Den on demise of Sanders v. Hyatt, 8 N.C. 247, 1 Hawks 247 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 247, 1 Hawks 247

Den on demise of Sanders, v. Hyatt.

From Grates.

•Devise to A, and if lie dies without any lawful begotten heir of his body, then to his brothers and sisters. Held that the devise to A. is of an estate tail, which, by the act of 1784, is converted into a fee simple, and the ulterior limitation is therefore void.

Ejectment. — The lessor of the Plaintiff claimed title to the premises in dispute under the wills of Jesse Sanders and Lawrence Sanders, as follows: Jesse made his will, bearing date the 8th August 1811, and thereby devised the premises in the following words — “ I give “ unto my son Lawrence the plantation where 1 now “ live, and all the land adjoining thereto $ and if he dies “ without any lawful begotten heir of his body, then to his “ brothers and sisters.” Jesse died soon after, and Lawrence entered, and by his will devised the same land to the lessor of the Plaintiff in fee and died, without having ever been married, and leaving brothers and sisters, wilder whom the Defendant claimed and took possession.

By the direction of the Court in the matter of law, the Jury found a verdict for tiie Plaintiff ; and the Defendant moved for a now trial upon the. ground that the limitation over to the brothers and sisters was good and sufficient to vest tiie title in them. But the Court gave judgment for the Plaiutiff, and the Defendant appealed.

The case was argued by Eure for the appellant, and submitted by Seawell for tiie appellee.

Haex, Judge.

The clause in the will gives the land .over, if Lawrence should die without a lawfully begotten heir. Now he cannot die witiiout heir as long as tiie persons live to whom tiie ulterior limitation gives it upon the happening of that event; for they may become heirs at law after the death of others more nearly related. The word heir, in the singular number, must therefore mean issue; and by that means the estate first given in fee is turned into an estate tail, and by the act of 1784, is converted into a fee-simple again in the first taker, The ulterior limitation is therefore void, and nothing passes by it.

By the Court. — Judgment affirmed.