¶1delivered the opinion of the Court.
¶2There is nothing in the peculiar exceptions filed to the auditor’s report, which prevents this Court from examining the rights of the parties, in relation to the rents and profits of any of the lands mentioned in the bill. The answer denies the right to rents and profits, and it could not he necessary to frame the exceptions in such a manner, as would deny rights, which are put in issue by the pleadings.
¶3The case of Newton vs. Griffith, 1 Harr. and Gill, 111, is conclusive to show, that although an estate tail was devised in Ledgworth, and 44 acres of Plummer’s Pleasure, to Jacob W. Brashears, yet that he virtually took an estate in fee ; and by the ease of Purnell’s Lessee vs. Rider, decided on the Eastern shore, the remainder limited to take effect after the determination of the estate tail is inoperative. The same doctrines settle the question, as to the estate which Richard W. Brashears and Beall Brashears, took under the will of John W. Brashears. They were tenants in common, in fee, of the residue of Plummer’s Pleasure, not devised to Jacob W. Brashears. Upon the death of BeaU Brashears, his moiety of Plummer’s Pleasure descended to Jacob W. B., Richard B., Hester B., and Jemima B.
¶4*468We perceive nothing in the facts disclosed which ought to prevent the rents and profits from being decreed to the complainant below, according to his- interests in the lands.
¶5During the period which elapsed from the death of Richard W. Brashears, till the death of Jacob W. Brashears, the complainants intestate was entitled to one half the profits of the residue of Plummer’s Pleasure, which was not devised by the will of John W. Brashears to Jacob, and in addition to this, was entitled, as the representative of his father Richard, in consequence of the death of Beall Brashears, to one sixth of' the profits of said residue; for at the death of Beall Brashears, his right in a moiety of the residue descended, to Jacob, Richard, and Jemima Brashears; Hester Brashears having died in 1802, before the right of the complainants intestate accrued.
¶6By the will of Jacob W. Brashears, all his interest in the lands was devised to Jemima, one of the appellants; consequently, after the death of Jacob, the interest of the appellee’s intestate remained the same as it was before his death.
¶7The decree of the Chancellor is reversed, with costs to the appellants in this Court, and this Court will direct the auditor of the Court of Chancery to audit the account, according to the principles of this decree, and will direct the-costs of the audit to be taxed as the costs in this Court.
¶8DECREE REVERSED.