
    Self’s Administrator v. Tune.
    Decided, January, 1820.
    i. Wills — Construction—Heirs of Body, — By a deed . dated in 1769, certain slaves were «iven to a daughter of the donor, and her-husband for and during . their natural lives, or that of the longest liver of them; and, after the decease of them both, the said slaves and their increase to be equally divided among the heirs other body; and, in default of such heirs, to return and be divided equally between the donor’s son and other daughter. & their heirs and assigns forever. By virtue of this deed, the first female donee ■ took an estate for life only; the words “heirs of her body,” coupled with the words, “equally to be divided between them,” being to be construed not as words of limitation, but of purchase, describing the persons intended to take.
    In an action of detinue for several slaves, in the Superior Court of Richmond County, (wherein Self’s administrator, was plaintiff and Lewis Tune defendant,) a special verdict was found, upon which the Court was of opinion that the law was for the defendant, and judgment was entered accordingly. To this Judgment the plaintiff obtained a writ of Supersedeas; stating in his petition, that the main, if not the only question of law in the case, arose on a deed from Leasure Hall to William and Mary Bailey, granting them certain slaves; (from whom the slaves in the declaration mentioned were descended;) and that question was, whether, by virtue of that deed, they took an absolute estate in the slaves thereby granted; or whether the executory donation, that, for want of heirs of the body of the said Mary Bailey, the said slaves, with their future increase, should all return and be equally divided between the grantor’s son and daughter Jeremiah Hall and Anne Lewis, to the use and behoof of the said Jeremiah and Anne, their heirs and assigns forever, was a valid executory limitation over, of the said slaves and their increase, or not? — The petitioner was advised, that, if William and Mary Bailey took by the said deed an absolute estate in the slaves, the law on the special verdict was for him, and the judgment erroneous; if, on the contrary, the executory, limitation was valid, the law was for the defendant. He contended, that William and Mary Bailey did take an absolute estate in the said slaves and their increase; *that they took by the deed an estate in tail special, which was tantamount to an absolute estate, because the executorj- remainder, limited on the estate tail, and intended to supplant it, was limited on too remote a contingency; namely, the failure of issue of the body of the said Mary Bailey; that this case presents not a single circumstance to tie' up the contingency, and restrain it within the reasonable bounds prescribed by the rules of law for restraint and prevention of perpetuities, unless it be the equal division of the said slaves, between the ex-ecutory grantees, directed by the deed, from which possibly the Court might have inferred, that the executory donation was intended as a personal benefit to them, and, therefore, that an unlimited failure of issue of the body of the first taker was not intended ; but that circumstance was not sufficient to restrain the generality of the contingency, even if it did evince that a personal benefit was intended for the ex-ecutory grantees; but no such personal benefit appeared to have been intended ? for not the slaves only, but their increase also were limited over, and the limitation was not to the executive grantees only, but to them, their heirs and assigns forever.
    Leigh for the plaintiff in error.
    Stanard for the defendant.
    
      
       See foot-note to Cheatwood v. Mayo, 6 Munf. 16. The principal case is cited in Moore v. Brooks, 12 Gratt. 149, 160,151.
    
   JUDGE) ROANE)

pronounced the Court’s-opinion.

The appellant in this case claims under Mary Bailey; and the validity of her title depends upon the construction of a Deed of August 4th, 1769, made by Leasure-Hall. That Deed gives five slaves, from whom the slaves in question are descended, to his daughter Mary Bailey and her husband William Bailey, for and during their natural lives, or that of the longest liver of them; and, after the decease of them both, for the said negroes and their increase to be equally divided among Mary Bailey’s heirs of her body; and, in default of such heirs, for the said negroes and their increase to return and be divided equally between his son Jeremiah and daughter Anne, and their heirs and assigns forever. If these words, “heirs of her body,” had stood alone, in the limitation *after the death of Mary Bailey and her husband, we are of opinion that her title would have been absolute, as, in that case, they would have been considered words of limitation : — but the addition of the words, “equally to be divided” between them, compels us to construe them as words of purchase, and as a description of the persons who were to take. Nor is this idea varied by the limitation over, “in default of such heirs”that word “such” being a relative term, and in like manner qualifying the meaning of “heirs,” as aforesaid. Mary Bailey had therefore only an estate for life, and, as the appellant has consequently shewn no-title, the judgment for the appellee must be affirmed.  