
    *Timberlake and Wife v. Graves.
    
      Decided March 11th, 1818.
    
    i. Wills — Construction—Dying without Iteir — Limitation over — Validity Case at Bar. — A testatrix be queathed certain slaves “and their increase to ¡her nephew J. A. to him and his heirs forever; but, in case he should die without heir, then and in that case, to be equally divided between her two nieces, M. A. and P. A. “This was adjudged a good limitation over, upon J. A’s. dying without issue at the time of his death, to M. A. and P. A. who survived him; on the ground, that the devise ■over to the nieces was, to them merely, and not to them and their heirs; purporting therefore a personal benefit to themselves; which construction was fortified by the words “then and in that case,” and "equally to be divided,” found in the bequest.
    See Royall v. Eppes, 2 Munf. 479; Dunn and wife v. Bray, 1 Call 338; Higgenbotbam v. Rucker, 2 Call 313; and Selden v. King, 2 Call 72; cases in which the limitations over took effect. 
    
    In detinue, instituted by the appellants against the appellee, it appeared from a special verdict, that the plaintiffs John Tiiaberlake and Margaret his wife, (late Margaret Allen,) and Patsy Allen an infant by Garrett Minor her guardian, claimed the slave in the declaration mentioned, under the following clause in the last Will of Nancy Woolfork deceased; viz; “I give unto my beloved nephew John Allen, the following negroes, to wit;” (inserting their names;) “them and their increase to him and his heirs forever; but, in case it should please God for him to die without heir, then and in that case, it is my wish what I have given him, to be equally divided between my two nieces Margaret Allen and Patsy Allen;” and that the defendant Graves was in possession of and c'aimed the said slave by purchase from John Allen the first devisee, who died without issue before the institution of the suit.
    "Upon this verdict, the Circuit Court enteied judgment for the defendant, whereupon the plaintiffs appealed.
    Wirt and Eeigh for the appellants.
    Wickham for the appellee.
    
      
       Wills — Construction- -Hying without Heirs — Limita-tioo over — 'Validity.--A testator, in the year. 1803, devised the residue of his estate to his brother; in case he died without issue, to be equally divided between his uncle’s children (naming them), without adding any words of perpetuity. On the authority of the principal case, it was held that the limitation over was good, and took effect, upon the death of the brotiier without issue at the time of his death. Greshams v, Gresham, 8 Munf. 187.
      A series of cases beginning with Higgenbotham v. [fucker, 3 Call 313, and including the principal case Greshams v. Gresham, 6 Munf. 187; James v. Mcwil-liams, 6 Munf. 301; Cordle v. Cordle, 6 Munf. 455, and ending with Didlake v. Hooper, Gilm. 194; held 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 and executors, excluded the idea of an indefinite failure of issue, and is not too remote. See 2 Min. Inst. (4 Ed.) 443.
      But the authority of these cases have 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 Leigh 321; Callava v. Pope, 3 Leigh 103; Deane v. Hansford, 9 Leigh 253; Nowlin v. winfree, 8 Gratt. 316. See Moore v. Brooks, 12 Gratt. 150.
      In Deane v. Hansford,*9 Leigh 259, Judge Brock-hnbrough, in delivering his opinion, said that the principal case had been generally disapproved by the profession and was disapproved by two judges in Griffith v. Thomson, 1 'Leigh 321, and that, if it stood alone, he would 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, Gilmer 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 apply. In this case <Deane v. Hansford), 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 his 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 Brookenbrough, Parker, Cabell, and Brooks all saw a distinction between this case and the principal case. 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 deference to the opinion of his brethren, he would forbear to enter into an examination of that class of cases. Judge Cabell, in his opinion in Deane -v. Hansford, said that, in Griffith v. Thomson, 1 Leigh 321, the court, consisting of three judges, disregarded the principles decided in Timberlake v. Graves, and that two of the judges expressly assailed its correctness. Judge Brooke concurred in the remarks of Judge Cabell touching the principal case.
      See principal case cited in Bells v. Gillespie, 5 Rand. 308; Griffith v. Thomson, 1 Leigh 332, 333, 335, 336, 337; Deane v. Hansford, 9 Leigh 256, 257, 258, 259, 260, 261: Moore v. Brooks, 12 Gratt, 150, 151.
    
    
      
       Note. — In Hunters v. Haynes, 1 Wash. 71; Hill v. Burrow, 3 Call, 348; Eldridge v. Fisher, 1 H. &M. 559; Sydnor v. Sydnor, 2 Munf. 263; Williamson v. Ledbetter, 2 Munf. 521; and Allen v. Parham, 5 Munf. 457, (all of which were cases of devises of lands,) the limitations over were, in each instance, to the person in remainder, “and his heirs forever.” In Tate v. Tally, 3 Call 354, Jesse Tate "the first devisee would have had only an estate for life, unless he had taken an estate tail,” (see the opinion of Judge Lyons, Ibid 361,) and therefore, it seems, the limitation over to John Tate, tho’ made without the words “to him and his heirs,” could not take effect; because, to effectuate the testator’s intention in favour of the first devisee, there being no words of perpetuity added to the devise to him, and the Will bearing date in 1777, it was decided that he took an estate tail, and that estate was converted into a fee simple by the Act of Assembly. — Note in Original Edition.
    
   March 11th, 1818,

JUDGE ROANE

pronounced the Court’s opinion that the Judgment be reversed, and entered for the defendants; for which he assigned the following reasons.

The ground on which the opinion of the Court is founded, ' is, that the devise over to the nieces is to them merely, and not to them and their heirs. It purports a limitation to themselves, and was intended as a personal benefit to them. This construction is fortified by the words, “then and in that case,” and “equally to be divided,” found in the bequest; which, although, singly taken, they might not be complete to limit the previous words, have that effect in conjunction with the circumstance above mentioned.

The Court has considered the authorities referred to, and is of opinion that none of them conflict with or overrule this construction.  