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 Benjamin in fee, but in case he died without leaving heirs lawfully begotten of his body, living, or during the life of Thadeus, then (83) 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.
(84)