#### *Deane and Others v. Hansford and Wife and Others.

February, 1838,

Richmond.

Wills — Construction—“Dying without Heirs.”* — Testator, by his will, lends slaves and their increase to his grandson T. D. and his heirs of his body, and if he shall die without a lawful heir, then he bequeaths them to the children of his daughter E. L. — Held, this is an executory limitation after an indefinite failure of issue of the grandson, and therefore void; and the slaves vest in the grandson, in absolute property.

Thomas Cooke, late of King & Queen, died in the year 1806, and by his last will and testament, ' bequeathed as follows: “After my wife’s decease, 1 lend to my daughter Mary Deane one negro Hannah, Vennah, Amey (in possession) and one boy Nelson, one bed and furniture, one cow and calf with their increase, with all the increase of the said negroes, during her life ; and after her death, lend the said negroes and bed to my grandson Thomas Deane and his heirs of his body ; if he should die without a lawful heir, 1 give and bequeath the said negroes with all their increase and the said bed to the children of my daughter Elizabeth Dee.” The testator’s widow and his daughter Mary Deane being both dead, the slaves and the increase thereof, in the above bequest mentioned, came to the hands of his grandson Thomas Deane, who sold some of them to G. Carlton, and others to J. Walton, and still held the residue.

Hansford & wife and Shelbourn & wife (the female plaintiffs being children of the testator’s daughter mrs. Dee) exhibited a bill in chancery, in the circuit superiour court of King & Queen, against Deane, Carlton and Walton, and three other children of mrs. Dee, insisting, that under the executory limitation in the above recited bequest in the testator’s will contained, the children of mrs. Dee would be entitled to the slaves and their increase, *the subject of that bequest, in the event of Deane’s dying without leaving issue: representing, that Deane was now childless, and his age and infirm health rendered it wholly improbable that he should have issue ; that he nevertheless claimed the absolute property of the slaves in question, and had actually sold some of them to Carlton, and others to Walton, who also claimed the absolute property in those they had bought; and that there was danger that all the slaves might, during Deane’s lifetime, be placed beyond reach, so as to defeat the rights of the executory legatees, in case Deane should die without issue : and therefore praying, that the defendants Deane, Carlton and Walton should be injoined from selling or otherwise disposing of the slaves, by them respectively held, so as to put them out of reach of the executory legatees ; and should be compelled to give security to have the slaves forthcoming for the executory legatees, at Deane’s death, in the event of his dying without issue.

The injunction was awarded.

The defendants Deane, Carlton and Walton, put in their answers ; wherein (besides a variety of matters which it is unnecessary to mention) they insisted, that the effect of the testator Cooke’s will, was to give the defendant Deane the absolute property of the slaves and their increase; in other words, that the executory limitation under which mrs. Dee’s children claimed, was void in its creation. The circuit superiour court declared, that the executory bequest to the children of mrs. Dee, in the testator Cooke’s will contained, ' was well and effectually limited, and would take effect in the event of the defendant Deane dying without leaving issue : and therefore, the court perpetuated the injunction &c. Erom which decree, this court, upon the application of the defendants Deane, Carlton and Walton, allowed them an appeal.

-The cause was argued here, by R. T. Daniel and G. N. Johnson for the appellants;

there was no counsel for the appellees. The appellant’s counsel maintained, that the executory bequest in the will of the testator Cooke, to the children of mrs. Dee, in the event of the grandson Deane dying without lawful heir, was limited on too remote a contingency, namely, an indefinite failure of issue of the grandson, and was therefore void in its creation. They said, this case was distinguishable from that of Timberlake v. Graves, 6 Munf. 174, and from all the cases which followed the principle of that decision ; Gresham v. Gresham, Id. 187 ; James v. M’Williams, Id. 301; Cordle’s adm’r v. Cordle’s ex’or, Id. 455, and Didlake v. Hooper, Gilm. 194. And if Timberlake v. *99Graves could be supposed to be in point to the present case, they controverted the principle on which that case was decided ; insisting, that it was sustained by no authority, ■and was contrary to a series of adjudications ; to prove which, they cited and examined the leading english cases touching executory bequests of this kind; and that it had been overruled by this court, in the subsequent case of Griffith v. Thomson, 1 Leigh 321.

*

WilIs — Construction—“Dying without Heirs.” — In Nowlin v. Winfree, 8 Gratt. 346, a testator, who died in 1803, devised bis estate, both real and personal, to bis tbree daughters and “tbeir heirs lawfully begotten of tbeir bodies." “And in case either of my daughters should die without heir or heirs as above mentioned, the surviving one to enjoy their equal part.” Allen, J., delivering the opinion of the court, said: “The question presented by the special verdict as to the proper construction of the will of Benj amin Hall deceased, has been frequently under consideration in this court. The case of Bells v. Gillespie, 5 Rand. 273, presented precisely the same question, and the principle there settled rules this case. That case conformed to the earlier decisions of this court, giving a construction to the laws docking entails; and it has been recognized and followed in the subsequent cases of Broaddus & Wife v. Turner, 5 Rand. 308; Griffith v. Thomson, 1 Leigh 321; Callava v. Pope, 3 Leigh 103; and *Deane v. Hansford,*9 *Leigh*253. The principle thus firmly established by a series of adjudications has become a rule of property in the construction of wills made prior to 1819, and ought not now to be questioned, the more especially as but few cases are likely to occur hereafter in which the question can arise. According to these authorities the will in this case created an estate tail in the first taker by express words; and the bequest over after the death of the daughter without heirs, was an executory limitation after an ¡definite failure of issue, and therefore void, and the daughters took the slaves in absolute property.” But see 1 Rev. Code, ch. 99, sec. 26; Va. Code 1887, sec. 2422.

The principal case is also cited in Moore v. Brooks, 12 Gratt. 151.

PARKER, J.

I am clearly of opinion, that the limitation over to the children of Elizabeth Lee, contained in the will of Cooke, is too remote, being after a quasi estate tail to Thomas Deane; and as this point puts an ■end to the case, it is unnecessary to notice any other.

After the death of Mary Deane, the testator lends certain slaves and their increase to his grandson Thomas Deane “ and his heirs of his body ; and if he should die without a lawful heir,” he bequeaths the slaves and their increase to the children of his daughter mrs. Lee. There is nothing here, to coniine the failure of the heirs of the grandson to his ■death. In legal contemplation, the words of the bequest import a dying without heirs of his body whenever they fail, althoug-h that event may *not take place for centuries. The children of mrs. Lee ■and their representatives, if entitled at all, would, under the settled technical construction of these words, be entitled whenever the heirs of the grandson should become extinct, whether at his death or at some remoter period. This would be a bequest tending to a perpetuity, and for that reason, the law will not permit it to take effect. An effectual limitation of personal property must be confined to the period of a life or lives in being and twenty-one years and some months after ; and where the words import an estate tail, theré must be other words in the will, confining the general words to the dying without heirs or issue at the death of the first taker, to enable the court to support the limitation. Here, there are no such words. The expression indeed is, “I lend to Thomas Deane ” &c. but it is a loan to him and the heirs of his body ; and there is no sound distinction between such a loan and words importing a gift. Williamson v. Ledbetter, 2 Munf. 521.

The words of this bequest, applied to lands, would create an express estate tail; and herein it is distinguishable from some cases in this court, where there was an implied estate tail in the first taker ; as in those of Gresham v. Gresham and James v. M’Williams. It is also distinguishable from them in the circumstance, that the limitation is to a class of persons by description, not by name ; which excludes the idea there relied on, of a personal benefit being intended to themselves. It ■differs also from the case of Timberlake v. Graves, not only in these particulars, but in the absence of the words “ then and in that case,” and “ equally to be divided,” upon which the court seemed to lay some stress, in aid of the construction supporting the limitation. The authority of this class of cases in support of a limitation, on the ground that a personal benefit was intended to the persons named, and that no words of inheritance . . : : . . ■ i : ■ : were annexed, is certainly questioned, if not disregarded, in the '^subsequent cases of Griffith v. Thomson, 1 Leigh 321, and Callava v. Pope, 3 Leigh 103. And it is difficult to conceive how those cases came to be so ruled by this court, after the case of Wilkins v. Taylor, 5 Call 150, (which they expressly contradict) and in opposition also to all the english cases; Beauclerk v. Dormer, 2 Atk. 308, and Green v. Rodd there cited ; Bigge v. Beasley, 1 Bro. C. C. 187 ; Glover v. Strothoff, 2 Bro. C. C. 33 ; Robinson v. Fitzherbert, Id. 127 ; Earl of Stafford v. Buckley, 2 Ves. sen. 171; Everest v. Gell, 1 Ves. jun. 286 ; Chandless v. Price, 3 Ves. 99; Rawlins v. Goldtrap, 5 Ves. 440. Wherever the english judges have supported the limitation after a failure of heirs or issue, they have done so upon the force of some particular words, indicating an intention, that the interest of the remainderman should vest at or very soon after the death of the first taker, or not at all; and to effect this, they have pressed into the service the words leave or leaving issue ; as in Forth v. Chapman, 1 P. Wms. 663 ; Atkynson v. Hutchinson 3 P. Wms. 258 ; Crooke v. De Vandes, 9 Ves. 157; Goodtitle v. Pegden, 2 T. R. 720; Green v. Ward, 1 Russ. 262; so in Dunn v. Bray, 1 Call 338, — or the words then after his or her decease ; as in Pinbury v. Elkin, 1 P. Wms. 563 ; Doe v. Lyde, 1 T. R. 593, and Wilkinson v. South, 7 T. R. 555, — or survivor, or survivors, or surviving children ; as in Nichols v. Skinner, Chan. Prec. 528 ; Massey v. Hudson, 2 Meriv. 129, and Ranelagh v. Ranelagh, 2 Myln. & Keen. 441, 8 Condens. Eng. Ch. Rep. 74; so in Cordle’s adm’r v. Cordle’s ex’or, 6 Munf. 455, — or some other equivalent expressions. But as far as my researches have extended, they have never relied on the distinction first taken by this court in Timberlake v. Graves, but have often disregarded 1it. Yet that case having been followed by several others, and the statute of 1819,1 Rev. Code, ch. 99, § 26, p. 369, having from that period given effect to such contingent limitations, I am not disposed, in a case not absolutely ^requiring it, to say that those cases ought to be -overruled, especially as some of my brethren seem to think that the distinctions I have pointed out between them and the case at bar, are sufficiently broad to leave it without their influence.

It is enough to say, that I see in this case no words to control the technical interpretation of the bequest to Thomas Deane and the heirs of the body, made before the year 1819.

The decree must, therefore, be reversed, and the bill dismissed.

BROCKENBROUGH, J.

The only difference that I can perceive between the bequest here and that in Timberlake v. Graves, is, that in that case the persons to whom the slaves were limited over were certain and named, that is, the “ two nieces Margaret Allen and Patsy Allen in this, the persons are not named, and they are not certain ; for who might be the children of mrs. Lee, either at the death of Thomas Deane, or at the remote period of the failure of his issue, no one can tell. The grounds of the decision in *100that case were, first, that the devise over was to them merely, and not to them and their heirs ; secondly, that it purported a limitation to themselves, and was intended as a personal benefit to them. The first reason would apply to this case, because the limitation over is to the children of mrs. Lee, and not to them and their heirs ; but the second is not applicable, because, as the testator did not know who the children of mrs. Lee would be, he could not be supposed to intend them as peculiar objects of his affection and bounty; not more so than any other of his unnamed and unknown grandchildren. The decision in Timberlake v. Graves has been, I believe, generally disapproved by the profession, as being a departure from the long established rule, that a limitation over of personal estate, after a dying without issue, or without heirs, is a limitation after an indefinite failure of issue, and therefore void, *and that the whole interest vests in the first taker. It was disapproved of by this court (or rather by two judges of the court) in Griffith v. Thompson, but it was not expressly overruled. If the point adjudicated in Timberlake v. Graves had been confined to that case alone, I should have concurred in the opinion to overrule it: but it was followed in quick succession' by Gresham v. Gresham, James v. M’Williams, and Didlake v. Hooper. These adjudications ought to be considered as settling the law in cases exactly resembling them, more especially as in devises made since the statute of 1819 took effect, the statutory rule will prevail. But I think it ought not to be extended further (in wills antecedent to the new statute) than those cases will strictly and literally warrant. I have already pointed out the difference which I think distinguishes this case from Timberlake v. Graves. I am of opinion that the limitation here is after an indefinite failure of issue, and is too remote, and void, and that Thomas Deane had the whole interest in the slaves and their increase; and that, therefore, the decree should be reversed and the bill dismissed.

CABELL, J.

I am of opinion, that ihe limitation 'Over, in the present case, is not sustained by the authority of the decisions of Westminster hall; nor do I think it supported by any of the decisions of this court. It is not like the executory devises in Timberlake v. Graves, Gresham v. Gresham, James v. M’Williams, or Didlake v. Hooper: there was a circumstance in each of those cases which is not to be found in this. There, the limitation over was to persons in esse and named ; to them merely, and not to their heirs &c. and the court said, that this purported a limitation to themselves, and was intended as a personal benefit to them, which excluded the idea of an indefinite failure of issue. But in the case before us, the limitation over is to a class of persons, *the children of mrs. Lee; none of whom are named, and some of whom might not then be in esse. And as I am not disposed to carry the principle of those cases farther than it has already been carried, I cannot support the limitation in this case, there being nothing to restrain it within the prescribed limits.

But as this case stands clear of Timberlake v. Graves, and all that class of cases, I shall not go out of my way to express my opinion concerning them, favourable or unfavourable. It will be time enough to do so, when a case shall occur, presenting similar circumstances. It is contended, that one such case has occurred; Griffith v. Thompson, 1 Leigh 321. I am not prepared to say, whether it does or does not involve the same principle. In that case, the court, consisting of three judges, disregarded the principle decided in Timberlake v. Graves, and the other cases which followed it; and two of the judges expressly assailed its correctness. The case of Callava v. Pope, 3 Leigh 103, cannot, I think, be regarded as in conflict with Timberlake v. Graves : in Cal-lava v. Pope, the limitation over was to a class of persons. Whether a single decision of a court consisting of three judges shall overrule a series of decisions of the whole court, will be a matter for consideration when the point shall be properly presented. I cannot, however, refrain from adverting to one fact, which is sometimes relied upon as calculated to detract from the authority of Timberlake v. Graves, &c. namely, that the arguments of the counsel are not reported, and that the court adverted to no authorities in pronouncing its decisions. But although the fact is as stated, yet it does not follow, that the cases were not ably argued at the bar, and gravely considered by the court. It frequently happened, in those days, that important cases which had been elaborately argued at the bar, and long considered by the court, were decided by simply affirming or reversing ; the court thinking it more important to *administer the justice of the country, than to spend its time in assigning the reasons and authorities which had led to its decisions ; and the arguments of the bar were not given by the reporter (mr. Munford) simply because his official duties, as clerk of the house of delegates, prevented him from attending the court, for months together. Hence it is that his 6th volume contains the decisions of nearly three years.

I am of opinion that the decree should be reversed, and the bill dismissed.

BROOKE, J. I concur in the opinion that the decree should be reversed, and the bill dismissed; and in the remarks of my brother Cabell touching Timberlake v. Graves, &c.

TUCKER,- P. I have no doubt, that this decree ought to be reversed, and the bill dismissed. For my own part, however, I do not see any essential difference between the executory limitation in the present case, and the limitations in Timberlake v. Graves, and some of the other cases which followed the principle on which that case was decided : but in deference to the opinion of my brethren, I forbear to enter into an examination of that class of cases.

Decree reversed, and bill dismissed.