Den v. Moore & Drayton

1 N.J.L. 442

Opinion

Pee Cue.

The terms of the devise clearly created an estate tail

(a) in Lancet (the son), and he dying without issue in the lifetime of his brother Jonathan, Jonathan, the only survivor, took the estate in fee.

Note. — This cause was afterwards removed by a writ of error before the governor and council, where the judgment of the Supreme Court was affirmed.

Cited in Den v. Schenck, 3 Hal. 29; Den v. Allaire, Spenc. 15-21.

In the case of Fosdick v. Cornell, 1 Johns. 439, C, by his last .will, after charging his estate with the payment of a debt, providing for his wife, &c., devised his real estate to his four sons, and a daughter, E, and then added : “ Further, my mind and will is, that if any of my said sons shall happen to die without heirs (male) of their own bodies, that then the lands shall return to the survivors, and be equally divided among them.” After argument, and a careful examination of the leading cases of a similar kind, the court held that these words did not create an estate tail, but a limitation over in fee to the survivors, on the failure of the male heirs. The court say the devise over is good as an executory devise,' and will not, in any way, affect or qualify the prior clause in the will wherein a fee-simple is devised. The same doctrine was held by the same court, in the subsequent case of Jackson v. Blansham, 3 Johns. 292.