#### *John Shephard and others vs. Susan Shephard and others.*

A mother, by instrument in the nature of a will, gave certain slaves to her three children. The gift to A. was to him, “ his lawful heirs, executors and administratorsand the instrument further provided that “in case of the death of either of my children herein mentioned, *without lawful issue,*their part to descend to the others, to be equally divided between them.’7 Held, that A. took an' absolute estate, and consequently, that the limitation over, on his dying without issue, was too remote.

*Before*Harper, Ch,, *at*Beaufort,

February, 1844.

*The Chancellor.*In 1816, Mrs, EveStirble, by an instrument expressed in the formal words as a deed, but which being intended for no other purpose than to make a disposition of hex* property after her death, I regard as a will, gave certain portions of her estate to her three children, Elizabeth Zahler, Martha Shephard, and Martin Shephard, consisting of two female slaves, land, <fec. The gift to Martin Shephard is to him, “ his lawful heirs, executors, and administrators and the instrument provides that “in case of the death of either of my children, herein mentioned, *without lawful*issue, their part to descend to the *others,*to be equally divided between them.”

Martin Shephard died in 1842, leaving a wife, the defendant, Susan Shephard. She was the mother of a son, the defendant, called by her John David Shephard, born during the life-time of Martin Shephard, but whom the complainants allege to be illegitimate, and not the son of Martin Shephard, who had separated from his wife some years before the birth of the child.

The bill is filed by Elizabeth Zahler, the daughter of the testatrix, and the husband and children of Martha Shephard, the other daughter, who is dead. They claim, that under the limitation of the instrument referred to, they are entitled to the property given to Martin Shephard, he having died without issue. The slaves have been increased to nine; four of whom are in the possession of the defendant, Thomas M’Teer, and five in that of the defendant, Benjamin Heape. The bill prays for the delivery of the slaves.

I think the limitation over, on the event of either of the children dying without issue, too remote. There is no doubt, with *143respect to the words, “dying without issue,”- meaning the indefinite failure of issue. A distinction is made when the limitation is to *survivors;*because the word indicates that the parties to take shall be personally living, and take a personal benefit. The case of *Massey*v. Hudson, 2 Mer. 135, quoted in argument, together with that of *Nicholls*v. *Skinner,*Pre. Ch. 528, (which is commented on, and the report of it corrected by Sir William Grant,) illustrates this matter. In the latter case, the gift was to three children, and if either should die without issue, to the survivors and their1 heirs. This was held too remote. The limitation being to survivors and *their heirs,*shewed that not a mere personal benefit was intended, but that the heirs of the survivors might take whenever the issue should fail. The doctrine is explained in the principal case. If there be a limitation to A, and if he die without issue, to B, this does not mean that B is to take personally during his life; but if the limitation was good, the representative of B would take on the failure of issue, however remote. This limitation is, in effect, the same as if the gift had been to Martin, and if he should die without issue, to Elizabeth Zahler and Martha Shephard. Martin Shephard took the property given to him therefore absolutely.

Whether the complainants are entitled to any portion of this property as next of kin, must depend on the fact of the legitimacy of John David Shephard. This question, I think a proper one for a jury, and I shall send it to a jury.

It is ordered, that aiyissue be made up to the next sitting of the Court of Common Pleas for Beaufort district, to try and determine whether the defendant, called John David Shephard, is the son of the deceased Martin Shephard, born in lawful wedlock. The question of costs is reserved.

The complainants appealed, on the ground that the limitation over was not too remote.

*E.*& *H. Rhett,*for the motion.

-, contra.

*Per Curiam.*

We concur in the decree of the circuit court. The appeal is, therefore, dismissed.

JohNSon, Johnston and Dunkin, CC. concurring.