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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 ternus ; an 1 all of thein refusing to comply, in a reasonable time after they save 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., law. fully 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 life, 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 men

tioned.”
Held, that the conditions, annexed to the estate devised to the oldest
male heir of J. T. M., were subsequent and not precedent, and
that, consequently, the contingency on which the devise was to
take effect, was not too remote, the estate vesting on the death
of J. T. M.; to be devested, on the non-perforinance of the con-

dition.
Quære, Whether J. T. M. took an estate tail ?
Quære, 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

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one of the cobeirs of Richard Barnes, deceased, and her children; and claims an account of the 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

Mason.

1824. ham Barnes, by an act of public authority of the

State, without any name added; together with his Taylor

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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ty in his possession during his life.” The testator then empowers his 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 to 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 may have a right to it, as above mentioned.” The testator also requires bis executor to take an oath, “ that he will justly account for the property that he may have the power of."

Richard Barnes died in April, 1804, and J.T.M. proved three several paper writings, as his last will, and qualified as his executor. The testator had one brother, who died in his lifetime without issue, and one sister, who intermarried with Thompson Mason, and died also in the lifetime of the testator, leaving three sons, H. T. M., A. B. T.M., and J. T. M., and one daughter, A. T. M., one of the complainants, who intermarried with R. W. Chichester. The rights of the said A. T. Chichester are conveyed, by deed, to trustees, for the benefit of herself and children. J. T. M. had no son living at the death of the testator, but has two after-born sons, who are now alive.

The Circuit Court dismissed the bill, and the cause was brought by appeal to this Court.

The appellants made the following points in this Court:

1. That the third will, whether its disposition Vol. IX.

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be valid or not, revokes the other two, since it expresses a clear intention on the part of the testator, to dispose differently of the whole estate.

2. That it gives no estate for life or years, absolute or in trust, to Jobn Thompson Mason, the respondent, but merely the custody and care of the property, during his life, as agent or curator, with a salary for his services.

3. That no estate for life or years, can be raised for him by implication, because the original estate did not move from him, and never was in him.

4. Consequently, that he has no estate of freehold, with which a subsequent limitation in fee could unite, so as to create a fee in bim, under the rule in Shelly's case.

5. That if he takes a life estate, it is merely fiduciary, and not beneficial, for which reason it could not unite with a limitation over in fee, if there were one, so as to give him a fee under the rule.

6. That the words in this will, “the male heir of my nephew, Jobn Thompson Mason, lawfully begotten, for ever," as explained and modified by the subsequent expressions, designate the “male heir of the body of J. T. Mason,” as the person who is to take the estate, and thus operate as a“ descriptio persona," and not as a " limitation." Consequently, that they do not create such an estate of inheritance, as is capable of uniting with a life estate, under the rule; but must operate, if at all, as a devise, per se, of an estate

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