
    Allen v. Parham and Others.
    Decided March 6th, 1817.
    a. Will — Devise on CoiiMlSíiom Devisee Outlive Testator —Death of Devisor before Devisee-Effect — W. A. by his last Will devised that “in case he should die before his brother R. A., all his estate, both real and personal should descend to him and liis heirs forever; but, in case his said brother should die without a lawful heir, it should then be equally divided between his brother W. A., and his nephew S. A., to them and their heirs forever. ” R. A. having died in the liletimo of the devisor, and without issue, the limitation over could not take effect; but the estate descended to the heirs general of the devisor.
    2. Same — Construction—Estate THE Docking. - Ill such case, if the devisee had survived the devisor, he wouid have taken an estate tail, which by the Act of Assembly, would have been turned into a fee simple; and the limitation over could not have taken elfect.
    See Carter v. Tyler, 1 Call 165; Williamson v. Ledbetter, 8 Munf. 581, and Kldridge v. Msher, 1 H. & M. 559.
    The controversy in this case arose upon the construction of the Wills of Eichmond Allen and William Allen of New Kent County.
    It appeared that Eichmond Allen and William Allen, being brothers, each made his Will in the month of July, 1807. Richmond Allen, by his Will, directed that, if he should die before his brother William Allen, all his estate, both real and personal, should descend to him and his heirs forever, one negro man Tom excepted; but, m case his said brother William should die without a lawful heir, then it was his will that it should be equally divided between his brother Wilson Allen, and his nephew Samuel A. Apperson, to them and their heirs forever: he also gave the negro man Tom to Wilson Allen and his heirs. Wilson Allen, by his Will, in like manner, devised, that, in case he should die before his brother Eichmond Allen, all his estate, real and personal, should descend to him and his heirs forever; one negro man Sam excepted; and in case his brother Eichmond should die without a lawful heir, then it was his will that it should descend to his brother Wilson Allen, and his nephew Samuel A. Apperson, to them and their heirs forever: he also gave the negro man Sam to Wilson Allen and his heirs.
    Richmond Alien died without issue, and in the life-time of William Allen. After the'death of the latter, (who likewise died without issue,) Wilson Allen and Samuel A. Apperson took possession of his estate, (including what had belonged to Richmond Allen,) claiming the whole as their absolute property.
    *Henry Parham and Peggy his wife, Richard Allen, and Elizabeth R. Allen, the other brothers and sisters of the Testators, filed their Bill, in the Superior Court of Chancery for the Williams-burg District, claiming an equal division of the estates in question, on the ground that, under t&e Will of Richmond, William Allen took an estate tail, which, by operation of law, was converted into a fee simple ; and that, consequently, the devise over to Wilson Allen, and Samuel A. Ap-person was void; that the bequest in Wil-lams’s Will was lapsed by the death of Richmond in his life-time; that the condition having failed, the bequest likewise failed; that, even if Richmond had survived William, his estate would have been an entail; and that Wilson Allen and Samuel A. Apperson could only take as heirs general.
    The defendants, presuming that the Will of William Allen was the only one necessary to be looked into, contended that, as Richmond died in the life-time of William, a fact known to William, who possessed himself as devisee and legatee of Richmond’s estate, the Court should read his Will, as-if nothing were said of Richmond, and consider the bequests as immediate to the defendants, which they believed to be the plain intention of the Testator, who had evinced, most clearly, that they were, next to Richmond, the objects of his bounty: but, if that were not correct, yet, that a devise to one, with a limitation over to another, (as in this case,) of both real and personal estate in the same clause, if the first dev-isee died without heir in the life-time of the Testator, would be a good devise over.
    Chancellor Nelson decreed a division of the lands, of which Richmond and William Allen died seized, among the plaintiffs and defendants, and also an account to be taken, of the rents and profits of the lands and slaves, and reported to the Court; from which Decree Wilson Allen appealed.
    Wickham for the Appellant.
    Admitting the devise by William Allen in this case, to be of an estate tail, it never took effect; for Richmond Allen, the devisee, died in the Testator’s life-time. The limitation over to Wilson Allen and Apperson was therefore good as an executory devise; though bad as a contingent remainder, the particular estate having never taken ^effect.  In such case the remainder man will take, as if no devise in tail had ever existed. The Will operates as if the devise to him were immediate.
    Wirt contra.
    If the devise of the estate tail fails, the remainder must fail also. The substratum failing, so must the superstructure.
    
      
      See principal case cited with approval in Tidball v. Lupton, 1 Rand. 204.
      See generally, monographic note on “Wills” appended to Hughes v. Hughes, 2 Munf. 206.
    
    
      
       Note by the Reporter. In 6 Cruise’s Digest p. 513,-14, and in Pearne on Ex. Dev. 492, the doctrine is laid down, “that, whenever a contingent limitation is preceded by a freehold capable of supporting it, it is construed a contingent remainder, and not an executory devise; but it is possible, that the freehold so limited may, by a subsequent accident, become incapable of ever taking effect at all; as, by the death of the first devisee in the Testator’s lifetime; in which cáse, the subsequent limitation, if the contingency has not then happened, will be in the same condition at the Testator’s death, (that is, at the time when the Will is to take effect,) as if it had been limited without any preceding freehold. Now, in this case, it has been held, that, where such subsequent limitation could not vest at the Testator’s death, it should enure as an executory devise rather than failfor want of that preceding freehold, which had never taken effect.” And such was the decision in Hopkins v. Hopkins, Oases Temp. Talbot. 44; 1 Atk. 581; 1 Vezey sen’r. 269. But it may be remarked, that, in this case, upon the death, without issue, of Richmond Allen, the devisee in tail, the contingency, upon which the limitation over was intended to take effect, actually happened, if it ever did; yet, since, at that time, the remainder men could not take, (because the devisor was then living.) they could not take at all; for no time was appointed by the Will, for them to take, but that of the death of Richmond Allen, without issue. It seems, however, that the contingency never happened at all; for. by the express words of the Will, the devise to Richmond Allen was only in case he survived the devisor; and the limitation over must, of course, have been intended to operate in the event of his dying, thereafter, that is, after taking the estate, without issue. The event of his dying, in the life-time of the Testator, without issue, was not provided for in the Will.
    
   March 6th, 1817,

JUDGE ROANE

pronounced the following opinion of this Court.

The Court perceives no error in the principles of the Decree: but there is no division of the negroes decreed, although an account of their hires is. The Court, considering the Decree, however, as interlocutory, and that a division may be hereafter decreed, does not think proper to reverse the Decree for this, but affirms it.  