NATHANIEL ROBARDS & AL. vs. SETH JONES.
Before the act of 1837 (Rev. Stat. ch,. 123, s. 11,) a bequest of personal property to “A. and his heirs,” and “if he should die and leave no lawful issue” then over to B. was a good executory limitation to B., to take effect if A. died without leaving any issue living at the time of his death.
And if B. died before A., this executory inteiest was so far vested, that, on the ' happening of the contingency, the executor or administrator of B. would take it.
The executor or administrator of A., dying without leaving issue living at his death, is of course not responsible to his creditors or legatees .or next of ltirj for the property so bequeathed,
Appeal from the ^Superior Court of Law of Wake county, at Fall Term, 1843, his Honor Judge Baiuey presiding.
This was an action of detinue, in which the parties submitted the cause to the judgment of the court upon the following case agreed, to wit: Janies D. Ridley, by his will, made the 15th of August, 1820, and soon afterwards admitted, to probate, devised and bequeathed as follows, to wit, “ Item 1st. My will and desire is, that, after my debts are paid, all my property, both real and personal, should be kept together for the use of my beloved wife Elizabeth J. Ridley} and for the support and schooling of my two sons, William W. Ridley and John A. Ridley, until they arrive at the age of twenty-one years or until my wife marries, and at her marriage or my two sons coming of lawful age, my will is, that all my property, both real and personal, my gold watch excepted, should be equally divided between my wife Elizabeth and my two sons, William W. Ridley and John A. Ridley, to them and their heirs forever. Item 2d. I give *54my beloved wife my gold watch, to her and her heirs forever. Item 3d. If my two sons, William W. Ridley and John A. Ridley should die and leave no lawful issue, mj wjn an¿¡ desire is, that their part of the estate should be equally divided, and for one part thereof to go to my wife Elizabeth J. Ridley, to her and heirs forever — and the other half to be equally divided between my two brothers and my sister, to them and their heirs forever.” After the death of the testator his will was proved, the executors qualified and assented to the legacies. The property passing under the first .clause included a large number of negro slaves, and both the legatees, William W. and John J. Ridley, arrived at full age., but no division was then made. Afterwards John A. Ridley died without leaving issue, and subsequently thereto the widow Elizabeth and William W. Ridley divided the slaves between them, leaving in the possession of William one third part thereof. Afterwards William W. Ridley died without leaving issue,' having made a will and appointed the defendant executor, who proved the will and took possession of the slaves, so found in his testator’s possession and forming the said third part, of which the slaves named in the writ and declaration are parcel. The plaintiff Robards is the executor of Howe.l Ridley, one of the bro-ersof the testator named in the third clause of the will, who died in the lifetime of the said William W. Ridley. And the plaintiff Hinton is the administrator of Willis Ridley, the other brother named in the said clause and of Mrs. - Robards, the sister therein named, both of whom died in the lifetime'of the said William W. Ridley. The division of the slaves, herein before mentioned, is ratified and confirmed by the parties, and the slaves so left in the possession of the said William W. Ridley are considered and treated as the moiety, which by the said third clause is directed to be divided between the testator’s two brothers and his sister.— At the death of the said William W. Ridley, he was largely indebted, so that his debts cannot be paid, unless the said slaves or some portion thereof be applied to their satisfaction. .
*55For the defendant it is insisted, 1st. That the limitation over in the said third clause is too remote and cannot in la'w take effect, and consequently that the entire interest vested in the said William W. Ridly and John A. Ridley. And 2dly. If this be not so, yet that the said slaves are liable ill the hands of the defendant to his testator’s debts, and cannot be claimed by the plaintiffs until such debts are paid.
And it is agreed that if, on either of these grounds, the plaintiffs are not entitled, judgment of nonsuit is to be entered — otherwise judgment to be for the plaintiffs for the slaves and damages claimed in the writ and declaration.. — . And it is further agreed that, should judgment pass for the plaintiffs, the defendant will surrender to the plaintffs any issue.which may be of the said slaves, since they came into his possession ; and that the plaintiffs shall receive from the defendant, on account of the damages and in satisfaction thereof, such hires as the defendant may have actually received, or the securities taken, or that may be taken by him therefor, the defendant to be allowed all just credits by reason of payments for keeping chargeable slaves, and the plaintiffs to receive the balance only, if any there be, of such hires.
Upon the case so submitted, his Honor being of opinion for the plaintiffs, rendered judgment in their behalf for the slaves mentioned in the writ and declaration, and for the damages, costs, <fcc.
From this judgment the defendant appealed to- the Supreme Court.
Badger for the plaintiffs.
J H. Bryan and Saunders for the defendant.
Daniel, J.
First, the limitation over, in the third clause of the will, to the testator’s two brothers and sister, of the personal estate given to the two sons of the testator in the first clause of the will, is not too remote. The testator in the third clause says, “ if my two sons should die, and leave no lawful issue, (an eyent which happened,) ray *56will is, that their part of my estate should be equally divid» an¿j one par¡; thereof to go to my wife, and the other half to be equally divided between my two brothers and j^y sis(:er<j; When the expression, used by a testator in making ah executory limitation, is “ leaving no issue” the established rule is, when applied to personal estate, that it imports leaving no issue at the death of the first taker, and ties the event up to that time, and therefore prevents a perpetuity, Forth v Chapman, 1 P. W. 663. And 2d Powell on Dev. 566 (Jarmains ed.), where all the authorities are cited.
Secondly the slaves are not assets in the hands of the defendant as the administrator'of William W. Ridley. The íiir'es and profits of the slaves during the life of William belonged to him; but on the event, which has taken place, viz. the death of both of the sons leaving no issue, the original stock of slaves and their increase went over to the ulterior legatees. The three ulterior legatees, the two' brothers and the sister of the testator, died in the' lifetime of the two' sons, the first takers. The executory interest, resting on an uncertain event, went to the administrators of her sons, who were certain, (viz. the ulterior designated legatees,) Pinbury v Elkin, 1 P. W. 563. In Barnes v Allen, 1 Bro. 181.— (Belt’s ad.), Lord Thurlow remarked, that a contingent interest might vest in right, although it did not i'n possession ; and that contingent executory interests might be as completely vested, as if they were in possession, so as to go to the representative of a named legatee, who might happen to die before the event took place ; see 1 Roper on Legacies, 402. We think that the judgment must be affirmed.
Per Curiam, Judgment affirmed*