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Kirk

Smith.

1824. considered as holding a freehold, and the law did

not entitle him to resume possession arbitrarily. It was the doctrine of that State, that his rights were restricted to the payment of the purchase money and quit-rents, at least until he tendered a return of advances and improvements. It cannot be imagined that the reservation of quit-rents converted the purchasers into tenants at will ; neither principle nor authority would sanction the idea. Nor can I perceive any thing either in the legal relations or contracts of these parties, that could sustain the doctrine that the possession of the defendants was permissive, and identified with that of the proprietary. A tenancy at will, must be the result of contract, express or implied; but a freehold granted on condition, is not converted by forfeiture into a tenancy at will. Yet, had it been otherwise, surely lapse of time, general acquiescence, and received opinion, ought to be held to produce the same cansequences as to the tenure of property in this State, which were produced by the same causes in England upon the tenure by copy of court-roll. That which was in its origin nothing but a tenure at will, retains now nothing of its origin but thc formula which attests its his. tory.

To conclurie · lct the estate of these defendants below be considered as either void or voidable, and I sec not how the act of limitations is to be escaped by their antagonist. If voidable, on failure to pay the purchase money, the entry is expressly taken away by that statute; and if void, they cannot be reduced lower than to the grade

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of tenants by sufferance, with regard to whom entry and suit was just as indispensable, as with regard to any other tenure. (Co. Lit. 57.) In the application of the doctrines on the statute of limitations, the incidents to the two tenures ought not to be confounded.

Mason

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R. B., being seised of lands in Maryland, made three instruments of

writing, each purporting to be his will. The first, dated in 1789, gave his whole estate to his nephew, J. T. M., after certain pecuniary legacies 10 his other nephews and nieces. In the second will, dated in 1800, the testator gave his whole real estate to J. T. M., during his life; and after his death, to his eldest son, A., in tail, on condition of his changing his name to A. Barnes, with remainder to the heirs of his nephew, J. T. M., lawfully begotten, for .ever, on their changing their surnames to Barnes. The third will, which was executed after the others, and probably 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, J. T. M., lawfully begotten, for ever, agreeably to the law of England, which was the law of our State before the revolution, that is, the oldest male heir to take all, on the following terms: that the naine of the one that may have the right, at the age of twenty-one, with his consent, be 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

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Mason.

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, J. T. M., as may be, on the same terns; an 1 all of thein refusing to comply, in a reasonable time after they have arrived at the age of twenty-one, say, not exceeding twelve inonths, 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 r. 'ntioned, if any such person may be, then to the son of my late nephew, J. T. M., named A. T. M., on the above mentioned terms; and on his refusal, to his brother, J. T. M.; and on his refusing to comply with the above mentioned terms, to the heirs male of my nephew, A. B. T. M., Jawfully begotten, on the above mentioned terms; and on their refusal, to the male heirs of my niece, Mrs. C., lawfully begotten, on their complying with the above mentioned terms; and on their refusal, to the daughter of my nephew, J.T.M., named Mary, so on to any daughter he may have or has.” The testator then appoints J.T.M. his sole executor, with a salary of 1600 dollars per annum, for his lise, and adds, "and my will is, that he shall keep the whole of my property in his possession, during his life.” He then empowers bis executor to manage the estate at his discretion, to employ agents, and to pay them such salaries as he shall think proper; to repair the houses, and build others, as he may think necessary; to reside at his plantations, and to use their produce for his support; and adds, " after which, to be the property of the person that inay have a right to it, as above inen

tioned.” Held, that the conditions, annexed to the estate devised to the oldest

male heir of J. T. M., were subsequent and nut precedent, and that, consequently, the contingency on which the devise was to take effect, was not too remote, the estat, vesting on the death of J. T. M.; to be devested, on the non-perforinance of the condition. Quære, Whether J. T. M. took an estate tail ? Quere, Whether the last will revoked those which preceded it?

APPEAL from the Circuit Court of Maryland.

The bill in this cause was filed in behalf of

Mason.

one of the coheirs of Richard Barnes, deceased, 1824. and her children; and claims an account of the

Taylor profits of his estate, from the defendant, J. T. M., also a co-heir, who claims and holds possession of the estate, under the will of the said Richard.

Three instruments of writing, purporting to be the will of the testator, all of them properly authenticated, were exhibited in the record. The first, dated on the 31st day of October, in the year 1789, gives his whole estate, after pecuniary legacies to his other nephews and niece, to the defendant, J. T. M.

In the second will, which is dated the 16th day of July, 1800, the testator gives his whole real estate to J. T. M. 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, J. T. M., lawfully begotten, forever, on their changing their surname to Barnes.

The third will is without date, but is proved, by its contents, to have been executed after the others, probably in the year 1803. After some small bequests, the testator says, “I give the whole of my property, after complying with what I have mentioned, to the male heirs of my nephew, J. T.M., lawfully begotten, for ever, agreeable to the law of England, which was the law of our State before the revolution, that is, the oldest male heir to take all, on the following terms: that the name of the one that may have the right, at the age of twenty-one, with his consent, be changed to Abra

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Mason.

ham 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 Saint 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, J. T. M., as may be, on the above terms; and all of them refusing to comply, in a reasonable time after they have arrived at 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 of their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew, J. T. M., named A. T. M., on the above mentioned terms; and on his refusal, to his brother, J. T. M.; and on his refusing to comply with the above mentioned terms, to the heirs male of my nephew, A. B. T. M., lawfully begotten, on the above mentioned terms; and on their refusal, to the male heirs of my niece, Mrs. Chichester, lawfully begotten, on their complying with the above mentioned terms; and their refusal, to the daughter of my nephew, J. T. M., named Mary; so on, to any daughter he may have or has.” The testator then appoints J. T. M. his sole executor, with a salary of sixteen hundred dollars per year for his life; and adds, “and that my will is, that he shall keep the whole of my proper

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