#### JOHN T. GARLAND vs. WILLIAM M. WATT.

A testator, having several children, devised to his two sons W. W. and E. W. a tract of land, to them and their heirs forever. In a subsennent clause, after many previous devises, he devises as follow.- «I will that if any of my children die without issue, leaving a wife or husband, it is my will such wife or husband shall be entitled to one half of the property, the other half to be equally divided between my other children or their heirs.” JSeld, that the contingent limitations over were good; and therefore that W. W. and E. W. could not convey an absolute and unconditional estate in fee simple, free from those limitations.

Appeal from the Superior Court of Law of Caswell County at Spring Term 1844, his Honor Judge Dick: presiding.

This Avas an action of debt upon a bond, with a condition. The following case agreed was submitted to the Court.

William M. Watt, the defendant, on the 24th of May, 1842, executed to the plaintiff the obligation declared on. In *288the condition of this obligation it is recited, that, previously time> hn had s°ld an(^ conveyed to the plaintiff one undivided half of a tract of land, containing 1826 acres, ly-ing in the County of Caswell on Dan River, adjoining John Wilkerson and others, for which the plaintiff had paid to him the sum of ten thousand five hundred dollars, and that he had acquired his title to the said land by devise from his father, the late Abraham Watt, of Rockingham County, and that a doubt had arisen, whether he, the said' William, took an unconditional and perfect fee simple title to the said land by the last will of his. father. He then obliges himself to pay the plaintiff the said'sum of ten thousand five hundred dollars, if he should fail, on or before the 24th of May, 1843, to make to the said Garland a perfect, unconditional fee simple title to one undivided half of the said tract of land. ' It is admitted that the defendant has tendered to the plaintiff a deed, sufficient in form to convey such title, provided he is himself possessed of it-under the will of his father. The following are the only clauses in Abraham Watt’s will, above referred to, which are material in this case ; viz :

Item 4th. I give to my two sons William Watt and Rufus Watt the tract of land I purchased on Dan River to them and their heirs forever.” •

. Item 11th. “ I will that if any of my children die without issue, leaving a wife or a husband, it is my will that such wife or husband, shall be entitled to one half of the property ; the other half to be equally divivided between my other children or their heirs.”

The testator left two sons and two daughters surviving him.

It is agreed, that, if the Court shall be of opinion for the plaintiff, a judgment shall be entered for him for the sum ■ of $>10,500, principal money, to bear interest from the first of May, 1844, and the further sum of $391 18 for arrears of interest, that being a balance of interest now due, after deducting $448 82 for the use of the land for the years 1843 and 1844 : and if the Court shall be of opinion for the *289defendant, a judgment of non-suit shall be entered. It is also agreed, if judgment is rendered for the plaintiff, that he is to re-convey to the defendant all such title as has been conveyed to him by the defendant, upon the payment of the judgment, and that he is to put the defendant into the possession of the land on the 1st of January next.

The Judge pro forma gave judgment for the plaintiff, and the defendant appealed.

Badger, Norwood and Kerr for the plaintiff.

J. T. Mor ¿litad for the defendant.

Daniel, J.

Col. Absalom Watt had four unmarried children, two sons and two daughters. He was seized and possessed of a large real and personal estate ; and, in the year 1834, he made his will, and devised and bequeathed lands and personal property to each of his children. To his two' sons, the defendant and his brother Rufus Watt, the testator devised as follows I give to my two sons William Watt and Rufus Watt the tract of land I purchased on Dan River, to them and their heirs forever.” In a subsequent part of the will the testator says, “I will, that, if any of my children die without issue, leaving a wife or husband, it is my will such wife or husband shall be entitled to one half of the property, the other half to be equally- divided between my other children or their heirs.” The word properly in this last 'clause covers both the real and personal estate, given by the will to each of the four children. By our Statute, Rev. Stat. Ch. 122, sec. 11, after the 15th of January, 1828, “ every contingent limitation in any will, made to depend upon the dying without heir, or heirs of -the body, or without issue or issue of the body &c. shall be held and interpreted a limitation to take effect, when such person shall die, not having such heirs or issue &c. living at the time of his death or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly declared in the face of the will creating it.” The fee simple, which the clause in the will first above-mentioned gave to the de-*290in a moiety of the Dan River lands, is, by the second clause of the will as abovementioned, cut down to a fee conditional, resting upon a contingency. A good estate in fee in the same lands may possibly hereafter spring up, on the death of the defendant without issue, leaving a wife, to any such wife and his brothers and sisters or their heirs. The limitation over of the fee, on the events specified in the will, is not too remote, and is good by way of executory devise ; and it belongs to that class of executory devises which permits a fee to be limited on a fee, and the leading case on rvhich is Pells v Brown, Cro. Ja. 590. The defendant, by the deed he executed, conveyed only the conditional fee he had; it did not destroy the limitation over. It is unnecessary for us now to decide the question whether a deed from him and his brothers and sisters, with warranty binding themselves and their heirs, would estop |hem, and rebut their heirs, by force of the collateral warranty, to enter on the said land ; as we are sure, that no conveyance known to the law can bar the executory devise, made in the will of the testator, to any widow the defendant may leave, in case he should die without issue and leave a widow. Nor is it necessary for us to say, who would take the land, on the event that the defendant should die without issue and without leaving a widow. The defendant has not the power to make a clear title to the fee simple. Therefore the judgment must be affirmed.

Per CuRiam, Judgment affirmed.