Perquimans County NcArchives Court.....Jonathan H. Jacocks, John Stevenson V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 6:38 pm

Source: Nc Reports
Written: 1819

Den on Demise of John Stevenson v. Jonathan H. Jacocks

From Perquimans

November Term 1819

Although the validity of an executory devise is to be tested, not by the 
event, but by the words which tie up the happening of the event, so that if 
the event happen at all, it must be within the prescribed time; yet to claim 
under such devise, it must be shewn that the contingency has happened within 
the period prescribed, or as the testator directed. Therefore,

"Where a testator directed, that upon the failure of the issue of his two 
sons, parts of the lands devised to them should be rented out for the benefit 
of his daughter during life, and after her death to her children, and another 
part of the lands at the same time to pass to I. S. If the limitation to I. S. 
be deemed good, yet he cannot recover the lands, without shewing that the 
issue of the sons had failed in the life time of the daughter.

This was a special verdict, in which the Jury found; that Thomas Stevenson, 
being seised and possessed of the lands in dispute, by his last will duly 
executed to pass his real estates, devised as follows: "I give and bequeath 
unto my son, William Stevenson, the land and plantation whereon I now live, 
called Stevenson's Point, containing four hundred acres, more or less, 
reserving the tract lent to my wife during her life. I also give to my son 
William the land I bought from the executors of William Humphreys, deceased; 
also fifty-three acres of land on the west side of Duck Creek; re-serving and 
excepting nevertheless, and it is the true intent and meaning of this my last 
will, that in case the child which my wife Elizabeth is now pregnant with 
should be a male, my will and desire is, that the part of my land and 
plantation which is lent to my wife during her life as aforesaid, should 
descend at the death of my wife to the same child she is now pregnant with, in 
case it should be a male, to him and his heirs forever. Further it is my will 
and desire, that in case of the death of my son William, or the death of the 
child which my wife is now pregnant with, if a male, my will and desire is, 
that the survivor shall have the whole of the estate mentioned herein to them 
both, if either should die without lawful issue. But in case of the death of 
them both without lawful issue, then it is my will and desire that John 
Stevenson, son of Hugh Stevenson, should have that part of my land, which was 
my mother's dower; and the other part of the said land to be rented out 
annually for the benefit of my daughter Polly Stevenson during her natural 
life; and in case she, my said daughter Polly, should have lawful issue, my 
will is that such lawful issue should have and enjoy the said land forever; 
but in case my said daughter Polly should die without lawful issue, then my 
will is, that the said land shall be rented out annually, and the money 
arising therefrom be equally divided among the sons of my sister Parthena 
Wyatt." That Thomas Stevenson died in 1801; that William Stevenson, the 
devisee, died in 1806, intestate and without issue; that the child with which 
the testator's wife was pregnant at the time of making the will, was 
afterwards born a female, and is the wife of the Defendant, Jonathan Jacocks; 
that she is the sole heir at law of Thomas Stevenson, the testator, and also 
of William Stevenson, the devisee; that John Stevenson, the devisee named in 
the will is the lessor of the Plaintiff; that the premises claimed by him in 
this suit are the same devised to him, being a part of those devised to 
William in the first recited clause. The Jury having prayed the advice of the 
Court, judgment was given for the Plaintiff, and the Defendant appealed.

Henderson, Judge: The words dying without issue, by a long course of Judicial 
interpretation, means, per se, an indefinite failure of issue, and a 
limitation thereon is void as an excutory devise; but if, from expressions in 
the will, it appeared to be the testator's intent to tie up the contingency to 
the period allowed by law, to-wit, a life or lives in being, and twenty-one 
years and nine months thereafter, to wait for the full age of a posthumus 
child, those indefinite words have been restricted by such expressions, and 
the devise over held good. In this case, upon the failure of the issue of 
William, and the child of which his wife was pregnant at the date of his will, 
part of the lands given to them were to be rented out for the benefit of his 
daughter during life, and after her death, to her children; the other lands at 
the same time to pass to the lessor of the Plaintiff. 

This, it was alleged, tied up the contingency to the prescribed period; for, 
it is said, if the devise take effect at all, it must be during the life of 
the daughter. Allowing this argument to be sound, and the devise over good, 
(which in this case may be very much doubted) the Plaintiff cannot recover, 
for want of shewing that the issue of the sons failed during the life of the 
daughter; for it is by tyeing up the devise over, so as to take effect in her 
life time, that it can be held good. It must be read thus to make it 
good. "And if my two sons should die without issue living, my daughter Polly," 
then, &c. for although it be true, that the validity of the devise is to be 
tested, not by the event, but must be tied up by the words of the will, so 
that if it happen at all, it must be within the prescribed time, yet to claim 
under it, it must most assuredly be shewn, that the contingency has happened 
within the period prescribed, or as the testator has directed. In this case it 
not appearing that the issue of William failed during the life of Polly, (for 
it is not found, whether she be dead or alive) the lessor of the Plaintiff has 
not shewn any title.

It is taken for granted, that this will was made since 1784, when the act 
passed converting estates tail into estates in fee, by the operation of which 
act, John Stevenson, the lessor of the Plaintiff, would have taken an estate 
in fee, and by which the case would be much more favourable for the Plaintiff; 
as then it would have appeared that the contingency happened within the period 
prescribed, and it is also a much stronger circumstance to tie up the 
indefinite failure of issue, as there is no ulterior limitation of the lands 
devised to him.

The case of Jones v. Spaight was quoted at the Bar in the argument of this 
case; but its principles are not involved in this case. It was decided on 
great consideration, and with a full knowledge of all the decisions on the 
subject. I then entertained not a doubt of its correctness, and its accordance 
with the principles of English decisions. I have frequently since reflected on 
it, (for it was a little complained of) and have weighed it maturely since the 
argument in this case. My opinion of its correctness remains unshaken.

The judgment of the Court below must he reversed, and judgment rendered for 
the Defendent.


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