Self's administrator v. Tune , 6 Va. 470 ( 1820 )

Judge Roane

pronounced the Court’s opinion.

The appellant in this case claims under Mary Bailey; and the validity of her title depends upon the construction of a Deed of August 4th, 1769, made by Leasure Hall. That Deed gives five slaves, from whom the slaves in question are descended, to his daughter Mary Bailey and her husband William Bailey, for and during their natural lives, or that of the longest liver of them; and, after the decease of them both, for the said negroes and their increase to be equally divided among Mary Bailey’s heirs of her body; and, in default of such heirs, for the said negroes and their increase to return and he divided equally between his son Jeremiah and daughter Jhvne, and their heirs and assigns forever. If these words, “ heirs of her body,” had stood alone, in the limitation death of Mary Bailey and her hnsband, we are of opinion that her title would have been absolute, as, in that case, they would have been considered words of ii- mitation:--but the addition of the words, " equally to be diuided" between them, compels us to construe them as words of purchase, aad as a description of the persons who were to take. Nor is this idea varied by the Iiini- tation over, " in default of sucit heirs":--that word suah" being a re1at~ve term, and in like manner qna1i~ fying ti~e meaning oe " hcirs," as afbrcsaid. Mary Bai- leif had therefore only an estate for life, and, as the ap. pellant has consequently shewn no title, the judgmeflt for the apj~el1ee must be affirmed. Decided, ~Jan.