#### DEN ex. dem. THOMAS ROACH vs. BENJAMIN KNIGHT.

Where testator devised his lands to his wife and added, “if she should have a child by me, for the child to have, at her death, all my land, and in case she should die without an heir, for the land to go to her nearest relation;” and the wife died in the lifetime of the devisor, leaving her father her nearest relation: — Held that the limitation over does not depend upon the vesting of the life estate of the wife as a condition precedent, and her father, therefore, takes in preference to the heir of devisor.

(The case of Simmons v. Gooding, 5 Ire. Eq. 382, cited and approved.)

Ejectment, before his Honor Judge Manly, at Pasquotank, on the last circuit, upon the following statement of facts, as a case agreed:

“ One Stephen Roach died seised and possessed of the land in dispute in fee — having made and published his last will and testament, a copy of which accompanies and is made a part of this case; and the said will has been duly admitted to probate. The lessor of the plaintiff is the brother of the testator, and the heir at law to whom the land would have descended, in case of the intestacy of the testator. The defendant is tenant of one Joshua White, whose daughter the testator married, and the said Joshua White is the nearest relation of the testator’s wife, and was at the testator’s death. The testator’s wife died after the making of the will, but before tire death of the testator, without issue. If upon these facts the Court shall be of opinion that the land descends to the heirs at law of the testator, then it is agreed, judgment shall be given for the plaintiff. If, however, tire Court is of opinion that the land passes under the devise to the nearest relation of the testator’s wife, to the person thus designated, and who bore that relation, either at the date of the will, or the death of the testator, then judgment to be given for the defendant, with leave to either party to appeal, without appeal bond.”

His Honor, the presiding Judge, being of opinion for the lessor of the plaintiff upon the facts stated, gave judgment accordingly, from which the defendant appealed.

(The clauses of {¿ie will in question are sufficiently set out in the opinion delivered by this Court.)

W. N. H. Smith, with whom was Jordan, for the defendant,

*104argued, 1: The devise over to the wife’s nearest relation took effect immediately at the death of testator, notwithstanding the lapse of the particular estate limited to her. 6 Or. Dig. a Devise ” 38, ch. 8 sec. 22 et seq, Scatterwood v. Edge, 1 Salk. 229, Avelyn v. Ward, 1 Yes. 420,1 Pow. Dev. 196, note 8. The same doctrine prevails in this State, when the preceding particular estate never taires effect. Richmond v. Coolc, 3 Ire. Eq. 581, Atkins 'v. Kron, 2 Ire. Eq. 58, Simmons v. Gooding, 5 Ire. Eq. 382.

2. The nearest relation of the wife being her father, he therefore took an estate m fee immediately upon the testator’s death. Simmons v. Gooding.

No counsel in this Court for the plaintiff.

Pearson, J.

The will of Stephen Roach contains these clauses: ‘■‘■2. I give unto my wife Margaret all of my lands. 3. It is my wish, that if my wife should have a child by me, for the child to have, at her death, all of my lands. In case she should die, without an heir, for the land to go to her nearest relation.” The wife died in tire lifetime of the testator, without ever having had a child, leaving her father, under whom the defendant claims her “nearest relation,” and he was also “her nearest relation” at the death of the devisor.

The question is, does the land belong to her father, or does it belong to the heirs of the devisor? His Honor was of the latter opinion, upon the ground, we suppose, that as she died in the life time of the devisor, the devise to her lapsed, and the limitatioir over was thereby defeated. It is settled to the contrary. Simmons v. Gooding, 5 Ire. Eq. 382. "It is settled law, that .when a particular estate is given by will, with a remainder over, whether vested or contingent, the remainder takes effect, notwithstanding the particular estate fails by the death of the person for whom it was intended, upon the death of the devisor” — uunless there be an intention expressed, that the limitation over shall depend on the vesting of the preceding estate as a condition precedent.” Most generally, the limitation over is intended to take effect, whenever the preceding estate is out of the way, without reference to the manner in which it gets out of tire way.” 2. Williams on *105Executors, 764. The limitation over in this case clearly does not depend on the vesting of the preceding estate in the tenant for life, as a condition precedent, and consequently cannot be affected by the fact that the life estate lapsed. The judgment below must be reversed and judgment for the defendant on the case agreed.

PER Curiam. Judgment below reversed, and judgment for defendant.