
    Obed Fisher versus Samuel Hill.
    Where a devisee dies before the testator, leaving no lineal descendants, the devise lapses; if he leave such descendants, they take as purchasers.
    In this action Fisher demanded one undivided forty-eighth part of the land described in the writ. It was submitted to the decision of the Court, on a case stated and agreed by the parties.
    
      John Fisher, on the 16th of August, 1796, was seised of the demanded premises, and on that day devised the same to Thankful, his wife, for the term of her life, remainder *in [ * 87 ] fee to Samuel Hill, jun., son of the tenant. The said Hill died on the 4th of February, 1802, without issue, and unmarried; and on 25th of the same month the testator died seised. His will was afterwards duly proved, and the said Thankful entered and became seised of the premises for life, and continued so seised until the 6th of October, 1809, when she died. Hill, the tenant, entered after her death, claiming to hold as heir of his son. The demandant^ is one of the legal heirs of the testator, and, as such, is entitled to the share demanded in his writ, unless the tenant is entitled to hold the whole as heir to his son, the devisee of the remainder.
    If the Court should be of opinion that the tenant is seised in fee as heir to his son, the demandant agreed to become nonsuit; but if the tenant can take nothing by force of the said devise, he agreed to be defaulted, and judgment to be rendered for the demandant to recover an undivided forty-eighth part, as demanded in his writ
    
      J. Richardson for the demandant.
    
      Hastings for the tenant.
   By the Court.

There can be no question but that this devise lapsed at the common law, by the death of the devisee before that of the testator. Our statute, of 1783, c. 24, § 8, only saves the devise, where the devisee dies leaving lineal descendants, who “ shall take the estate devised, in the same way and manner such devisee would have done in case he had survived the testator.” Such descendants are purchasers, and take by a sort of statute devise. But the devisee, in the case at bar, left no lineal descendants. The case is, therefore, not within the statute; and the demandant is of course entitled, as an heir at law of the testator, to the part of the estate he demands in his writ.

Tenant defaulted  