#### *Thomas Barksdale et al.*vs. *Edward Gamage et al.*

Testator devised as follows: 11 give, devise and bequeath to my daughters, M. and S. two lots of land,’ &c. 1 to be equally divided between them, and the heirs of their body. Should either of them die without an heir of their body, then to my surviving children and their issueHeld, (1) that M. took a fee conditional in the moiety of the lots devised to her; and (2) that the limitation over to the 1 surviving children and their issue,’ was void for remoteness.

An alienation, by tenant in fee conditional, *before*the birth of issue, does not prevent the reverter to the donor, if the issue, afterwards born, die in the life time of the tenant in fee conditional.

An alienation *after*the birth and death of issue bars the right of *the*donor in *the*reversion.

*Before*DaugaN, Ch. *at Charleston, February,*1850.

The decree of his Honor the circuit Chancellor, is as follows.

Dargan, Ch. Thomas Barksdale, by his will, dated the 22d day of May, A. D. 1800, *inter alia,*devised as follows:— “I give, devise and bequeath to my daughters, Mary- and Sarah Barksdale, two lots of land, fronting East Bay and corner of Tradd street, to be equally divided between them and the heirs of their body; should either of them die without an heir of their body, then to my surviving children and their issue.”

*272The property was subsequently divided, between the two de-visees, and that portion of it which fell to the share of Sarah Barksdale is the subject of this litigation. She intermarried with Charles Dewar Simons, *(a)***and there was an antenuptial marriage settlement between them, executed on the 25th September, 1807, by which she conveyed to George Edwards and Thomas Barksdale all her estate, including her undivided moiety in the two lots devised to her and Mary Barksdale, by the will of Thomas Barksdale, *in*trust, for the use and benefit of the said Charles Dewar Simons and Sarah Barksdale, during their joint lives; remainder to the survivor for life, remainder to such child or children of the marriage as should be living at the death of the survivor, and on failure of issue living at the death of the survivor, then to the survivor in fee. Charles Dewar Simons and Sarah, his wife, had issue, (a female child, born alive,) which lived but a few days, or hours; and after-wards, to wit. on. the 21st January, 1812, Charles Dewar Simons; died, leaving Sarah, his wife, surviving him, and without any| issue then living.

On the 24th September, 1811, there was a partition of the two lots, between Sarah Simons and Mary Barksdale. On the 18th day of March, 1817, Sarah Simons contracted marriage with the defendant, Edward Gamage, and, previous to the sol- I, emnization thereof, conveyed, by a deed of marriage settlement, to George Edwards and Thomas Barksdale, in fee, all that lot, etc. being the property devised to her by her father’s will, and the subject of this litigation, in trust, for the joint use of the said Edward Gamage and Sarah Simons, during their joint lives; remainder to the survivor for life, remainder to the child or children of the marriage, in fee; and, in default of such children, to the survivor in fee. The said Sarah departed this life on *273the 30th June, 1841, leaving the said Edward Gamage surviving her; but without leaving, or ever having had, any issue of the marriage between her and the said Edward Gamage. ¿

The complainant, Thomas Barksdale, is the brother, and the complainants, Sabina Payne and Mary Barksdale, are the sisters of the deceased Sarah Gamage, and are the surviving children of the testator. The defendant, George B. Edwards, is the son of a deceased sister, Elizabeth Edwards, who was a daughter of the testator, and Elizabeth Hammond and Charles O. Hammond are the children of Mary Hammond, and grandchildren of Elizabeth Edwards, and, therefore, great-grandchildren of the testator, Thomas Barksdale.

The foregoing is a statement of the material facts, and the relationship and position of the parties. . And the question for *the judgment of the Court is,*which of these parties are entitled to the estate, and in what proportions ? This involves the inquiry, as to what estate Sarah Gamage took in this property, under Thomas Barksdale’s will *1*The first question which appears to me to be proper for discussion is, as to the effect of the words, “ and their issue,” superadded to the intended limitation, in favor of the testator’s surviving children. In personal prop- | erty, a limitation to the survivors of living persons has the effect of qualifying the generality of a gift to the first taker, and *his issue,*or *the heirs of his body;*so as to make the first taker have a life estate, and the issue, or heirs of the body, take as purchasers, by way of remainder. But where words of inheritance or succession are superadded to the limitation in favor of survivors, who are to take after a general failure of the issue of the first taker, such issue cannot take as purchasers. The ulterior limitation over, in such a case, would, itself, fail for remoteness, and, therefore, Cannot impart such a restrictive modification to the words, heirs of the body, or issue, as to make them mean *heirs of the body, or issue, living*at the death of the first taker. 2 Fearne Con. Rem. (Smith’s) m. p. 555. *Massey*vs. *Hudson,*2 Mer. 138. *Postell*vs. *Postell,*Bail. Eq. 390. Where the limitation to survivors has the effect of reducing the estate *274of the first taker to a life estate, and of making his issue purchasers, it must be to the survivors *simply;*as in *Stevens*vs. Patterson, (Bail. Eq. 42,) *Treville*vs. *Ellis,*(Bail. Eq. 40). It must appear that the testator contemplated that the survivor should succeed personally to the estate, and not take a transmissible interest.

The limitation in Thomas Barksdale’s will can, then, have no effect upon the estate given to his daughter, Sarah. And the question recurs, what estate did she take ? My opinion is, that she took a fee conditional, and I so adjudge. If the limitation intended by the testator to have been created in favor of his surviving children had been such as would have been valid as an executory devise, grafted upon a fee simple, then the question would have arisen, whether such an executory devise would be operative, when grafted upon a fee conditional. And I should have held that it would not, in conformity with my decision in *Buist*vs. *Dawes,*now before the Court of Errors. If the estate be once admitted to be a fee conditional, it must have the effect of cutting off all remainders and executory devises. Such an estate must expire upon its own natural efflux. It has certain characteristics inseparable from it, to destroy which would be to destroy the estate. Upon its natural termination, there *must*be a reverter to the donor, or his heirs. If there be issue born alive, capable of inheriting the estate, the tenant in fee conditional has the right of alienation. And if he does not alien, the estate *must*descend *per formam doni.*The two first of these attributes would necessarily be, and the third might be, destroyed by allowing a remainder or an executory devise to be limited upon a fee conditional. And this would be to destroy the only distinguishing marks which the estate possesses. But this question does not necessarily arise, and I pass on.

Mrs. Sarah Gamage took a fee conditional, under the will, and by her first marriage she had issue, bom alive, capable of inheriting the estate. This event entitled her to alienate the estate. There were two alienations by her, for valuable consideration — for I regard both the deeds of marriage settle*275ment in that light. One of these was before, and the other after the birth of issue. The latter was after the issue had died. An alienation, either before or after the birth of the issue, is sufficient to bar the rights of those who are to take *per for-mam doni,*and to make the title of the purchaser valid. But if the alienation is before the birth of issue, and then the issue die *before*the tenant in fee conditional, who has aliena • ted, or if the alienation be after the birth and death of the issue, this does not prevent the reverter to the donor. Bac. Abr. Tit. Estate in Tail; Plow. 241; 1 Cruise Dig. 83; 1 Coke, (by Thomas) 510.

The only question which I am to consider is, whether the husband, Edward Gamage, is entitled to hold and enjoy, as tenant by the courtesy, this estate, of which his wife was seized during their marriage, as a tenant in fee conditional. This last is an estate of inheritance, and courtesy will attach upon it where the necessary conditions exist. *“*When a man marries a woman seized at any time during the coverture, of an estate of inheritance in severalty, in coparcenary, or in common, and *hath issue by her born alive,*and which might, by possibility, inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the lands during his life, by courtesy.” 4 Kent’s Com. 27; Paine’s Case, 8 Coke, 67. Charles Dewar Simons might, if he had survived his wife, have held this estate by the courtesy; but the defendant, Edward Gram-age, not having had issue by his wife, is not entitled to set up any such claim.

The decree of the Court is, that the real estate described in the pleadings reverts to the right heirs of the testator, Thomas Barksdale, to be divided among thenqywre *representations.*It is further ordered and decreed, that the said estate be divided into four equal parts, and that the complainants do each take one of the said four equal parts; that the remaining fourth part be again divided into two equal parts, one of which is to be assigned to George B. Edwards, and the other to Elizabeth Hammond and Charles O. Hampiond, equally to be divided between them.

*276It is further ordered and decreed that the defendant, Edward Gamage, account for the rents and profits of the said real estate, from the death of the said Sarah Gamage, to wit, the 30th June, A. D. 1841, and that it be referred to one of the masters to state the account.

It is further ordered and decreed, that the rents and profits be divided among the heirs of the testator, in the same manner and proportions as the *corpus*of the estate is herein directed to be divided.

The defendant, Edward Gamage, appealed, upon the following grounds, viz:

1. That his Honor, the Chancellor, erred in ordering an account of the rents and profits, received by Edward Gamage since the death of Sarah Gamage, and in ordering a partition of the premises among the right heirs of Thomas Barksdale, the testator.

2. That the Chancellor erred in decreeing that Mrs. Sarah Gamage did not take a fee simple in the said premises, upon the birth and death of an heir of her body.

3. That the decree was, in other respects, contrary to the correct construction of the testator’s will, and to equity.

*DeSaussure Sp Son,*for appellant.

*Yeadon*& *Macbeth,*contra.

(a)

 Charles Dewar (or DeWar) Simons, M. D. was an eminent professor of Chemistry at the time of his death, in the South Carolina College, at Columbia. He was drowned on the 21st January, A. D. 1812, in passing through the Hougabook Swamp, below Granby, when the waters were unusually high, and was profoundly regretted by the whole State.

DargaN, Ch.

delivered the opinion of the Court.

From the view which the Court has taken of this case, it is unnecessary to discuss some of the questions which have been elaborately argued at the bar. The construction given to the will of Thomas Barksdale, is believed to be correct. The limi-^ tation over to the testator’s surviving children, in the event of Mrs. Gamage dying without issue, is void for remoteness. The words, *'■'■and their issue,”*superadded to the devise in favor of the surviving children, indicates an intention, on the part of the testator, not to confer a *personal*benefit on the survivors as such : but that if they should be dead on the failure of the issue of Mrs. Gamage, the issue of his surviving children should *277represent *them*and take the estate in that event. This is an attempt to create an estate in remainder,'to take effect after an indefinite failure of issue, and after the natural efflux of the precedent estate of inheritance devised to Mrs. Gamage. The,, limitation to the surviving children of the testator is void for ' remoteness, and the devise to Mrs. Gamage (Sarah Barksdale) stands unaffected by it. The devise, then, is to her, and the heirs of her body: the technical import of which words is to create a fee conditional. No more appropriate and significant words could have been employed for that purpose. For a fee conditional is defined to be “ a fee restrained to some particular heirs, exclusive of others: *donatio stricta et coarctata; sicut certis h&redibus, quibusdam a successions exclusis: as to the heirs of a man's*body, by which only his lineal descendants were admitted: or to the heirs male of his body, in exclusion both of collaterals and lineal females also.” 2 Bl. Com. 110.

There is no objection, whatever, in point of policy, to the estate in fee conditional. I think it subserves a useful purpose. At all events, it is in no disfavor. It is only within a recent period, however, that it has been recognized by judicial authority to exist in South Carolina. No earlier case exists in which such estates were so recognized than *Jones*ads. *Postell & Potter,*(Harp. 92, A. D. 1824). Beyond this period, we may appeal in vain to our Reports and judicial records for any decision or discussion illustrative of the rules and principles which govern these estates. In the mother country, they were abolished, or so| modified, by the statute *de donis conditionalibus,*as to deprive^ them of all those distinctive attributes which they possessed at ’ common law. This celebrated statute, so important in its bearing upon the institutions of landed property in England, and, I may say, upon the form of Government and the political destiny of that great country, was passed 576 years ago. The great body of the common law, in all its ponderous and majestic proportions, has been built up by judicial decisions and the commentaries of eminent jurists since that period. Subsequent to that timej there has been but little discussion in English *278courts, and in the works of English writers upon law, on the subject of estates in fee conditional: because, with the exception of estates by copyhold tenure, (to which the statute *de donis*did not apply,) no such estates exist in their system of jurisprudence. For this reason, we have only the scanty materials afforded by the early common law writers, to throw light upon this subject, whenever a question like the present arises in our courts. The information, however, which we derive from this source, slight as it is, is sufficient to enable the Court understandingly to decide the question now before it.

Mrs. Gamage, (then Sarah Barksdale) by the will of her father, Thomas Barksdale, being seized of an estate in fee conditional, and being about to contract matrimony with Charles Dewar Simons, on the 25th day of September, A. D. 1807, conveyed the said estate in fee to trustees, to the uses of her marriage settlement, which she entered into with the said Charles Dewar Simons. The marriage was shortly afterwards duly solemnized; and there was issue of this marriage, namely, Mary Moncrief Simons, who was born about the 20th July, 1808, and lived only a day or so after birth. On 21st January, 1812, Charles Dewar Simons died, without leaving issue, and leaving his wife, Sarah, (afterwards Mrs. Gamage) surviving him. On cthis event (it was provided by the térms of the deed of marriage settlement,) the trustees were to stand seized of the estate, for the use of Mrs. Simons in fee. The statute of uses having executed the use in her, she was again vested with the legal title in the estate.

On the eve of her second marriage (with the defendant, Edward Gamage) she, by a deed of marrige contract, again conveyed the estate to trustees to be held for the joint' use of the said Edward Gamage and Sarah Simons, his intended wife, during their joint lives: remainder to the survivor: remainder to the children of the marriage in .fee: and, in default of such child or children, to the survivor of the principal parties to the contract in fee. On the 30th June, 1841, Mrs. Gamage died, without having had issue by her second marriage, and *279leaving the said Edward Gamage surviving her. And the said Edward Gamage, who is one of the defendants, claims the whole of the estate in fee, by virtue of his survivorship, according to the terms of the deed of marriage settlement.

The conveyances of Mrs. Gamage, in the way of marriage settlement, were, each of them, to all intents and purposes, an alienation, *in a manner and form*which would not only cut off the descent *per formam doni*to her own issue, but would defeat the *reverter*to the testator and his heirs: *provided*that, under the circumstances of the case, she had the right to convey the fee. In the circuit decree, I held this language: “ An alienation, either before or after the hirth of issue, is sufficient to bar the rights of those who are to take *per formam doni,*and to make the title of the purchaser valid. But if the alienation is before the birth of issue, and then the issue die before the tenant in fee conditional who has alienated: or if the alienation be after the birth and death of issue, this does not prevent the *reverter*to the donor.” The first proposition in the preceding sentence is true, and is well sustained by the authorities: namely, that where the alienation is before the birth of issue, and issue is subsequently born and dies during the life of the ; tenant in fee conditional, the reverter of the donor is not thereby prevented. But the proposition which asserts, that the same fie-t suit follows, in a case where there is issue born which dies, and! there is an alienation after the hirth and death of such issue, is ■ not so sustained, and was founded upon a misconception of the *\*state of the authorities upon this subject. The distinction is ' nice, and, apparently, arbitrary: but yet is found to be in harmony with the general rules of law in regard to estates upon condition. On reference to these rules, and upon a careful ! examination of the authorities, the conclusion is, that where there is an alienation before the birth of issue, the subsequent birth and death of issue, does not defeat the right of the donor in the reversion. Hence the first deed of marriage settlement was inoperative for this purpose. But where the alienation is subsequent to the birth and death of issue, as in the case of the *280last deed of marriage settlement, the question *presents*itself in a different aspect.

Under the purely military system of tenures, that existed under the earlier Kings of the Norman dynasty, all feuds were granted for the life of the feudatory only (2 Bl. Com. 55). In process of time they were extended beyond his life: and at length to the heirs of his body: and, in some instances, to his heirs general. The fee conditional is a remnant of these earlier tenures. *“*It was called a fee conditional, by reason of the condition expressed or implied in the donation of it, that if the do-nee died without such particular heirs,” *[of his body) “*the land should revert to the donor.” But if he had such heirs “ it should remain to the donee,” (2 Bl. Com. 110). “ Now we must observe” says Sir William Blackstone, (2 Com. 110) “that when any condition is performed, it is thenceforth eiitirely gone; and the thing to which it was before annexed, becomes thenceforth absolutely and wholly unconditional. So that, as soon as the grantee had issue born, his estate was supposed to become absolute, by the performance of the *condition;*at least, for these three purposes : — 1. To enable the tenant to alien the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion: 2. To subject him to forfeit it for treason ; which he could not do, till issue born, longer than his own life: 3. To empower him *to*charge the land with rents, «fee. The fee conditional, it would thus appear, (to the extent laid down in the passage cited) is not different from other estates on condition; in regard to which, a fundamental rule is, that when the condition is once performed, it is thenceforward gone forever.

Mrs. Gamage having had issue by her first marriage with Charles Dewar Simons, had thus performed the condition annexed to her estate, before her alienation of it by her deed of marriage contract with Edward Gamage. By this deed, the land was conveyed to trustees, to be held for the use of Edward Gamage in fee, upon the condition of his being the survivor, and there being no issue of the marriage. This contingency has happened. The statute has executed the use in him, and he is *281the sole proprietor of the land, the partition of which is sought in the bill.

It is ordered and decreed that the circuit decree be reversed, and that the bill be dismissed.

Johnston, Dunkin and Wardlaw, CC. concurred.

*Decree reversed.*