
    DEN EX DEM. WILSON v. SMALL.
    1. Where a testator devises lands to a person his heirs and assigns, subject to the payment of a sum of money; with a devise over in case the first devisee should die without lawful issue: the first devisee takes an estate tail; and a sale and conveyance of the land to raise the sum charged, under a decree of the court' of Chancery against the devisee in tail, passes to the purchaser no other or greater estate than the devisee in tail had.
    2. When an estate tail is given, a charge, even upon the person of the devisee in tail, will not alter or enlarge the estate.
    Thomas Wilson by his will, duly executed and bearing date in February 1813, devised the premises in question, after the death of his wife, to his son Thomas Wilson, his heirs and assigns forever ; “ subject to the payment of four hundred dollars within one year after his mother’s death ” to the testator’s daughters : this clause was then added, “ provided nevertheless that in ease my said son Thomas shall die without lawful issue, it is my will and I hereby devise all the said lands to my son Ward Wilson, his heirs and assigns forever.”
    In March 1813, soon after making his will, the testator died, leaving his wife surviving him. After her death Thomas Wilson, the first devisee entered and continued in possession until May 1838, when he died without issue then living. The only child he had died in his lifetime without issue.
    The testator’s son Ward Wilson, to whom the premises were devised over in fee upon the death of the first devisee without issue, died in January 1832, during the life of the latter, leaving a son, his only child and heir at law, who was the lessor of the plaintiff and claimed to be the owner in fee under the will of his grandfather.
    The devisee Thomas Wilson, failed to pay the four hundred dollars charged upon the estate in his hands, and his sisters with their husbands filed a bill in Chancery against him in January 1819, praying a sale of the premises for the purpose of raising the sum charged with interest and costs. Such proceedings were thereupon had, that in April 1822, a sale was decreed ; and on the 6th of July succeeding the whole premises were sold by a Master in Chancery and John P. Vannerman became the purchaser and received a conveyance.
    Vannerman, by his will bearing date in April 1827, devised the premises again to Thomas Wilson in fee, subject to the payment of his debts and shortly afterwards died. Wilson then mortgaged the premises to William Robinson, who afterwards foreclosed his mortgage, and upon a sale being decreed became the purchaser. Small, the defendant was his tenant and defended as such.
    
      W. N. Jeffers and A. L. EaJdn for the plaintiff.
    
      B. P. Thompson for the defendant.
   The opinion of the Court, was delivered by

Hornblower, C. J.

By the primary devise in the will, the premises were given in express terms to Thomas Wilson, in fee simple. But that estate was afterwards cut down by the testator by implication, to a fee tail. He says, “in case my said son Thomas shall die without lawful issue, I devise all the said lands to my son Ward Wilson his heirs and assigns forever.” This devise over was clearly upon an indefinite failure of issue. There is no clause or expression in the will to indicate, that the testator meant, if Thomas died without issue living at the time of his death ; and consequently Thomas took an estate tail. If the devise over had been to Ward Wilson in case he survived Thomas ; or upon Thomas’ dying without issue and without paying the four hundred dollars, it would have been otherwise. He would then have taken a fee simple with a conditional limitation over by way of executory devise. Pow. on Dev. 194, in the Law Lib.; Avelyn v. Ward, 1 Ves. Sen. 420.

If the limitation over had been by way of executory devise, it might have been material to inquire, when the daughter of Thomas Wilson was born ; whether before or after the sale and conveyance of the premises, under the decree of the court of Chan-eery for the payment of the four hundred dollars. But since it is manifest, that Thomas had only an estate tail in the premises that inquiry becomes unnecessary.

It is true the devise to Thomas was accompanied with a charge of four hundred dollars, to be paid within one year after the death of his mother, but that makes no difference in this case. The language of the testator is, subject to the payment of &o.” and this language, unexplained and unqualified as it is by any thing else in the will, constitutes a charge upon the land, and not a personal charge on the devisee. 2 Pow. on Dev. 385 &c. in Law Lib. But if it were otherwise, it would make no difference ; for, where an estate is given in tail, a charge even upon the person of the devisee will not enlarge the estate. Doe v. Fyldes, Cowp. 833; Den v. Slater, 5 D. and E. 335; Den v. Cook, 2 Hal. 41 ; Doe v. Snelling, 5 East 87; 2 Pow. on Dev. 388, in Law Lib. Upon the death therefore of Thomas Wilson, the devisee in tail, without issue, his daughter having died before him without issue and his family having thereby become extinct, the remainder took effect in possession, in the lessor of the plaintiff, he being the only child and heir at law of Ward Wilson.

This being the case, the defendant, or those under whom he holds could derive no title in fee, under the sale and conveyance by the Master in Chancery. That sale could pass no greater estate than Thomas Wilson had in the premises under the will of his father, and that was only an estate tail. The postea must therefore be delivered to the plaintiff.

Judgment for the Plaintiff.

Cited in Seddel v. Willis, Spenc. 228; Moore v. Rake, 2 Dutch, 581-585.  