#### DEN ON DEM. OF WILLIAM F. BELL vs. JOHN P. C. DAVIS.

A. devised to his two grand-children W. and C. a certain tract of land called Whitehall, to he equally divided between them, provided, that if W. “within a reasonable time would transfer by deed to his sister C. all the estate and title his father shall confer on him or may accrue to him in that tract of land now owned by his father'’ called Bell’s chapel, “ then my will and desire is that the said W, have and hold the whole of the said tract called Whitehall.” Afterwards the father of W. died, seized and possessed of the said tract, Bell’s chapel, but by his last will devised the whole of the same to O. W. although he had no title to the Bell’s chapel land, still tendered a deed to his sister C. for all his right and interest in the same, and insisted that he thus became entitled under the will of A. to the whole of the Whitehall tract: Held, that as W. had no right or interest in the Bell chapel land, his deed was inoperative, and the event on which the title to one-half of the Whitehall tract was to be divested out of C, and vested in W. had not occurred, and of course W. had no right to it.

When the event, which actually happens, comprehends that, for which the gift in the will provided, as the greater includes the less, so that the one of necessity involved the other in substance and effect, then the Court will adjudge the estate dependent upon the condition to have vested.

But where there is no such necessary consequence, the Court must say that the event, on the happening of which by the will the estate is to go over, has not occurred.

Appeal from the Superior Court of Law of Carteret comity, at Fall Term, 1814, his JHonor Judge Pearson presiding.

This was an action of Ejectment, which was submitted to his Honor upon a case agreed as follows, viz: William Fisher, Sen’r. late of the county of Carteret, on the day of , A. D. 1822, departed this life, having previously made his last will and testament, bearing date September 15, A. D. 1820, and therein devised as follows, viz: “ I give unto my grand-son, William F. Bell, (the lessor of the plaintiff,) and to my grand-daughter, Charity Elizabeth Bell, (the wife of the defendant Davis,) at their mother’s decease, all that tract of land called Whitehall, four hundred and *522forty acres, more or less, to them and their lawful issue forever, but if any one of them die leaving no issue, then the survivor to have the whole, and in case both die leaving no issue, then to return and be a part of my estate, and be divided amongst my surviving children, and the children of any of my child or children that may be then dead, in such manner that the children of each deceased child have one share as the parent would have if living, and that equally between their heirs and assigns forever ; provided, nevertheless, that if my grand-son, William Fisher Bell, will, in a reasonable time, transfer by deed to his sister Elizabeth Bell, all the estate and title his father shall confer on him, or may accrue to him in that tract of land now owned by his father, lying between Newport River and Bogue Sound, at Bell’s Chappel, then my will is, and desire, that he, the said William Fisher Bell, have and hold the whole of said tract called Whitehall.” Mary Bell, the mother of William Fisher Bell and Charity E. Bell, departed this life the 9th day of July, A. D. 1840, and-tbe defendant John P. C. Davis intermarried with the said Charity E. Bell, on the 24th day of July, A. D, 1836; and, upon the death of the said Mary Bell, the mother of the said William F. Bell and Charity E. Davis, both parties entered into possession of the said tract of land called Whitehall, each claiming a moiety of the same. Josiah Bell, the father of William Fisher Bell, the plaintiff, and Charity E. Davis, the wife of the defendant, departed this life on the 20th day of March, A. D. 1843, having left a last will and testament, and therein and thereby devised and bequeathed as follows, viz: “First — I give and bequeath unto my son, William F. Bell, (the plaintiff in this case,) the following negro slaves, to-wit, one negro woman named Rose, and her six children, and Abel and Moses, Mary, Pleasant and old Margaret, with their increase ; and also I give unto my son William F, Bell, my Newport land, and one-half of my land on North River, to have and to hold unto the said William F. Bell, his heirs and assigns forever, the above named negroes and land, Secondly — I *523give and bequeath unto my daughter, Charity E. Davis, (the wife of the defendant John P. C. Davis, in this case,) the following negro slaves, to-wit, Kitty, Jacob, Hannah, David, &c., with their increase; and I also ‘give unto my daughter Charity E. Davis, my plantation called the Harris plantation, and seventy-five acres of land I bought of George Harris ; also that tract of land lying between Newport River and Bogue Sound, known by the name of Bell’s Chapel, to have and to hold unto the said Charity E. Davis, her heirs and assigns forever, the above negroes and land.” It is admitted, that the land described in the last will and testament of William Fisher, Sr. as lying between Newport River and Bogue Sound, at Bell’s Chapel, was given in, and by the last will of Josiah Bell to his daughter Charity E. Davis, the wife of the defendant Davis, and that the said Josiah Bell did not confer any estate or title to the same on the plaintiff William F. Bell, nor has any accrued to him in any way. It is also admitted, that, although the plaintiff William F. Bell hath no estate, title, claim, or interest in and to the said land at Bell’s Chapel, yet that he hath tendered to the defendant John P. C. Davis and his wife, a deed which purports to transfer all his estate, title, claim and interest in and to the said tract of land to the said Elizabeth in fee simple, and that the defendant, John P. C. Davis and his wife, have refused to accept the same, on the ground that the plaintiff, William F. Bell, hath no estate, title, or interest in and to the said tract of land, and that they would take nothing by said deed, and that the true meaning and intention of the testator, William Fisher, Sen’r. was, as is contended, that his grand-daughter, Charity E. Davis, should receive an equivalent for her surrender of her interest in the Whitehall land; and that, in as much as the plaintiff, William F. Bell, hath no estate or interest in the Bell Chapel land conferred on him or accrued to him, the cause hath not arisen, upon which the title of the said Charity to the Whitehall land is to be divested, and vested in the plaintiff. The plaintiffs claimed title under the .aforesaid clause in the last will and testament of *524William Fisher to the said Whitehall tract of land, conten ding that he hath done all that was required under said will, by offering to convey or transfer all his interest and estate to tke gep Chapel land to the defendant and his wife; and that it was immaterial whether he derived any estate or title to the said Bell Chapel land under the will of his father Josiah Bell, dec’d. or not; and that the bounty of his father in this respect could not be controlled, either by the will of his grand-father, William Fisher, or by the plaintiff; and that it was immaterial whether he had any estate or title to the Bell Chapel land to enable him to recover in the suit; and that his title to the share of the wife of the defendant, John P. C. Davis, in the Whitehall land was complete without it, and, by this deed of transfer of his estate and interest, whatsoever it might be. The defendant claimed title to the land in controversy in right of his wife, and admitted that he was in possession of the same. It was also admitted by the parties, that there is issue of the marriage of the defendant, John P. C. Davis, with his wife Charity.

This action was brought for the recovery of the share of the wife of the defendant John P. C. Davis, in and to the Whitehall land.

It is agreed, if upon this statement of facts his Honor should be of opinion in favor of the plaintiff, that judgment should be entered in his favor accordingly; if the contrary, then judgment to be entered up in favor of the defendant. It is also admitted, that the lessor of the plaintiff made an actual entry, after tender of the deed, by force of the condition, before the declaration issued.

Upon consideration of which case agreed, and the matters therein stated, his Honor being of opinion with the plaintiffs, therefore it is considered by the court here that the plaintiffs recover against the defendant his said term unex.pired in the premises in the said declaration mentioned, and the sum of $ for his costs and charges in and about his suit expended, and now by the court here allowed and adjudged wherein.

*525From which judgment the said defendant prays an appeal to the Supreme Court, and the same is allowed, and, by the assent of the plain tif^ without surety for the prosecution thereof.

Badger for the plaintiff.

John H. Bryan & James W. Bryan for defendant.

DaNiel J.

William F. Bell, the lessor of the plaintiff and his sister Charity Elizabeth, the late wife of the defendant, on the death of their grand-mother, entered as tenants in common and possessed the Whitehall tract of land, under the will, made in 1820, of their grandfather William Fisher. Their father, Josiah Bell, was the owner of the Bell chapel lands, and made his will and died in 1843. He did not devise any interest, in this tract of land to his son William F, Bell, nor had he ever before by deed given him any interest in it. But he devised, with other tracts of land and slaves, the whole of the Bell’s chapel land to his daughter Charity. To his son William F. Bell he devised and bequeathed two other tracts of land and slaves, and other personal property. And to a second son, Josiah Bell, (born probably after the death of the grand-father,) he devised and bequeathed houses and lots in the town of Beaufort, and other tracts of land and slaves. William contends, that the condition, mentioned in William Fisher’s will, upon which the share devised to his sister in the Whitehall land, should be divested and go over to him, has been substantially performed, by their father Josiah Bell, devising the whole of the Bell chapel lands to his sister. On such an event, though not literally in the terms of William Fisher’s will, William contends a substantial performance of the condition has taken place. The condition, upon which William was to become the entire owner of the Whitehall lands, has certainly not literally happened. The estate of Charity in the Whitehall lands was to cease, and the whole of the said lands were to vest in William, provided he, William, in a reasonable time, trails-*526ferred to her by deed all the estate and title in and to the Bell chapel land, which his father should confer on him, or which might accrue to him by descent. No estate in any way. jn ^ jgej¡ cjlapei lands ever came to William from his father. He, therefore, never had it in his power to perform, literally, the condition mentioned in his grand-father’s will; on the performance of which, the whole of the Whitehall tract was to go over to him. Then, are we authorised to construe the words of the condition in William Fisher’s will, in such a way as to give effect to the limitation over to William in, the entire Whitehall tract, on the event which has taken place, namely, that Charity has got the whole of the Bell chapel lands, not by her brother’s deed, but by devise from her father, who was the owner of the same at his death ? Where the condition cannot be understood by the court to have been substantially complied with by the event, which has actually happened, the gift over fails. McKennon v Seawell, 7 Eng. Com. L. Rep. 339. In the case of Jones v Westcomb, 1 Eq. Ca. Abr. 245, and in most, if not all, of the cases cited for the plaintiff, the event, which actually happened, comprehended that, for which the gift in the will provided, as the greater includes the less, so that the one of necessity involved the other in substance and effect. Jones v Westeoinb was a gift over, in the event that the child, then in ventre sa mere, died under age; it was held' a good gift over, although there was at the time no child in ventre sa mere. But where there is no such necessary consequence, the court must say, the event on which the will provided that the estate should go over, had not taken place. McKennon v Seawell. Did the devise of the Bell Chapel land, by Josiah Bell to his daughter Charity, the event which has actually happened, comprehend that, for which William Fisher’s Will directed and provided, so that the one, namely, the event which has happened, necessarily involved the other in substance and effect, as the greater includes the less ? Can the court say that it sees, that the testator willed, that the estate,, which Charity had in Whitehall, should be divested, and *527tiie conditional limitation over to William become vested, on the event which has taken place? We must say, that we do not necessarily see, that the event, which has happened, is comprehended in that provided for by the will, as the greater including the less. This case, instead of being governed by that of Jones and Westcomb and the class of cases, of which that is the leading one, falls, it seems to us, under that class of cases, of which Doe v Shipyard, Douglass 75 is the leading one. That case was under a devise of lands to trustees, to pay £20 of the rents and profits to the testator’s daughter and the rest to her husband, and the whole rents and profits to the husband after the daughter’s death. And in case the daughter should survive her husband, then the land to the use of the daughter for life, and after her death to the use of her son in tail, with several remainders over. The daughter died before her husband. It was held, that the limitation over should not take effect. The contingency of her dying before her husband affected all the limitations, and it operated as a condition precedent, which defeated the limitations over. Lord Mansfield said, “ The court may supply the omission of express words, if they can find a plain intent; but, unless that is the case, they cannot do it. And upon a full consideration of the whole of the will, we do not find there is sufficient for us to gather such intent, so as to warrant us in supplying the omitted words. Guesses may be formed, but that is not enough. Perhaps, quod voluit non dixit. We cannot make a will for a testator. Conjectures may be made both ways.” So, in the case before us, we cannot say, otherwise than by a guess, that William Fisher, the testator, intended the limitation over to vest in William in the whole of the Whitehall lands', in the event, which has actually taken place. We can see a reason for his giving William an election to take the whole of the Whitehall land, in case the whole of the Bell Chapel land by purchase, or a moiety by descent from his father, came to him. It was to put it in the power of William to have a home in all the Whitehall land, if he would convey to his-*528sister what he should receive from his father in the Bell Chapel land to make her a home in the latter tract of land, The testator intended something like equality between them. Josiah Bell lived 21 years after the death of William Fisher, and in that time probably acquired several other tracts of land, and much enlarged his personal estate, and also had another child. And he made ample provision by his will, in lands and slaves, for all three of his children, without any reference, so far as we can see, to the conditional limitation to William, contained in his grand-father’s will. As Josiah Bell had, at the time Mr. Fisher made his will, no other land but the Bell Chapel tract, as far as appears, nor any other grand-children but William and Charity, the testator, Fisher, plainly contemplated, that Bell, the father, would provide for his two children, probably, equally in that land, or, at least, that he would provide for his son in that tract. It was to that state of facts he had an eye; and, in that event, he left it to the election of William, whether he would keep his half of Whitehall and the provision in Bell Chapel, made by or derived from his father, and let his sister keep her half of Whitehall; or whether William would take the whole of Whitehall, and give Charity the whole of Bell Chapel. But the event is, that, instead of providing for William in Bell Chapel, his father has given him oilier lands, perhaps of equal value to Bell Chapel, and given Bell Chapel to Charity. So that, if William should get the whole of Whitehall, he keeps all the provision made for him by his father, and deprives his sister of that made for her by his grand-father — ■ thus, perhaps, having three times as much as Charity— though it is apparent, from his dividing Whitehall equally between them, that Mr. Fisher meant something like an equality between them. It is possible, if the testator had foreseen what has happened, he might stilL have made his will the same way. But we cannot see, with any certainty, that he would ; and, therefore, we cannot say, that in substance the case has happened which he had in view. He might have meant to say what the plaintiff contends for; *529but that is not the meaning of what he has said. Therefore we cannot determine that Charity’s estate in Whitehall has been displaced. There must be a new trial.

Pjer Curiam. New trial awarded.