#### *Callis & als. v. Kemp & als.

April Term, 1854,

Richmond.

1. Ejectment—Verdict--Certainty of—Case at Bar.*—In ejectment the jury set out the wills of a grand, father and father ; and if the son who Is dead took under his father’s will, they find for the plaintiff: If he took under the grand father's will, they find for the defendants. The verdict is sufficiently certain ; and submits the single question upon the construction of the wills to the court.

2. Same—Claim for Whole Tract of Land—Verdict for Undivided Interest.†—Though in ejectment the plaintiffs in their declaration claim the whole of a tract of land, the jury may And for the plaintiffs-for an undivided interest in it.

3. Same—Same—Verdict for Part—Requisites of Verdict.‡—Though where less land is recovered than is demanded, the boundaries of the land recovered should be designated, yet where an undivided interest in it is recovered, it is impossible to set out the boundaries ; but the interest being certain, that is sufficient.

4. Wills—Estates Tail—Effeet of Statute.§—In 1799 testator lends to his son B a tract of land during his natural life ; and if he should die without lawful issue, testator gives the land to his grand son H B, to him and his heirs forever. But should my *45son B leave lawful Issue, my will and desire is that he may dispose of said land to such of his issue as he may think lit. IIíild : That B took an estate tail in the land, which by the statute was converted into a lee.

This was an action of ejectment in the «Circuit court of Gloucester county, by the lessee of Kemp and others against James Callis and others. The declaration claimed four several tracts of land, one of which is .described as containing five hundred acres, more or less, known as Summers’ or Seymour’s, formerly Damold’s, and it also .claimed a water grist mill known by the name of Burton’s mill, and land attached thereto, containing twenty-four acres.

On the trial the jury found generally for the plaintiffs twelve undivided thirteenths of three of the tracts described in the declaration ; and they found for the plaintiffs twelve-thirteenths of one-half of the grist "'mill and the land attached thereto. They further found that Philip H. Burton, under whom the plaintiffs claimed, at the time of his death, was an infant under the age of twenty-one years, and possessed of and entitled to one other tract of land in the plaintiffs’ declaration mentioned, and described as containing five hundred acres, more or less, known as Summers’ or Seymour’s formerly Damold’s, and the remaining half of the grist mill known as Burton’s mill, and the remaining half of the tract of land thereto attached, being- about twelve acres. That the said tract of five hundred acres known, &c., and the said last mentioned half part of the mill and land thereto attached were devised by Henry H. B. Burton, who was the grand father of the said Philip H. in the year 1799 in manner and form following:

I lend to my son Henry Burton the tract of laud which I purchased, which was a part of the late Dr. Summers’ estate (formerly Damold’s) during his natural life ; and if he should die without lawful issue, I give and devise the said tract of land to my grand son Henry Burton, to him and his heirs forever: But should my son Henry leave lawful issue, my will and desire is that he may dispose of said land to such of his issue as he may think fit. I likewise lend to my son Henry Burton, during his natural life, my half of the mill that was purchased of Captain Charles Tomkies; and if he should die without lawful issue, I give my half of the above said mill to my son Simon Burton’s sons, Charles and Henry, to them and their heirs forever; But should my son Henry leave lawful issue, it is my will and desire that he shall have the power to dispose of his part of the above said mill to any of his issue he shall think fit. The jury find further that said Henry Burton took possession of said tract of land known as Summers’, &c., and half of the said mill called Burton’s, under the will of his father Henry *H. B. Burton, and remained in possession thereof until his death; and they set out his will in heec verba; by which, after a legacy of three slaves, all his stock and household furniture to his wife, he gives the residue of his estate, real and personal, to his son Philip H. Burton; and expresses it as his wish that his wife shall keep the whole of his estate together until his sou arrived a.t the age of maturity, for their support and his education. The jury further found that Mrs. Burton died before the institution of this suit; that Philip H. Burton was the legitimate child of Henry Burton, and that he died an infant before this suit was instituted. And they found that if the law he, under the foregoing facts, that Philip H. Burton derived title to the said tract of land known as Summers’, &c., and the last mentioned half of the mill and tract of land, under the will of his father Henry Burton, then they found for the plaintiffs twelve-thirteenths of the undivided tract called Summers’, and twelve-thirteenths of the last mentioned one-half of the said mill and land thereto attached: But if the law be that Philip H. Burton derived his title to this land and half of the mill and land thereto attached by virtue of the will of his grand father Henry H. B. Burton, then as to the tract known as Summers’, and the last mentioned half of the mill and the land thereto attached, they found for the defendants.

Upon this verdict the court below rendered a judgment for the plaintiffs; and the defendants applied to this court for a supersedeas, which was awarded.

R. T. Daniel, for the appellants, insisted:

1st. That the special verdict was too uncertain and defective to warrant any judgment thereon. It is found that Philip H. Burton died an infant, seized of the property in controversy, having derived the same from his father’s or his grand father’s will, according *to the construction of these instruments. The verdict does not find the relationship of the lessors of the plaintiff to Philip H. Burton, which will entitle them to take under the 11th section of the statute of descents; but simply that they claim under Philip H. Burton. If the lessors of the plaintiff are *46descendants of Henry H. B. Burton’s, the grand father, brothers or sisters, and not of Henry Burton’s, the father, brothers or sisters, then they are not the class of persons described in the statute entitled to take in exclusion of the kindred on the part of the mother of Philip H. Burton the infant; which kindred the defendants may be; although that matter is also omitted from the finding of the jury. If the lessors are not the persons described in the 11th section of the statute of descents, then it is wholl3r unimportant whence Philip H. Burton the infant intestate, derived the property; for it will go as if he had died an adult, viz: to the defendants, supposing them to be brethren of the half blood ex parte materna, and the lessors to be only grand uncles and aunts or their descendants ex parte paterna. The consanguinity of the lessors and the defendants should have been found by the jury. A special verdict leaves no room for presumption. Bolling v. The Mayor of Petersburg, 3 Rand. S63. No material fact can be supplied by intendment. Tunnell v. Watson, 2 Muuf. 283. And though a verdict may find generally for either party, dependent upon a particular point of law, and such verdict is not strictly a special verdict, McMichen v. Amos, 4 Rand. 134, yet the facts on which the question depends must be so stated as to enable the court clearly to resolve the question. This is a special verdict, not a general verdict with a point of law reserved.

2d. That the special verdict finds no possession in the defendants. Cropper v. Carlton, 6 Munf. 277.

3d. That the finding was defective in awarding *twelve-thirteenths of the propert3r, the whole being demanded, and not finding as to the other thirteenth, or who held it.

4th. That under the true construction of the clauses of the will of Henry H. B. Burton, the grand father of the infant intestate, in regard to the, estates therein referred to, executory limitations are created in favor of the issue of Henry Burton the son, and not estates tail in Henry Burton, turned into a fee by the statute. The estate is given for life to Henry Burton, with remainder over to others by name, in the event that Henry Burton did not by will leave the property to some of his issue. The language of the will shows plainly that the term issue is-not used as indicating persons who were intended to take under the will absolutely; but only as persons among whom Henry Burton might exercise the power of appointment vested in him by the will. That power he exercised in favor of his son Philip H. Burton, who therefore took not from his father but from his grand father.

Robinson, for the appellees:

Upon the first and second points made by the counsel for the appellants, he insisted that the verdict was not a special verdict; but was absolute as to some parts of the subject; and as to another part submits a single question to the judgment of the court. That the principle was similar to that in McMichen v. Amos, 4 Rand. 134. On the third point made, he referred to 1 Rob. Pr. 461.

On the fourth point made by the counsel for the appellants, he insisted, that although the devise was to Henry Burton for life, 3Tet the estate was given after his death to his issue; and by the rule in Shelley’s case this is the same as if given to him and his issue: 2 Jarm. on Wills 33S: And that clearly creates an estate tail. Id. 236 ; 2 Lomax Dig. 225 ; 3 Bomax *Dig. 203, 4; Id. 207, pi. 11. That it was clear under these authorities that Henry Burton took an estate tail: And this was converted into a fee by the statute.

*

Ejectment—Verdict—Certainty of.—In Lewis v. Childers, 13 W. Va. 10, it is said: “And the jury may And for the plaintiffs, or such of them, as appear to have right to the possession of the premises or any part thereof, and against such of the defendants, as were in possession thereof, or claimed title thereto, at the commencement of the action. Sec. 23, ch. 90, Code of this state of 1868; *Callis et al. v. Kemp et al., 11 Gratt.*78. And when the plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants. Sec. 24 of same Code.”

But in that case it was held that the verdict was too uncertain for judgment to be pronounced upon it.

See monographic *note*on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.

†

Same—Claim for Whole Tract—Verdict for Less.—In Marshall v. Palmer, 91 Va. 345, 21 S. E. Rep. 672, it is said that, one may sue in ejectment and recover less than he claims in his declaration, citing Clay v. White, 1 Munf. 162, Callis v. Kemp, 11 Gratt. 78, and 2 Tucker’s Com., 174; but he cannot recover more than he proves that he has title to. And in this case it was held one joint tenant cannot recover, in an action of ejectment in his own name, as sole plaintiff, the interest of himself and his co-tenant.

See also, Postlewaite v. Wise, 17 W. Va. 23, approving the principal case.

See monographic *note*on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.

‡

Same—Same—Verdict for Part.—The proposition laid down in the third headnote of the principal case, where the verdict is for part of the land sued for, the boundaries of the part recovered should be designated, is approved in Slocum v. Compton, 93 Va. 375, 25 S. E. Rep. 3, citing the principal case, and Gregory v. Jacksons, 6 Munf. 25.

See monographic *note*on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.

§

 Wills—Estates Tail—Effect of Statute.—In the principal case, the testator, in 1799, lent to his son a tract of land during his natural life, and if he should die without lawful issue, he gave the land to his grandson, and his heirs forever"; and it was further provided that if the son should leave lawful issue, he may dispose of the said land, to such of his issue, as *45lie may think fit. And it was held that the son took an estate tail in the land, which by the statute was converted into a fee.

This was followed in Hood v. Haden, 82 Va. 597, and Tinsley v. Jones, 13 Gratt. 899, both citing the principal case. See also, 4 Va. Law Reg. 405, 2 Min. Inst. (4th Ed.) 454 *et seq.*See, on the subject, Goodrich v. Harding, 3 Rand. 280; Bells v. Gillespie, 5 Rand. 273; Broaddus v. Turner, 5 Rand. 308; Hill v. Burrow, 3 Call 297 [343]; Carter v. Tyler, 1 Call 143 [165]; Tate v. Tally, 3 Call 354; Eldridge v. Fisher, 1 H. & M. 559; Smith v. Chapman. 1 H. & M. 240; Ball v. Payne, 6 Rand. 73; Callava v. Pope, 3 Leigh 111 [113]; Jiggetts v. Davis, 1 Leigh 368; Doe v. Craigen, 8 Leigh 449; Bramble v. Billups, 4 Leigh 96 [90]; Doe v. Andersons, 4 Leigh 126 [118]; Wright v. Cohoon, 12 Leigh 378 [370]; Moore v. Brooks, 12 Gratt. 135; Sydnor v. Sydnors, 2 Munf. 263; Roy v. Garnett, 2 Wash. 9; McClintic v. Manns, 4 Munf. 328; Deane v. Hansford, 9 Leigh 253; Nowlin v. Winfree, 8 Gratt. 346: Wine v. Markwood, 31 Gratt. 43, 51, and *note.*

ALLEN, P.

In the errors assigned in the petition and the argument of counsel, an objection was taken to the verdict as being too uncertain and defective. The finding is a general one for the plaintiff, unless upon a single point of law reserved, the court should be of opinion that the law is for the defendants in respect to a portion of the land claimed in the declaration and described in the verdict. Such a verdict was held to be regular and proper in the case of McMichen v. Amos, 4 Rand. 134. The question was directly presented in that case, and decided; and the character of the suit, a pauper case for freedom, in which form is disregarded, had no influence on the decision of this point. Judge Cabell, in giving the opinion in which the other judges concurred, says that such a verdict is a “conclusion drawn by the jury from the facts, in favor of one or the other party: subject, however, to the opinion of.the court on the case specially stated by the jury. Such a general conclusion for one party, necessarily carries with it the idea that that party must prevail unless the law upon the special case referred to the court, shall be against him. All facts not found in the special case are excluded from the consideration of the court, or negatived by the general finding in his favor.” In this case the jury has found for the plaintiffs if Philip H. Burton took under his father’s will, and for the defendants if his title was derived under his grand father’s will. The title of Philip H. Burton, as derived from one or the other source, is to be regarded as an established fact; and it being further found that the said. Philip H. Burton died an infant, the verdict also necessarily establishes that the lessors of the plaintiff stood in such relation *to him as that under the act of descents of 1819, they were entitled to succeed to him if he took under the devise of his father; and the wills of the grand father and father are both set forth in the verdict. All the facts, therefore, to enable the court to determine this question, are set forth with precision.

And so as to the second error assigned, that the special verdict finds no possession in the defendants. By the general finding all facts necessary to entitle the plaintiff *47to a verdict are to be considered as found, subject to the opinion of the court on the case specially stated.

As to the objection that the verdict is defective in finding for the plaintiff twelve-thirteenths of the property, the whole being demanded in the declaration, and containing no finding as to the other thirteenth: It is not necessary that the plaintiff in ejectment should recover all that is demanded in the declaration. He may recover less; Clay v. White, 1 Munf. 162; Ablett v. Skinner, 1 Siderfin 229; Burgess’ lessee v. Purvis, 1 Burr. R. 326; Lewis’ lessee v. McFarland, 9 Cranch’s R. 151; and though where less is recovered than was demanded, the boundaries of the part recovered should be designated, where as in this case, the verdict was for an undivided interest, no boundaries could be designated; but there is no uncertainty as to Ihe interest recovered. The sheriff would under the execution give possession of the undivided interests recovered, leaving the defendants in possession of the residue. Roe ex dem. Saul v. Dawson, 3 Wils. R. 49.

On the merits it is maintained that upon the will of Henry H. B. Burton the grand father, and under what it is argued amounts to an appointment to Philip, in the will of Henry the son, Philip took under the will of his grand father a fee simple estate: The person taking under a power, deriving his estate not from the person executing the power, but under the original *devise creating the power. The grand father by his will lent the land in controversy to his son during his natural life. The case referred to of Williamson v. Ledbetter, 2 Munf. 521, decides that the use of the word lend is not of itself sufficient to confine the limitation to the period of the devisee’s death. S'or whether the word lend or give is used, an estate for life is vested in the first taker. The will contains no express devise to the heirs or heirs of the body, nor is any estate given directly to the issue: the issue must take by implication.

The will provides that if the son should die without lawful issue, he gave the lands to his grand son, to him and his heirs forever. The testator intended to give something by this clause to the grand son; but the interest so intended to be given was made to depend on the son’s dying without issue. Taking these words alone, it is clear the testator intended that his son should take such an estate for life in the first instance as would be transmissible to his issue; and to effectuate that intent, the words “die without issue, ’ ’ have always been construed as controlling the previous devise for life, and as enlarging the estate from an estate for life to an estate tail. The testator, although he gave but a life estate to the son, clearly intended that the grand son should not take whilst there was any issue of the son; and there being nothing to limit the devise to the issue living at the testator’s death, the words must be referred to an indefinite failure of issue. The words “should his son leave lawful issue, he might dispose of his land to such of his issue as he may think fit,” do not of themselves show an intention to restrict the previous words to a failure of issue at the death of the first taker. In case of personal property, words of that description may have been received as evidence of an intention to restrict the words “dying without issue’ ’ to a failure of issue at *the death; but such construction of the words has not been extended to real property, as it would defeat the leading intent to provide for the issue so long-as there should be any issue. Blackborn v. Edgley, 1 P. Wms. 605; Soulle v. Gerrard, Cro. Eliz. 525; King v. Melling, 1 Vent. 230; S. C. 2 Levinz 58; Atkinson Hutchinson, 3 P. Wms. 258; Forth v. Chapman, 1 P. Wms. 663.

That the power of disposing to such of his issue as he should think fit would not operate to restrict the general words, is shown, by the case of Ball v. Payne, 6 Rand. 73, where a similar power of disposing amongst or to either of the heirs of the body, was contained in the devise; but the tenant for life was held to take an estate tail which by our statute was converted into an estate in fee simple. Upon the whole, it seems to me that according to the cases of Bells v. Gillespie, 5 Rand. 273; Broaddus v. Turner, 5 Rand. 308; Jiggetts v. Davis, 1 Leigh 368; and the cases there referred to, the son in this case took an estate tail by implication, which by the statute was enlarged into a fee; and that the estate so vested in Henry Burton, passed by his will to his son Philip H. Burton, who thus derived title under the will of his father, and not under the will of his grand father, by the supposed appointment in the will of his father.

I think the judgment should be affirmed.

The other judges concurred in the opinion of Allen, J.

Judgment affirmed.