
    DEN ex dem. SHAW and al. against FOSTER and al.
    This ejectment was brought on the following clause in the will of John Shaw, made in 1772: “Item, I give and bequeath unto Joshua Shaw, before mentioned, my nephew, son of my brother Joshua Shaw, my home plantation, with apiece of land adjoining it in Indian Neck; also, a piece adjoining Thomas Hewett’s line, all which land I give to him, the said Joshua Shaw, and to his male heirs forever. Also, a piece of Cedar Swamp lying on the north side of Dennis’s Creek, adjoining a lot of Samuel Crowell’s, which I purchased of John Ireland, which I also give and bequeath to the said Joshua Shaw, and the said Joshua Shaw not to sell or convey away any of the said land or swamp, but to enjoy them his natural life; and after his death, I bequeath both land and swamp aforesaid, to the said Joshua Shaw’s male heirs, in a line of descent downwards forever.” The testator died in 1773; on which, Joshua Shaw, the devisee, entered on the land, and enjoyed it until his [*] death in 1790; he left issue Joshua Shaw, his eldest son, by one venter, and John and Humphrey (the lessors of the plaintiff) and Lydia by another venter; that on the death of Joshua Shaw, the devisee, his eldest son Joshua entered upon the land, and enjoyed it until 1801, when he conveyed the same in fee to the defendant, and those under whom they claim title. These facts were found by a special verdict; and the cause set down for argument in the paper this term. When called, it appeared that Mr. White, who was to argue it for the lessors of the plaintiff, had left court, and it was understood that he did not intend arguing it. Mr. R. Stockton and ■Gen. Giles were prepared to argue it for the defendants.
   [745]

Pennington, J.

Asked if it was understood that Joshua Shaw, the eldest son of the devisee, was yet alive; and on being informed that he was, he said that there was nothing to argue; there was no point in the cause. When he had looked into the cause, he had imagined that Joshua the younger was dead; and it had been neglected to have been found in the special verdict. For if he was dead, without issue, a question might have arisen whether the estate tail began in him or his father; for in his father, a descent had passed, and he was vested with the fee simple; but if in him, no descent having passed, his next eldest brother would be the heir in tail.

By the Court.

If the counsel for the plaintiff was here, and wished to argue the cause, the court would hear him; but as it is, we are satisfied. The defendants must have judgment.

Judgment for the defendants.

The reporter has understood that the counsel for the lessors of the plaintiff intended to argue, that the male children of Joshua Shaw, the devisee, all took on the death of their father, in equal portions, and of course, that Joshua, the eldest son, only took a part of the land devised, and the lessors of the plaintiff [*] each a third, but to let in this proposition a fee simple estate must have descended from the father, which, in no view of the subject, could be pretended.  