
    [Pittsburg,
    September 18, 1827.]
    AMELONG and others against DORNEYER.
    in error.
    Devise, “ I give unto my son J. D. my plantation, to have and to hold for ever, and, if my son J. D. dies without heirs, the plantation is to fall back to my son J. J. in the same manner and form as it was made over unto his brother, J. D. ” J. J. died unmarried, and without issue in the lifetime of his brother J. D. and the property was sold on a judgment and execution against J. D., who afterwards died without issue; held, that, J. D. took an estate tail, and the reversion passed to the testator’s children, the purchaser taking only J. D’s. share of that reversion.
    Writ of error to the Court of Common Pleas of Westmoreland county.
    The plaintiffs in error, who were plaintiffs below, David Amelong, James Hamilton, and Catherine his wife, formerly Catherine Amelong, George Deimer, and Elizabeth, his wife, formerly Elizabeth Amelong, Nicholas Louzell, and Mary, his wife, formerly Mary Amelong, Jacob, George, and Christopher Amelong, brought this ejectment against George Dorneyer, and George Ammon admitted co-defendant; and a case was stated for the opinion of the court below, to be considered in nature of a special verdict. The defendants were admitted to be in possession of the premises described in the ejectment. Christopher Amelong, the elder, died seised in fee of the premises in the year 1S05, having first made his last will and testament, which was duly proved and approved on the 14th of December, 1S05, and by said will, devised the premises, as follows:
    “ As touching the worldly estate wherewith it has pleased God to bless me in this life, I give, devise, and dispose of the same .in the following manner'and iovva-, first of all, I will, that my debts which I have contracted, be discharged and justly paid; which is to be raised and levied out of my estate, that is to say, out of my stock, until paid, and then I give unto my son, John Daniel, my plantation, to have and to hold for ever; I also give unto my dearly beloved wife Catherine Elizabeth, all that personal property which will remain after my death if all my debts are paid, and her maintainance out of the aforesaid plantation, while she remains a widow; if so be that my wife, Catherine Elizabeth, marries again, then she is only to have the third share of all the personal property, and the remainder unto my son, John Daniel, aforesaid; and also I ordain, that if my wife aforesaid dies, the whole remainder of her property is to fall back to my son, John Daniel, and he has to give, and pay, after the death of his mother, to my other children for their share, namely, my daughter Sophia Elizabeth, twenty shillings; my daughter, Maria Engles, twenty shillings; my son Christopher Frederick, twenty shillings; my son John Jacob, twenty shillings; my daughter, Anne Margaretta, twenty shillings; my daughter, Catherine twenty shillings, my daughter Elizabeth, twenty shillings: and I further will and ordain, that, if my son John Daniel dies without heirs, then the plantation is to fall back to my son John Jacob, in the same manner and form as it was made over unto his brother John Daniel, and I likewise constitute, make and ordain George Ammon, and my wife Catherine Elizabeth, the sole executors of this my last will and testament, &e.
    
      John Daniel Amelong, named in the said will, entered into possession of the premises under the said will, and continued the said possession, until the year 1S16, after the sale of the same by the sheriff of the said county, by virtue of a writ of venditioni exponas, No. 32, November, 1816, in pursuance of a judgment, in favour of George Ammon, and John McCreary, against the said Daniel-, at which said sale, the premises were sold to the said George Ammon, as the property of the said Daniel, and conveyed by the sheriff accordingly. George Ammon, in pursuance of the said sale, took possession of the said premises, and put George Dorneyer in possession thereof, as his tenant. John Daniel Amelong died in the beginning of the year, 1821, intestate, and without issue, never having been married. John Jacob Amelong, mentioned in the said will, died, living the said Daniel, unmarried, and without issue, in the year 1808. Christopher Amelong, son of the aforesaid testator, died in the year 1809, after the death of the aforesaid John Jacob Amelong, and living the said John Daniel, leaving lawful issue, the said David Amelong, Elizabeth, the wife of George Deimer, Catherine, the wife of James Hamilton, Mary, the wife of Nicholas Louzell, Jacob Amelong, George Amelong, and Christopher Amelong, plaintiffs in this suit, who are heirs at law, of Christopher, jr., their father, and of Christopher Amelong the elder, the said devisor.
    Opinion of the court b|low:—
    The defendant, George Ammon, makes title to the land in question, under a sale by the sheriff of the right of John Daniel Amelong. The land was devised to him by his father, by will, dated the 14th of December, 1805, to have and to hold for ever. That is clearly'a fee simple. There is another clause in the will, providing, that if his son John Daniel die without heirs, then the plantation is to fall back to his son John Jacob. He died in the year 1808; the plain intention of the testator was, that if John Jacob should survive his brother John Daniel, having no legal issue, John Jacob was to have the land; but it was only in the event of such survivorship, he was to have any interest in the land: and as he did not survive, the estate, if I may use the expression, became absolute in his brother John Daniel, or a fee simple, and, as such, subject to levy and sale for the payment of his debts. There is nothing in the will, from which an estate in tail only can be implied, or but an estate for life, when the land is given to the first devisee for ever.
    
      Foster, for the plaintiffs in error.
    1. The son took in tail. When the devise is expressly in fee, and a devise over, it may be cut down to an estate tail. 4 Com. Estates tit. Devise, 5. 2 Fearne, 179, 180, 181. 2 Saund. 388, note 8; where all the eases are collected.
    2. A second estate tail in remainder, is vested in John Jacob.
    
    
      3. The consequence is, that these estates being spent, the heirs at law of the testator are entitled to the reversion.
    
      Coulter, contra.
    
    Even where the limitation is on failure of issue, yet where there is an express devise in fee, the devise over is an executory devise. In such case, the estate becomes absolute in the first taker. Here the estate became indefeasible by the death of the devisee over. Holmes v. Holmes, 5 Finn, 252.
   The opinion of the court was delivered by

Duncan, J.

This question arises on the will of Christopher Amelong, who devises, I give unto my son, John Daniel, my plantation, to have and to hold for ever; and, if iny sou John Daniel dies without heirs, the plantation is to fall back to my son John Jacob, in the same manner and form as it was made over unto his brother, John Daniel.”

John Jacob died unmarried, and without issue, in the lifetime of his brother John Daniel, who is likewise deceased, without issue. The plaintiffs are heirs, under our intestate aets, of Christopher Jlmelong, the testator. The plantation was sold by the sheriff as the estate of John Daniel. The Court of Common Pleas was of opinion, that John Daniel took an estate in fee by way of executory devise, subject to be divested by his death in the lifetime of his brother, John Jacob; and that, as that event did not happen, the estate in fee continued in him.

I am not able to find any intention expressed in the will, to confine the devise over to John Jacob, to the death of John Daniel without heirs in the lifetime of his brother John Jacob. It is indefinite failure of heirs, which, in this will, means heirs of the body; and, consequently, was an estate tail in John Daniel; for it is impossible tiit&John Daniel could die without heirs, whilst any of his brothers or sisters were living. The testator, by heirs, could only mean heirs of the body. By tne first words, John Daniel took an estate in fee, in express words, to hold to him for ever; and, where the remainder over is after dying without heirs, limited to one who is, or may be, heir to the first devisee, this has always been determined to be an estate tail.

Now, John Jacob would not only be heir of the first devisee, but heir of the testator himself. If the devise over had been to one who could not, by any possibility, be the heir of the first devisee, then the subsequent limitation over would not alter the preceding positive devise in fee, and the court would not restrain the general import of the word heir. This was clearly an estate tail in John Daniel. I refer to 2 Fearne’s Contingent Remainders, 350.

The reversion in the fee would be in the father, and always continue in him; the estate tail, being a particular estate, carved out of the testator’s general estate. The reversionary interest was undisposed of by the will, and descended to the heirs immediately on the death of the testator, but would not come into possession until the determination of the estate tail; the interest of John, whatever it was, was the subject of a judgment which would bind it, and was subject to execution and to sale.

The judgment against John Daniel would bind his interest in the reversionary estate of the father, and vest in the purchaser his portion of that reversionary estate; consequently, if the plaintiffs were the only survivors of the testator’s family, and his heirs at law, they would be entitled to one-half, and the other half be vested in the purchaser of John Daniel’s interest at the sheriff’s sale. Judgment would then be entered for the plaintiffs for that part of the estate which by our intestate law they would be entitled to, as the grandchildren of the testator. But, from the case stated, it does not precisely appear what that interest would be, nor, consequently, what would be the interest which the purchaser would take in right of John Daniel, of the reversionary interest of his father, the testator.

The judgment is reversed, and a venire facias de novo awarded, on account of the defect stated in the case in nature of a special verdict, as the court cannot render judgment for the plaintiffs generally for the whole, because it appears that the defendant would be entitled to John Daniel’s purpart, and it does not appear what other heirs of the testator there are. The cause is remanded, to have these facts found; but the parties in interest may, without further trouble or expense, settle the distribution among themselves: the opinion of the court being, that the heirs of the testator had the reversionary interest by descent, among whom John Daniel is included, whose share became vested in the purchaser at sheriff’s sale.

Judgment reversed, and a venire facias de novo awarded.  