of language expressly or by necessary implication creating a contingency, and making subsequent limitations dependent upon it.
The true question is, are those words in the will sufficient to disclose, with reasonable certainty, an intention that in the event that the surviving daughter should die without issue or husband, and there be living children of the sister first dying, that such-children should take the estate? Although there were, in fact,no children of the daughter first dying living at the death of the surviving daughter, yet the provisions made for such children, if any there should be, is the proper test of intentions of the testator, as it regards the objects of his bounty standing next in *24precedence to his daughters. It was intended as a provision for grandchildren. It was not for selected individuals, but for all his grandchildren. The devise to “ legal representatives,” contingent on the failure of lineal descendants, could not have so attracted the attention of the testator, as the provision made for his grandchildren. The last embraced the greater object of keeping his estate in the line of descent and of his strongest affections, the other the subordinate object of keeping it within the family. To test the mind of the testator, we must consider it in its connection with events which, at the time of settling the provision for his immediate family, were considered by him as most important, and not with the actual events that'subsequently occurred. It is in this light that we refer to the effect of the various constructions contended for, upon the provisions intended for the children of the daughter first dying.
We must here ascertain the leading objects of the will. It is clear that the testator had it in mind that his estate should go in the direct line of descent as far as possible and without diminution, except to meet what he deemed to be the reasonable demands of any surviving husband of his daughters. Also, that, v should there be a failure of descendants at the death of his surviving daughter, his estate should go to his collateral representatives, still keeping it within his family. He further intended that his children should stand on terms of equality as it regarded each other, and that his grandchildren should participate as representatives of their parents in the rule of equality applied to their parents. These conclusions, as to the intention of the testator, are apparent, and require no particular reference for their elucidation.
The particular object of the immediate devise under consideration, is next to be sought. It is clear that he intended, as a means of securing the general objects just stated, that if either daughter died without issue, the estate should go to the other daughter, or, if deceased, to her children, if any she had; and that, should there be a failure of descendants in the direct line at the death of the surviving daughter, the estate should go to the collateral line in the order prescribed by the statute of distributions. He also intended that a provision for the surviving husbands of *25his daughters should be separated from his estate from time to time, as might be necessary.
To arrive at the results just stated, it is only necessary to read the devise with the idea in mind that equality was intended between his daughters. Equality is favored by law and will be assumed on principles of natural equity, unless there are expressions tending to show an opposite intent on the part of the testator. In the present case, all that is expressed favors the idea that strict equality was the rule intended.
The devise must be read with these objects in view, and so reading it there can be little doubt as tp the actual intention of the testator. The opposite constructions contended for correspond to two theories of th’e intention expressed in the devise in question. According to the one, the language of the devise covers a single disposition, subject to defined contingencies, so that nothing can flow from such disposition except through events satisfying the intention of such contingencies.
According to the other theory, the language of the devise covers two distinct intentions and dispositions, namely, a provision for grandchildren, dependent only on the condition of the death of a daughter without issue, and a provision for a surviving husband dependent on the further event of the survivorship of such husband as it regards his wife. The last named is the proposition of the appellants.
The order and sequence of the language of the devise favor the first reading, while the nature of the subject and the declared intentions of the testator support the last.
The primary sense of the words, “ and the remainder shall,” &e., would limit the thing intended so to go, to that which remained of the estate after taking therefrom a husband’s portion. But this conclusion depends wholly on the force of the conjunction “and” preceding “the remainder.” This is apparent, if the devise is read by simply omitting the word “and,” and enclosing in parentheses that portion of the sentence which is assumed to relate specially to the case of a surviving husband. It would then read as follows: “ But if she shall leave no child living at her death (and shall leave a husband surviving her, then the husband shall have such a proportion of the said stock *26and property as the law gives of the wife’s estate in ease of intestacy, under the act of legislature,) the remainder shall go to the' child or children of her deceased sister,” &c. Omitting next the matter enclosed in parentheses, and it would read as follows: “ But if she shall leave no child living at her death, the remainder shall go,” &c. What remainder was intended is disclosed by the sentence of the will immediately preceding that above recited.
The whole question, as a grammatical question, is brought within these narrow limits: Is the force of the word “ and ” such as to defeat the manifest intention and produce a case of intestacy ?
If the word in question had been used in an indisputable sense, it could find no sanction in the adjudicated cases, and the recognized principles of construction for an influence destructive of the scheme in the mind of the testator, and tending to take the estate out of his family, contrary to his clear intent. But “ and ” in the present case simply serves to connect successive dispositions in forming parts of a whole. In this respect it performs an office of no real importance; for by indicating, as has been done, that portion that was intended as parenthetical, the connection of the sentence is complete without the use of that word. Thus it appears that no insuperable grammatical difficulty precludes the application of the construction that comports best with the mind and objects of the testator, as indicated by the general outline of his purposes. That which really points the primary and uncorrected sense already referred to, is the connection of the words “ and the remainder,” for, taken together, they' seem to point to a sequence between the provisions relating to a surviving husband and the provisions that follow in behalf of grandchildren. But it is a fair inquiry whether that apparent intention is real or accidental, and the fact that it is a reading that assumes the interest of a surviving husband of a daughter to stand in the mind of a grandparent before that of a grandchild, precludes the supposition that it was other than accidental.
It is less bold to assume that the ordinary flow of thought in the mind of the testator was disturbed, than that the course of *27nature, as impressed upon the affections, was inverted in so unusual a manner.
It must be concluded, then, that the testator intended a provision for the children of his daughter first dying, in the event of the death of his surviving daughter, without regard to whether she did or did not leave a husband surviving her.
The yery learned argument addressed to us in support of the proposition that a double contingency was intended, fails, because too exclusively resting on the nature of the expressions used, and unsupported by the nature of the subject and the general and particular end in the view and mind of the testator.
It will not be necessary to notice the various cases cited bearing on the points discussed, for the difficulties that were overcome in those cases, in order to reach the mind of the testator, do not occur in the present case.
Statham v. Bell, 1 Cowp. 40, will alone be noticed. In that ease the devise in terms depended on a contingency that never happened, and yet, in that case, although no general words of the will are referred to as affording ground for enlarging the construction of the words of the devise, yet it did so enlarge them as to take the estate away from the heir-at-law and confer it upon the testator’s wife, in conformity to the assumed intention of the testator.
In view of that case, it is not difficult to determiné the present question, in which there are no words disclosing a more general intent than that declared by the particular limitations in question, and in which the effect of enlarging the sense of the devise is to continue ihe estate in the hands of the family of the testator, and to prevent its passing to one that must be assumed to be a stranger to his blood.
At the death of Mrs. Moultrie, the survivor of the daughters, without issue, there were no persons who could take under the devise to the children of Mrs. Dickinson, the daughter first dying. In that case the devise to the testator’s “ legal representatives in fee simple’’.became operative. Who are the persons entitled to take under this description?
At this point a question arises, whether the testator intended, by the expression “ my legal representatives,” such persons of the *28class entitled under the statute of distributions to take, who should be living at the death of the daughter last dying.
It is contended that no such intention existed or could be operative, but that the effect of this devise is to cast the estate on those who, at the death of the testator, were entitled to take under the statute, and upon their representatives, assigns or devisees. It is under this aspect of the case that the devisee of Mrs. Moultrie now claims the estate.
The question just stated is one of intention alone, and to be gathered from the whole will. The language employed to describe the persons intended to take is indecisive, and resort must be had to the scheme of the will to render its force determinate. The key of its interpretation lies in an intention already referred to, and which, more particularly stated, is this: After the direct line of descent was exhausted, during the lifetime of the two daughters, the estate should go to the collateral line. If the estate can pass under the will of Mrs. Moultrie, then the succession of the collateral line is defeated. This clearly is contradictory of the testator’s intent. The only mode of reading the language of this devise so as to preserve the intention of the testator, is to limit the devise, &c., to “ legal representatives,” to such as were in being at the death of the daughter last dying. It is clear that the testator referred to the statute of distributions solely for the purpose of describing the class of persons to whom he intended his estate to go, and the relative order of succession as among that class; that in conferring a contingent remainder upon individuals of that class, he intended to select as his devisees such as should appertain to that class at the time the contingency happened that should vest the estate.
This would exclude persons coming in as devisees of a person entitled to the appellation “ legal representatives,” but who died before the happening of the contingency that vested the estate. It would exclude the devisee and representatives of Mrs. Moultrie, because survivorship and the happening of the contingency must concur, whereas the death of Mrs. Moultrie was the very event on which the future estate to “ legal representatives ” depended.
It follows that at the death of Mrs. Moultrie the appellants *29were the persons entitled to take under the devise to “ legal representatives.”
The next question is, what was the nature and extent of the estate that passed under the devise to legal representatives?
There can be no doubt on this point, as • the language of the will is specific and clear. The thing devised is described, under the words “ stock and property.” The devise in question is preceded by a statement of what is intended to be disposed of in the event of the death of the daughter last dying, namely, “ the stock and property hereby immediately bequeathed to such survivor, or which, she may take at the death of her sister.”
It is true that by a previous clause of the will, that which the surviving daughter should take on the death of her sister without issue, was given by words importing a fee, but the subsequent clauses of the will, in terms, reduce that estate to a life tenancy. It follows, then, that what remained of the estate of her father, derived through his will in the hands of Mrs. Moultrie at her decease, passed under the will to the appellants, as devisees under the testator’s will, designated by the description “ my legal representati ves.”
The judgment must be set aside and the cause remanded to the Circuit Court for a judgment in conformity with the foregoing conclusions of this- court.
Decree reversed.
McIver and Haskell, Associate Justices, concurred.