Burrows agt. Stumm. a description of the time when the remainder man is to take in possession. In Edwards agt. Hammond, (3 Lev., 132,) a copyholder surrendered to himself for life, and afterwards to the use of his eldest son and his heirs, if he should live to the age of twenty-one years, provided and on condition that if he should die before twenty-one, then it should remain to the surrenderor and his heirs. On the death of the surrenderor, the youngest son entered, and the eldest son being seventeen, brought an ejectment, and the question was, whether it was a condition precedent or subsequent? and the court held it to be a limitation to the eldest son, immediately defeasible, on a condition subsequent. Broomfield agt. Crowdee, (4 Burr., 313,) was a case sent by the master of the rolls to the judges of the common pleas for their opinion. In that case the testator gave all his real estate to the plaintiff, "if he shall live to attain the age of twenty-one years," "but in case he die before he attains that age, then to another brother; but in case both should die before attaining the age of twenty-one years, then to his god-son John Vale, and his heirs forever." The testator gave a life estate in the premises devised, after the death of his widow, to one Joshua Rose; on the death of his widow, Rose entered into the possession of the estates and enjoyed the rents and profits till his death, on the 27th March, 1802. The plaintiff was then an infant under the age of twenty-one, and filed a bill asking that his rights in the estates might be declared. The parties defendant were Crowdee, the heir at law; and plaintiffs Butler and John Vale. On behalf of Crowdee, the heir at law, it was insisted that the plaintiff had no right or title to the estates, for that the devise to the plaintiff and his brother, and to Vale, were contingent remainders, limited upon the estates for life, and that inasmuch as the preceding particular estates were at an end before the events happened on which the said premises were to become vested, Burrows agt. Stumm. (the attaining the age of twenty-one years,) such remainders could not then take effect, and consequently passed to the heir at law. The court say, in rendering their opinion, that the fairest construction that could be put upon the will, independent of authority, was, that the plaintiff took an immediate vested estate on the death of the preceding devisees, with a condition subsequent, and they certified their opinion to be, that in the event that had happened, the plaintiff took a vested estate in fee simple in the estates of the testator, determinable upon the contingency of his dying under the age of twenty-one years. It would appear from the remarks of ELLENBOROUGH, Ch. J., in Roe agt. Briggs, (16 East, 411,) that a decree was made by Lord. Chancellor ERSKINE, in accordance with the opinion of the judges of the common pleas, and that an appeal was taken from his decree to the House of Lords, which was there affirmed. even more like the There the testator Doe agt. Moore, (14 East, 600,) is present case than those already cited. gave to John Moore," when he attained the age of twentyone years," all his estate, &c.; but in case he should die before he attains the age of twenty-one years, then he gives it over. The testator died, leaving the lessees of the plaintiff his heirs at law, and the devisees named in the will were all under the age of twenty-one years; and the question reserved was, whether the lessees of the plaintiff, or any or either of them, as heirs at law of the testator, or otherwise, took any and what interest in the estates. The case was argued in Hilary term, 1807, but stood over for decision till Michaelmas term, 1811, awaiting the decision of the House of Lords in Broomfield agt. Crowdee. In this case the rule is held to be, that a devise to A. when he attains twenty-one, to hold to him and his heirs, and if he dies under twenty-one, then over, does not make the devisee's attaining twenty-one a condition precedent to the vesting of the interest in him, but the dying under twenty Burrows agt. Stumm. one is a condition subsequent, on which the estate is to be divested. In the present case, the devisee has attained the age of twenty-one, and if there was nothing else to the will, it would, I think, be clear that he was vested with the estate absolutely in fee. But it remains to consider the effect of the words "and becomes married and has children." If the first "and" may be read "or," there is no difficulty in sustaining the plaintiff's title in fee to the premises devised to him. The judges of the common pleas, in Broomfield agt. Crowder, (cited supra,) say: "It must be admitted that according to repeated decisions, no precise words are necessary to constitute a condition precedent in wills. They must be construed according to the intention of the parties, and it would be absurd, considering the various circumstances under which wills are made, to require particular terms to express particular meanings. The apparent intention as collected from the whole will must always control particular expressions." Now, what is the apparent intention of the testator, from the provisions of this will? Clearly, that his father should enjoy the income of his estate during his life; that on his decease it should go to the plaintiff, his son, to be vested in him on the termination of the life estate, and he to have the absolute possession thereof, on his attaining the age of twenty-one years. I think it was also his intention that he should have the estate on his marriage, even if that event happened before he attained the age of twenty-one years, subject, of course, to be divested, if he died before attaining that age. It cannot be argued that it was the intention of the testator to deprive the plaintiff of the use and enjoyment of this property, after he arrived at the age of twenty-one years, until he got married and had children. The estate is not devised over on any such contingency, and it may well be assumed that the testator did not intend to deprive his son of the enjoyment of it, if neither of these events should happen. If that to effectu Whitney agt. Whitney. ate the clear intention of the testator, we may read the word "and" as "or," would seem to be entirely settled in this state and in England. (Jackson agt. Blanshan, 6 John. R., 54.) The rule as deducible from that case, and those there referred to, is, that the words or and and are not in deeds and wills, to be always held to a strict grammatical sense, but or is to be taken for and, and and is to be taken for or, as may best comport with the intent and meaning of the grant or devise. It cannot be that the testator ever intended that his son and the object of his bounty, was not to have the enjoyment of his estate until all of the events mentioned in his will should, unitedly, have happened; namely, attaining the age of twenty-one, marrying and having children. It is more in accordance with the rules of law, well established, and that is to my mind the clear intent of the testator, to hold that we may read the word "and" before the words "becomes married," "or," and then the estate has become absolutely that of the plaintiff, and he can make a good title thereto. Judgment for the plaintiff on demurrer, with costs. SUPREME COURT. SARAH T. WHITNEY agt. WILLIAM WHITNEY. A motion for alimony, in an action for divorce by the wife, may be made upon affidavits, and before a copy of the complaint has been served. But in such case the affidavits must allege in substance, all the facts necessary to make a good complaint in the action. Where it does not appear that the laws of another state authorize the courts therein to grant a divorce to an innocent defendant-the wife, upon proof of adultery of the plaintiff the husband, the pendency of such action, is no obstacle to granting the plaintiff—the wife, alimony in an action for divorce brought by her in this state against her husband. Broome Special Term, November 12, 1861, Whitney agt. Whitney. THIS action was commenced by the personal service of a summons upon the defendant, on the 13th day of September, 1861. The defendant appeared by attorney, and demanded a copy of the complaint; but none had been served, and the time for serving it had been extended. The plaintiff made a motion for alimony, &c., upon affidavits. The plaintiff's affidavit showed that she was the wife of the defendant, and was married to him in this state in 1849, and had seven children, three of whom were living. That this action was commenced by her " for a divorce from the bonds of matrimony, on account of the adultery of the defendant with divers persons." There was no other allegation in the affidavits to show the plaintiff had a cause of action for a divorce. The affidavits showed that the defendant commenced an action for a divorce against the plaintiff, in the court of common pleas of Warren county, Pennsylvania, in January, 1860, for adultery, alleged to have been committed by the plaintiff in that month, in the said county of Warren; which said action the plaintiff was defending, and had been allowed therein $500 for expenses and support-all of which she had expended. The plaintiff stated in her affidavit that she was not guilty of the adultery charged upon her in that action; but the defendant and two other men made affidavits that they caught her in bed with one Luce, in Warren county, Pennsylvania, on the 23d day of January, 1861. Objections were made to the granting of alimony to the plaintiff in this action, which are sufficiently noticed in the following opinion of the court. GEORGE A. NORTHRUP, for plaintiff. BALCOM, Justice. It is provided by statute, that in every suit brought, either for a divorce or for a separation, the |