#### IMRI SPRUILL, GUARDIAN, &c. vs. FREDERICK DAVENPORT AND WIFE, EX’ORS. &c.

Whex’e A. by apenal bond stipulated that he would, by his last will and testament, devise a certain tract of land to O.S. in fee and in fact such will devised the saidland, as follows,to-wit, “I give and devise to my grandson C.S. agreeably to the bond which I executed, the land, (here describing it,) and in case C. S. shall die without leaving a child or children living at his death, then I give, &c. the said land to my grandson W. S. and his heirs and assigns forever.” Held that this not being a devise of the land in absolute fee simple, the condition of the bond was broken.

Secondly — that the proper measure of damages was the difference in value between an estate in absolute fee simple, and the defeasible fee here devised, though the damages could not exceed the penalty of the bond.

Appeal from the Superior Court of Law of Tyrrell Couaty, at the Fall Term, 1844, his Honor Judge Settle presiding.

This was an action of covenant on the obligation of the defendant’s testator, which obligation is in the following words, to wit:

“State of North Carolina, ) Tyrrell County. \ ss

With interest from the date, I promise to pay to Imri Spru-ill, guardian to Colin Spruill, the sum of five hundred and eighty-five dollars, seventy-six cents, for the payment of which I bind myself, my heirs, executors and administrators. Witness, my hand and seal,’ January 30th, 1834.

(Signed) WILLIAM SPRUILL, [l. b.]

The condition of the above obligation is such, that if said William Spruill devises, at his decease, the plantation, whereon Uzziah Spruill lived last, to Colin Spruill in fee simple, then this bond to be void, otherwise to remain in full force and effect, or in case of the decease of the said Colin Spruill before said William Spruill,' then said William Spruill is -to devise said plantation to William Spruill, son of lmri Spruill.

(Signed) WM. SPRUILL* [l. s.]”

*146The defendant pleaded, « General issue, conditions perform* and not broken.” The plaintiff proved the due execution of the bond, and the death of the obligor. The defendant ^ evidence the will of the said obligor, dated 3d March, 1840, which had been duly proved, and which contained the following devise: “ I give and devise unto my grandson, Colin E. Spruill, agreeably to the bond which I executed, the plantation whereon my son Uzziah Spruill lived, which is known by the name of the Ansley land, with all the lands that are attached thereto on the eastward side of the road, but on the westward side of the road he is not to reach or go — and in case Colin E. Spruill shall die without leaving a child or children living at his death, then I give, devise and bequeath the said plantation to my grandson William Spruill, son of I'mri, and hts heirs and assigns forever. I further give to my grandson,-Colin E. Spruill, a'negro man named Squire, now in ther possession of his guardian, to him the said Colin E. Spruill and his assigns forever.” It was proved, that Colin E. Spruill,-' the pérson for whose benefit the bond was given, had arrived at full age, and had, under the devise in the will of said his grand father, taken possession of the land mentioned in the said devise, and that it was the same tract of land mentioned in the condition of the obligation ; that the land was of the value of §2000, and that the interest, taken by the de-visee Colin in the land under the devise in the will, was of the value of one thousand dollars. And it was insisted by the defendant’s counsel, that the devise was a performance of the condition of the obligation, and that the plaintiff was therefore not entitled to recover — or, if entitled to recover any thing, he was only entitled to recover the difference between the value of the estate devised to him, and the amount of money named in the obligation and interest; or, as the estate devised was equal to half the value of the land, the plaintiff was not entitled to recover beyond half the sum and interest mentioned in the obligation.

• The court eharged the jury, that the devise was no performance of the conditions of the obligation; that the mea*147sure of damages, to which the plaintiff was entitled, was the difference between the value of the estate devised by the defendant’s testator, and an estate in fee simple, but that the jury could not render damages beyond the amount of the bond and the interest thereon.

The jury returned a verdict for the amount of the bond and the interest thereon, to the time of the verdict. Judgment being rendered pursuant to this verdict, the defendants appealed.

No counsel appeared for either party in this court.

Nash, J.

The only question presented in this case, is as to the nature and extent of the estate, taken by the plaintiff in the land devised him by William Spruill, the defendantfstestator. Is it such an estate, as is described in thebond on which the action is brought? The condition of the bond is, if William Spruill devises at “his decease, the plantation on which Uzziah Spruill lived last, to Colin Spruill in fe.e simple, &c.” The words are precise and-unaccompanied by any others calculated to obscure or throw doubt upon their meaning. William Spruill bound himself, under a penalty by his will, to give the specified land to Colin Spruill in fee simple. There is no dispute as to the land devised being that mentioned in the contract. Justice Blackstone defines a tenant in fee simple to be, he who hath lands tenements or hereditaments, to hold to ■him and his heirs forever, generally, absolutely and simply. 2 B. C., 105. So that upon his death, intestate, it shall go as the law directs, to his heir. Such was the estate which William Spruill contracted to devise to the plaintiff. Has he done só? The first part of the devise is to Colin Spruill of the land generally, and would, under our act of Assembly, assuredly pass the fee simple in the land to the devisee. Rev. Stat., ch. 122, s. 10. But the statute in the same section provides, that such shall not be the case, when the devise shall show, or it shall plainly appear in the devise, or in some other part of the will, that the testator intended to convey an estate pf less dignity. If the devise had stopped at the word “ Road/’ as there *148is no other clause in the will controlling the meaning of the part, a fee simple would hare been conveyed to Colin Spruill. But the testator goes on to provide “if Colin ^ gpruj¡j should die without leaving a child or children living at his death, then I give the said plantation to my guardian, William Spruill, his heirs and assigns forever.” These words control and limit the preceding devise to Colin, so as to make that, which would have been absolute, conditional, upon the event of his dying leaving a child surviving him. Colin Spruill, under the devise, fakes an estate in fee, defeasible upon the event of his death without leaving a child. If he die leaving no child, the inheritance does not descend to his heirs, but by the express provisions of the will, it is taken from them and given to William Spruill. This devise to William is a good executory devise, and upon the occurring of the contingency transfers the estate to him and his heirs. Roe on dem. of Sheers against Jeffery, 7 Term R. 589. Eastman against Baker, 1 Taunt. 174. King v. Frost, 3 Barn, and Al. 54. In the language of Chief Justice Abbott in the last case, it appears to me to have been the plain intention of the testator, that at the period of the death of Colin E. Spruill, it should be ascertained, whether the estate, devised to him by the will, should then vest in him in fee absolutely, or pass on to some other person, his grandson William Spruill. This is not the estate, which the obligor William Spruill had bound himself to convey to the plaintiff. The condition of the bond, therefore, has not been by him performed. The plain tiff is entitled to his action.

The case further states that upon the death of William Spruill the testator, the plaintiff took possession of the land devised to him and that his interest in it is equal to the penalty of the bond. It appears likewise from the will that the testator bequeathed to the plaintiff a negro. It is not for us to decide, sitting as we are, as a court of law, what a court of equity could or would do. We have no power hefe.fo put the plaintiff to his election to take either his bond or the land and negro. Nor does it make any difference so far as the decision of *149the case is concerned, that Colin Spruill is still alive, and may have or leave a child or children surviving him, in which case his estate, which is now defeasible, will become indefeasible. Our only enquiry is, has the condition of the bond been broken? We are clearly of opinion that it has, and that a present right of action on the bond has accrued to the plaintiff.

We entirely agree with his honor, who tried the casein the Superior Court, both as to the true construction of the devise and as to the principle upon which the plaintiff’s damages are to be assessed.

Per Curiam, Judgment affirmed.