Pasquotank County, NC - Den on Demise of Thadeus Pendleton v. 
                        George Pendleton, 1811

                        From Pasquotank

Executory devise. A devised to her son B one part of a tract of land,
and to her son C the other part, and directed that if either of them
died, leaving no heir lawfully begotten of his body, the living son
should be the lawful heir of all the land. B died without issue: Held
that C was entitled to the lands under the limitation.

Sarah Pendleton, being seized of the lands in question, devised them
as follows, to wit: "I give unto Benjamin Pendleton, my eldest son,
this end of a plantation whereon I now live, divided by a ditch from
the creek swamp to the road; and one-half of the land I bought of
James Jackson. I give to my son Thadeus Pendleton the remaining part
of this land whereon I now live, and the remainder of the land I
bought of James Jackson; and if either of them dies, leaving no heir
lawfully begotten of his body, the living son shall be the lawful heir
of all the land." Benjamin, one of the brothers, died without issue,
having made his will and devised his interest in the lands to his wife,
Sarah Pendleton, under whom the defendant entered and took possession;
and the question in the case was, Whether the limitation over to
Thadeus Pendleton, the lessor of the plaintiff, be good.

Hall, J. From the particular words used in the clause of the will now
under consideration, it may be fairly inferred that the meaning and
intention of the testatrix was that if either of her sons should die,
leaving no heirs lawfully begotten of his body at the time of his
death, the living son should be the lawful heir. The words, "the living
son shall be the lawful heir," mean the same as if she had devised the
lands to Benjamon in fee, but in case he died without leaving heirs
lawfully begotten of his body, living, or during the life of Thadeus,
then Thadeus to be the lawful heir. In this case the dying without heirs
would be tied up to the time of the death of Benjamin, and of course not
too remote. The case before the Court is very much like the case of
Pells v. Brown, Cro. Jac., 590, where it was decided that a devise in 
fee to A, and if he die without issue in the lifetime of B, then to B
and his heirs, was a good executory devise, to take effect on the
contingency of A's dying in the lifetime of B without issue. The principle
of that decision has been approved in Patton v. Bradly, 3 Term, 145,
and Roe v. Jeffrey, 7 Term, 589. In Hughes v. Sayer, 1 P. Wms., 534, a
devise of personal estate to A and B, and if either die without children,
then to the survivor, was held good. Let judgment be entered for the 
plaintiff.

Source:
NC Reports, 1811
Pages 65-66

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