
    Mary F. Postell, and Charlotte S. Postell, par prochein amy, v. Philip Smith Postell.
    A testator bequeathed his personal estate to his two sons, “to. them and their legal issue, and should either die without lawful issue, the said property to revert -b.ack to the surviving brother, or Ms lawful issue.’’ Held, that the terms of the limitation over did not import, that it was to take effect within lives in being, and it was therefore too remote, and . void; and that an.absolute estate vested in the first takers.
    At Charleston, May, 1830.
    Harper, Ch. Philip S. Postell, deceased, by his will, bequeathed as follows. “ I bequeath to my sons, William Dewees Postell, and Philip Smith Postell, the whole of my personal estate, to them and their legal issue, and should either die without lawful issue, the said property to revert back to the surviving brother, or his lawful issue.” William Dewees Postell, one of the legatees, died after the testator, intestate, and without issue. The complainants are the daughters of the téstatoi', and the sisters of William 'Dewees Postell; and they claim, that the limitation over in the foregoing bequest is too remote, as depending on an indefinite failure of issue ; and therefore, that the said personal, estate, consisting principally of slaves, vested absolutely in the said William Dewees-Postell: wherefore the complainants, together with his brother, the defendant, and his mother, who sues as next friend of the complainants, are intitled to the same as his next of kin, as well as to some real estate of which he died seized ; and the bill prays a writ of partition to divide the said personal,estate. -
    There is no question, but that a limitation over on a dying without issue, generally, is too remote, and void. The distinction attempted to be taken was', that the limitation over Was to the surviving brother ; and4he case of Stevens v. Patterson, decided by the Court, of Appeals in February, 1829,
      
       was referred to as an authority. No doubt, if a bequest be to two, and, if either die without issue, to the survivor, such limitation over is good ; and that is the determination in the case of Stevens v. Pátterson. ,The word survivor shews, that a personal benefit was intended, and that the limitation over is to take effect within lives in- being. But in this case, the limitation over is to the surviving brother, or his lawful issue. Plainly these words do not import, that the limitation over shall take effect within lives in being; but that the issue of the survivor may take at any time, when the issue of the first taker may fail. The case, I think, ■ must be governed by that of Massey v. Hudson, 2 Merivale, 129, which is referred to in Stevens' v. Patterson. The difference is, that in that case the limitation over was to the survivors, his executors, administrators, and assigns. But I do not see that-there is any difference in principle.
    It is ordered, and decreed, that a writ of partition issue, to divide the personal estate of which the said William Dewees Postell died possessed, between the complainants, his sisters, and his mother, and'his brother, the defendant, according to their respective rights and interests. The costs to be paid out of the estate of the said William Dewees Postell.
    
      ^rürn l^'s decree the defendant appealed, on the ground that the limitation over was not too remote.
    Holmes, for appellant.
    ^e Saussure, contra.
    
    
      
      
        Ante, p 42, et vide De Treville ». Ellis, p. 40.
    
   O’Neall, J.

This Court concurs in opinion with the Chancellor ; and his decree is therefore affirmed.

Johnson, J., and Harper, J., concurred.

Decree affirmed.  