
    Higgenbotham v. Rucker.
    [April Term, 1800.]
    Executory Limitation — “Dying without Issue.” — A man makes a gift of slaves to his daughter and the heirs of her body, and in case she died without issue, that is children of her body, the said slaves to return to the grantor, this limitation is not too remote and therefore is good.
    Detinue — Verdict Finding Joint Values — Eifect.—If in a declaration for several slaves laying separate values, the jury And a joint value it is error, and as to that a venire facias de novo will be awarded under the act of Assembly in order to ascertain the separate values.
    Higgenbotham brought detinue in the County Court against Rucker for four slaves. Plea non detinet and issue. The jury found the following special verdict, “We of the jury finf that in January 1793 the plaintiff was possessed of the slaves in the declaration mentioned, as his own proper slaves. We also find that on the thirtieth day of January 1793 the defendant intermarried with the plaintiffs daughter, after which time the plaintiff gave to his daughter the wife of the defendant the negroes in the declaration mentioned, to her and the heirs of her body, and in case she died without issue, that is children of her body, the said negroes to return to the plaintiff. We also find that in less than twelve months, after the gift and intermarriage, the plaintiffs daughter departed this life without issue. We also find that since the negroes in the declaration mentioned, came into the defendants possession they have increased one in number. We of the jury find for the plaintiff the negroes in the declaration mentioned, in case the law be for the plaintiff, if to be had, if not one hundred and fifty pounds damages; if the law be for the defendant we find *for the defendant.” The County Court gave judgment in favour of the plaintiff, for the slaves and damages.
    The defendant thereupon filed a bill of exceptions stating, “That upon the courts deciding the question of law, the defendant, by his attorney, moved the court to award a venire facias de novo, because he saith that the verdict rendered by the jury in this case is so defective that a judgment ought not to be rendered thereupon inasmuch as the jury hath not severed the value of the several negroes in the declaration and verdict mentioned, but was overruled by the court.”
    The defendant appealed from the judgment of the County Court to the District Court; where the judgment of the County Court' was reversed with costs: And from the judgment of reversal Higgenbotham appealed to this court.
    Randolph for the appellant.
    The obvious intention of the donor was to give an estate determinable on the death of his daughter without any issue then alive; which is a reasonable period of time, and therefore the limitation is not too remote. For the jury expressly find that by issue he meant children; which confines and ties up the preceding words, heirs of her body, to the time of her own death. But under another point of view the limitation over is good; for the children were purchasers, and therefore the daughters interest was merely an estate for life, which expired at her death without issue.
    The joint assessment of the value of the •slaves is not erroneous, Jenk. Cent. 112; Eees cas. 283, 5 Mod. 77; or if wrong, yet there being no certainty, whether it applied to the damages for detention or the value, that part of the finding is nugatory; and therefore under the act of Assembly the court may award a writ of enquiry to assess the value.
    *Call contra.
    Submitted the question whether it had not been already settled both in England and this country, that the joint assessment of the value was erroneous,
    And as to the merits, it never has been doubted that such a limitation as this was too remote. All the cases both in England and this country establish it beyond all controversy. Goodwin v. Taylor, 2 Wash. 74. Nor has it ever been decided, in any case, that if there be a limitation to one and the heirs or issue of his body, and if he die without issue remainder over, that the remainder is good, unless there be some circumstance or expression to tie it up and abridge the generality of the first words, 2 Fonbl. Eq. 327. Neither will little circumstances or slight expressions be sufficient; but they must be such as afford a fair and clear demonstration. 1 Bro. ca. Chy. 190. Children is no more than issue, and issue than children. Particularly where no child was born at the time of the gift; and therefore the insertion of that word in the verdict is not material. Besides this was the case of a gift in the life time, and therefore less latitude is to be allowed, than in the case of a will; which being made in extremis, the court makes some allowance for the testators situation. Whereas a disposition in the life time of the donor is taken to be made with more caution; because the grantor might have had counsel if he had chosen it.
    Randolph in reply.
    I admit the rule as laid down by Mr. Call, that there must be something to confine the limitation to a reasonable- period of time; but I contend that this is done in the present instance; for the word children does it. Especially as that is a word of purchase and particularly in a deed; so that the difference insisted on is in our favour. The court will the more readily adopt my construction; because the intention of the donor was reasonable. For if his daughter had issue he intended they should have the benefit *of the estate; but if not, then, instead of its going to strangers, he intended it should return to his own family again. The case of Dúnn v. Bray (1 Call’s rep. 338), in this court contains reasoning expressly apposite to what I contend for.
    Call. That case was determined on the authority of Pinbury v. Elkin and other cases in P. Wms. But not one of those cases resembles the present.
    Cur. adv. vult.
    
      
      Executory Limitation — “Dying without Issue.”— The principal case is cited with approval in Bradley v. Mosby, 3 Call 68; Wilkins v. Taylor, 5 Call 155; Griffith v. Thomson, 1 Leigh 335; Hill v. Burrow, 3 Call 351. The principal case is distinguished in Bradley v Mosby, 3 Call 61.
      The principal case is cited inwilkins v. Taylor, 5 Call 156, for the proposition that, a limitation over in remainder to A. after the death of B. without issue, is void, as being too remote. The principal case is cited in this connection in Newby v. Blakey, 3 Hen. & M. 60.
      Same — Same—Restriction—Personalty.—It has been held that the fact of the subsequent limitation being made to the parti/ Mmself, omitting words of limitation (e. g., heirs, or executors, etc,), is a sufficient restriction in case of personalty. 2 Min. Inst. (4th Ed.) 443. citing the principal case; Timberlake v. Graves, 6 Munf. 174; Greshams v. Gresham, 6 Munf. 187; James v. McWilliams, 6 Munf. 301; Cordle v. Cordle, 6 Munf. 455; Didlake v. Hooper, Gilm. 194. The principal case is cited in this connection in Bradley v. Mosby, 3 Call 69.
    
    
      
      See monographic note on “Detinue and Replevin,” appended to Hunt v. Martin, 8 Gratt. 578.
    
   ROANE, Judge.

The first question I shall consider in this cause is upon the title to the slaves mentioned in the declaration.

This question depends upon the limitation over to Higgenbotham as found by the special verdict. The clause on which the question depends is as follows, “That on the 30th of January 1793 the defendant married the plaintiffs daughter, after which the plaintiff gave her the negroes in question to her and the heirs of her body, and in case she died without issue, that is,‘ children of her bodj', the said negroes to return to the plaintiff.”

It is a clear principle that a limitation of personal estate after an indefinite failure of issue is void, as tending to a perpetuity; but it is also a principle that, with respect to personal estate, the courts incline to lay hold of any words which tend to restrict the generality of the words “dying without issue,” to mean “dying without issue living at the death.”

Thus a limitation to a person in esse for life, after a dying without issue is good; because the contingency must happen, if at all, in the life time of the remainder-man ; and the limitation to him for life restrains the generality of the words “dying without issue.” Otherwise if the limitation had been to him in fee or in tail; in that case there would be no such restriction and the limitation *over would be void. Mj* opinion upon the particular principle, formed on thorough investigation, was expressed in this court in the case of Pleasants v. Pleasants; and that opinion I now wish to be understood to refer to and adopt.

There is a circumstance in this case which appears to me to have this restrictive operation; that is to say, that the negroes are to return back to the plaintiff in the event of the daughters dying without children.

It is here to be observed, that the limitation is to the plaintiff himself. It is not to his heirs or representatives, and it cannot reasonably be inferred to have been the donors intention that the negroes should revert to his representatives at a ■remote distance of time. This limitation then is similar to the limitation for life before spoken of; and restrains the generality of the words “issue of her body,” to an event within the period of a life in being.

Without resorting further to the standard of general principles for the decision of this point, there is a case from 1 Wms. 534; Hughes v. Sayer, which seems decisive of this case; where C having two nephews A and B, divised his personal estate to them, and if either die without children then to the survivor. Here dying without children was restrained to mean without children then living; because the immediate limitation over was to the surviving devisee, as in the case at bar the immediate limitation over was to the surviving father; and the case of Nichols v. Skinner, Prec. Ch. 528, is upon the same principle, and is perhaps still stronger, as the word issue is there restrained on the same reason with the word children in the case just mentioned from Peere Williams.

My opinion then is that the title of the slaves in question is in the present appellant.

*But the verdict of the jury is erroneous, in finding the value of the slaves aggregately, which was certainly meant to be done here under the word “damages.” The judgment of the County Court is therefore erroneous as to this point; and in not awarding a venire facias de novo to ascertain the separate value of the slaves. Consequently I think that the judgment of the District Court reversing that of the County Court in toto ought to be reversed, and a judgment agreeable to the ideas above mentioned entered.

FLEMING and CARRINGTON, Judges. Of the same opinion.

LYONS, Judge.

The intention clearly was that the slaves should return to the grantor in the event of the daughters dying without leaving any children; which was a reasonable period, and if a Court of Equity had been called upon to execute the agreement the conveyance would have been in that form. The intention was rational, and the limitation confined within proper limits. Therefore there is no question upon the title. But there ought to have been a new writ of enquiry in order to ascertain the values of the slaves. I think therefore that the judgment of the District Court should be reversed; and that of the County Court affirmed as to the title, but reversed also as to the damages; and that a new writ of enquiry should be awarded to ascertain the values of the slaves.

Per Cur. The Court is of op'nion, that the judgment of the District Court is erroneous. Therefore, it is to be reversed with costs; and this Court, proceeding to give such judgment as the said District Court ought to have given, is of opinion, that the judgment of the County Court is erroneous, in not awarding a writ of enquiry to ascertain the separate prices or values of tne slaves in the declaration mentioned, the jury having found the value of all the slaves in a gross sum. Therefore that judgment is also to be reversed; *and the suit is to be remanded to the County Court, for a writ of enquiry to be awarded, to ascertain the separate prices of the slaves; and after the execution of such writ of enquiry, for judgment to be entered, for the appellant, for the slaves, or their respective prices. 
      
      via. The next case.
     