
    Richard Ackless, Appellant, v. Timothy Seekright, ex dem. of the heirs of George Lunceford, deceased, Appellee.
    APPEAL FROM MONROE.,
    By the ordinance of 1787, but two of the subscribing witnesses to a will are required to prove it, and a will attested by three, one of whom is a devisee in the will, is valid.
    M. devised and bequeathed by will, all his estate to his daughter, R., but if she died before she became of age, then to his friend G-. S. R. died before she came of age, and Gr. S. died before R. It was held that the devise to Gr. S. was a good executory devise, and that the estate passed to his heirs.
   Opinion of the Gowrt by

Chief Justice Reynolds.

This was an action of ejectment, commenced by the defendant here in the court below, to recover the possession of certain lands lying in the county of Monroe. The ability with which this case was argued, and the magnitude of the claim, has induced this court to bestow more time on its investigation than in any ordinary case. Four errors have been assigned as causes for reversing this judgment, and if either of them is well taken, the plaintiff in error must prevail.

1. The will set out in the record was not legally attested by three witnesses, one of the witnesses being a devisee.

2. The will was not proved according to law.

3. By the will, George Lunceford took nothing.

4. The contingency upon which the devise was to take effect did not happen.

We will consider these questions in the order in which they are presented: and 1. The will was not legally attested by three witnesses, one of the witnesses being a devisee. Without deciding how far this would affect the validity of a will where it was required that three “ subscribing”, witnesses should prove it, it is a sufficient answer, that by the law which governs in this case, but two of the subscribing witnesses are required to establish the execution of a will, and when thus proven, is good to all intents and purposes: 2.

The will was not proved according to law. In answer to this objection, the court need only add, that the will was proven by two competent witnesses, (the said devisee not being one of them) before the proper officer, and in such manner as comported with the statute. Having disposed of the two first errors assigned, the court will consider the two last together. Daniel McCann, by his last will and testament, dated the 27th day of January, 1806, after ordering his legal debts to be paid, devised his estate as follows:.

“I give and bequeath all my residue and remainder of my personal and real estate, goods, chattels and credits, and lands, and tenements, and hereditaments of what kind and nature soever, to my beloved daughter, Rebecca, and it is my further will and desire, that should the Almighty take away my said beloved daughter, Rebecca, before she comes of age to receive the said legacy, then and in that case the same personal and real estate to return to my beloved friend George Lunceford, to whom I bequeath the same on the proviso above mentioned.”

George Lunceford, the executory devisee, was by said will appointed one of the executors, and died in the year 1808. The testator died in possession of the premises in the year 1806. Rebecca McCann, the devisee, died in the year 1815 or 1816, and under the age of twenty-one years. It was contended for by the counsel for the plaintiff in error, that by the devise to Rebecca McCann, she took an estate in fee simple, "and that therefore the limitation over to George Lunceford was void, being repugnant to the previous estate granted, and in support of this position the case of Jackson v. Robbins, 16 Johns. Rep., p. 537, was cited and relied upon. We have examined this case minutely, but can not say it will warrant this conclusion. One of the principles there decided, grew out of the effect to be given to lord Sterling’s will. He devised his estate to his wife, and then said, “in case of the death of my wife without giving, devising, and bequeathing by will or otherwise, selling or assigning the estate or any part thereof, he doth give and devise all such estate as should so remain unsold, undevised, or unbequeathed, to his daughter, lady Catharine Duer.” This limitation over was there adjudged (whether considered as a remainder or as an executory devise) bad. That case differs materially from the one before the court. In the first, an express power was given to lady Sterling to dispose of the estate in such manner as she should think proper. In the lattes no such power is given to the first taker, but the interest of the executory devisee is made to depend entirely upon the contingency of the first taker dying before she “ becomes ” of age to receive the legacy. This power of disposing of the estate given to the first taker, has been considered even from the time of lord Coke, as carrying the absolute fee, except when coupled with a life estate; then it is said, that a power to sell creates no greater interest. If the power of absolute disposal had been given to Rebecca McCann, we might well question the validity of the limitation over, for the very essence of an executory devise, consists in the inability of the first taker to destroy it by disposing of the estate devised. In the emphatic language of the books, it can not be created, and it can not live under such a power in the first taker.

Hence, and hence only, do we account for the decision in the case referred to in 16 Johns. Rebecca McCann surely took a fee, but a fee conditional, subject to be defeated upon her dying before she arrived at full age, and not as was supposed by the counsel, a fee absolute.

There is no doctrine better settled than that a fee may be limited after a fee, and this happens, says justice Blackstone in his second Vol. Com., p. 172, “ when a devisor devises his whole estate, in fee, but limits a remainder thereon to commence on a future contingency, as if a man devises land to A. and his heirs ; but if he dies before the age of twenty-one, then to B. and his heirs, this remainder, though void in a deed, is good by way of executory devise.” See 12 Mod., 287. 1 Vern., p. 164.

Another very strong case is reported in second Wilson, p. 29, Goodright, ex. dem, &c., v. Searle and wife. The devise was to P., his heirs and assigns forever, but if he should die before he should attain the age of twenty-one years, leaving no issue at the time of his death, then the same was devised to C., her heirs and assigns forever. This the court held to be a good executory devise, and surely the words of inheritance are equally as strong as in the case before the court. Having disposed of this branch of the subject, we will next inquire whether the circumstance of George Lunceford dying before the contingency happened upon which he was to take, destroyed his interest, and if not, whether he had such an interest as would descend to his heirs at law. As evidence that at common law, contingent remainders and executory devises are transmissible and will descend to the heirs of the person to whom they are limited, although he chance to die before the contingency happens, (without further reasoning) the court refer to Pollexfen, 54; 1 Rep., 99; Cas. Temp. Talbot, 117; 7 Cranch, 469; P. Williams, 564; 2 Munford, 479. Let the judgment below.be affirmed and the defendant recover his costs,

Kane, for plaintiff.

Starr and Baker, for defendant.

Judgment affirmed. 
      
      
         4 Kent’s Comm., 257 to 275, as to the history, variety, qualities, &c. of executory devises.
     