(Dissenting) I regret that I cannot agree with the construction placed upon the terms of this will in the opinion by the Chief Justice. It is, therefore, proper that I briefly state my reasons.
I am unable to overlook the testator’s use of the word “or” in paragraph eleven, subparagraphs (b) and (c) of the will, and I cannot avoid giving effect to what I am convinced the testator intended when he said “pay over.”
This will is a lawyer’s own will to which he clearly gave long and careful thought. The testator, Fred N. Dow, says “to pay over to my said son, William H. Dow or his heirs * * * * at such times as may be consistent with * * * * the general purposes of this will the sum of one hundred thousand dollars.” After thus directing in (b) that the trustees pay over the $100,000 the testator directs in (c) to pay to William H. Dow “or his heirs” interest at the rate of 4% on any portion at any time remaining unpaid.
The “general purposes of the will” were evidently to preserve the real estate and to use at first the income to clear debts existing at the time of the testator’s death. No part of the $100,000 was paid. Did the testator intend this sum to be so vested that it was alienable, or did he intend, by the word “or,” for this sum of $100,000 to go to William H. Dow, or to the heirs at law of William H. Dow determined as of the date of payment? If the use of the words “or his heirs” carries no controlling effect, as the opinion states, why were they used in this carefully drawn will?
I cannot believe, upon consideration of the whole will, that it was the intention of this cautious and technical testator that his use of the word “or” should mean “and” as construed in the opinion. He intended an alternative or substitute gift to those who were heirs at the time of payment. Union Safe v. Wooster, 125 Me. 22; Wyman v. Kenney (Vt.), 10 Atl. (2nd) 191 and cases, including the Wooster case, there cited; Delaware County Trust v. Hanby, *6219 Del. Chan. 228, 165 A. 568. See also Vol. 3 “Property,’ American Law Institute Restatement of the Law, Section 252, where this rule is adopted.
Another reason is, that the testator made no other disposition except for the trustees to pay at some future time. Our court has stated that such provision has great weight. “When the only gift is found in the direction to pay or distribute at a future time, the gift is future and not immediate, contingent but not vested. Its reason is plain. The direction has no reference to the present and can be executed only in the future, and if in the meantime the donee shall die, the direction cannot be exercised at all.” Giddings v. Gillingham, 108 Me. 512, 518; Storrs v. Burgess, 101 Me. 26; Moulton v. Chapman, 108 Me. 417.
I agree that any of the 4% interest unpaid, up to the time of the death of William H. Dow, may be considered as vested in William H. Dow. The unpaid principal was not so vested.