29 Ga. 736 | Ga. | 1860
By the Court.
delivering the opinion.
These are the statute laws of force in the State of Virginia,at the. execution. of this will, and by these laws,and the construction put on them by the Courts ofVirginia, must the interest of Jincey Jordan in these negroes, under that will, be measured.
The Gourts of Virginia, in determining what words in deeds or wills, made in that State since the passage of those Acts, create estates tail, and in construing and giving effect to the statutes themselves, have uniformly held, that they were bound by the same laws and rules of construction that prevailed in that State, and in the Courts of Great Britain, before the passage of the Act of 7th October, 1776, abolishing estates tail in that State, and converting them into estates in fee simple. Jeggetts vs. Davis, 1 Leigh Rep. 368; Tate vs. Tully, 3 Call. 354; Eskridge vs. Fisher, 1 Hen. & Mum. 559.
With a rule thus broadly defined, it would be an easy matter for us to determine what estate Jincey Jordan took-in the property, under the will, even if the adjudication of the Courts ofVirginia left room for doubt, but there can be no doubt; the cases are too numerous, and too directly in point.
In Eskridge vs. Fisher, 1 Hen. & Mum. 559 — will in 1784 —devise of land and personal estate to his son, and his heirs, and if he die without lawful heirs, to the grand-son of the testator — counsel insisted that as real and personal estate were devised by the same words in the same sentence, this case presented an important distinction; but the whole Court considering the case as settled, decided the estate of the first taker to be an estate tail.
In Ball vs. Payne, 6 Ran. 73, the words of the will in controversy ere: “ At the death or marriage of my wife, I give unto my son, Cyrus Ball,i/¿e use of the remainder of my lands
Counsel for plaintiff referred to, and relied on, in support of a contrary construction, the cases of Timberlake vs. Graves, Greshams vs. Greshams, James vs. McWilliams, and Cordle vs. Cordle, 6 Mum, 174, 187, 301, 455; but in none of those cases was the rule, enforced in this case, denied or controverted, nor the authority of the cases we have referred to, and by which wc have felt ourselves bound, doubted or disputed.
We cannot agree with counsel for the plaintiff. We think that if there is a distinction, it is without a difference. This identical question was passed upon by the Court, in Ball vs.
Judgment affirmed.