1819. DOE against RAWDING. and without issue." There T. Cooke attained the age of twenty-one years and married, but died without having issue; and it was held, that the devise over depended upon one contingency, viz. T. Cooke's dying an infant, attended with two qualifications, viz. his dying without leaving a wife surviving him, or dying childless; and that the devise over could only take effect in case T. Cooke died in his minority, leaving neither wife nor child; that it failed, T. Cooke having attained twenty-one, and married before his death; and Doe v. Jessop (a), is an authority in support of the same principle. There the devise was to A. in fee, and if he died under twenty-one and without issue, it was to go over; A. attained twenty-one, but, died without issue. It was held, that the devise over did not take effect, as it was made to depend upon the happening of both events; first, A.'s dying under twenty-one; secondly, his dying without issue. Sugden, contrà. This will must be construed so as to effectuate the general intention of the testator, to be collected from the will itself. Now the testator's daughter and her issue appear to have been the first objects of his care. He devises to her a fee; and if she attains twenty-one, she has the power of disposing of that fee; if she dies under twenty-one and leaves issue, her issue are to take. The wife seems to have been the next object of the testator's care; and the intention appears manifest that she should be preferred to his collateral relations. Yet, construing the devise over, as contended for on the part of the plaintiff, the collateral relations will be preferred to the wife. It could not (a) 12 East, 289. have been the intention of the testator that the mere circumstance of her leaving a husband surviving her, should have the effect of continuing the fee in the daughter, for that would confer no benefit whatever on her and her issue, for whom it was his object in the first instance to provide. [Bayley J. The daughter might be materially benefited; for in such a case she might, by obtaining a writ of privy seal, be enabled to settle her estate upon her husband, and thus advance herself in marriage.] It cannot be supposed that this testator could have contemplated such a mode of providing for his daughter's husband. It is not practised at the present day, and it may be even doubtful whether the application would succeed. It is impossible, therefore, to construe this will with reference to such an obsolete practice. The difficulty in this case arises from the word "unmarried," in the devise over. If the words had been only "under age, and without lawful issue," there would have been no question whatever. The word unmarried, however, in point of legal construction, means "never having been married at all," and that meaning is fully expressed by the testator, by the words "without lawful issue," because there could be no lawful issue without his daughter having been married at all. The word unmarried, therefore, here, is a useless, nugatory word, and may be rejected; or, without rejecting that word, but taking it in its legal sense, and substituting the word or for and, the clause may be read thus. If my daughter die under twenty-one, without having been married at all, or having been married without leaving issue. Goshawke v. Chiggel (a), and Framlingham v. Brand (b), are autho(b) 3 Atk. 390. (a) Cro. Car. 154. rities 1819.. DOE against RAWDING. 1819. DOE against RAWDING. rities to shew, that the legal sense of the word unmarried is never having been married at all; and those authorities are confirmed by the two modern cases of Maberly v. Strode (a), and Bell v. Phyn. (b) In the former case the words of the devise over were, "in case my said son should die unmarried, and without issue." The son married, but died without issue; and Lord Alvanley, then Master of the Rolls, said, that the word unmarried meant never having been married at all, and that the word "and" should be read " "or," in order to effectuate the intention of the testator; and he held that the estate passed by the devise over. That case, therefore, is precisely in point with the present. Bell v. Phyn, however, is equally strong: the words there were, "without being married, and having children." Sir William Grant said, that the expression without being married, was to be construed in a will without ever having been married; and that the word and should be construed or, to give effect to the words of the will; and then he says, that the contingency of dying unmarried, and without children, cannot properly be said to be any thing more than the latter event, as, legally speaking, there can be no children without a marriage. Brownsword v. Edwards (c), and Milliner v. Burbidge (d), in K. B., also are authorities to shew, that to effectuate the intention of the testator the word and may be read or. Doe v. Cooke was the case of a will of personal property, and the husband there would take the personal property of his wife under the statute of distributions: here the husband could derive no (a) 3 Ves. jun. 450. (b) 7 Ves. jun. 458. benefit benefit from the will, except in the event of the birth of a child, in which case he would have been tenant by the courtesy, Buckworth v. Thirkell. (a) And besides, Maberley v. Strode, and Bell v. Phyn, which are authorities precisely in point with this case, were not adverted to in Doe v. Cooke. ABBOTT C. J. By the terms of this will, the testator has given to his daughter an estate in fee. The whole estate is given to her, unless there should be other children at the time of his decease, or born in due time afterwards, and in that event they are to participate. Then comes the limitation over, upon which the question in this case turns: the words are," in case my said daughter Mary Wells, and such other children as aforesaid, shall die under the age of twenty-one years, unmarried, and without lawful issue, then, in that case, I give and devise the entirety of my said lands, &c., unto my wife." The testator, in fact, had no other issue than the daughter mentioned in his will: that daughter died under the age of twenty-one years, without leaving lawful issue; but she did not die unmarried, and I am of opinion that the fee remained in her at the time of her death, and passes to her heir at law. According to the plain and obvious meaning of the words, "under the age of twenty-one years, unmarried, and without lawful issue," the testator provides for a single event consisting of three parts, namely, dying during her minority, dying unmarried, and dying without children that is the plain and obvious meaning of the words. It has been argued, however, that it could not (a) 3 Bos. & Pull, 652. 1819. DOE against RAWDING have 1819.. DOE against RAWDING. have been the intention of the testator that the fee should remain in his daughter, if she died under twentyone, and without issue; because, in that case, the estate would confer no benefit upon her. An instance has, however, been put by my Brother Bayley, in which she would derive a benefit from the fee remaining in her, by enabling her to settle the estate upon her husband. It is true, that a writ of privy seal is not frequently resorted to at the present day; but it still is a mode by which the daughter might have been enabled to make a provision for her husband. In order, however, to put the construction upon the will which the defendant has contended for, the word unmarried must. be wholly rejected. I cannot, however, reject from a will any word, unless I see that the meaning to be given to that word is contrary to some intention plainly expressed in other parts of the will. Now, I cannot collect from any thing in this will, that it is contrary to the intention of the testator that the fee should remain in the daughter if she married; and that being so, the word unmarried, in my judgment, cannot be rejected. I am therefore of opinion, that the event upon which the devise over was to take effect, namely, the death of Mary Wells, unmarried, under the age of twenty-one, has not happened; and therefore that the fee passes to her heir at law, and consequently that there must be judgment for the plaintiff. BAYLEY J. I am of the same opinion. The limitation over is to take effect upon Mary Wells dying under twenty-one, unmarried, and without leaving lawful issue if she dies under twenty-one, unmarried, and without lawful issue, the defendant is entitled to suc ceed, |