#### DEN ON DEM. of GEORGE ZOLLICOFFER et al. *vs.*JULIUS H. ZOLLICOFFER.

Dec. 1839

Where a testator devised a certain tract of land to his eldest son, and the balance of his lands to his widow and other sons, and bequeathed his slaves to his widow, all his sons and his daughter, and in a subsequent clause, directed as follows: “At the death of my said wife, all the land and negroes that may fall to her, shall return to J. Z.” (one of his sons) “and in case of the death of either of my aforenamed children-, without a lawful heir, begotten of his or her body, that then his or her part shall be equally divided among the survivors;” *it ivas held*that, upon the death of J. Z. without children, subsequent to the death of the widow, all the lands which he acquired under his father’s will, both that part which was given to him immediately, and that which was limited to him after the death of his *mother,*went over *to*his surviving brothers and sister, and that the limitation was not too remote.

This was an action of Ejectment, tried at Halifax, on the last circuit, before his Honor Judge Saunders, when the jury found a vet diet for the lessor of the plaintiff *by*the consent of the parties, subject to the opinion of the court upon the following case reserved, to wit;

“George Zollicoffer, by his will, made the 2nd of February, 1799, after devising some part of his lands to his eldest son, devises in theSfe words: ‘Thirdly, my will and desire is, that all the rest of my land except that which is heretofore named, shall be divided into four equal lots, and my beloved wife, Ann Zollicoffer, have the privilege of taking her first choice of the said lots, and then that my three sons, George Zollicoffer, James Zollicoffer and Julius Hieronimus Zolli-coffer, draw for the remaining three lots by seniority.’ By the next clause, the testator directs a division of his negroes &c. amongst'his wife and children, the beforenamed sons and John Jacob Zollicoffer and a daughter; and then follows this clause: ‘ At the death of my said wife, all the land and ne-groes that may fall to her, shall return to James Zollicoffer; and in case of the death of either of my aforenamed children without a lawful heir, begotten of his or her body, that then his or her part shall be equally divided among the survivors.’ After the death of the testator, the lands were divided according to the clause of the will first above mentioned, *439and the premises described in the declaration were chosen by the widow as her lot. In February, 1833, the widow died; and on the 6th of April, 1836, James Zollicoffer died, without leaving; issue, but leaving; the lessors of the plaintiff,, and the defendant, his brothers and sister, him surviving. After the death of the widow, and before the death of James, to wit, on the 19th of February, 1833, the said premises were sold by the sheriff under executions issued upon judgments obtained against the said James, and were bought by the defendant and duly conveyed to him. If, upon the foregoing-facts, the defendant is seised of the whole, then judgment to be entered for him — but if the lessors of the plaintiff are entitled to undivided fourth parts, then judgment to be entered for them.” His Honor being of opinion, upon the above case, for the lessors of the plaintiff, gave judgmentJor them, and the defendant appealed.

*Badger and B. F. Moore*for the defendant.-

*Iredell*for the lessors of the plaintiff.

Ruffin, Chief Justice.

The defendant contends that,upon the death of the mother, the whole estate in the premises vested absolutely in James for two reasons: The one that the testator did not intend to include the premises in the limitation over to the survivors: The other, that if he did so intend ¡ the limitation over is too remote.

The expression “ his or her part,” is broad enough in its obvious signification to cover every thing bestowed on each child by the will, and must be so understood, unless controlled by the words or apparent intent of other parts of the instrument. We have looked through it, and do not find anything to restrain the operation of the expression to any particular portion of “ the part” of the testator’s estate given to his children respectively; but on the contrary, it seems to have been used in an unrestricted sense. The testator had four sons and one daughter. By the three first clauses of his will he disposes of his real estate, giving a particular tract to his eldest son, and the residue to his wife and three other sons, equally to be divided between them. Then the fourth clause', in the first place, gives the negroes and all the *440personal estate to the wife and the five children, to be equally between them; and in the next place, gives to James, upon the death of his mother, the land and ne-croes given to her. Then in the *same*clause is irnmediate- . . , , , , ly added, as it were by way of proviso to the whole, that upon the death of either of *the*children, his or her *pari*shall go to the survivors. This ends the instrument; and shews that no positive equality *between the*children was intended, as the daughter, for instance, comes in for a share of the land of a brother dying childless, although the will gives her no original share of land to which the brothers would succeed upon her death. Besides, following as this provision does, so immediately after the gift ofthe remainder to James, there would have been some plain indication of the intention to exclude that remainder from its operation, if such an intention had existed.

The case of *"sjiaiglii,*i Eepos'Tii approved.

Upon the second point, our opinion is also against the defendant. We do not, indeed, recollect that any will has been before the Court in which real estate was given over to *“*a survivor,” upon the death of the first taker, without issue or heir of the body. But although there may have been no direct determination as to the effect of that phrase, we have a principle established by adjudication upon cogent reasoning, which covers this case and sustains the limitation. It is admitted that in England these words'would undoubtedly create an estate tail, and therefore import an indefinite failure of issue. But they there receive a different construction in dispositions of personalty, and the term “ survivor” ties up the failure of issue to the life of one then in being. *Hughes*v. *Sayer.*1 Pr. Wms., 534., *Nichols*v. *Skinner,*Prec. in Chan. 528. Now, in *Jones*v. *Spaight,*1 Car. Law Repos. 544, it was contrar7 t0 ^ie ru^e) as ifc nay called, of *Forth & Chapman,*that a devise over of land upon the death of the first taker “ without leaving issue,” was good. It was so held, because the reason for taking those words in an artificial and technical sense, in regard to land, did not exist here since the abolition of entails, more than in regard to chattels. Therefore, in a devise of land, we must receive them in their natural sense, as they had before been received *441ought'that of realty also. in both countries in personal bequests. The principle *Jones*v. *Spaight*is, that since 1784, executory limitations of land and chattels are to be construed alike, upon the . . , . sumption that the intention of the testator is3 that m case, the estate should go over on the same event; and as the limitation over of chattels on that event is sustained, so 7 That principle is decisive of this CaSe.

tbo 1784, (see 1 liev. 43, converting1 ?sta,es f®11 mto estates in fee sim-pie, execu-tory limita-chattels are eti intention that in each case, the estate should go over on U»€T same event*

It may also be noticed, that although in this State there been no case turning on the word “ survivor,” yet the point is not new in this country. In New York it is settled, “ leaving,” “survivor,” and the like, are to be understood alike when applied to both kinds of property; and that, for the same reasons which were assigned in *Jones & Spaight.*Fosdick v. Cornell, 1 John Rep. 439, *Anderson*v. Jackson, 16 John Rep. 381.

Per Curiam. Judgment affirmed.