#### *George Buist, adm’r. of James D. Sommers, and in his own right,*v. *Hugh P. Dawes and Joseph Ioor Waring, ex’rs. of John W. Sommers, et al.*

Charleston,

Jan. 1850

Testator, by his last will and testament, devised and bequeathed his real and personal estate to his wife, during widowhood, with remainder, in case of her death or marriage, to his mother for life, remainder to James B. P. for life, i. e., “ the use thereof for life, and at his decease the said land, Slaves and premises shall be, and is hereby vested in the male issue of said James; and, in default of such, in the issue female surviving him; and if a general failure shall be at the death of the said James, I give said land and slaves to my cousin J. W. S. on the same terms, conditions, limitations and reservations as this is made *38liable to, in respect to James’s interest therein, in pursuance of this my will; and should there be a total failure of issue (immediate) on the decease of the said J. W. S., I give the said lands and slaves, and the issue and the increase of the female slaves, to his (the said J. W. S.’s) brother, J. S., his heirs and assigns forever.” The widow married; and James B. P. having died without issue, in the lifetime of testator’s mother, at her death the estate passed into the possession of J. W. S. His brother J. S. died in his lifetime, intestate. The Court *held*that the ulterior limitations in the will were valid as to the personal estate;* that J. S. took a contingent interest in the same that was transmissible to his personal representatives; that at the death of J. W. S., without issue liv" ing, the said personal estate was distributable among them, and that those persons (parties to the bill) were to be regarded as the distributees of J. S., who would fall within that description at the period of his death, and his or her legal representatives.

*Before*DaegaN, Ch., *at*Charleston, *FeVy. Sittings,*1849.

Edward Perry, the maternal grandfather of Edward Tonge, the testator, left the following children, viz : Edward Perry; Martha, who intermarried with John Sommers; Su-sannah, who intermarried with Edward Tonge, the elder, and Sarah, who intermarried with-McPherson.

Edward Perry, son of Edward, died before Edward Tonge, the testator, and left four children, viz : Edward Perry, who died, without issue, before the said Edward Tonge; Mary Perry, who intermarried with John L. Frazer, survived him and died without issue, before the said Edward Tonge; James Boone Perry, deceased ; and Ann Perry, yet living.

Martha Sommers died before Edward Tonge, the testator, leaving the following children, viz: Henrietta, who intermarried with Charles E. Rowand, the elder; Mary, who intermarried with the Rev. Geo. Buist; John *W.*Sommers, and James D. Sommers. •

Susannah Tonge, wife and widow of Edward Tonge, the elder, had one child, viz: Edward Tonge, the testator, and survived him.

Sarah McPherson died before Edward Tonge, the testator, and left one child, , who intermarried *with*-Alston, and died before the said Edward Tonge, leaving her husband, and one child, her daughter, Sarah or Sally, surviving her, who has intermarried with John Izard Middleton.

Henrietta Rowand died a widow and intestate, on or about April 1st, 1838, leaving the following children, viz : Charles E. Rowand, the younger; Robert Rowand; Thos. E. Row- and, who died intestate, without issue and unmarried, in June following; Martha S. wife of Alfred R. Drayton; and Mary *39E., wife of Dr. Thos. Y. Simons. Robert Rowand has administered on the estates of Henrietta Rowand, and Thomas E. Rowand.

Charles E. Rowand, the younger, (son of Charles E. and Henrietta Rowand,) intermarried with Helen R. Robertson, and died January 6, 1839, without issue, leaving a will, (of which George Buist is executor,) making the following residuary bequest or disposition of his estate, and no other, viz : “ All the rest of monies coming to me from the estate of my father, or from any quarter, I give and bequeath to my brother, Robert Rowand and family, for their ease and support” —and leaving, as his heirs and distributees, his widow, Helen R. Rowand, his brother, Robt. Rowand, and his sisters, Martha S. Drayton, and Mary E. Simons. Mrs Helen R. Rowand, by deed, in his life-time, debarred herself of all claim on her said husband’s estate, after his death.

Mary Buist died, on or about April 1st, 1845, leaving a will, (of which Geo. Buist is qualified executor,) which directs her residuary estate, in possession, expectancy or remainder, to be sold by her executor, and distributed as therein directed, and which, of course, includes her interest, if any, real and personal, derivable from or under the will of Edward Tonge, the testator.

Mrs. Mary Buist left surviving her, at her death, her daughters, Mary S. Lamb, wife of James Lamb, and Martha Buist ; and her sons, George and the Rev. Edward T. Buist, and the children of her deceased son, the Rev. Arthur Buist — all of whom are legatees and devisees under her wiH.

James D. Sommers intermarried with Susan B. Farr, and died, on or about the day of , 1817, intestate and without issue, leaving, as his heirs and distributees, his widow, Susan B. Sommers, his brother John W. Sommers, and his sisters Henrietta Rowand and Mary Buist. Wm. McDow, who intermarried with the widow, administered on the estate of James D. Sommers, and, since the death of Wm. McDow, Geo. Buist has administered, *de bonis*non, on the estate of James D. Sommers.

Susan B. Sommers, widow of James D. Sommers, intermarried with William McDow, and died, intestate, and without issue, on or about the day of , 18 , leaving, as her heirs and distributees, her second husband, William McDow, and her sister, Jane L. Waring, widow of Richard Waring. Thomas R. Waring (son of Richard and Jane L. Waring,) has administered on the estate of Susan B. McDow.

William McDow died, without issue and a widower, on or about the day of , 1839, leaving a will, of which Thos. R. Waring is qualified executor, devising one *40moiety of his estate, real and personal, to Jane L. Waring, for life or widowhood, and, after her death or marriage, to be epually divided between Sarah F. Perry [wife of the Hon. Benjamin Perry, of St. Paul’s] and Thos. R. Waring; the other half to the children of his brother James McDow, and Martha, his wife, of Lancaster district; and all the rest and residue of his estate, both real and personal, to be equally divided between the children of his said brother, James Mc-Dow, and Martha, his wife, share and share alike.

John W. Sommers died, unmarried and intestate, on the 5th day of January, 1848, leaving a will, devising and bequeathing his property (including the Tongeville plantations and negroes,) to various legatees and devisees, and appointing Geo. Buist, Hugh P. Dawes, and Joseph loor Waring, executors, all of whom have qualified as such.

Edward Tonge, the testator, intermarried with Ann and died, without issue, on or about the day of 1809, leaving a will, (the same set forth in the pleadings,) and leaving as his only heirs or distributees, at the time of his death, his widow, Ann, and his mother Susannah Tonge. His widow intermarried with-Gist, and died, intestate, withoutissue, before Susannah Tonge and before James Boone Perry, her second husband surviving her.

James Boone Perry died, unmarried and intestate, on or about the day of , 1821 or 1822, before Su-sannah Tonge, and before the date of her will, leaving his sister, Ann Perry, his sole heir and distributee.

At the death of James Boone Perry, the only heir or dis-tributee of Edward Tonge, the testator, then living, under the Act of 1791, was his mother, Susannah Tonge, (his widow being then dead) — his heir, at common law, at that time, is doubtful. His nearest of kin, at that time, *ex parte materna,*were his first cousins, Ann Perry, daughter oí his uncle Edward Perry, and John W. Sommers, Henrietta Rowand, and Mary Buist, son and daughters of his aunt, Martha Sommers. The kindred of Edward Tonge, *ex parte*paterna, are unknown.

At the death of John W. Sommers, the only heir or distri-butee of Edward Tonge, the testator, then living, was his first cousin, Ann Perry; and the only heirs and distributees of James D. Sommers, then living, were his seven, nieces and nephews, the children of Henrietta Rowand and Mary Buist.

Susannah Tonge (mother of Edward Tonge, the testator,) died, a widow and without living issue, on or about the day of , 1828, leaving a will, dated September 25, 1822, and proved August 29, 1828, of which Charles E. Row- and, the elder, and John W. Sommers, both deceased, were qualified executors, among other things, bequeathing and de*41vising the rest, residue and remainder of her estate, real and personal, to her nieces, Henrietta Rowand, Mary Buist, and, Ann Perry, and her nephew, John W. Sommers, who, at her death, were the only surviving heirs and distributees of her son, Edward Tonge.

On the death of Edward Tonge, the testator, in 1809, his widow, Ann, went into possession of the Tongeville lands and negroes, as tenant, for life or widowhood, under his will; on her intermarriage with-■— Gist, Mrs, Susannah Tonge succeeded her, as life tenant, under said will; and, on the death of Mrs. Susannah Tonge, in or before August, 1828, John W. Sommers went into possession, as tenant in remainder of both the said lands and negroes, and continued in possession until he died.

John W. Sommers, in his life time, used and disposed of the Tongeville lands and negroes, as if they were his own, not for life only, but absolutely and in fee simple, selling and giving away negroes, in his life-time, and, by his last will and testament, disposing of both lands and negroes, as if they were absolutely his own — he having had quiet and undisturbed possession of the same, from or before August , 1828, the time of the death of Mrs. Susannah Tonge, to the 5th day of January, 1848, the day of his own death, a period of near 20 years.

At the death of James D. Sommers, who died, as it was then believed, insolvent, (and, as was the fact, irrespective of his contingent interest, under the will of Edward Tonge,) he was seized and possessed, in fee simple, of a plantation or tract of land, called Golden Grove, in St. Paul’s Parish, Col-leton district, and of a few negroes and some other personalty.

After the death of James D. Sommers, and after the intermarriage of his widow with William McDow, she claimed and was allotted her dower in the real estate of her deceased husband, by assessment of a sum of money, in lieu thereof, as appears by certain proceedings, in dower and judgment thereon, in the case of Wm. McDow and Susan B., his wife, demandants, against John W. Sommers, and others, defendants, duly entered of record, in the Court of Common Pleas for Colleton district, May 13, 1820.

On this judgment in dower, execution was duly sued out, and lodged in the office of the sheriff of Colleton district, and the plantation or tract of land, called Golden Grove, containing 1000 acres, more or less, was levied on and sold, by sheriff Oswald, of said district, to satisfy said execution, to the said William McDow, at and for the sum or price of $460; and he received the said sheriff’s title deed for the said plantation or tract of land, (dated Dec. 4, 1820,. and recorded in the Clerk’s office of Colleton district, book E, p. 463,) and *42the said plantation or tract of land still belongs to the undivided estate of ¡.the said Wm. McDow, or to the devisees thereof under his will.

The facts, in relation to Mrs. McDow’s claim and assignment of dower, in the real estate of her first husband, were discovered, after the Chancellor’s decree; and are now relied on to shew that Mrs. McDow having, in her life-time, elected to take, and having actually taken her dower, in the real estate of James D. Sommers, her first husband, deceased, was thereby debarred of all claim to any distributive or other share of his estate, real or personal, and could not therefore transmit the same to her heirs or distributees, or the persons answering that description, at the time of her death, viz: her second husband, William McDow, and her sister, Mrs. Jane L. Waring.

The will of Edward Tonge, dated March 10, 1805, with two codicils, dated respectively March 17, 1805, and February 24, 1800, among other things, devised and bequeathed as follows:

*“*I give and devise to my dearly beloved wife, Ann, for and during the term of widowhood, (and no longer,) the use of the plantation on which I reside, situate on Cane Acres aforesaid, containing, by a resurvey thereof, made in June, 1776, 1897 acres, having such form as is represented by a certain plan thereof, in Register’s office, in the city of Charleston, book B, No. 7, p. 185. Also for the same time, the use of my plantation on Godfrey’s Savannah, in Saint Bartholomew’s Parish, and State aforesaid, containing 707 acres, (or thereabouts,) and having such form as appears in the aforesaid office, in book No. 6, p. 365. Also, for said term, the use of my following named negroes and slaves, (viz.) *[a number of negroes by name,]*being 73 in number, and [the] whole of my slave property. Also, my said wife shall have the use, for the aforesaid term, of all the future issue and increase of the females; also, the use of all the plantation carriages, tools and implements, and of all the plantation horses, cattle, sheep and hogs, that may be on my Cane Acres plantation, at the time of my death, and thereto belonging, subject to the proviso and condition hereafter mentioned, (that is to say,) that she, my dearly beloved wife, shall, during her widowhood, or natural life, pay all taxes and public assessments, that shall be assessed, become due, or levied on or for the said plantations, slaves and premises, and well and sufficiently clothe and maintain such slaves, and keep up and maintain on the said plantations, respectively, the buildings thereon, and an equal number of cattle,- horses, sheep, hogs, of equal value with those that shall be on and belonging to my Cane Acres plantation, at the time of my death, for the bene*43fit of and to the intent that such number, with the said plantations, slaves and premises, and the future issue of the female t slaves, may go, be delivered over and disposed of, after her marriage or death, to’ or for the benefit of my residuary lega-' tees, or the persons hereinafter for that purpose mentioned.”

*“*It is my will, notwithstanding any thing hereinbefore to the contrary, that if my new mansion house now building should be occupied by me, at the time of my death, all the household furniture that may be therein, or thereto belonging, at such event, shall be considered, and is declared by me, to be an inseparable member of the said mansion.”

*“*I give and devise to my said mother, Susannah Tonge, for and during her natural life, after the marriage or death of my said dearly beloved wife, the use of all the lands and slaves, (excepting the negro man slave called Sago.) and of the future issue and offspring of the females, cattle, horses, sheep and hogs, plantation tools and implements, the use of which I have hereinbefore given to my said wife, during her widowhood only, and after the decease of the said Susannah, I give the said lands, slaves and premises, to my cousin, James Boone Perry, (the only surviving son of my uncle, Edward Perry, deceased,) the use thereof for life; and, at his decease, the said lands, slaves and premises, shall be, and is hereby declared to be, vested in the male issue of the said James, and in default of such, in the issue female surviving him; and, if a general failure should be, at the decease of the said James, I give said lands and slaves to my cousin, the said John Withingham Sommers, on the same terms, conditions, limitations and reservations, as this is made liable to, in respect to the said James’ interest therein, in pursuance of this my will; and should there be a total failure of issue, (immediate) on the decease of the said John Withingham, I give the said lands and slaves and the future issue and increase of the female slaves, to his, the said John Withing-ham’s brother, James Sommers, his heirs and assigns forever.”

*“*And, further, it is my will, if the said James Boone Perry shall live to become possessed of the aforesaid lands, slaves and premises, and the future issue and offspring of the female slaves, in pursuance of this my will, that one-half income of the whole income, arising out of the profits of the said lands and slaves (that is to say, rents and productions of the labour of such slaves,) annually, shall be equally divided between the said James Sommers and John With-ingham Sommers, until each of them shall have received seventeen hundred dollars, the respective payments to be made to each of them *(in propria persona)*and not otherwise.” ‘

The will annuls these, and makes other provisions, in the *44event of the testator’s leaving issue, of course providing for such issue.

The codicil of February 24, 1809 directs as follows..

“ It is my will and desire that if my new dwelling house, on the plantation I reside, should not be finished at the time of my decease, that any one of my named executors in the said will, who are executors thereof, and of this and the preceding codicil, who shall quality and act, shall apply so much money belonging to my estate, either' from crops or Other sources, as shall be requisite to complete and finish the same, which sum so applied shall not exceed one thousand dollars. But, in my humble opinion, it will not require near that sum, provided frugality and economy is *observed;*and such executor shall be entitled to, out of my estate, for his trouble and attention, the sum of one hundred dollars.”

“ And, lastly, in the construction of my before recited will and these codicils, it will readily be perceived that no professional character has been consulted, or has had any agency in the draughts, and that although it has occupied many of my leisure hours to digest and to throw them in their present form, the said will, this and the preceding codicil, may, notwithstanding, appear crude and incorrect; but, having endeavoured in them to be plain and explicit- as possible, even at the expense of prolixity, perhaps of tautology,— I. hope and trust that no disputes will arise between the persons who are interested in them; but if, contrary to expectation, the case should be otherwise, from the want of legal expression or the usual technical terms, or because too much or too 1'ittle has been said in the devises in them, to be consonant with law, my will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial, disinterested and intelligent men, known for their probity and good understanding; two to be chosen by the disputants, each having the choice of one, and the third-by those two; which three men, thus chosen, shall, unfettered by law or legal construction, declare the sense of the testator’s intentions, and such decision is, to all-' intents and purposes, to be as binding on the parties, as if it had been given, in the Courts of Equity and Appeals, established in this State.

The bill is filed by George Buist, as administrator, *de bonis non,*of James D. Sommers, and in his own right, (he being also executor of John W. Sommers, of his mother, Mary Buist, and of Charles E. Rowand, the younger,) against Hugh P. Dawes and Joseph loor Waring, co-executors with him of John W. Sommers ; Thomas R. Waring, as administrator of Susan B. McDow, and executor of William McDow, and in his own right as legatee and devisee of Wm. Mc-*45Dow; Benjamin Perry, and Sarah F. his wife, as legatees and devisees in remainder of William McDow; Jane L. Waring, as distributee of Susan B, McDow, and legatee and devisee of William McDow; Martha A. Gamble, wife of William J, Gamble, Margaret J. Curry, wife of Samuel Curl-y, Thomas McDow, John J. McDow, James H. McDow, Agnes H. McDow, and Martha L. Gettys, children and grandchild of James McDow, as legatees and devisees of William McDow, James Lamb and Mary S. his wife, Martha Buist, and the Rev. Edward T. Buist, devisees of Henrietta Buist, and distributees of James D. Sommers, at the death of John W. Sommers; Robert Rowand, Alfred R. Drayton, and Martha S. his wife, Dr. Thomas Y. Simons, and Mary E. his wife, as distributees of Henrietta Rowand, and of James D. Sommers, at the death of John W, Sommers, and Robert Rowand, as administrator also of Henrietta Rowand; Helen R. Rowand, widow of Charles E. Rowand, the younger; and Ann Perry, as sole heir and distributee of Edward Tonge, at the death of John W. Sommers, and sole heir and distributee of James Boone Perry.

The objects of the bill were to obtain constructions of the wills of Edward Tonge and John W. Sommers, and of the rights and interests of the several parties entitled or interested under the same, and an account and settlement of the estates of James D. Sommers and John W. Sommers, and of the other estates concerned; and it especially claims that, on the death of John W. Sommers, without living issue, the negroes held by him devolved, under the limitations of Edward Tonge’s will, on the complainant, as administrator, *de bonis non,*of James D. Sommers, deceased, and prays that Hugh P. Dawes and Joseph loor Waring, co-executors with him of John W. Sommers, should be decreed to deliver up the said negroes to him, in his capacity of administrator as aforesaid.

The answer of Hugh P. Dawes and Joseph loor Waring, co-executors with complainant of John W. Sommers, claims that his executors are entitled to retain the whole Tongeville lands and-negroes as the absolute property of John W. Som-mers, or at least a portion of them, in right of their testator, as an heir and distributee of James D. Sommers, and they must submit the question, in the latter case, whether the legacies of their testator, charged on the Tongeville property, are to be regarded as revoked, or how and in what order and proportion they are to be paid.

The answer of James Lamb and Mary S. his wife, Martha Buist, the Rev. Edward T. Buist, Robert Rowand, Dr. Thos. Y. Simons and Mary E. his wife, and Alfred R, Drayton and Martha S. his wife, claims that John W. Sommers took but a life estate in the real and personal estate, held by him, *46under the will of Edward Tonge, with remainder in fee, on his death without issue living at his death, to his brother, James D. Sommers, who died in 1817, without issue and unmarried; and that these defendants, being the nieces and nephews (the'children of the deceased sisters,) of the remain-derman, and the only persons answering the description of his heirs and distributees, at the time of the happening of the contingency contemplated by the testator, viz: — the death of the life tenant, John W. Sommers, without issue, at his decease, are entitled, among them, to the whole landed and personal estate.

The answer of Thomas R. Waring, administrator of Susan B. McDow, claims that John W. Sommers was but life-tenant, under the will of Edward Tonge, and James D. Sommers, the remainderman in fee; and that, on the death of John W. Sommers, without living issue, the estate, real and personal under the will, devolved on James D. Sommers, who died in 1817; and that the same became distributable, under our statute of distributions, between and among the persons who were heirs or distributees of James ”D. Som-mers, at the time of his death, and not among those who answered that description at the death of John W. Sommers; and that, in this view of the case, the whole estate, real and personal, devolved, one-half on Susan B. Sommers, (after-wards McDow,) the widow of James D. Sommers, and the other half on his sisters, Henrietta Rowand and Mary Buist, and his brother, John W. Sommers — and this defendant claims, as her administrator, the share of the personalty devolving on his intestate.

The answer of Jane Ladson Waring, Benjamin Perry and Sarah F. his wife, and the children and grandchild of James McDow, sets up the same claim, the first named claiming as sister and distributee of Susan B. McDow (who died intestate and without issue,) and the others as legatees and devisees of William McDow, the second husband, and one of the distributees of Susan B. McDow.

The answer of Ann Perry claims the whole estate, real and personal, under Edward Tonge’s will, by reverter, as sole heir and distributee of testator, at the death of John W. Sommers, or as sole heir and distributee of her brother, James Boone Perry.

Helen R. Rowand, widow of Charles E. Rowand, the younger, files a disclaimer of all interest or estate in the Tongeville property, real or personal.

The following is the Circuit decree:

Dargan, Ch. The first question that arises, in the natural order of this discussion, is, what estate was devised to *47James Boone Perry by the testator’s will. After the decease of the testator’s mother he gives James Boone Perry “ *the ^*use” of the estate “for life, and after his decease the said lands, slaves and premises shall be, and is hereby declared to be vested in the male issue of the said James, and in default of such, in the issue female surviving him; and if a general failure should be at the decease of the said James,” then over. This clause in regard to the real estate would create an estate tail male, remainder an estate tail female in James B. Perry, under the statute *de*donis, and in South Carolina it creates a fee conditional. 1 do not think that the testator’s having given “the use”'of the estate to the first taker, can vary the construction. In *Hinson*v. Pickett, the word ‘lend’ was construed to be synonymous with ‘give;’ and in *Ward*v. Waller, it is said that “ the term *use*might sometimes afford argument for an intention to give only a life estate, but it is of no avail in the inquiry whether the generality of the phrase, *laioful issue of the body,*has been tied up by the subsequent clause.” It is moreover obvious that, under the Statute of Uses, the legal estate must follow the use, under the magical operation of that statute. I read the clause, therefore, as giving the estate to James Boone Perry for his life, and declaring that, at his death, it shall be vested in his male issue, and in default of such, in his female issue. The issue, if there had been any, under the rule in Shelly’s case, would have taken by way of limitation and not as purchasers. The fact that the testator gave only a life estate to James B. Perry, will not affect the interpretation. It may be conceded that he intended to create a life estate merely in • the first taker. The rule is beyond the control of intention when a proper case arises for its application. It is of absolute and peremptory obligation, and enlarges the life estate (notwithstanding the intention) into an estate of inheritance, and clothes the tenant for life with the power of defeating the rights of those to whom the estate is limited, by fine and recovery, and by feoffment. It is thus in estates tail. In a fee conditional, after the birth of issue capable of inheriting, the issue may be barred by any deed of the tenant for life which would operate as a conveyance.

1 Hill’s Ch. It. 38.

2 Spear’s R. 793.

Har. Law Tracts. 489.

Though this celebrated rule had its origin in feudal ages, and was doubtless based, in part, on feudal usages and principles, the inexorable operation which has been given to it by modern judges, may be vindicated not only' by the necessity of adhering to a rule of property, which has been so long established, but of adhering to the manifest “distinctions between descent and purchase, and to prevent title by descent from being stripped of its proper incidents and disguised with the qualities and properties of a purchase.” In the language *48of Lord Thurlow, in *Jones*v. *Morgan,*“Whoever takes in qle name 0f an heir, must take in the quality of an heir.” I take it then as indisputable, that the estate devised (I am 0f course still speaking of the real estate,) to James Boone Perry was a fee conditional at common law.

l Bio. 206.

2 Bail L. 231.

Bail Eq. 48.

The next question to be considered is, whether the estate hmhed after the failure of the issue of James B. Perry, first to John Withingham Sommers, and then over to James Som-mers, can be sustained, either as a contingent remainder or executory devise; or, in other words, whether a contingent remainder or an executory devise can be limited after a fee conditional. In regard to the first branch of the proposition, I need only to say, that innumerable decisions and authorities, both in England and the United States, without any respectable opinion to the contrary, concur in the establishment of the doctrine, beyond the shadow of a doubt, that a remainder cannot be limited on a fee, whether simple, qualified, or conditional. Limitations that are utterly void as contingent remainders, are often held to be valid as executory devises under certain conditions 'and circumstances. And a fee may be limited upon a fee simple absolute, by way of executory devise, provided the contingency upon which it is to take effect, or vest, must necessarily occur within the period prescribed by the rule for the prevention of perpetuities. And were the question a new one, or were I at liberty to speculate, I might inquire if there were any valid reason why an execu-tory devise may not be created after a fee conditional as after a fee simple, and under' the same modifications and. restrictions. But the contrary doctrine is established by a series of decisions in this State, and the question, it appears, is not open for discussion. In the case of *Bedon*v. *Bedon,*(where the estate to Stobo Bedon was construed to be a fee simple defeasible,) it is said “if the estate to Stobo Bedon is construed to be a fee conditional, the estate in remainder to Richard B. Bedon cannot take effect as a contingent remainder ; for it would be a fee mounted on a fee, and therefore void. It could not operate as an executory devise, for if the devisee takes an estate in fee conditional, the limitation would be after an indefinite failure of issue capable of taking *per for.mam doni.”*

In the case of *Mazyck*v. *Vanderhorst,*the devise was of real and personal estate to the testator’s daughter, and to the heirs of her body forever; but if she should depart this life leaving no lawful heirs of her body, then over to his other daughter Mary Woodberry’s eldest son, &c. The opinion of the Court was delivered by that able and learned jurist, Judge Nott. And the Court, observing the distinction made by Lord Macclesfield in *Forth*v. *Chapman,*held the limita*49tion valid as to the personal estate, and too remote and void as to the real estate. The devise in this will was. held to, Greate in the first taker a fee conditional in this State, and-what would have been- a fee tail under the statute *de donis.*It was decided that the limitations over could not be supported as a contingent remainder, and in accordance with the decision in *Forth*v. *Chapman,*and *Daintry*v. *Daintry,*it was solemnly adjudged, that the limitation over, as to the real estate, was after an indefinite failure of issue, and could not be sustained as an executory devise.

1 Hill's Ch. R. 268.

2 Hill’s Ch. 244.

l Rich. Eq. 404.

In the case of *Adams v. Chaplin,*it was held that the devise of Chaplin, the elder, to John Chaplin, the younger, constituted a fee simple at common law. And Chancellor Harper says, “it is clear that the limitation over to the testator’s brother, William Chaplin, was too remote and void, and could not be sustained as an executory devise. In the case of *Bailey*v. Seabrook,” he observes, “decided by me at Charleston, I considered the question whether a remainder could be limited after a fee conditional, and decided that it could not;” ‘

*Horry*v. *Deas,*though an authority directly to the effect' that a contingent remainder cannot be limited after a fee conditional, does not bear upon the question whether an execu-tory devise may not be so limited; for there was no feature in the limitations of that will which gave them the semblance of an executory devise.

In *Whitworth*v. *Stuckie,*the testator, John Baxter Fraser,. devised the land to his son for and during the term of his natural life, and at his death to the lawful issue of his body;. and if he should die without lawful issue living at the time. of his death, then over to his other sons.- The defendant had sold the land to the complainant, who filed his bill against the defendant for a rescisión of the contract, on the ground that the title was defective in consequence of the limitations of John Baxter Fraser’s will," and of fraud in the concealment of those defects of title by the vendor. The case, was heard by Chancellor Harper, at Sumter, June,. 1843, who dismissed the bill. The decree was affirmed by the Court of-Appeals, on two grounds; one of which was, that the will of John B. Fraser as to the land in question created a fee conditional, that the rule in Shelly’s case applied, .that the issue took nothing as purchasers, and that the title was good. It is true that there were other important questions discussed in the case. It was-adjudged that, where a purchaser remains in the undisturbed possession of the land, he cannot maintain a bill in this Court for a rescisión of the contract on account of an outstanding title, unless on the ground of fraud. Fraud was charged in the bill, and the Chancellor, in the appeal decree, admitting the sufficiency of fraud to entitle the com*50plainant to relief, observes, “ it may not be necessary to conclude any thiug on this subject. The case would be remanded, perhaps, for the purpose of hearing evidence on the subject of fraud, but that we are with the defendants on the limitations in the will of John Baxter Fraser.” The questions involved in the case, therefore, turned, in the judgment of the Court of Appeals more especially, on the construction of the will, and this was in truth the only issue decided. For upon the fraud as a question of fact, the Court expressed no opinion and concluded nothing. *Whitworth*v. *Stuckie*is, therefore, an authoritative case, and is in harmony with the series already cited and remarked upon.

1 Strob.'L. R. 130.

I will now proceed to consider the case of *Williams*v. Caston, so confidently quoted and relied on in the argument against the claim of Ann Perry. The testator Samuel Caston devised the land in dispute to his daughter Elizabeth Caston, (who afterwards intermarried with one Williams,) during her natural life, and then to descend to her issue; and if she should die without any living issue, her share to return back to the testator’s living heirs, share and share alike. There is an analogy between the foregoing provision of Samuel Gas-ton’s will, and the clauses of Edward Tonge’s will, which we are considering. But there is none whatever in regard to the questions submitted to the Court in the two cases. An issue • as to the validity of the executory devise over to the living heirs of the testator, on the event of his daughter Elizabeth dying without leaving issue, was not made, and could not have been made, for Elizabeth had issue who were living, and who were the plaintiffs in the case, asserting their claim (their mother being dead without having aliened) to the land against a mere stranger and trespasser. The result of the case could not have been otherwise than reported. For it is clear that the plaintiffs would have been entitled to recover, whether they were considered as purchasers under the will of Samuel Caston, or whether their mother took a fee simple or a fee conditional under that will. If they were purchasers, they could have claimed in their own right. If their mother took a fee simple, as her heirs at law, they were entitled to maintain their action; and, if she took a fee conditional, her children were of course entitled to claim *per formam doni.*Thus the two cases present no analogy in the questions before the Court; and, in *Williams*v. *Caston,*the construction of the will of Samuel Caston was not considered, because unnecessary to be considered. Wardlaw, J., concurring in the result, observes, “In the case, the questions concerning the construction of the devise to Elizabeth Caston,- have not been at all argued. I do not assent to some of -the observations made about them, and doubt as to the conclusion.” Indeed, there appears to my mind a con*51fusion and inconsistency in the opinion of the Appeal Court. In the first part, there appears to be an expression of opinion in liarmouy with the cases which I have cited, aud a reference to some of the same cases. I quote the language of the Court in delivering that opinion : “ The devise presents three objects of testator’s benefaction: first, his daughter; next, her issue ; and then his living heirs, if she died without any living issue. If effect were given to the devise in *its popular*sense, the daughter would’ take an estate for life; her issue, that is, her children and grand-children, would take an estate in fee, in remainder; and, if she left no such issue living, the land would revert to the living heirs of the testator, living at her death, as tenants in common.” Proceeding to show that *the popular sense*was not the true construction, the Judge remarks: “But, in giving effect to devises, the Courts are guided by artificial rules of "construction, which to some extent control the particular intention. Thus, under the devise to Elizabeth Caston for life, and then to descend to her issue, the life estate and remainder are merged in an estate of inheritance, in the first taker, by the rule pf Shelly’s case. Issue and heirs of the body, when construed as words of limitation, have the same meaning, *and the terms of the devise would vest a fee conditional in Elizabeth Caston.*After a fee conditional, no remainder or executory devise can be limited.” Such is the language of the Judge who the opinion of the Court. And the opinions, expressed in the"2 passages quoted, are consonant with what may be considered firmly established principles of the law of this State, and I cannot conceive how that opinion is to be reconciled with the subsequent adoption of what had previously been considered the popular and erroneous sense, or construction. The point decided, however, was that the plaintiffs were entitled to’ recover the land on the strength .and solidity of their title. Beyond the question immediately at issue, the opinion was; speculative in its character, and the weight, that such an opinion is entitled to, is diminished by the fact that the questions arising on the construction of th'e devise were not argued, and, probably, not considered by the Court.

Adams v. Chaplin, 1 Hill, *267. Mazyck v.*Vanderhorst Bail. Eq. 42; Deas v. Horry, 2 Hill Ch. R. 248.

4 East, 313

In the construction of Samuel Gaston’s will, the limitation over-migh t possibl y have been supp rrted as an executory d evise, on the force of the words that the estate was to return back to the testator’s living heirs, *11 share and share alike,"*as importing a tenancy in common.. The case of *Doe ex Dem. Gilman*v. *Elvey,*would afford some countenance to such construction.

But the very fact that the decision in that case is placed upon the effect of the words “equally to be divided among them,” with a limitation “ to his, her or their heirs,” without reverting to,the limitation over, in the event of the first taker-*52not leaving issue, living.at the time of his death, amounts to the strongest confirmation of the rule so well established *in*the English Courts.

Forth v.Chapman, Shaw v. Weigh, Stra. 798; Richards v. Bergany, vent. 524.

Adhering’to what I conceive to be the.well-settled princi-pies of law upon the subject, which I have no authority to question, and against what I conceive *should*have been the ] governing cases.like the present, I. am of the opinion that the devise, of Edward T.onge gave the real estate in question to his wife, during widowhood, with remainder on her rn^ri'iage) to his mother for life, remainder in fee conditional to James Boone Perry: that the limitations over, on. the event of his leaving no issue, are inoperative and void, whether regarded as. contingent remainders or executory devises : that James Boone’ Perry having died without leaving any.issue to take, *per for mam doni,*there is a *reverter.*to the right.heirs.of the’testator: and that'Ann Perry, being the sole "surviving, heir at law’of Edward Tónge, is entitled, to the whole, real estate, described , in the pleadings, and it is so adjudged and decreed.

In .regard to the. disposition of. the. personal estate, my interpretation of the. will is’diflerent. Words, .which, in reference. to lands, would create a fee.conditional, would, without qualification, give the first taker an absolute estate. But words, constituting a fee tail, or fee conditional, as. to the real estate, oftentimes, admit of a construction that gives personal property to the is’siie as purchasers, creating limitations over by. way of executory devise ; as in *Forth*v. *Chapman, Mazyck*v. *Vanderhost,*and.other cases .that may be cited. In these cases a rule of construction prevailed, which, on the same’ words, sent the.real and personal.estate, in. two directions. The limitations! in Edward 'Tonge’s will, as to the personal, estate, are not. prescribed to. take. effect after an indefinite ! failure of issue; but there are..qualifications, which bring them within the rulés of law, which are directed against per-petuities. *Thus,*James Boone Perry takes an estate *for*life, and, *at his decease,*it is to be vested in his male issue. The period of his death, then, is the time at which the estate of. his male issue is to vest; a period.within, the rule certainly,; and, in default of. such issue, (a default which, of course, must take place at his death) if is to vest in his issue female. What issue female? The issue female *surviving him,*(James Boone Perry.) The words, *surviving him,*still more strongly fix. the. period at which, the .limitation to James, Boone Perry’s issue is to take effect. “ And, if a general failure shall be *at the death*of the said James,” then over to John With.ingharn Sommers, “Pn ,the same terms, conditions, limitations and reservations.”. “.'And, if there should be a. total failure of issue *immediately, on*the decease of the said! John Withinghom Sommers,” then oyer “to James *Summers,**53his heirs and assigns, forever.” I think the words here employed as expressive of time and contingencies, on which, these several limitations' are to take effect,’must receive the same construction, and have the same operation, as if the words had béén “if the said James B. Perry,” or “if the said John W. Sommers, should die without leaving any issue living at the time of his death.” In which case, according to innumerable authorities and decisions, the previous direct bequests to the issue would be qualified, so as to make them take as purchasers, while the ulterior limitation over is so circumscribed and defined, as plainly to show that it must take effect, if at all, within a life or lives in being, or twenty-one years after.

■ My opinion, therefore, is, that the ulterior limitations in the will of Edward Tonge are valid as to *the*personal property. And it remains to be. seen who are the -persons entitled to a distribution thereof. James B. Perry, as we have seen, diéd in the life-time of the tenant for life, without issue and without having had possession of the estate. At the death of the testator’s mother, the estate, real and personal, passed into the possession of the .next in the order of limitation, John *W. 'Sommers,*who died in 1848, without issue. His brother, James Sommers, had died some years before. On the death of John Sommers, “immediately,” “if there should be a total failure of issue at his decease,” the estate was to go to “ his brother, James Somrriers, his heirs and assigns forever.” James Sommers, then, if now living, would be the person, who would be entitled to take the personal estáte. My opinion is, that James Sommers took a contingent interest that was transmissible to his personal representatives. It wás á possibility coupled with an interest. The rule is, that all contingent estates, Whether "of real or personal property, and all springing and executory uses and possibilities coupled with an interest, *where the person who is to take is known and ascertained,*áre assignable, descendible, devisable and transmissible. If they be of personal property, and there is an intestacy, they will be transmitted to the legal representatives, according to the rules of personal succession. As James Sommers died intestate, this -personal éstate must go into,the hands of his administrator.

The next question that comes bp is, how is the estate to be distributed, and who are to take as the distributees of James 'Sommer’s? Are those.persons to be regarded as hi's distribu-tees, who could make themselves such at the happening of the contingency oñ which his estate depended, or those only who would fall within that description at the period of his death? Which class of persons would take, if it were a case oí partition of real estate, (from the view which I have taken as to the disposition of the land) I am not under the *54necessity of deciding. Whether the phraseology of our statute 0f distributions should be considered as having modified the English canon of descent, *seisina facit stipitem,*so as to entitle those who were heirs at law of the contingent remain-devman, at his death, to take, rather than those who would represent that character on the vesting of the estate, is a question which has not yet been settled, and one which, to my mind, wears a somewhat embarrassing aspect. Upon that question I express no opinion. But, in regard to the personal estate, as affected by this question, there appears to be no difficulty. In the argument, there was a pretty general agreement of opinion among the counsel that those only are entitled to the personal property who were distributees at the death of the intestate, James Sommers. And this is my opinion- It is therefore ordered and decreed, that distiibntion be made of the personal property, which is hereby adjudged to be the estate of the said James Sommers, among those persons, parties to this bill, who represent the character of distributees at the time of his death, or his or her legal representatives. It is further ordered and decreed that orders may be applied for from time to time to carry into effect this decree. It is also ordered that each party pay his own costs.

1 Williams on Ex'ors 238, 936.

The only other question that I am to consider is one which arises out of the will of John Withiugham Sommers, the person last possessed of the estate. He, believing that he was a rightful owner in fee of the Tongeville property, real and personal, disposed of the whole of it by his will. He has bequeathed-several pecuniary legacies, to wit: To Hugh P. Dawes, $5000; to Ann B. Perry, $1000; and to $1000; all to be paid out of the Tongeville property. And it is contended that, inasmuch as those legacies are charged upon the Tongeville property, all of which the testator believed to be his own absolutely, when, in fact, he was enti-. tied to it for life, and only to one-sixth of the personal estate in fee as one of the distributees of James Sommers, these legacies, under the circumstances, ought to be considered as revoked. I have ndt sufficient data by which to decree upon this question: I incline to the opinion that there *should be*an abatement. But I have not had before me the will, nor do I know what are the dispositions which he has made of the corpus of the property, nor whether he had other property besides the Tongeville estate. 1 should be infinitely perplexed were I to attempt to decide this question without being illuminated as to the facts. This question is, therefore, reserved, and it is ordered that the master (Laurens) do inquire and report the provisions of John *W.*Sommers’ will, what estate he died possessed of, other than the Tongeville property, and any special matter.

*55The parties, defendants named in the bill, as' claiming under Susan B. Sommers, one of the heirs of James D. Summers, at the time of his death, appealed from the decree his Honor, upon the grounds following, and asked that the same might be modified accordingly, to wit:

Because his Honor erred in decreeing that the real estate, devised by Edward Tonge, in 1805, reverted to Ann Perry, upon the death of Susannah Tonge, and insist that the true construction of said will gave, after the determination of the estates of the wife and mother of Edward Tonge, only a *life estate*to James Boone Perry, in the real as well as personal estate, with a contingent remainder in said real estate, to such issue male as he might leave surviving him, intended to vest absolutely in such male issue surviving at the period of his death ; and, in default of such male issue surviving, to any issue female surviving, to vest absolutely at his death, and, in default of these, to John Withingham Sommers for life, and then over, immediately at his death, to any issue male whom he might leave surviving, absolutely, as above — in default of such, to the issue female as above, and, in default of these, then over absolutely to-James D. Sommers in fee. The effect of this, they insisted, was to give to James D. Som-mers, on the death of Edward Tonge, a contingent remainder in said realty, constituting a *present interest in the really,*though to be enjoyed in future, which *interest*was transmitted, the one half to his widow; that this *transmissible*interest, at her death, descended, under the statutes, to her heirs, to wit: one moiety to her sister, Mrs. Waring, and the other moiety to her husband, William McDow; that this latter moiety passed, under McDow’s will, to the devisees therein- named, and that Mrs. Waring and said devisees are now entitled to a moiety of the realty, under the will of the said Edward Tonge.

PERONNEAUS & HAYNE, *Solicitors for said defendants.*

The administrator of James D. Sommers appealed from the Chancellor’s decree, on the following grounds:

1. That the real estate of Edward Tonge is, by his will, well devised over, on the deaths of James B. Perry and John W. Sommers, without leaving issue, to James D. Sommers in fee.

2. That ^.nn Perry is not entitled, as the decree supposes, to the real estate, because the limitations over to John W. Sommers and James D. Sommers are good — and, if those limitations are not good, she is not entitled, because, at the death of James B. Perry, she was not the next heir of the testator — -aud, if she had been the next heir of the testator. *56at the death of James B. Perry, she is not entitled now, because the adverse possession of John W. Sommers, for upwards of ten years, has barred her right — and aiso the right of any other person claiming as such heir.

3. That both the real and personal estate of testator, on the death of John W. Sommers, without issue, passed, under testator’s will, to James D. Sommers, and are distributable among the persons answering the description of heirs or dis-tributees of James, at the death of John, and not among those answering that description at the death of James, as decreed by the Chancellor in relation to the personalty.

4. That the decree as to each party paying his own costs should be modified, several of the defendants being minors, one having filed a disclaimer, and several others having been made parties only to quiet the title to.the property.

R. YEADON & J. L. PETIGRÜ, *Appellant’s Solicitors.*

The executors of John W. Sommers appealed, on the grounds:

1. That their testator, having gone into possession of the real and personal estate in litigation, in August, 1828, and having held and enjoyed quiet and peaceable possession of the same, as his own in fee simple and otherwise absolutely, from that time until his death, in January, 1848, a period of nearly twenty years, and having disposed of the same as his own, by his last will and testament, his title to the same, by possession and otherwise, was complete and indefeasible, and cannot now be disturbed.

2. That his Honor, the Chancellor, erred in supposing that the will of John W. Sommers was not before him, and should have decided the questions raised under the said will, viz: 1. Whether, if the whole Tongeville plantation and negroes were not the property of John W. Sommers, the legacies bequeathed by him, in the belief that the whole estate was his, are void, or are only to abate? 2. Whether the legacies payable out of the Tongeville plantation and negroes, if not void, are to be paid out of testator’s estate generally, or only out *of*the portion *of*the Tongeville negroes (one-sixth) adjudged to him by the Chancellor? 3. Whether the legacy bequeathed to Hugh P. Dawes is to be paid in preference to the other legacies, or any and which of the other legacies.

MACBETH, *Solicitor for Appellant.*

*

Note. — The questions as to the real estate were referred to the Court of Errors.

Dargan, Chancellor,

delivered the opinion of the Court.

The circuit decree adjudged the ulterior limitations in Edward Tonge’s will to be valid as to the personal estate, and that, on the death of John Withingham Sommers, without *57issue living at his death, the next in succession, James D. Sommers, was entitled to take the said personal property, by way of executory devise. On the question as to how the personal estate was to be distributed, and who were to take as the distributees of James D. Sommers, the Circuit decree adjudged that those persons were to be regarded as his distribu-tees who would fall within that description at the period of his death. And, accordingly, U was ordered and decreed, that distribution of-the said personal estate should be made among his distributees (parties to the bill), who would represent that character at the time of his death, and his pr her legal representatives.

This Court fully concur with the Chancellor in the views he has taken of that branch of the,case, and for the reasons which he has given. It is, therefore, ordered and decreed that,.in these respects, the decree of the Circuit Court be affirmed.

Subsequently to the hearing o'f the cause, and the filing of thé decree, the complainant, by the' consent of parties, has amended .his bill. In the amended bill, the complainant has raised the question whether those parties, who now represent ■the interests of the late Mrs. McDow, (who was the widow of James D. Sommers) are entitled to any part of the estate devised, under the will of Edward Tonge, and novv decided to belong to, and ordered to be distributed as a part of, the estate of the said James D. Sommers. It is urged by the complainant, and by some of tile defendants, who are adverse in iuterest to the representatives of Mrs. McDow, that the representatives of Mrs. McDow'are not entitled to a distributive share of said estate, because, on the death of her husband, James D. Sommers, she took her dower in his real estate. It is contended that she hás elected, or, at all events, her having taken her dower must be regarded as a satisfaction of any claim on her part under the Statute of distributions. It is scarcely necessary to remark that this Court does' not possess original, but only appellate jurisdiction. And, in the amended bill, new questions of law and fact are raised, which have never been heard or decided by the Circuit Court. -How can this Court entertain a question which is not brought before it as an appeal? To do so would be utterly to co'n-, found and obscure all the distinctions between the original and appellate jurisdiction of this Court. Yet, as the parties have consented to an amendment of the bill, in which these new issues of law and fact are made, there is no indisposition, on the part of the Court, that those issues should be fairly tried in the proper forum. It is therefore ordeied that this part of the case be remanded to the Circuit Court for a hearing. In regard to the construction of the will of Edward Tonge, as to the real estate, and as to what estate James *58Boone Perry took in said estate under said will, whether he took a fee conditional therein, and, if so, whether there could be a limitation thereon, by way of executory devise, to John Withingham Sommers — and, if he died without issue, to James W. Sommers — it is thought advisable that the case be referred to the Court of Errors, and it is so ordered and directed.

In all other respects, the Circuit decree is affirmed, and the appeal is dismissed.

Dunkin, Caldwell and Johnston, CC., concurred.

*Decree modified.*