
    Sydnor v. Sydnors.
    Monday, April 29th, 1811.
    Wills — Construction — Estates Tail Conversion. — A testator, in February, 1779, devised to Ms four sons certain lands “to them and their heirs for ever;” desiring: that, “if any of them should die without heirs of their bodies, then the parts of them so dying should be equally divided among the survivors and their heirs.” This was a devise of an estate in tail, which, by the act of October, 1779, was converted into a fee-simple.
    Anthony Sydnor, by his last will and testament, dated the 4th of February, 1779, devised to his son Joseph Sydnor, 258 acres, part of a tract of land in the county of Din-widdie, “to him and his heirs for ever to his son William Sydnor, 258 acres, part of the same tract, “to him and his heirs for ever and to his sons John and Anthony, all the remainder of the said tract, as divided, (specifying their respective parts,” “to them and their heirs for ever adding the following clause : “and it is my desire that, if any of my above four sons, John, Joseph, William, and Anthony, should die without heirs of their bodies, that then the parts of them, so dying, shall be equally divided among the survivors and their heirs.”
    The four sons above mentioned survived the testator, and, after his death, entered upon the lands to them respectively devised, John Svdnor departed this life in the year 1788, without lawful heir of his body ; having devised his share of the land to his nephew John Sydnor, jun. in fee-simple. Joseph Sydnor also departed this life in the year 1787, leaving lawful heirs of his body.
    William Sydnor and Anthony Sydnor, the surviving sons of the testator, on the 15th of April, 1804, brought their action of ejectment in the district court of Petersburg, against John Sydnor, jun. to recover the land devised to him as aforesaid ; and, at the trial, the jury *found a special verdict, setting forth the circumstances above mentioned.
    The district court determined the law to be for the plaintiffs, and the defendant appealed.
    George K. Taylor, for the appellant.
    The limitation in the will in this case was too remote, depending upon indefinite failure of issue. Each of the brothers, therefore, took an estate in fee-simple, disencumbered of the limitation, or an estate-tail, which, by virtue of the act of October, 1776, was converted into a fee-simple.
    The case of Porter v. Bradley, 3 Term Rep. 143, may be cited against me ; but that case is mentioned and disapproved, 2 Fearne, 206, and was not countenanced by this court in Hill v. Burrow, 3 Call, 349. In Roe v. Jeffery, 7 Term Rep. 589, an executory devise, somewhat similar to this, was allowed to be good, because the limitation over was not to the survivors and their heirs, (as in this case,) but to the survivors, who must have taken during their lives, or not at all. Roe v. Scott and Smart, 2 Fearne, 203, is a case in point, being as near to that now in question as ever a case cited was to the case in controversy.
    Hay, contra.
    This is a case upon the construction of a will; yet nothing has been said about the intention of the testator. But an attempt is made to bewilder the court with authorities.
    In Anthony Sydnor’s will, a fee-simple is expressly devised to each of the sons ; but, if either of them should die without heirs of his body, there is then a limitation over to the survivors and their heirs. This is manifestly a limitation to take effect in the compass of a life in being, because it is made to a survivor. Such is the construction of common sense.
    None of Mr. Taylor’s cases have any application. The case of Pells v. Brown, Cro. Jac. 590, is a great *leading case, the authority of which has never been shaken, and is conclusive in my favour. It appears from that, and all the other British cases, that an express estate in fee-simple will not be contracted into a smaller estate, except for the purpose of effectuating the intention of the testator. In case of a limitation upon indefinite failure of issue ; as in a devise to A. and his heirs, and if he die without heirs of his body, then to B. and his heirs ; the devise to A. has been decided to be an estate-tail, in order to effectuate the testator’s intention; because, otherwise, the devise to„ B. would be defeated. But where the limitation is to take effect within the compass of a life in being, there is no such necessity for narrowing down the fee-simple devised in the commencement of the clause ; for the limitation over may well take effect by way of executory devise. Instead of which, a construction making it a fee-tail, would, in this country, defeat the intention by preventing the limitation over from taking effect at all.
    In Porter v. Bradley, 3 Term Rep. 146, the case of Pells v. Brown is called the magna charta upon the subject of executory devises. If any case were wanting, Porter v. Bradley is decisive in our favour. There is indeed a dictum of Lord Kenyon in that case, which has been reprobated, and has since been unsaid by him, as far as he was able ; but the principle decided by the court in that case has- never been shaken. Mr. Taylor has endeavoured to distinguish Roe v. Jeffery, 7 Term Rep. S89, from the case at bar ; but it is the same in substance. The question is, did the testator mean a definite or indefinite failure of issue ? He certainly meant a definite failure; because the devisee over was to take in character of survivor. The case in 2 Fearne, 203, was only partly read by Mr. Taylor. The concluding part of the devise was, that “if all the testator’s sons should die without issue, then the estate was to go to his daughters, and their heirs and ássigns for ever.” This last limitation *was upon an indefinite failure of issue ; for it was not to the daughters as survivors of the sons.
    Taylor, in reply.-
    I admit the authorities X have cited have established a doctrine contrary to common sense, and the hardship of which the courts deplore ; but still it is law.
    Cur. adv. vult.
    
      
       Wills Construction — Estates Tail — Conversion,— The principal case was cited with approval on this subject in Colemans v. Holladay, 6 Munf. 60; Tidball v. Hupton, 1 Rand. 204; Goodrich v. Harding, 3 Rand. 284, 285, 286; Bells v. Gillespie, 5 Rand. 283, 286; Broaddes v. Turner, 5 Rand. 310; Graham v. Graham, 4 W. Va. 323; foot-note to Callis v. Kemp, 11 Gratt. 78.
    
    
      
       Walter v. Drew, Com. Rep. 372, cited by Fearne on Rem. p. 3; Denn, Lessee of Geering, v. Shenton, Cowp. 410; Hill v. Burrow, 3 Call, 342; Tate v. Tally, ih. 354.
    
   Tuesday, Nov. 12th. The president pro-

nounced the opinion of the court,

(consisting of JUDGES ROANE), CABEEE, BROOKE and FREMING-,) that the devise to each of the four brothers conveyed an estate-tail, which, by the act of assembly, became a fee-simple.

Judgment reversed and entered for the defendant.

A motion for a rehearing was afterwards made, and unanimously overruled.  