MARCH, 1818. said plaintiffs" to the said defendant, or agreed to be sold by the said(1) plaintiffs" to the said defendant; and that he did in all things perform the covenants and agree- spindle's adments which in and by the said articles he was bound to ministratrix perform on his part &c.; but the defendant had broken Miller's exthe same, in this, that he did not pay to the said testator of the plaintiffs on the day of the execution of the deed of conveyance for the said land, the said sum of six hundred pounds, nor at any time give his own bond &c. for the balance of the purchase money; &c. The second Count stated, that the said James Miller in his lifetime, viz, on the day of in the year The defendant pleaded, "Covenants not broken;" after which he died, and the suit was revived by scire facias against his administratrix. A trial was had on the issue joined, and verdict found for the plaintiff for 1302l. damages," that being the "principal sum due, with interest thereon from the 24th "day of September 1808, until paid;" which verdict was modified by consent of parties, so as to read as follows:- We of the Jury find for the plaintiffs 7021. (1) Note. So in the transcript of the record. ecutors. MARCH, "damages, that being the principal sum due with inter1818. "est thereon from the 24th day of September 1808, upon Spindle's ad."the first Count of the declaration, if the Court shall ministratrix be of opinion that Lewis Spindle, under the contract Miller's ex. in the declaration mentioned, was bound to give his ecutors. ❝own bond, or other bonds approved of, and assigned "by him, to James Miller for the balance of the purchase "money, after deducting 600l. part thereof, upon the as"certaining the quantity of land, mentioned in the con"tract, by an accurate survey of the same, of which the "said Spindle had notice, but disapproved, without any "conveyance for the said land ever having been made or * tendered by the said Miller to the said Spindle. And on "the second Count, we find for the plaintiffs 13021. "damages, that being the principal sum due; and that "Interest is to commence thereon from the 24th day of "September 1808." And the parties agreed, that, if the Court should be of opinion that the action was sustainable under the second Count, judgment should be entered thereon for the plaintiffs according to the finding of the Jury; (saving to the defendant the benefit of certain exceptions filed in the cause, in as full and ample a manner as if the foregoing modification of the verdict and agreement had not been made;) and judgment in that case be entered, on the first Count, for the defendant:-but if the Court should be of opinion that the plaintiff's action was not sustainable on the second Count, then judgment should be entered on the first Count, for the plaintiffs, or defendant, according to the opinion of the Court upon the above modified finding. The Circuit Court was of opinion that the law was for the defendant on the first Count, and for the plaintiffs on the second Count. Judgment was therefore entered for 13021. with interest thereon from the 24th day of September 1808 'till paid, 'and Costs. From which Judgment the defendant appealed. Stanard for the appellant, Green for the appellee. Judge ROANE pronounced the following opinion of this Court. MARCH, 1818. V. ecutors. The Court is of opinion that, upon the true construction of the agreement, as stated in the declaration, the testator of the appeellees was bound to make or tender Spindle's ada conveyance for the land sold, whereupon he would be ministratrix entitled to receive and recover the 600l. stipulated as the Miller's exfirst payment therefor; and that, upon his also ascertaining the quantity of the land by a survey, he would have been farther entitled to the bonds stipulated to be given or assigned for the balance: but, it being found by the verdict, as modified by the consent of parties, that no such deed was ever made or tendered, the Court is of opinion that that balance is not due or recoverable, under the agreement, although a survey ascertaining the same has been made; and that the judgment of the Superior Court, upon the first Count, for the appellant, is correct. The Court is further of opinion, that the said agreement provides, that the said conveyance should be made by the said testator himself, and not by his heirs; a restriction the appellant may have good reasons to insist on, and had, therefore, a right to insert in the contract; and that this construction is not varied by the circumstance that the penal part of the agreement extends to such heirs: and the second Count in the declaration having admitted that no such conveyance was made or tendered, by the said testator, the Court is of opinion that the same makes no case whereon the appellees are entitled to recover, although it is stated therein, that Conveyances were made and tendered, for the premises, by the widow and heirs of the said testator. The judgment of the Superior Court, on this Count, is therefore to be reversed, and entered for the appellant. Decided March 11th; 1818. 1 A testatrix bequeathed certain slaves "and "their in 66 crease to "his heirs 'Timberlake and wife against Graves. IN detinue, instituted by the appellants against the appellee, it appeared from a special verdict, that the plaintiff's John Timberlake and Margaret his wife, (late Margaret Allen,) and Patsy Allen an infant by Garrett Minor her guardian, claimed the slave in the declaration mentioned, under the following clause in the last Will of "to him and Nancy Woolfolk deceased; viz; "I give unto my beloved "nephew John Allen, the following negroes, to wit;" (inserting their names;) "them and their increase to him "and his heirs forever; but, in case it should please God "should die " without for him to die without heir, then and in that case, it is "heir, then "my wish what I have given him, to be equally divided "and in that " case, to be "between my two nieces Margaret Allen and Patsy Alequally di- len:" and that the defendant Graves was in possession of and claimed the said slave by purchase from John Allen the first devisee, who died without issue before the insti "forever; "but, in "case he "vided be "tween her two niec es, M A. "and P. tution of the suit. A. "This was adjudged a good limitation over, upon J. A's. dying with out issue at the time of his death, to M. A. and P A. who survived him; on the ground, that the devise over to the nieces was, to them merely, and not to them and their heirs; purporting therefore a personal benefit to themselves; which construction was fortified by the words "then and in that case," and "equally to be divided,” found in the bequest. See Royall. Eppes, 2 Munf. 479; Dunn and wife v. Bray, 1 Call 338; Higgenbotham v. Rucker, 2 Call 313, and Selden v. King, 2 ̊Call 72, cases in which the limitations over took effect (1.) ' (1.) Note.-In Hunters v. Haynes; 1 Wash. 71; Hill v. Burrow, 3 Call, 1818. Upon this verdict, the Circuit Court entered judgment MARCH, for the defendant, whereupon the plaintiffs appealed. Wirt and Leigh for the appellants. Wickham for the appellee. March 11th, 1818, Judge ROANE pronounced the Court's opinion that the Judgment be reversed, and enplaintiffs tered for the defendants; for which he assigned the following reasons. The ground on which the opinion of the Court is founded, is, that the devise over to the nieces is to them merely, and not to them and their heirs. It purports a limitation to themselves, and was intended as a personal benefit to them. This construction is fortified by the words, "then and in that case," and "equally to be divided," found in the bequest; which, although, singly taken, they might not be complete to limit the previous words, have that effect in conjunction with the circumstance above mentioned. The Court has considered the authorities referred to, and is of opinion that none of them conflict with or overrule this construction. Timberlake and wife V. Graves. |