Opinion
July Term, 1811.
From Pasquotank.
Executory devise. A devised to her son B one part of a tract of land, and to her son C the other part, and directed that if either of them died, leaving no heir lawfully begotten of his body, the living son should be the lawful heir of all the land. B died without issue: Held, that C was entitled to the lands under the limitations.
SARAH PENDLETON, being seized of the lands in question, devised them as follows, to wit: "I give unto Benjamin Pendleton, my eldest son, this end of a plantation whereon I now live, divided by a ditch from the creek swamp to the road; and one-half of the land I bought of James Jackson. I give to my son Thadeus Pendleton the remaining part of this land whereon I now live, and the remainder of the land I bought of James Jackson; and if either of my sons dies, leaving no heir lawfully begotten of his body, the living son shall be the lawful heir of all the land." Benjamin, one of the brothers, died without issue, having made his will and devised his interest in the lands to his wife, Sarah Pendleton, under whom the defendant entered and took possession; and the question in the case was, Whether the limitation over to Thadeus Pendleton, the lessor of the plaintiff, be good.
From the particular words used in the clause of the will now under consideration, it may be fairly inferred that the meaning and intention of the testatrix was that if either of her sons should die, leaving no heirs lawfully begotten of his body at the time of his death, the living son should be the lawful heir. The words, "the living son shall be the lawful heir," mean the same as if she had devised the lands to Benjamin in fee, but in case he died without leaving heirs lawfully begotten of his body, living, or during the life of Thadeus, then (83) Thadeus to be the lawful heir. In this case the dying without heirs would be tied up to the time of the death of Benjamin, and of course not too remote. The case before the Court is very much like the case of Pells v. Brown, Cro. Jac., 590, where it was decided that a devise in fee to A, and if he die without issue in the lifetime of B, then to B and his heirs, was a good executory devise, to take effect on the contingency of A's dying in the lifetime of B without issue. The principle of that decision has been approved in Patton v. Bradly, 3 Term, 145, and Roe v. Jeffrey, 7 Term, 589. In Hughes v. Sayer, 1 P. Wms., 534, a devise of personal estate to A and B, and if either die without children, then to the survivor, was held good. Let judgment be entered for the plaintiff.
(84)