#### DEN ex dem. F. A. AND C. W. BROTHERS vs. G. W. BROTHERS.

Devise of lands to "P., daughter of B., reserving to B. theruse of the land until P. should become ten years of age, then the rents to he applied to educating her, and in case P. dies without lawful heir begotten of her body then to be sold,” &c. P., the daughter, died at four years of age: — Held, That B., the father, took an estate to his own use until the time when P. would have attained the age often.

Ejectment, tried before his Honor, Judge Saunders, at Pas-quotank, at Spring Term, 1853, upon the following statement of facts agreed between the parties :

Both the lessors of the plaintiff and the defendant claim title under Miles Brothers, deceased, to whom the land belonged. The lessors of the plaintiff are the children of said Miles, and executors of his will; and the defendant married --., a daughter of said Miles, who died in the lifetime of her father, leaving a *266daughter, Pennina, by the defendant. By the will of the said Miles Brothers, who died in 1848, he devised as follows :

“ Thirdly, I give and bequeath unto my grand-daughter, Pen- “ nina Brothers, daughter of Geo. W. Brothers, the tracts of land u known as the Reddin tract, and the tract whereon the said u George now resides, reserving unto him the use of the said u land until the said Pennina shall become ten years of age, and u then the rents to be applied to educating her ; and in case the “ said Pennina dies without lawful heir or heirs begotten of her “ body, I wish the said lands sold, and the proceeds divided “ among my children.”

The said Pennina survived her grandfather two years, and died in 1851, having attained only the age of four years, without issue, brother or sister, or the issue of such. The defendant was in possession of the premises at the time of the issuing and service of the declaration ; and the premises are the same as devised above.

The lessors of the plaintiff claim title as the executors of Miles Brothers, by virtue of the above clause of his will; and they claim title under said will, and also as his heirs at law. Possession of the premises was demanded by the lessors of the plaintiff, before the institution of this suit, and refused by the defendant.

His Honor, upon the foregoing facts, was of opinion with the defendant, and judgment having been rendered accordingly, the lessors of the plaintiff appealed to the Supreme Court.

W. N. H. Smith and Brooks, for the lessors of the plaintiff.

Pool, for the defendant.

PeaRSON, J.

The will of Miles Brothers contains this clause : 111 give and bequeath unto my grand-daughter, Pennina, daughter of George W. Brothers, the tracts of land known as the Red-din tract and the tract whereon said George resides, reserving unto him the use of said land until Pennina shall become ten years of age, then the rents to be applied to educating her ; and in case the said Pennina dies without lawful heir or heirs begotten of her body, I wish the said lands sold, and the proceeds divided among my clildren.”

*267Pennina survived the testator two years, and died in 1851, at the age of four years. The lessors of the plaintiff are the heirs at law of the testator.

If the estate of the defendant was defeated by the death of Pennina without a child, the plaintiff is entitled to recover.

It is clear that the effect of the will was to vest, at the death of the testator, an estate in the defendant, until Pennina arrived at the age of ten years; and subject to this estate, to vest the fee in Pennina, liable to be defeated upon the contingency of her death without a child. The plaintiff insists that the condition is also annexed to the estate of the defendant. It certainly is not so annexed in terms, and according to the natural construction of the sentence, and from the nature of the condition, it seems properly to confine itself to the estate of Pennina. It was only in the event of her death, without a clild, that a necessity would arise for making some other disposition of the fee.

It is said, however, that the estate of the father is a mere incident to, or emanation from, the estate of the daughter ; and when the principal falls, the incident must fail with it. If the estate of the father had been created by the daughter, then a destruction of her estate would of course defeat his — as if one having a defeasi-ble estate makes a lease for years. But such is not our case ; for the estate of the father, although carved out of the estate of the daughter, was created by, and owes its existence to, the act of the testator. So it is independent, and stands on its own footing.

It is familiar doctrine, that if a power to make leases is given to one having a defeasible estate, a lease so created is independent of the estate out of which it is carved, and stands on the same footing as if the lease had been inserted in the conveyance creating the power, in the place of the power ; so that, although the lease is made by one having a defeasible estate, yet being created by the exercise of a power, which was created by the original grantor, it is not affected by what may become of the defeasible estate. Our case is similar, with the exception in its favor of the fact that the estate of the defendant was created, not by means of a power, but by the direct act of the testator.

Per Curiam. Judgment affirmed.