
    
      Robert G. Norton vs. John Fripp.
    
    1. Testator de^Hras follows: “ I give and devise unto my brother William’s son, John, all that tracretland I had by my father’s will, to him and his heirs forever. But if my said nephew, John, should die without lawful issue, I give, devise and bequeath the said tract of land unto my brother William’s next future male issue, and his heirs forever.” Held, that the limitation over was too remote, and void.
    2. Consequently, those claiming under John had an absolute title to the property in controversy.
    
      Before Butler, J., Gillisonville, Fall Term, 1842.
    Trespass to try title. The jury found the following special verdict-:
    We find that John Norton, the uncle of the plaintiff, being seized in his own demesne as of fee of the lands and tenements in the declaration of trespass stated and mentioned, on the 31st day of October, in the year of our Lord one thousand seven hundred and eighty-four, made and executed his last will and testamentóme the copy thereof hereunto annexed, by which he devised inter alia as follows:
    “ Item. I give and devise unto my brother William’s son, John, all that tract of land I had by my father’s will, to him and his heirs forever. (Here follow some exceptions.) But if my said nephew, John, should die without legal issue, I give, devise and bequeath the said tract of land unto my brother William’s next future male issue, and his heirs forever.”
    We further find that the plaintiff is the next eldest son of the testator’s brother William, after John. That on the death of the testator, John Norton, the devisee, entered upon the premises in question, and conveyed the same to William Chaplin, on the 5th of August, 1799, whose daughter, lately deceased, the defendant married, and by virtue of which marriage the lands came into his possession, and in which they now remain. We further find that John Norton had issue two children, who died in his life-time, and in infancy; and that he departed this life on the-day of May, 1842, leaving no issue surviving him.
    If, upon the foregoing facts, the court is of opinion that the plaintiff is entitled to recover the lands in question, we find for the plaintiff. If the court be of opinion that the plaintiff is not entitled to recover, we find for the defendant.
    The judgment of his Honor on the foregoing special verdict was, that John, the nephew, took an absolute estate, and that the defendant had a good and indefeasible title under him; and that, therefore, the plaintiff, neither as contingent remainderman, nor executory devisee, could take any thing by his action. The postea was ordered to be delivered to the defendant.
    The plaintiff now moved to reverse the decision of his Honor the circuit Judge, on the following ground:
    Because the language of the will of the testator, John Norton, created an executory devise to Robert G. Norton, (as it is respectfully submitted,) upon the death of John Norton without issue.
    
      Martin, for the motion.
    E. Rhett, contra,
    cited 1 Bailey’s Equity, 48; 1 Hill Ch. Rep. 281.
   Curia, per

Butler, J.

The limitation over in this case could only be good as an executory devise, and an executory devise cannot be good after an indefinite failure of issue. Such must be regarded the character of the devise in the case before us. The devise, in the'first instance, is to John, absolutely in fee, but with the qualification that follows: “ that if John should die without lawful issue, then over to the male issue of William.” No definite time is fixed for the failure of the issue of John, but the failure is such as may take place at some unlimited and indefinite period ; that is, when the first devisee shall have no descendants, then it is the desire of the devisor that William’s male issue shall take. This limitation might tie up the property for generations, and is therefore void. To this point, see the case of Mazyck vs. Vanderhorst, 1 Bailey Eq. Rep. 48, and also the case of Brummett vs. Barber, 2 Hill, 543, and the other authorities quoted in these cases.

The defendants claim under John, the first taker, and have acquired an absolute title to the property in controversy. The judgment below is affirmed, and the motion to set it aside is dismissed.

Richardso^O’Neall, Evans and Wardlaw, JJ., concurred.  