#### DEN ON DEMISE OF NANCY FOLK & AL. *vs.*WILLIAM R. WHITLEY.

A, in 1791, devised as follows, “I lend mito B. W. all the lands I own in Conehoe Island, <5'C. during his natural life, and after his death I give tho above mentioned land to his heirs lawfully begotten, to them and their heirs forever; and in case he should die without lawful issue of his body, then I lend the above mentioned land to his brother H. *W.*ic.”

*Held,*that the words here used “heirs lawfully begotten,” were words of limitation and not of purchase ; that B. W. therefore took an estate tail, which by the Act of 1784, was converted into a fee simple, and that the remainder over was void.

*Held,*also, that the words “ to them and their heirs,” superadded to the words “his heirs lawfully begotten,” did not affect this construction of the devise.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1847, his Honor Judge Bailey presiding.

Both parties claim the premises under the will of Benjamin Whitley, the elder. It was executed on the 10th of July, 1791 ; and thereby the testator devised as follows:

“ I lend to Henry Whitley, son of Elizabeth Nobles, a parcel of land, &c, during his natural life, and after his death, I give the aforesaid land to his heirs lawfully begotten of his body, to them and their heirs forever ; and, in case the said Henry should die without issue lawfully begotten, I lend the said lands and plantation to his brother Benjamin Whitley, in the same manner as before men« tioned, to him,”

“Item : I lend unto Benjamin Whitley, son of Elizabeth Nobles, all the lands I own in Conehoe Island, &c.” (being the premises now in controversy) “during his natural *134life, and after his death I give the above mentioned land to his heirs lawfully begotten, to them and their heirs forever ; and in case he should die without lawful issue of his body, then I lend the above mentioned land to his brother Henry Whitley, in manner as aforesaid.”'

By other clauses the testator lent land to Mary Whitley, “during her natural life, and in case the said Mary should die without lawful issue begotten of her body, that then the said land, lent to her, to return to her sister Lydia Whitley, in manner as aforesaid, to her heirs lawfully begotten of her body, to them and theirs forever and also lent land to Lydia Whitley, “ and in case the said Lydia should die without lawful issue begotten of her body my desire is, that the whole of the land lent to her to return to Mary Whitley, her sister, in the same manner as aforesaid ; and if Mary Whitley and Lydia each should die, without heirs lawfully begotten of their body, then the laud before lent to them to return to Henry and Benjamin Whitley, in the same manner as the 'lands before lent to them, to their heirs lawfully begotten of their body, to them and their heirs forever.”

There are then the following dispositions, “I lend Nancy W. Brooker a tract of land, &c.; and my will is, if the said Nancy should have lawful issue of her body, the land to be theirs and their heirs forever? and in case she should die without issue I give the said land to Henry Whitley, to him and his heirs forever. I lend to my brother John all my land on the north side of Conehoe creek during his life and at his death to be at his disposal, My will is that four acres of land I brought from, &c. be sold and the money given to. my son Henry Whitley. Whereas I purchased a piece of land from W. Piner and he refuses make a title ; my desire is that my executors bring suit for the land, and, if recovered, to *be*equally divided between Henry Whitley and Benjamin Whitley, to them and their heirs forever.”

*135The testator then directs four young negroes to be purchased ; and he gives one of them to Henry Whitley, “the value of which to be taken out of his part of my estate and that his working tools, hands, and horses, to be kept for the purpose of cultivating his lands, and that Elizabeth Nobles and her children Henry, Benjamin, Mary and Lydia Whitley have a sufficient support therefrom, until Benjamin arrive at 21. He also lends Elizabeth Nobles a negro man, Mose, during her life ; and he gives to her and to each of her said children, and to Mary W. Brooker, Fanny Brooker and Lydia Deacon, by distinct clauses, several legacies of specific chattels, such as horses; cattle, ■beds, and furniture.

Then came the following clauses : “Whereas the many legacies that I have lent already out, my desire is, that if either of the parties should die without issue lawfully begotten of their body to the survivor or survisors of the living parties equally to be divided in manner aforesaid, to them and their heirs forever

It is my will and desire that all the rest and residue of my estate that I have not before given or lent be equally divided between Elizabeth Nobles’ four children, Henry, Mary, Lydia, and Benjamin, when my son Benjamin shall attain to 21 years.”

Benjamin Whitley, the younger, entered into the lands devised to him and continued in possession of them until his death, which happened in 1846 ; and after that eve..t the defendant entered, claiming the premises under the said devise to him, or as being the heirs of his body lawfully begotten. They were the children of one Milly Brewer, born out of wedlock; and the said Benjamin, the younger, was their x-eputed father and intermarried with their mother in 1822, but had no issue afterwards. In 1823, he procured a Private Act of Assembly to be passed, to legitimate the defendants as his children and heirs; and in 1839, upon his petition filed for that pur*136pose in the Superior Court of Martin and due proof, they tvere declared legitimate by that Court.

Henry Whitley died in 1843 and the lessors of the plaintiff are his children and heirs at law, and claiming as such they brought this suit in February 1847.

The case was submitted to the Superior Court on the foregoing- facts, stated .in a ease agreed ; and, the Court being of opinion for the defendant, judgment was entered for him, and the plaintiffs appealed.

No counsel for the plaintiffs.

No counsel for the defendant.

Ruffin. C. J.

It is not necessary to consider the effect of the statute and decree of legitimation, nor whether the defendants could under them be regarded as answering the description of the heirs of Benjamin Whitley, lawfully begotten of his body, supposing them to take as purchasers; because the Court is of opinion, that those are not words of purchase, but of limitation, by force of which, under the act of 1784, Benjamin Whitley the younger, took an estate in fee, and therefore the limitation over, under which the lessors of the plaintiffs claim, is void. Undoubtedly a devise to one for life, remainder to the heirs of his body, is a proper estate tail, according to the rule of law, called the rule in Shelley’s case. It is precisely the same, as a devise to one and the heirs of his body. That is the devise here, except that to the words “ heirs of his body lawfully begotten,” are super-added the words of limitation “ and their heirsand we believe it is perfectly settled, that, unless such super-added words of limitation change the course of descent into another line or channel, they do not operate, so as to convert the first words of limitation into words of purchase. In *Shelley’s case*itself, 1 Rep. 93, there were such superadded words of limitation. It was a recovery suffered by Edward Shelley, a tenant in tail, to the use *137of himself for life, remainder to another for 24 years, and then to the use of “ the heirs male of the body of the said Edward lawfully begotten and of the heirs male of the body of such heirs male lawfully begotten,” and then over. He had two sons, of whom the elder was dead, leaving his wife *enceint*of a son; but, before he was born, Edward died and his younger son entered; and the question was, whether the elder brother’s son, when born, had not the better right. It was held, he had, as the heir of the body of his grand father by descent, and not by purchase. There are many other cases to the same effect. *Wright*v. *Pearson, 1*Edm. 119, and stated and commented on by *Mr. Fearne,*Cont. Rem. 128, was a devise to T. R. for life, remainder to trustees to preserve contingent remainders, remainders to the heirs male of the body of T. R. lawfully to be begotten *“*and their heirspro-vided that in case T. R. die without leaving issue male, then over; and it was held T. R. took an estate tail. The terms of that Will are much like those now before us, except that in *Wright*v. *Pearson,*trustees to support contingent remainders were interposed; but that, Lord Keeper Henley said, was a distinction without a difference, and therefore did not rely on that circumstance. In the more modern case of *Measure*v. *Gee,*5 Barn, and Aid. *910,*there was the same circumstance of a remainder to such trustees, and it did not affect the construction of the devise: which was to T. for life, remainder to trustees to support contingent remainders, “ and after the death of T. to the heirs of the body of the said T. his, her, or their heirs and assigns forever; but in case there should be a failure of the issue of T.” then over, upon which it was held, that T. took an estate tail. Besides those, there are the accordant cases of *Goodright*v. *Putlyn, 2*Ld. Raym. 1436, and *Den*v. *Shenton,*Cowp. 410; which are both strong, and particularly the former; where the devise was to A. for life, and after his decease *138unto the heirs male of the body of A. and his heirs forever ; but if A. should happen to die without such heir male, then over ; and it was held to be an estate tail in A. and that the words *“ Ms*heirs for default of such *heir*male,” engrafted on “ heirs male of the body of A.” did *not*qualify them so as to prevent the operation of the general rule. It is clear, therefore, that Benjamin, the son, took an estate tail by the words of the devise to him, and, consequently, that the limitation over to Henry was after an indefinite failure of the issue of Benjamin. The effect, then, is, that the fee into which the Act of *1784*turns the estate tail, became absolute in Benjamin, and Henry and his heirs take nothing.

It was argued, however, for the plaintiff, that the subsequent general clause changed the character of the limitation over in that respect, by confining the time to the lives of the children by force of the words “survivors or survivor.” It is difficult *to*understand the clause referred *to*or apply it to any purpose. But, at all events, it seems impossible to say, that it was thereby intended to qualify the previous devises of particular lands to one ehild with a limitation over to another one, by converting* the limitation into one to all the children, or to the “survivors or survivor of the living parties,” to whom any gift was made. That provision must be referred to those dispositions in the will, to which no special limitation over was annexed. But, however that may be, it is clear that lessors of the plaintiff ai’e not within the clause in question; for the “ survivors or survivor” necessarily means some or one of the donees, who were living at the making of the will. The words are, “if either of the *patties*should die without issue, to the survivors or survivor” of *the living parties ;*so as to make the limitation over, under this clause, contingent upon the event of sur-vivorship. Now, Henry Whitley, under whom, as his heirs, the lessors of the plaintiff claim, died before Ben*139jamin, and, of course, nothing could vest in him, or descend to his heirs under that clause.

Per Cuhiam. Judgment affirmed.