
    *Foxwell et als. v. Craddock et als.
    January Term, 1855,
    Richmond.
    Wills — Construction—Case at Bar. — A testator devised a portion of his property to his wife for life, and at her death to his son, “to he nsed by him for his own benefit during: his natural life ; and at his death, should he leave lawful heirs, to be vested in them in fee simple. But should he die without lawful issue,” then the property was to “return to” the testator’s “other children, to be equally divided between them.” The will further proceeded “I do hereby distinctly declare and publish, that the right hereby given to my son, John, shall not be construed to vest in him any power to dispose of the property, in any way, but that it is only loaned to him during his life, and after his death to be used in the manner above provided for.” Held :
    1. Same — Same — “Heirs” — Sheliey’s Case. —The word “heirs” is to be construed as a word of purchase, and not of limitation, and the rule in Shelley’s case is inapplicable to the devise.
    2. Same — Same—Life Estate — Remainder—Limitation over. — John, the son, took, therefore, only an estate for life, with a contingent remainder to his children, and, in the event of his failure to have children, a limitation over, by way of executory devise, or springing use, to the other children of the testator.
    3. Same — Aliens—Jay’s Treaty. — A British alien, who emigrated to this country after the 4th of July, 1776, and before the treaty of amity and commerce, commonly called Jay’s treaty, was entitled by the 9th article thereof, to convey by deed or will, any real estate held by him in 1794, the date of that treaty, to any person capable of taking and holding real estate ; and any alien is entitled, by the law of Virginia, to convey any real estate held by him, to any such person, before office found.
    In 184S, Robert B. Craddock, John Ellett and Sarah Ann, his wife, (who was Sarah Ann Craddock,) and Ebenezer B. Stevens and Elizabeth, his wife, (who was Elizabeth Craddock,) instituted an action of ejectment against Francis Eoxwell and W. F. Carvedo, in the Circuit Court of the city of Richmond and count}' of Henrico; to recover from them a certain tenement in the city of Richmond, held bjr them as the tenants of one William Taylor. At the trial, the jury found a special *verdict, setting forth the facts, which were substantially as follows:
    In 1792, Charles Lewis, then the owner in fee of the tenement in controversy, conveyed it, by deed, to John Hague, who was a native of Scotland, and emigrated to the State of Virginia after the 4th day of July, 1776, and before the treaty of peace made in 1783, between the King of Great Britain and the United States of America. He married in Virginia, and though he continued to reside in that State from the time of his arrival until his death, he never took the oath of allegiance to the United States or the Commonwealth of Virginia, and never made a declaration in any court of record in the United States, of his purpose to do so. He died in Richmond, in 1795, and left a will, by which he devised the tenement in controversy to his wife, Hannah Hague, for life, and after her death, to his nephew, John Craddock, in fee. It further appeared, that Hague was seized in fact of the tenement from the date of the convej’ance from Lewis until his death, and that thereafter his wife, Hannah, was so seized thereof under his will; but that she surrendered her life interest to John Craddock, and delivered possession of the property to him; and that he remained in possession thereof until his death, in 1817.
    It further appeared, that Craddock left a will, by which he devised the tenement in controversy to his wife, Elizabeth, for life, and at her death, to his son, John H. Craddock, “to be used by him for his own benefit during his natural life; and at his death, should he leave lawful heirs, to be vested in them in fee simple. But should he die without lawful issue, then the said store, and dwelling-house, and lumber-house, with the lots on which they stand, and all the appurtenances attached thereto,” were to return to the testator’s other children, to be equally divided between them.
    The will further proceeded: “I do hereby distinctly declare and publish, that the right hereby given to my son John,” &c. &c. “shall not be construed to vest in *him any power to dispose of, in any way,” the property so bequeathed to him, “but that it is only loaned to him during his life, and after his death, to be used in the manner above provided for.
    It further appeared, that Elizabeth Crad-dock, the testator’s widow, and his devisee for life, enjoyed the possession of the tenement under her husband’s will until 1819, when John H. Craddock conveyed it to Nathan Whitlow in fee; that Whitlow entered on the property, with the assent of Elizabeth Craddock, the widow, and continued in possession of it until October, 1838, when his right therein was sold by commissioners appointed for that purpose, by the county court of Henrico, to James Gray, who on the same day conveyed it to William Taylor; and that the said tenement had remained in the possession of said Francis Foxwell and William F. Carvedo, as tenants of said William Taylor, ever since.
    It further appeared, that John H. Crad-dock died in 1832; that Robert B. Craddock, Sarah Ann Ellett and Elizabeth S. Stevens were his only children and heirs at law; that they were all infants at the time of their father’s death; that the two female children were infants at the time of their respective marriages; and that Robert was an infant, Elizabeth twenty-two j’ears of age, and Sarah Ann twenty-five years of age, at the date of the verdict.
    The jurj' found the net rent, which had accrued each year, from five years before the commencement of the suit, until the time of the verdict, and proceeded thus: “If, upon the foregoing facts, the law is for the plaintiff, then we find for the plaintiff his term to come in the said tenement in the declaration demanded, and assess his damage at four hundred and fifty-eight dollars, with interest thereon from this time; but if the law be for the defendant, then we find for the defendant.”
    In this verdict, the court thought the law was for the plaintiff, and accordingly entered judgment for him, in accordance with the verdict, and awarded him a writ of ^possession. Erom this judgment the defendants appealed to this court:
    Crump, for the appellant,
    insisted :
    1. That Hague, to whom Lewis conveyed the tenement, being, at the time of the conveyance and at the period of his death, an alien, could not transmit real estate, either by will or deed, and that hence the attempt to bequeath the property was nugatory and inoperative, and the plaintiffs were not entitled to recover.
    2. That the will of John Craddock created in the devisee, John H. Craddock, an estate tail, which, by the law of Virginia was converted into an estate in fee; that his deed to Whitlow passed that estate, and that the plaintiffs could not recover for this reason also.
    Lyons, for the appellees,
    insisted:
    1. That although John Hague was an alien at the time of his death, yet his will conveyed a complete title to the property to his devisee, John Craddock. He emigrated to this country after the 4th day of July, 17/6, and before the treaty of peace made in the year 1783; and he became entitled to the property in controversy in 1792, and continued in possession of it until his death in 179S, when he devised it by his will to Craddock. By the ninth article of Jay’s treaty, (as it is commonly called,) made in November, 1794, it is expressly stipulated, that British subjects then owning lands in America, and American citizens then holding lands in Great Britain, “may grant, sell or devise the same, to whom they please, in like manner as if they were natives.” Laws of the United States, edi. 1796, vol. II. 476; Blight’s lessee et al. v. Rochester, 7 Wheat. 535; Robertson v. Miller et al., 1 Brock. 466-475; Stephens’ heirs v. Swann, 9 Iveigh, 404; Commonwealth v. Martin’s ex’ors, 5 Munf. 117; and such also is the statute law of Virginia. 1 Rev. Code 1819, p. 354, ch. 94, § 2.
    *2. That the devise by John Crad-dock to his son John H., after the death of the testator’s wife, did not create an estate tail, but was a good executory devise, under which, upon his death without issue, the property vested in the surviving children of the testator; and, therefore, upon the special verdict, the Circuit Court properly decided in favor of the plaintiffs. Smith and wife v. Chapman et ais., 1 Hen. & Munf. 240; Doe v. Goff, 11 East. 668.
    
      
      Real Estate -Construction of Will-Purchasers.— See foot-note to Taylor v. Cleary, 29 Gratt. 448. The principal case is cited in Robinson v. Robinson, 89 Va. 919, 14 S. E. Rep. 916.
    
    
      
      Rule in Shelley’s Case —See Hood v. Haden, 82 Va. 688, and Chipps v. Hall, 23 W. Va. 504.
      Rule Abolished. — Va. Code 1887, sec. 2453 ; W. Va. Code. ch. 71, sec. 11.
    
   THOMPSON, J.,

delivered, verbally, the opinion of the court, affirming the decree. The views taken were substantially as follows :

It is very certain, upon the authorities cited by the counsel for the appellees, and upon others occurring to the court, that the alienage of John Hague did not incapacitate him from making a valid devise to a citizen, or person competent to take and hold real estate.

Upon the second point, the court is of opinion, that the rule in Shelley’s case is inapplicable to the devise; that John H. Craddock, therefore, took neither a fee simple absolute, nor an estate tail by implication ; but only a life-estate — to confine him to which, was the unquestionable intention of the testator — with a contingent remainder to his children, if any he should have, (the word “heirs” being, in the opinion of the court, a word of purchase, and not of limitation, meaning children,) with a limitation over, bj' way of executory devise or springing use, to the other children of the testator, in the event of the failure of John H. Craddock to leave children. If the rule in Shelley’s case were applicable, then John H. Craddock would take a fee tail, by implication, which would be converted into a fee simple absolute by our statute, and the limitation over would be void, because after an' indefinite failure of issue, so that in fact, the only question upon the devise is as to the application of the rule in Shelley’s case, and it being held not to apply, it results as a necessary consequence *that the devise is a good •executory devise, under which, had John H. Craddock died without issue, or children, the property would have vested in the surviving children of the testator; but as he died leaving children (the plaintiffs in the suit), it vests in them in fee simple, and therefore, upon the special verdict, the Circuit Court properly decided in favor of the plaintiffs.  