Opinion
01-19-1852
NOWLIN & wife v. WINFREE.
(Absent Cabell, P.)
Prior to 1819, a testator devises to his three daughters by name his estate " " both real and personal," " to them and their heirs lawfully begotten of their bodies." " And in case either of my daughters should die without heir or heirs as above mentioned, the surviving ones to enjoy their equal part." This is an estate tail, which by the statute is converted into a fee. And the limitation over is after an indefinite failure of issue, and void.
This was an action of detinue brought in 1845 in the Circuit court of Halifax county, by Hopkins Nowlin and Cloe Irby his wife, against Matthew Winfree, to recover a number of slaves. On the trial the jury found a special verdict which presented the case as follows:
Benjamin Hall died in the year 1803, leaving a will which was duly admitted to probat in the County court of Halifax. After directing his debts to be paid, and giving to his wife for her life certain real estate, slaves and other property, he gave to each of his three sons by separate clauses of his will certain parts of his estate, in fee, including in the gift to one of them the land given to his wife for life; and he declared that they were not to have any further interest in his estate. Then comes the two following clauses:
" I give and bequeath to my three daughters, to wit: Caty Miller, Sally Hall and Cloe Irby Hall, all that part of my estate not hereinbefore mentioned, both real and personal, after the payment of my debts before mentioned, to them and their heirs lawfully begotten of their bodies: The above mentioned Caty Miller to account for all that part of my estate which she hath heretofore had in possession when a division is made."
" Also it is my will and desire that all that part of my estate which I have lent to my wife, and not herein otherwise given, should after her death be divided as above mentioned; and in case either of my daughters should die without heir or heirs as above mentioned, the surviving ones to enjoy their equal part."
Of the three daughters of the testator, Caty Miller died first, leaving children. Sally Hall married the defendant Winfree, and died before the institution of this suit, leaving no child or other descendant; and Cloe Irby married the plaintiff Nowlin, and is yet living. The slaves claimed in the action are either the slaves received by Mrs. Winfree from her father's estate or their descendants.
Upon the special verdict the Court rendered a judgment for the defendant. Whereupon the plaintiffs applied to this Court for a supersedeas, which was granted.
The cause was elaborately argued by Stanard and Bouldin, for the appellants, and Robinson, for the appellee; but the authorities have been given in two late cases; and the question has almost ceased to be of any practical importance.
OPINION
ALLEN, J.
The question presented by the special verdict as to the proper construction of the will of Benjamin Hall deceased, has been frequently under consideration in this Court. The case of Bells v. Gillespie, 5 Rand. 273, presented precisely the same question, and the principle there settled rules this case. That case conformed to the earlier decisions of this Court, giving a construction to the laws docking entails; and it has been recognized and followed in the subsequent cases of Broaddus & wife v. Turner, 5 Rand. 308; Griffith v. Thomson, 1 Leigh 321; Callava v. Pope, 3 Leigh 103; and Deane v. Hansford, 9 Leigh 253. The principle thus firmly established by a series of adjudications has become a rule of property in the construction of wills made prior to 1819, and ought not now to be questioned, the more especially as but few cases are likely to occur hereafter in which the question can arise. According to these authorities the will in this case created an estate tail in the first taker by express words; and the bequest over after the death of the daughter without heirs, was an executory limitation after an indefinite failure of issue, and therefore void, and the daughters took the slaves in absolute property.
Judgment affirmed with costs.
BALDWIN, J. dissented.