Den on demise of Thadeus Pendleton v. George Pendleton.

From Pasquotank

Executory devise. A. devised to her son T5. one part of a tract of laud, and to her son 0, the other part, and directed, that if either of them died, leaving no heir lawfully begotten of his body, the living son shmtld be the lawful heir of all the land. 8. died without issue. Held, that C. was entitled to the lands under the limitation.

Sarah Pendleton, being seised of the lands in question, devised them as follows, to wit: “ Í give unto Benjamin Pendleton, mv eldest son, this end of a plantation whereon 1 now live, divided by a ditch from the creek swamp to tiie road 5 and one-half of the land I bought of James Jackson, I give to my son Thadeus Pendleton, the remaining pari of this land whereon I now live, and the remainder of the- land I bought of James Jackson : and if either of my sons dies, leavinir no hár lawfully begotten of his body, the living son shall be the lawful heir of all the land.” Benjamin, one of the brothers, died without issue, having made, his will and devised his interest, in the lands to his wife Sarah Pendleton, under whom the Defendant entered and took possession ; and the question in the case was, Whether the limitation over to Thadeus Pendleton, the lessor of the Plaintiff, be good ?

Halx>, Judge,

delivered the opinion of the Court:

'From the particular words used in the clause of the will now under consideration, it may be fairly inferred, that the meaning and intention of the testatrix was, that if either of her sons should die, leaving no heirs lawfully begotten of .bis body at the time of his death, the living son should be the lawful heir. The words “the living son shall be the lawful, heir,” mean the same as if she had devised the lands to Benjamin in fee, but in case lie died without leaving heirs lawfully begotten of his body, *83 lining, nr during the life of Thadeus, then Thadeus to be the lawful heir. In this case, the (lying without heirs would be tied up to the time of the death of Benjamin, and of course not too remote. The ease before the Court is very much like the case of Pells v. Brown, (Cro. Jac. 590,) where it was decided, that a devise in fee to A, and if he die without issue in the life-time of B, then to B. and his heirs, was a good executory devisé, to take effect on the contingency of A’s dying in the life-time of B. without issue. The principle of that decision has been approved in the cases of Patton v. Bradly, (3 Term 145,) and Roe v. Jeffrey, (7 Term 589,) In the case of Hughes v. Sayer, (1 P. Wms. 534,) a devise of personal estate to A. and B, and if either die without children, then to the survivor^was held good. Let judgment be entered for the Plaintiff.