for the support of schools. See also Massachusetts statute, 1789, c. 19, s. 8, to the same purpose.

31. So land conveyed to A for life, remainder to B, in fee. B dies, leaving a sister of the whole blood, and afterwards a brother of the whole blood is born, the fee shifts from her to him on his birth. 3 Har. & Mc H. 403-407.

VOL. IV. CH. 125.

Con.

lessee v.

An estate by limitation. Error to the circuit court of 8 Wheat. 495, Pennsylvania. Ejectment by Daly's lessee v. James. Special 542, Daly's verdict found. August 8, 1768, John Bleakley devised all James. his real estate to his son J. B. jun. and his heirs lawfully begotten; and in case of his death without issue, he ordered Archibald Young, his executors, and administrators, to sell the real estate within two years after the son's death, and he bequeathed the proceeds thereof to his brothers and sisters, by name, and their heirs forever, or such of them as shali be living at the death of the son, to be divided between them, in equal proportions, share and share alike. All the brothers and sisters died, leaving issue. Then A. Young died, and afterwards J. B. jun., the son, died without issue. Held, heirs is a word of limitation, and none of the testator's brothers and sisters being alive at the death of J. B. jun., the son, the devise to them failed to take effect: 2. A sale made after the two years expired was void: 3. The powers to A. Young and his executors and administrators, to sell could be executed by the executors of the executors of A. Young. The court was not unanimous. Rather yielded to the decision of the State court on the same devise, and that decision was made by two judges against one.

44 con. A similar case, 9 Wheat. 325-353, Taylor & al. appellants v. Mason, respondent. The testator, Richard Barnes, owner of a great real estate in Maryland, made three wills: all proved. By his first will, dated in 1789, he gave his whole estate to his nephew John Thompson Mason, after certain pecuniary legacies to his other nephews and nieces. In the second will, dated in 1800, the testator gave his whole real estate to said John Thompson Mason, during his life; and after his death, to his eldest son Abraham in tail, on condition of his changing his name to Abraham Barnes, with remainder to the heirs of his nephew John Thompson Mason, lawfully begotten, forever, on their changing their names to Barnes. The third will made, as understood, in 1803, after some small bequests, proceeded thus. 'I give the whole of my property, after complying with that I have mentioned, to the male heirs of my nephew John Thompson Mason, lawfully begotten, forever, agreeably to the law of England, which was the law of our State before the revolution, that is, the oldest male heir to take

Con.

VOL. IV. all, on the following terms: that the name of the one that may CH. 125. have the right at the age of twentyone, with his consent, be Art. 5. changed to A. Barnes, by an act of public authority of the State, without any name added, together with his taking an oath, before he has possession, before a magistrate of St Mary's county, and have it recorded in the office of the clerk of the county, that he will not make any change, during his life, in this my will, relative to my real property; and on his refusing to comply with the above mentioned terms, to the next male heir, on the above mentioned terms, and so on to all the male heirs of my nephew John Thompson Mason, as may be on the same terms; and all of them refusing to comply in a reasonable time after they arrive to the age of twentyone, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of; and on their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew John Thompson Mason, named A. T. Mason, on the above mentioned terms, and on his refusal, to his brother John Thompson Mason,' &c. So in like manner, to numerous relations. The testator appointed John Thompson Mason, his sole executor, with a salary of $1,600 per annum, for his life, and added, 'my will is, that he shall keep the whole of my property in his possession, during his life.' He then empowered his executor to manage his esestate at his discretion, to appoint agents, to build houses, &c., to reside at the plantations, and to use the produce for his support, and added, after which, to be the property of the person that may have a right to it, as above mentioned.' Held, that the conditions annexed to the estate, devised to the oldest male heir of John Thompson Mason, were subsequent, and not precedent; so the contingency on which the devise was to take effect, was not too remote, the estate vesting on the death of John Thompson Mason, to be devested on the non performance of the conditions. Quere, whether John Thompson Mason took an estate tail? Quere, whether the last will revoked the two former ones? As the case was, it was not necessary to decide these two questions. The court thought it was clear the testator meant to preserve his real estate entire, in a single person, in succession, whether that person were of age, or a minor, and to prevent a division of it among his heirs at law. That this, his intention, might have been defeated by supposing he meant the conditions to be precedent, for if so, the remainder might have been too remote. As John Thompson Mason had no male heir lawfully begotten when the testator died, so the remainder was contingent, and might not have vested in the legal time, and hence failed, and such a failure must have totally defeated the testator's main and visible object; the perpetuating his real

estate entire, by his will in a single person in succession. The court, too, considered the legislature might not change the names. This, too, if the condition was construed precedent, would defeat his main intention. The court held, he distinguished between right and possession, and meant the right to vest immediately, but the possession not till after the oath was taken.

VOL. IV.
CH. 125.

Art. 5.

Con.

§ 2. An inchoate right to land, held by entry and survey Art. 6. only, is real estate, and will descend to the heirs: 2. Warrants Con. and surveys of land may be assigned by statute, but not entries. 2 Rand. 206Morrison v. Campbell & al.

227.

Personal estate is limited in a deed to executors, administra- 1 Jacob & W. tors, and assigns of it. After the death of B and C, this limi- 381. tation does not fail by the death of B and C, in the lifetime of A. Horseman v. Abbey, 1 Jacob & W. 381-387.

CHAPTER CXXVI.

ESTATES, BY DESCENT ON MASSACHUSETTS STATUTES.

$ 2 con. 4 Pick. 21-24, held, various charges of sums of ART. 1. money made by a parent against a child in the usual way of Con. keeping accounts, is no advancement, must be proved as in statute 1805, ch. 90, s. 3, March 12, 1806.

91.

It seems where a father buys lands, and takes the deed to a 11 Johns. R. minor child, it is an advancement; but a trust to the father, where it expressly appears to be so intended, that is, a resulting trust.

5 Pick. 527, held, a deed of land made by the father to a son, partly in consideration of parental love and affection, and partly in consideration of $200, is not an advancement for so much as the land exceeded, in value, the $200. Held, also, statute March 12, 1806, ch. 90, repealed the act of 1783, ch. 36, as to advancements.

Massachusetts act, March 3, 1829, provides that every illegitimate child be heir at law to its mother, dying intestate, and so the mother to the child, dying intestate, without lawful heirs.

Harlock v.

$6 con. Where an estate escheats for want of heirs, the freehold vests in the State from the time of the death of the person last seised, and before office found. It is conceived the same Jackson. 1 principle holds in Massachusetts, so far as her statutes have Cons. Rep. made no alterations.

7 con. It is believed this clause, the collateral kindred claiming,' &c., to the word remote included, is peculiar to this State, and first introduced into her laws, in forming this act: so

135.

VOL. IV. CH. 126. Art. 1. Con.

5 Cowen, 314

the paragraph that notices the inheritance that came from his father or mother,' &c., is new in Massachusetts law.

Escheats: but one claiming under an escheat title, must prove, 1. The former owner is dead: 2. Without heirs. 1 Har. & Mc. H. 339-346.

Ejectment for four hundred and fifty acres of land in lot No. 322, Jackson v. 77, Tully, (now Preble,) by the people, as land escheated to them Ely & al. for want of heirs. Held, 1. The jury must be satisfied beyond all reasonable doubt, that the tenant, &c., is dead, and that he died without heirs: 2. Hearsay evidence of finding the body and burial of one supposed to be dead, is inadmissible, though otherwise as to the fact of his death: 3. A grant of land to an alien soldier for military services, during the revolutionary war, and who died in that war, enables his heirs, though aliens, to inherit. Oneida Indian's aliens, yet the son of one of them could inherit under such a grant, which was to the father and Johns. R. 703, his heirs: same as to a soldier slave.

Goodall v.
Jackson, 20

ART. 2.

Con.

1 Pick. 157.

3 Pick. 450452, Hall & ux. v. Davis & al.

380, Walker &

8. 16 Mass. R. 200-204, held, advancements of personal property are to be deducted from the distributive shares of the intestate's personal estate, belonging to the children advanced, when less then such shares: 2. If, on petition for partition, it appears the parties claim by descent from the same ancestor, and that advances have been made to some of the parties, not settled in the probate office, the supreme court is not, thereby, ousted of its jurisdiction in the case: the advancement in personal property is in the nature of a debt, due to the estate.

Probate case, on appeal. A testator devised one fifth part of his estate, to each of his children, and directed all he had advanced to them respectively, and for which he had claims and demands, should be considered as parts of his estate, and as a part of the devises. These claims against the different children, were unequal in amount, and consisted of promissory notes on interest, and book charges. Held, 1. That the sum for which any note was given, should be considered as an advancement not bearing interest: 2. The promissor should not be allowed to pay it as a debt, in order to entitle him to a fifth part of the testator's real estate, because the sum for which the note was given by Hall, is not a debt, but an advancement.

ART. 3. $6 con. Divise of the testator's estate: 'one fourth part to be Con. given to the families of G. Halloway, W. B. Blackburn, and A. 11 Wheat. 375 Bartlett, to those of their children, that my wife shall think proper, wife app'ts. v. but in a greater proportion to F. P. Halloway, than to any other of G. Halloway's children: to E. P. Bartlett in a greater proportion than to any of A. Bartlett's children; the balance to be given to the families of C. and J. T. Griffin's children, in equal proportions.' Held, that the children of C. and J. T. Griffin took per sterpes, and not per capita, and that the property

the heirs of Griffin.

divised to them, was to be divided into two equal parts, one moiety to be assigned to each family. The circuit court divided per capita.

VOL. IV.
CH. 126.
Art. 3.
Con.

CHAPTER CXXVII.

ESTATES, BY DEVISE.

& ux. v.

16. A codicil added. Ejectment for certain lands in ART. 1. Rhode Island. In May, 1806, the father made his will, and Con. therein devised to all his surviving children in equal divisions, 3 Mason, 486'all his real estate,' and, subsequently by a codicil revoked the 502, Brownell devise as to his daughter E., without any devise over of her Wolfe. share. As to this he died intestate: 2. A codicil confirming a. will, is in law a republication of the will, so as to pass real estate, intermediately purchased: 3. A legacy bequeathed to a granddaughter by the codicil in lieu,' of a devise in the will to her mother, who had deceased, after making the will, is a revocation of the original devise to the mother: the real estate to the surviving children was to them as tenants in common. This first codicil was made in 1812, second in June 1818, the third in February 1820. Special verdict finding the material facts, and annexing thereto copies of said will, and of said three codicils, as parts of the jury's finding, &c. The testator purchased many real estates, between making his said will, and his third codicil, a fifth part of which were claimed by the demandants, as intestate estate. Held, as above, they were devised. also, many cases of republished wills, a. 312.

See,

§ 6. 20 Johns. R. 502, Prince v. Hazleton in error, held, a ART. 2. nuncupative will is not good, unless made when the testator is in Con. extremis, or overtaken by sudden and violent sickness, and has no time to make a will. By the words 'last sickness,' within the purview of the statute, (Sess. 36, ch. 31, s. 14,) is to be understood last extremity.

8 con. The evidence proper to establish a nuncupative will; other words and acts of the testator may supply his omission to 2 Greenl. 298'bid the persons present, or some of them to bear witness,' &c. 300.

$24 con. Appeal from a probate decree: 1. A will purport-1 Pick R. 239244, Deane ing a disposition of both real and personal estate, is void by the ex'r., app'ts. stat. 1783, ch. 24, s. 9, only where real estate cannot pass by v. Littlefield reason of a defective alteration: 2. Where all the testator's & al. property, real and personal, is given to one person, the will is not within the reason of the statute: 3. A minor 14 years of age, may make a will of his personal estate: 4. His will giving all his estate and property of every description whatsoever,' allowed as his will of his personal estate only.