
    Drury & Bennett vs. Negro Grace.
    "W^eve the him*», tation o>er is in' fee after an indefinite failure of is-s\ie, it is not good; as an executory* deVise, because of its tendency to create a perpetuity by rendering ■property unalien*.
    In expounding tvilU, the first ami great- principle to pe observed" is, that the intention: ©f the testator is to' prevail, unless such' intention is opposed by some rule of hnv.
    ' ZW, by his will, devised a*» follows; - devise the whole of- my pro. perty, i*eal and personal, to. my beloved daughter M W, to her apd .her heirs ibr ever;'and in case she dies without lawful issue, then the whole of my said property is to $>e possessed.by my dear wife A. during her widowhood, and no longer; and at her death or marriage, to be sold at public sale, and' the money arising' therefrom to be equally divided between H, C and M W obtained possession of the property so devised to her, and died in the 17th year of her age, Unmarried, and without having any issue, having by her will manumitted all’her slaves- A, the widow of the testator, is now living,-having in the life.time of M W married one R U, Negro Grace, ©ne of the slaves manumitted by M AV, petitioned for her freedom against H, C and N —Hekl, that thelimitatipn Gver in the will to A, during her widowhood, constituted a good ejceeutoiy devise, became it yms to take effect on the contingency of-M \V dying, without leaking i$vue at the tunc of her dealhr . that thepetitioner.ia not ««.titled to her freedom» .“ v . *. ct
    Appeal from Anne-Arundel County Court. In thi^ case the appellee petitioned for her freedom, and the following case was stated for the opinion of the county court. Zebedee Wood, being possessed of sundry negro slaves, and among others of the petitioner, on the iOth of February 1788, duly made his last will and testament, containing this clause — “Í devise and bequeath the whole of my property, real- and personal, to my beloved daughter Mary Aim Wood, to her and her heirs for ever, and in case she dies without lawful issue, then the whole of my said property is to be possessed by my dear wife Ann, during her widowhood, and no longer, and at her death or marriage to be sold at public sale, and five hundred pounds current money, out of the money arising therefrom, to be paid by my executor to my nephew James Cummins, or to. his heirs, (if any,) and the balance thereof equally divided between my brother Hopewell, and sisters Cassandra and Ann,” ike. The testator died on or about the 3d of April 1788, without having revoked, or in any manner changed his will. SamueJ Harrison, the executor named in the will, renounced the same, and letters of administration were granted to Drury, one of the defendants. After the death of the testator, 'Mary Ann Wood his daughter and legatee, obtained possession of the negro slaves; and being so possessed of them and entitled to them, on the 9th of October 1800, duly made her last will and testament in writing, in which, among other things, is as follows: “My will and desire is, that all my negroes shall be free.” The testatrix died on the 7th of January 1801, in the seventeenth year of her age, unmarried; and without having any Issue of her body, and also without revoking or in any manner changing her will. After the death of Zebedee Wood, Ann his widow intermarried witl; one Richard Brown, before the death of Mary Ann Wood, and survived Mary Ann Wood, and is now in full life, and has received her thirds of the personal estate of Zebedee Wood. Hopewell and Cassandra Wood, the brother and sister of Zebedee Wood, and legatees named in his will, survived Mary Ann Wood, and are now alive, and Ann, the sister and legatee of Zebedee, died before Mary Ann Wood, leaving issue still living. The defendants have obtained possession of the petitioner, and have acquired and are invested with all the right, title and estate, that Hopewell, Cassandra and Ann, had in the petitioner, and are to be considered in the same light that Hopewell, Cassandra and dnn would, were they tfie, defendants in this cause. On this statement, the county court gave judgment for the petitioner, and the defendants brought this appeal
    The case was argued before. Chase, Ch. J. Buchanar, a,nd Nicholson, J.
    
      T. Buchanan, for the Appellant,
    stated that tiie question was upon the construction of the will of Zebedee Wood, whether Mary Ann Wood took aii absolute estate under the devise to her in the will, or was it not an executory devise to-Ann, the jyife offhe testator?
    
      To show that it was an executory devise, he cited %■ Blk. Com. 173. 2 Fearne’s Ex. Dev 1, 73. Nichols vs. Hooper, 1 P. Wms. 199. Parget vs. Gaunt, Ibid. 432. Hughes vs. Sayer, Ibid 534. Pinbury vs. Elkin, Ibid 564. Forth vs Chapman, Ibid 663. Atkinson vs Hutchinson, 3 P. Wms. 258. Lampley vs. Blower, 3 Atk. 396. Keily vs Fowler, 6 Bro. P. C. 309. Goodtittle vs. Pegden, 2. T. R. 720. Wilkinson vs South, 7 T. R. 551. Roe vs. Jeffery, Ibid 585. Fearne’s Ex. Dev. 279, (576.) Doe vs. Lyde, 1 T. R. 598; & Trafford vs Boehm, 3 Atk. 449
    Johnson, (Attorney General,) for the Appellee,
    coi> tended that a devise over, after a failure of issue generally, without restrictive words, was not an executory devise,,.- and that there was no executory devise in this case to Ann, the wife of the testator;. He cited Love vs Wyndham, 1 Lev. 290. Pearse vs Keeves, Pollex. 29. Earl of Stafford vs Buckley, 2 Ves. 181. Badger vs. Lloyd, 1 Ld. Raym. 523. Beauclerk vs Dormer, 2 Atk. 308, 312. Saltern vs Saltern, Ibid 376. Sheffield vs Lord Orrery, 3 Alk. 287. Lanesborough vs Fox, Ca. temp, Talb. 262. Fearne, 322, 325, 341, 159. 2 Bac. Ab, 76, 77. and Davidge vs Chaney, 4 Har. & M‘Hen. 393.
   Chase, Ch J.

delivered the opinion of (he court. Th$ question to be decided by the court in this case, arises under the will of Zebedee Wood; what estate did Ann Wood, the widow of Zebedee FFood, take under the will?

It is a principle generally recognized by the courts of law and equity, and the court think well established, that where the limitation over is in fee, after an indefinite failure of issue, it is not good asan executory devise, because of its tendency to creates perpetuity by rendering-property unalienable. In this case the limitation over is to Ann Wood, during her widowhood, and at her death or marriage, to be sold, &c. It is stated that Ann, the widow, married during the life of Mary Ann Wood, the first devisee, and is now living.

In expounding wills, the first and great principle to be observed is, that the intention of the testator is to prevail unless such intention is opposed by some rule of law. The only rule of law which is supposed to stand in the way in this case, is that which restrains the testator from limiting Vis estate in such manner as to create a perpetuity; and if that is no obstacle in this case, there is nothing to prevent 'the testator’s intention from being effectuated.

The limitation over to Ann, during her widowhood, plainly evinces an intention in the testator that she should be benefited by the devise to her, which could not be the case if her interest could not ve'st until the unrestricted failure of issue of Mary Ann, during the widowhood of Ann — a mere possibility, and too remote to be in the contemplation of the testator.

The limitation over to Ann, during her widowhood, constitutes a good executory devise, because it was'to take effect on the contingency of Mary Ann dying without leaving issue at the time of her death.

The only consequence which can result from Ann’s marrying in the life-time of Mary Ann, is (hat the remainder over, after the death or marriage of Ann, did take effect immediately on the death of Mary Ann, and such event did not change or alter the quality or nature of the estate created by the first limitation over to Ann, nor did it defeat the remainder over.

The court are of opinion, that the judgment of the county court be reversed.

judgment reversed.  