WILLIAMSON and Others, Appellants,
against
DANIEL and Others, Respondents.
Supreme Court of United States.
*569 The cause was argued by Mr. Berrien, for the appellants,[a] and by Mr. Wilde, for the respondents.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
The first bequest to Patsy Hendrick would pass the slaves therein mentioned to her absolutely, were not this absolute estate qualified by the subsequent limitation over, if either of the testator's grand children, Patsy Hendrick, or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate. We think these words convert the absolute estate previously given, into an estate tail; and, if so, since slaves are personal property, the limitation over is too remote.
There are no words in the will which restrain the dying without issue to the time of the death of the legatee. The remainder over is to take effect whenever either of the immediate legatees should die without a lawful heir of his or her body. The gift in remainder is a gift to the stock, and is limited over on a contingency too remote to be allowed by the policy of the law.
*570 The second point is, we believe, well settled. The issue is, we believe, universally considered as following the mother, unless they be separated from each other by the terms of the instrument which disposes of the mother.
Decree affirmed, with costs.
NOTES
[a] Fearne, 445. 471. 478. 482. 485. Prec. in Ch. 15. 1 P. Wms. 334. Prec. in Ch. 108. 3 P. Wms. 253. S Johns. Rep. 289. 2 Mass. Rep. 56. 1 P. Wms. 663. 3 Atk. 396. 2 Term Rep. 720, 7 Term Rep. 585. 8 Ves. 11. 17 Ves. 479.