#### Doe on demise of Beasley and wife v. Whitehurst.

From Currituck.

\ devise as follows, “ the remainder of my plantation atul lands that “hath not been given away, 3 leave to be equally divided between “ my three sons, A, 15, and 0, to them and their heirs forever, ex“cept either of the above said three should die without lawful "heirs of their bodies, then my pleasure is that it should return to “ the other two, to them and their heirs forever.” Held, that since tile act of 1784, A, C. talco a fee-simple, and not an rstate-caü

And upon the death of A. leaving’ issue, and the subsequent decease of 15. without issue, I5’s share will be equally divided among hin brothers and sisters of the half blood and whole blood, or the representatives of such.

Ejectment. The case as stated io this Court, is as follows. The lessors of the Plaintiff claimed title to the land in dispute, under the «ill of Henry White, who devised to his three sons as fellows, viz : “ the remainder “ of ray plantation and Sands that hath not been given 5i away, 1 leave to be equally divided between my three "sous, to-wit, Solomon White, John White, and Caleb "White, to them and their heirs farete.r, except, either of the above said three should die without lawful heirs “of their bodies, the» my pleasure is that it should re- “ turn to the other two, !o them and' their neirs forever.”1

Solomon While died first, leaving five children, Folly,, Letitia, Maladis. Henry, and Solomon s Samuel Beasley, one of the lessors of the Plaintiff, has since intermarried with Letitia, the daughter of Solomon White, deceased.

After Solomon’s death, in the year 1805 or 1806, Caleb White died inte,state and without issue, leaving the following brothers and sinters or their representatives;., viz : the. children of Henry White, a half brother, Mary Williams, Ljdia Feasiy, Leiitia Tolar, the heirs of Solomon Yv hile, Miriam Cato, John White, -Nancy Tay lor and Julian Jones, hi:j heirs at laws

*438Upon the death of Caleb White without issue, his tided part of the land in said devise contained, was divided by order of Currituck County Court, among his heirs at law before named.

The Defendant, Whitehurst, purchased the shares laid off in the division to Henry White’s children, to Letitia Tolar and Nancy Taylor, the heirs of the half brothers and sisters of Caleb White, deceased — it being three-ninths of the whole and of the part so purchased, the Defendant has possession ; the other devisee, John White, is still living, and the lessors of the Plaintiff arc entitled (if to any thing) to one thirtieth.

Taylor, Chief-Justice.

The part of Henry White’s will, which forms part of the case, would, before the act of 1784, have conveyed to his three sons estates-tail iu the land devised, which by that act, are converted into fees-simple. The opposite claimants of the part devised to Caleb White are his brothers and sisters of the whole blood and representatives of deceased brothers and sisters, on one side, and the representatives of his half brother on the other side. It is altogether unnecessary to consider in this case, whether Caleb acquired the land by descent or purchase, because, there is but one side of half blood, and they are of the paternal side. So that in either case, they or their representatives of equal degree with the whole blood, are entitled to the inheritance, under the third section of the act and its provisos, and the proviso of the second section, ft follows, that the representatives of Henry White, the deceased half brother of Caleb, are entitled to the share which their father might have claimed, had he lived $ and that the verdict is wrong in having excluded them. There must consequently be a new trial.

In this opinion, ñaxi and Henderson, Judges, curved. COM