#### Den on demise of John Stevenson v. Jonathan H. Jacocks.

J > From Perquimons. J

Although the validity of an executory devise is to be tested, not by the event, but by the words which tie up the happening’ of the event, so that if the event happen at all, it must be within the prescribed time; yet, to claim under such devise, it must be shewn that the contingency has happened within the period prescribed, or as the testator directed. Therefore,

■Where a testator directed, that upon the failure of the issue of his two sons, part of the lands devised to them should be rented out for the .benefit of his daughter during life, and after her death to her children, and another part of the lands at the same time to pass to I. S. If the limitation to I. S. be deemed good, yet he cannot recover the lands, without shewing that the issue of the sons had failed in the life time of the daughter.

This was a special verdict, in which the Jury found, that Thomas Stevenson, being* seised and possessed of the lands in dispute, by his last will duly executed to pass his real estates, devised as follows : “ I give and bequeath “ unto my son, William Stevenson, the land and planta- “ tion whereon I now live, called Stevenson’s Point, con-’ “ tabling four hundred acres, more or less, reserving the “ tract lent to my wife during her life. I also give to my “ son William the land I bought from the executors of “ William Humphreys, deceased; also fifty-three acres of {i land on the west side of Duck Creek $ reserving and “ excepting nevertheless, and it is the true intent and “ meaning of this my last will, that in case the child which “ my wife Elizabeth is now pregnant with should be a “ male, my will and desire is, that the part of my land *559and plantation which is lent to my wife during her life as aforesaid, should descend at the death of my wife to “ the same child she is now pregnant with, in case it * “ should be a male, to him and his heirs forever. Fur- “ thcr it is my «ill and desire, that in cane of the death of £< my son William, or the death of the child which my ei wife is now pregnant witii, if a male, my will and desire “ is, that the survivor shall have the whole of the estate “ mentioned herein to them both, if cither should die with<e out lawful issue. But in case of the death of them both without lawful issue, then it is my will and desire that “ John Stevenson, son of Hugh Stevenson, should have “ that part of my land, which was my mother’s dower; ie and tiic other part of my said laud to be rented, out an-fi nually for the benefit of my daughter Polly Stevenson “ during- her natural life; and in case she, my said daugh-ts ter Polly, should have lawful issue, my will is, that ie such lawful issue should have and enjoy the said land s( forever; but in case my said daughter Polly should die “ without lawful issue, then my will is, that the said land iC shall be rented out annually, and the money arising “ therefrom he equally divided among the sons of my sis- “ ter Parthcna Wyatt.” That Thomas Stevenson died in 1801; that William Stevenson, the- devisee, died in 1806, intestate and without issue; that the child with which the testator’s wife was pregnant at the time of making the will, was afterwards born a female, and is the wife of the Defendant, Jonathan Jacocks; that she is the sole heir at law of Thomas Stevenson, the testator, and also of William Stevenson, the devisee; that John Stevenson, the devisee named in the will, is the lessor, of the Plaintiff; that the premises claimed by him in this suit are the same devised to him, being a part of those devised to William in the first recited clause.

The Jury having prayed the advice of the Court, judgment was given for the Plaintiff, and the Defendant appealed.

*560Henderson, Judge,

delivered the opinion of the Court:

The words dying Without issue, per se, by a long course interpretation, mean an indefinite failure of issue, and a limitation thereon is void as an executory devise ; but if, from expressions in the will, it appear to be the testator's intent to tie up the contingency to tiie period allowed by law, to wit, a life or lives in being, and twenty-one years and nine mouths thereafter, to wait for the full ago of a posthumous child, those indefinite words have been restricted by such expressions, and the devise over held good. In this case, upon the failure of the issue of William, and the child of which his wife was pregnant at the date of his will, part of the lands given to them were to be rented out for the benefit of his daughter during life, and after her death,, to her children ; the other lands at the same time to pass to the lessor of the Plaintiff. This, it was alleged, tied up the contingency to the prescribed period ; for, it is said, if the devise take effect at all, it must be during the life of the daughter. Allowing this argument to be sound, and the devise over good, (which in this case may be very much doubted,) the Plaintiff cannot recover, for want of shewing that the issue of the sons failed during the life of the daughter ; for it is by tyeing up the devise over, so as to take effect in her life time, that it can be held good. It must be read thus to make it good, ei And if my two sons should die without issue, living my t( daughter Polly,'’’ then, &c. for although it be true, that the validity of the devise is to bo tested, not by the event, but must be tied up by the words of the will, so that if it happen at all, it must bo within the prescribed time, yet to claim under it, it miist most assuredly be shewn, that the contingency has happened within the period prescribed, or as the testator has directed. In this case, it not appearing that the issue of William failed during the life of Polly, (for it is not found, whether she be dead or alive) the lessor of the Plaintiff has not shewn any title.

*561It is taken for granted, that this will was made since 1784, when the act passed converting estates tail into cs-tales in fee, by tiie operation of which act, John Stevenson, the lessor of the Plaintiff, would have taken an estate in fee, and by which the case would be much more favourable for the Plaintiff; as then it would have appeared that the contingency happened within the period prescribed, and it is also a much stronger circumstance to tie up the indefinite failure of issue, as there is no ulterior limitation of the lands devised to him.

The case of Jones v. Spaight was quoted at the Bar in the argument of this case; but its principles are not involved in this case. It was decided on great consideration, and with a full knowledge of all the decisions on the subject. I then entertained not a doubt of its correctness, and its accordance with the principles of the English decisions. I have frequently since reflected on it, (for it was a little complained of) and have weighed it maturely since the argument in this case. My opinion of its correctness remains unshaken.

The judgment of the Court below must be reversed, and judgment be rendered for the Defendant.