
    Didlake v. Hooper.
    March, 1821.
    Executory Limitations — Dying without Issue, — Devise of slaves for life, should devisee die without issue, remainder over, is not too remote a limitation.
    Didlake for himself and wife, and as attorney in fact of Sarah Hooper, filed his bill in the Chancery court of Richmond, stating, that Jeremiah Hooper was about to sell certain slaves, to persons residing without the state, the reversionarj' interest in which, belonged to the complainants. A ne exeat, and security to have the slaves *forthcoming, when the reversion vested, were therefore prayed.
    The question was on the clause of the will of Unity Hooper, in these words; “Item, to my son Jeremiah Hooper during his life, one hundred acres of land, to be taken off the tract I bought of Benjamin Howard, adjoining Absalom Helton; I also lend him three negroes, by name, Hannah, Sukey, and Maria, during his life, and if he should have lawful issue, I give the land and negroes to them at his death. I also lend him one feather bed, and furniture, - and one horse and saddle; and if he should die without issue, I give the whole of the property that I have lent to him, to Sarah Hooper, and Judith Hooper, daughters of my son William Hooper deceased.”
    The Chancellor heard the cause on answer, replication, &c., and dissolved the injunction; because, the limitation in the will of Unity Hooper, was too remote; being on a “general failure of issue.” Did-lake appealed.
    See Higgenbotbam v. Rucker, 2 Call 316; Royal v. Eppes, 2 Munf. 491; Dunn v. Bray, 1 Call 344; Tim-berlake v. Graves, 6 Munf. 174; Gresham v. Gresham, 6 Munf. 187. — Edition 1821.
    
      
      Personalty — Limitation Over upon a Dying without issue. — The principal case is the last of a series of cases, 'beginning with Higgenbotham v. Rucker, 2 Call 313, and including Timberlake v. Graves, 6 Munf. 174, Greshams v. Gresham, 6 Munf. 187, «¿Tames v. Mcwilliams, 6 Munf. 301, and Cordle v. Cordle, 6 Munf. 455, which hold that a limitation over of personalty, after a dying without issue or without heirs, to a person merely and not to him and his heirs, or executors, excludes the idea of an indefinite failure of issue, and is not too remote. See 2 Min. Inst. (4th Ed.) 443.
      But the authority of these cases has been shaken, if not overthrown, by the subsequent cases of Bells v. Gillespie, 5 Rand. 273; Broaddus v. Turner. 5 Rand. 308; Griffith v. Thomson, 1 Leigh321; Callava v. Pope, 3 Leigh 103: Deane v. Hansford, 9 Leigh 253; Nowlin v. Winfree, 8 Gratt. 346. See Moore v. Brooks, 12 Gratt. 150.
      In Deane v. Hansford, 9 Leigh 259, Judge Brocken-brough, in delivering his opinion, said that the case of Timberlake v. Graves, 6 Munf. 174, had been generally disapproved by the profession and was disapproved by two j udges in Griffith v. Thomson, 1 Leigh 321, and, if it stood alone, he wonld concur in overruling it; but, as it was followed in quick succession by Greshams v. Gresham, 6 Munf. 187, James v. Mcwilliams, 6 Munf. 301, and Didlake v. Hooper, Gilm. 194, these adjudications ought to be considered as settling the law in cases exactly resembling them, more especially as in devises, made since the statute of 1819 took effect, the statutory rule would prevail. In this case (Deane v. Hans-ford), a testator, by his will “lends slaves and their increase to his grandson and his heirs of his body, and if he shall die without a lawful heir, then he bequeaths them to the children of their daughter.” This was held to be an executory limitation after an indefinite failure of issue of the grandson, and therefore void; and the slaves were held to vest In the grandson in absolute property. Judges Brock-ENBROUGH, PARKER, CABELL, and Brooke, all, saw a distinction between this case and the cases last cited above. Tucker, P., said that, though he agreed in the result reached by his brethren, he could see no essential difference between the exec-utory limitation in the case at bar, and the limitation in Timberlake v. Graves and some of the cases following the principle on which that case was decided; but that, in defence to the opinion to his brethren, he would forbear to enter into an examination of that class of cases.
      See principal case also cited on this subject in Griffith v. Thomson, 1 Leigh 336; Glinn v. Glinn, 1 Va. Dec. 460.
    
   By the Court.

, The court is' of opinion that the limitation in the will of Unity Hooper is good; and that the decree of dissolution is therefore erroneous. The decree is reversed with costs; and the cause remanded for farther proceedings, according to the principles here stated.  