
    *Melson v. Doe on Demise of Cooper.
    April, 1833.
    (Absent Brooktc, J.)
    Wills — Devise of Land with Absolute Power to Sell— Limitation Over — Effect.—Testator devises land to his son William and his heirs, and if he should die without a son and not sel) the land, then to testator’s son George: Hum), the devise gave William absolute power to sell the fee simple: and therefore, whether he sold It or not, he took a fee simple, and the devise over to George was void.
    Upon the trial of an ejectment, brought by George Cooper against Edmund Melson, in the circuit court of Elizabeth City, for a messuage and parcel of land in that county, the jury found a special verdict, from which it appeared that the case was thus:
    John Cooper died in 1813, seized of the messuage and land in controversy, having by his last will duly made and published, devised, inter alia, as follows — lT give to my son William Cooper the plantation I live on, to him and his heirs forever. In case he should die without a son and not sell the land, I give the land to my son George; and if he should die under age, then the land to be sold by John Herbert, and divide the money among all my children then alive or their children that may be alive at that time.” The plantation on which the testator lived, was the land now in controversy. George Cooper, the lessor of the plaintiff, was the testator’s son George, mentioned in the devise, who claimed the land under the limitation over to him therein contained. The testator’s son William, to whom the land was devised in the first instance, attained to full age, married, and died leaving issue one daughter, but without leaving or ever having had a son, and without having sold the land. Melson, the defendant, claimed under William Cooper. The question referred to the court, was, Whether, upon this state of facts, George Cooper, the lessor of the plaintiff, was entitled to the land?
    The circuit court held that he was, and gave him judgment accordingly; from which Melson appealed to this court.
    ^Johnson, for the appellant,
    insisted, 1. that, even throwing out of view the unlimited right clearly given to William the first taker, to sell the land, the devise to him and his heirs, and if he should die without a son, then over, would have given him an estate tail, which the statute for abolishing entails would have converted into a fee simple, and barred the contingent remainder to George: he cited Robinson v. Robinson, 1 Burr. 38, 3 Bro. P. C. (Tomlin’s edi.) 180, S. C. and Robinson v. Miller, 1 Rolls’s Abr. 837, pi. 12. But 2. he said, here was a manifest intent to give William, the first taker, an unlimited and absolute right to sell the land, when, how, and to whom he pleased; he might have sold the fee simple; and, therefore, he took the fee simple by the devise, and though he did not sell, he died seized of the fee simple. Upon this point, he cited Riddick v. Cohoon, 4 Rand. 547.
    Eeigh, for the appellee,
    admitted that the case of Riddick v. Cohoon was in point and conclusive, unless a distinction could be made between a bequest of personal property with a general power to sell it at pleasure, which was the case there, and a devise of real estate, with a general power to the devisee to sell it, which was the present case; and he confessed he could see no ground on which he could maintain such a distinction.
    
      
      Wills — Devise of Land with Power to Dispose of— Limitation Over. — On this question, the. principal case is cited in foot-note to May v. Joynes. 20 Gratt. 693; foot-note to Madden v. Madden, 2 Leigh 377; foot-note to Missionary Society v. Calvert. 32 Gratt. 357; Elcan v. Lancasterian School. 2 Pat. & H. 68. and note; Randolph v. Wright, 81 Va. 617; Johns v. Johns, 86 Va. 336. 10 S. E. Rep 2; Hall v. Palmer, 87 Va. 358, 12 S. E. Rep. 618; Farish v. Wayman, 91 Va. 435, 21 S. E. Rep. 810; Milhollen v. Rice, 13 W. Va. 520; Howard v. Carusi, 3 Sup. Ct. Rep. 579, 109 U. S. 725; note to Farish v. Wayman, 1 Va. Law Reg. 220.
      See monographic note on “Wills.”
    
   CARR and CABELE, J.,

founding their judgment on the last point (as the reporter understood) that a general absolute unlimited power to sell the land, was plainly given to William Cooper by the devise, held, that he took a fee simple, and therefore that the judgment was erroneous,

TUCKER, P.,

doubted on both points, and, upon the whole, inclined to the opinion, that the judgment of the circuit court was right.

Judgment reversed, and judgment entered for the appellant.  