
    *Willamson, Executor of Mayes, v. Ledbetter and Others.
    December, 1811.
    Will — Construction—Limitation after Indefinite Fail» ure of Issue. — A testator “lent to bis srranddaugb-ter, A. S. P., a negro woinan, and one bed and furniture, for ber, ber beirs, executors and administrators forever, but if she should die without lawful heir of her body, then to return to his son, and his heirs forever.” This limitation over was adjudged to be upon an indefinite failure of issue, and therefore void.
    On the 12th day of September, 1807, Charles Williamson, executor of Anne Smith Hayes, exhibited a bill to the superior court of chancery for the Richmond district, setting forth that the said Anne in her lifetime brought a suit, in the said court, against the executors of Joel Mayes (her deceased husband) and a certain Joshua Smith, to recover a moiety of the property of the said Joel Mayes, remaining after payment of his debts; which moiety was devised to her by his will; that the only difficulty in the said suit arose from the following clause in the last will and testament of her grandfather George Smith, dated in the year 1771; viz. Item, I lend to my granddaughter, Anne Smith Poythress, one negro named Judith, and one good bed and furniture, for her and her heirs, executors and administrators, forever; but if she should die without lawful heir of her body, then to return to my son Joshua, and his heirs forever;” that the said executors of Joel Mayes filed their answer acknowledging the facts set forth in her bill, and the cause coming on to be heard by the late Chancellor Wythe, at March term 1799, he decreed that so much of the bill as claimed a title to the offspring ot Judith should be dismissed; and, after-wards, at May term, 1802, he dismissed the residue of the said bill: (as would more fully appear by the proceedings in the said suit, which were referred to and exhibited;) that the said Anne departed this life soon after the said decree was rendered, and the complainant, as her representative, was devised that there is error, apparent on the face of the said decree, in this, that, by the decree dismissing the suit so far as related to the offspring of Judith, the limitation of that slave to *Joshua Smith, after a .dying by the said Anne, without lawful heir of her body, is considered a good executory devise, whereas the same, being after an unlimited failure of issue, is too remote to be valid in law. The complainant therefore prayed that the defendants in the original suit be considered as such in the present; that the court may review and correct the said decree, and grant such other relief in the premises as equity may dictate.
    Chancellor Taylor, “being of opinion that there is no error in the decree sought by the said bill to be reviewed,” rejected the motion for leave to file the bill; from which order the said Charles Williamson appealed.
    
      
       See principal case cited in Deane v. Hansford, 9 Leigh 256; Callis v. Kemp, 11 Gratt. 85; Ambrouse v. Keller, 22 Gratt. 774; Connolly v. Connolly, 32 Gratt. 660.
    
   The following was the opinion of this court.

“This court is of opinion that the limitation of the slaves in the bill and proceedings mentioned, being after an indefinite failure of issue, was- void; that the decree of the said court of chancery, adjudging it to be good, is erroneous; and that, consequently, the order aforesaid of the said court rejecting the motion of the appellant for leave to file a bill for the purpose of reviewing the same, is also erroneous: therefore it is decreed and ordered, that the said order be reversed and annulled ; and that the appellees, who are executors, out of the estate of their testator in their hands to be administered, if so much thereof they have, but if not, then out of their own estates, and the other ap-pellee in his own right, pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered that the cause be remanded to the said court of chancery, with directions to that court to receive the said bill of review, and proceed thereupon, according to the principles now stated, in order to a final decree.”  