
    *Taliaferro v. Burwell.
    [October, 1803.]
    Devises — Vested Remainder— Case at Ban — Devise, in 1777, of the testator’s two daughters, after the marriage or death of their motüer; but if they died under age, and without issue, to the children of the testator's sister, except the child who should he heir to her husband. One of the daughters died an infant of tender age, in the lifetime other mother, the other is heir to her, as it was a vested remainder in the daughters.
    Curtesy — Liability of Determinable Pees to. — And, if. upon the death of the mother, the surviving daughter married and had issue, which died immediately, and then she died, without other issue, her husband was tenant by the curtesy of all the lands, determinable fees being subject to dower and curtesy.
    Same — Personal Estate. — But he had no interest in the slaves and personal estate.
    Executors — Rents and Protits Applied to Payment of Debts of Testator — Compensation.—If, however, part of the rents and profits of the lands were applied by the executor to payment of the testator’s debts, he is entitled to compensation for them.
    Statute Regulating Course of Descents — Caseat Bar.— If the eldest son of the testator’s sister lived till 1788, and then died intestate and without issue, his father was not entitled to a proportion of the estate in right of that son, although the act for regulating the course of descents had defeated the exception in the will.
    Wills-Construction. — But if one of the daughters married and died without issue, her husband was entitled to her share of the slaves and personal estate.
    Sams — Same.—And the descendants of a deceased daughter were entitled to their mother's proportion of the estate.
    George Holden, by his will, dated 2d January, 1777, devised that his just debts should be paid, and that his executors should collect those due him, which he thought would be sufficient for the purpose: After this, he devised as follows, “I give and lend, unto my dearly beloved wife, the use and profits of my whole estate, both real and personal, during her widowhood, for her support, and for the support, education and maintenance of my two daughters, Anna and Susanna; but if my wife should marry again, I then give unto her one thousand pounds, to be paid her by my executors in twelve months after her marriage, and the choice of six slaves during her life, one of the six to be at her own disposal and gift. 3d item. If my two daughters Anna and Susanna should die before they are of age, and unmarried, I then give unto my wife, though she should be again married, the use of the whole of the profits of my whole estate, during her natural life. 4th item. I give unto *my two daughters Anna and Susanna, my whole estate, both real and personal, (not otherwise disposed of,) to them and their heirs, equally to be divided share and share alike; but if my two daughters should die before they are of age, and without issue of their bodies, then I give arid devise my whole estate, to them devised, to be equally divided between the children of my sister, Elizabeth Taliaferro, except the child that shall be the heir at law of her husband William Taliaferro. Sth item. Though I have given unto my dear wife, the use and profits of my whole estate during her widowhood, for her support, and the support, education and maintenance of my two daughters, yet my will and intention is, that, if either or both of my daughters should marry during the time she remains my widow, she so marrying, shall immediately upon her marriage, be entitled to receive one third of my whole estate, both real and personal, to'the use of her and her heirs, as above mentioned.” After which, he desired, that the furniture of his house should be kept together for the use of his wife and family; and, in case of the marriage or death of his wife, he devised the guardianship of his daughters to his executors. He then added, ‘ ‘I furthermore give unto my dear wife, in case she should die my widow, and in case of the death of my two daughters, one thousand pounds, over and above what I have given her, to be at her absolute disposal.” The testator died in that year; and it does not appear that he had any other children than the two daughters above mentioned. Anna, one of the said daughters, died an infant of tender age: then the wife married and died, living the other daughter Susanna; who, afterwards, intermarried with Burwell, by whom she had a child that died; after which she died herself, without leaving issue. And thereupon, the husband and the surviving children of Elizabeth Taliaferro, together with the husband of one of her deceased daughters, and the children of another, filed a bill in the high court of chancery against Burwell, for an account and delivery of the estate, stating that Elizabeth Taliaferro died after the testator; *that she had five children, to wit, two sons and three daughters; that George was the eldest, but died intestate and without issue in 1788, to whom his father claimed tobe heir: that one of the daughters married Keith, and died without issue, living her husband one of the plaintiffs; but another of the daughters married Stubbs, and died, leaving two daughters, who were part of the plaintiffs, and sued by their father as their next friend; and that the other daughter married Wedderburn.
    The answer of Burwell claimed to hold the lands as tenant by the curtesy, and the slaves in absolute property, stating that his wife died at nineteen years of age; that George Holden the testator died in debt: and that the rents of the land having been applied, by the agent of the executor, to the payment of the debts, slaves, to that amount, ought to be furnished.
    The high court of chancery “being of opinion, for reasons written on a paper deposited with the rolls, that the defendant is entitled to tenancy by curtesy of all the lands devised by the testator George Holden to his daughters, and is entitled, not to the slaves and other chattels bequeathed with those lands, but to so much of their value as is equal to the rents and profits of the said lands, which after the death of the testator’s widow, were applied, if any were applied, to the payment of his debts, and that the plaintiffs hereinafter named are entitled to the surplus of the testator’s slaves, goods and credits,” dismissed so much of the bill as demanded present possession of the lands; and appointed commissioners to make distribution of the slaves, goods and credits, as follows, that is to say; one fourth to William Taliaferro son of Elizabeth Taliaferro; one fourth to Wedderburn; one fourth to Keith, and one fourth to the two Stubbs.
    The paper referred to by the decree is as follows:
    “In this cause, upon the question, Whether the defendant be tenant by curtesy of lands devised by George Holden to his two daughters, who were his only children, who*died infants, and of whom one had not been married, and the other was wife of the defendant, and by him had one child, and but one, which did not survive its mother, the court’s opinion was delivered in these terms: In the testament of George Holden, the words, ‘I give unto my wife the use and profits of my whole estate during her widowhood; but if my wife should marry again, then I give unto her one thousand pounds and the choice of six slaves during her life, one of the six to be at her own disposal and gift,’ are not pertinent, to the question; for they neither augment nor diminish the daughter’s interests otherwise than that their mother, if she married again, would have a certain portion of their estates personal, instead of all the profits yielded by the estates real and personal, for support of herself, and for support, education and maintenance -of her daughters during her life, if she remained a widow.
    ‘ ‘Impertinent toó, and superfluous, are these words, ‘If my two daughters should die before they are of ag.ei and unmarried,' I then give unto my wife, though she should be married again, .the use of my whole estate during her life. Though I have given unto my wife the use and profits' of my whole estate during her widowhood, for her support, &c. yet my will is, .that if either or both my daughters should marry, during the time she. remains my widow, she so marrying shall, immediately, upon her marriage, be entitled to receive one third of my whole estate, to the use of Her and her heirs in manner above mentioned.-’ Impertinent, both because .they do not alter the daughters’ interests, and' because the provisions in certain events became in-efficacious by opposite events: Superfluous, because if they had been omitted, the daughters’ interests would have been neither more nor less than they, were by these words, ‘I give unto my daughters Anna and Susanna my whole estate both real and personal, not otherwise disposed of, to them and their heirs equally to be divided, share and share alike, but if my two daughters should die, before they are of age, and without issue of their bodies, then I give and devise my whole estate, *to them devised, to be equally divided between the children of my sister Elizabeth Taliaferro, except the child that shall be the heir at law of her husband William Taliaferro,’ the only words considerable after extermination of those before supposed, not to be so. And if that the daughters had estates of inheritance in the lands, to which estates heirs of their bodies might have succeeded, that the husband of the surviving daughter, to whom her sister’s moiety descended, and who by him,, seised during, the coverture, had a child, although it expired immediately after its birth, is tenant by the curtesy, the pláin-tiffs’ counsel persists in denying, against him, the judge of this, court will not dispute, sooner than he would contra negantem principia.”
    The plaintiffs appealed to the court of appeals.
    Warden, for the appellants.
    The will was made in 1777, when primogeniture prevailed ; but the subsequent act of assembly regulating the course of descents, and abrogating the preference of the eldest son, destroyed the exception in the devise as to the heir of William Taliaferro; for all his children will be his heirs at his death, and therefore all became entitled upon the passing of the law; because the estate is given to all the children, which fixed the interest; and the exception was to operate at a future day, when the event should be known; for had primogeniture continued, the heir would still have been uncertain, as it might not have been the eldest son, but some other child. Consequently, as subsequent to the statute, the exception could not take effect, the estate remained absolute, and upon the death of George, his father succeeded to his share. The appellee is not tenant by the curtesy, 1. Because the devise did not confer an estate of inheritance on his wife; for the different parts of the will should be construed together, and the general complexion shews that the. daughter's were not to -have a fee, unless they attained to twenty-one, years pf age. The fourth clause, therefore, ought to. be considered as predicating a majority; and, consequently, as the 32$ contingency never *happened, the devise never took effect. .2. Because the husband is not entitled to be tenant by the curtesy of .a defeasible estate; for the happening of the.event, puts an end to it; and the limitation taking effect as an original devise, destroys all mesne rights. The decree, therefore, ought to be reversed altogether as to Burwell; the appellant William Taliaferro, in. right of his son George, declared entitled to one fifth of the whole estate; and the residue divided among the rest of the appellants in the proportions mentioned in the decree.
    Wickham, contra.
    The appellee has nothing to do with the question of distribution among the appellants. Therefore, I shall not stop to.enquire, whether William Taliaferro is entitled, in right of his eldest son, to a share of the estate after the cur-tesy ceases, although the case of Carter v. Tyler, 1 Call, 165, which reprobates the idea of an executory devise being influenced by the enactment of a subsequent law, may perhaps repel him. The construction of the will contended for by the appellants’, counsel, cannot be sustained; on the contrary, the devise to the daughters of the testator, created a clear vested remainder, to take effect in possession, upon the marriage or death of the wife, without regard to the majority of the devisees. Eor a fee is given them in . the first instance; and is limited to expire only upon their deaths under age, without issue. Upon the death of the wife, therefore, Mrs. Burwell, who was heir to her sister, became seised of the fee simple in the whole; and the birth of her child gave her husband a right to curtesj', although her subsequent death, during minority, defeated the estate; for the rights of dower and curtesj' continue after the expiration of such determinable interests. 2 Bac. Ab. 223; Co. Litt. 241, a. Collectana jurídica.
    
      
      Dower in Executory Devises. — On this question, the i principal case is cited in Jones v. Hughes, 27 Gratt. 563, and foot-note\ Nickell v. Tomlinson, 27 W. Va. 705, 707. See also, monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587; mono-graphic note on “Curtesy” appended to Charles v. Charles, 8 Gratt. 486.
    
   LYONS, Judge

delivered the resolution of the court, that the decree of the high court of chancery was to be affirmed.  