
    Israel P. Brightman & another vs. Ellery R. Brightman.
    A testator who in one clause of his will devised land to D. and X, their heirs and assigns provided in a subsequent clause that, “if D. or X shall die leaving no issue of his body then what I have here devised to such one I here devise to the survivor thereof and his heirs and assigns.” SeZcZ, that this was an executory devise limited upon a fee simple, and upon the death of either D. or X, leaving issue, in the lifetime of the other, the contingency became impossible and the estate in fee simple remained.
    Writ of entry dated May 27, 1867; submitted to the judgment of the court on agreed facts of which the following is the substance:
    Israel Brightman, by his will, proved and allowed in 1838, devised “ to Daniel and John Brightman and to their heirs and assigns” land in Westport, on condition that the said Daniel and John should pay certain amounts to certain persons; bequeathed to them personal property; and further provided: “ If the said Daniel or John shall decease leaving no issue of his body lawfully begotten, then what I have here given and devised to such one I here devise to the survivor thereof and his heirs and assigns.”
    Of the amounts to be paid by Daniel and John under the condition, each paid his part; and they held and occupied the. land together, without partition, until 1846, when Daniel died leaving, as his children and only heirs, the demandants, both of whom were born after 1838. In 1848 an undivided half of the land was sold, under a decree of the probate court, to pay Daniel’s debts, and bought by Benjamin Church; and later in the same year, by an indenture executed by Church and John Brightman, they divided' the land and each set off to the other one half of it by metes and bounds.
    The half set off to John (being the demanded premises) he conveyed in fee simple by deed with covenants of full warranty to the tenant, in 1860, and died in 1861, leaving no issue whereupon the demandants laid claim to it.
    
      J. M. Morton, Jr., for the demandants.
    
      T. M. Stetson, for the tenant.
   Chapman, C. J.

The clause in Israel Brightman’s will devising certain real estate to Daniel and John Brightman and to their heirs and assigns,” taken by itself, gave them an estate in fee simple. The subsequent clause providing that “ if the said Daniel or John shall decease, leaving no issue of his body lawfully begotten, then what I have devised to such one, I here devise to the survivor thereof and his heirs and assigns,” created an executory devise limited upon that fee simple. Richardson v. Noyes, 2 Mass. 56. But the contingency did not happen; for Daniel died first, and left issue; and when John died Daniel did not survive him. Upon the decease of Daniel leaving issue, the contingency mentioned became impossible, and the estate in fee simple remained. Judgment for the tenant.  