Sims v. Georgetown College

The Chief Justice delivered the opinion of the Court: The only question presented is whether the devise of the property to the daughter for life, “ and after her death, the same to go to her heirs, share and share alike” is within the well known rule in Shelley's Case, 1 Rep., 93, 104. — 79 — That celebrated and long existing rule of law is, that where,- in the same instrument, the ancestor takes an estate of freehold, with remainder mediately or immediately to his heirs, or heirs of his body, the word heirs is a word of limitation of the estate, and not of purchase; or, in other words, that such remainder vests in the ancestor himself; and the heirs, when they take, take by descent from him, and not as purchasers from the grantor or devisor. Thus, if the limitation be to his heirs in general, a fee simple is given to the ancestor; if to the heirs of his body, he takes a fee tail, according to the common law. This rule, it is said, was first established to prevent the inheritance from being in abeyance — from being tied up dependent upon future contingencies; and to facilitate the alienation of lands — reasons equally good and operative at this day as when the rule was first established. And the rule is equally applicable to the limitations of equitable as to legal estates; but the estate of the ancestor and the limitation to the heirs, must be of the same quality, that is, both must be legal or both equitable. The same words that create an estate in fee simple or an estate in fee tail in legal estates, will, when applied to an equitable estate, create an estate in fee simple or fee tail in that estate. This is an established principle, and it is founded upon the reason and policy, indeed the necessity, of preserving uniformity of the law in relation to the two kinds of estates in land; and the authorities maintain the principle without dissent. Garth v. Baldwin, 2 Ves., 646; Jones v. Morgan, 1 Bro. Ch., 206; Brydges v. Brydges, 3 Ves., 120, 125; 1 Perry on Trusts, Sec. 358; 1 Prest on Estates, 263; 4 Kent Com., 215 ; Croxall v. Shererd, 5 Wall., 281. The only modification or qualification of the rule, in its application to equitable estates, .s where a court of equity is called upon to direct the execution of an executory trust. In such case the court will apply the rule or not, as will best subserve the purposes and intent of the author of the trust. The rule in Shelley’s case has not met with favor in some of the States of our Union, and it has been, in those States, — 80 — either qualified or entirely abrogated by legislative enactment. But in Maryland the rule has been in lull force and operation from the earliest settlement of the colony, as a rule of property; and as the laws of that State, as they existed on the 27th day of February, 1801, were continued in force over this District, except where they were, or might thereafter become, inconsistent or in conflict with the legislation of Congress, the rule in Shelley’s case is a part of the common law of this District; and, while not disposed to enlarge or give the rule any new application, this court has no power whatever to depart from the rule, or in the least to restrict its application. To do so would be to disrupt the ligaments of title, and to introduce confusion, where, for the good of the community, quiet and repose should be maintained. In this case, the subject of devise was an equitable estate. The testator had fully paid the purchase money, and he was in possession, and manifestly supposed that he had a complete legal title. But because of the mistake in the first conveyance, made in 1849, the mere legal estate remained in the corporation of Georgetown Collegé, and that corporation was a constructive trustee of the legal title, without beneficial interest in the estate. If, therefore, the devise to the daughter invested her with the equitable fee in the estate, she was entitled to call for the conveyance of the title to herself, and the subsequent deed of conveyance made to her by the corporation was proper, and she became fully clothed with the legal estate. If, on the other hand, she took but a life estate by the devise, the deed should have conveyed to her but a life estate at law, with remainder to her heirs, according to the terms of the will. The devise, however, operated only on the equitable estate, and the estate devised to the daughter and that in remainder were of the same nature and quality, and not different. ■If this was a devise simply to the daughter for life, and after her death to her heirs, of course there could be no question of the application of the rule in Shelley’s case, and the daughter would take the equitable fee, and the heirs — 81 — could only claim by descent from the mother. Do the additional words, “ share and share alike,” have the effect of converting the devise into one for life to the daughter, with remainder to the heirs as purchasers? If this case wa's in an English court, it would not be open to argument. According to the most authoritative decisions there, the daughter would take an estate in fee; for it has long been the established doctrine in the English courts, that additional words such as those employed in the present devise, following the words heirs or heirs of the body, will not control the legal import of such words of limitation. Thus, in the leading case of Jones v. Morgan, 1 Bro. Ch., 206, the devise was to trustees to stand seized to the use of A for life without impeachment of waste; after his decease, to the use of the heirs male of his body, severally, respectively, and in remainder ; and it was held, after the fullest argument, that A took an estate tail. ' And so in the very celebrated case in the House of Lords, of Jesson v. Wright, 2 Bligh, 1, where the devise was to A for life, and after his decease to the heirs of his body, share and share alike, as tenants in common, it was held that A took an estate tail. And in the subsequent case of Featherston v. Featherston, 3 Cl. & Fin., 67, a case in the House of Lords, where the judges were called upon and gave their opinion, which was fully concurred in by the House, the question was as to the effect of words added to words of limitation, and the judges in their opinion, said: “ Now we think the rule of construction laid down by Lord Alvanley, in his judgment in the case of Poole v. Poole, 3 Bos. & Pul., 627, being at once the result of the former cases, and being consistent with the principle of legal construction and of good sense, is the safe and correct rule to be applied in cases of this description, namely: ‘That the first taker shall be held to take an estate tail where the devise to him is followed by a limitation to the heirs of his body, except where the intent of the testator has appeared so plainly to the contrary that no one could misunderstand it.’” The same principle is fully stated and acted on in many other — 82 — cases, both English and American. See Bender v. Fleurie, 2 Grant, 347; McFeeley v. Moore, 5 Ohio, 465 ; King v. Beck, 12 Id., 390; Cooper v. Coursey, 2 Cold., 416; Fraser v. Chene, 2 Mich., 81. It is certainly according to sound reason and correct logic, that where certain words of well defined or technical meaning are used, expressive of a general rule of law, and it be sought to curtail or restrain that meaning, it is incumbent upon the party thus contending to show clearly that the words bear the special meaning contended for; otherwise die general rule prevails. This is shown to be a settled rule of construction by the cases just cited, and to which many more might be added. There is no doubt or question of the general proposition, that where an estate is devised to one for life, with remainder to his heirs, or to the heirs of his body, and there are words of explanation following the word heirs, from which it may be plainly collected that the testator meant to qualify or restrain the'meaning of the word heirs, and not to use it in a technical sense, but simply as descriptive of the person or persons whom he intended to take after the death of the first devisee — in such case, the word heirs will operate as a word of purchase. That is the contention in this case, and the general proposition is supported by abundant authority, where tire additional or explanatory words are sufficient to make it clear that the special intent, in respect to the particular devise, is paramount to the general intent of the testator. In the cases where this rule has beeir most frequently applied, the devise has been Ito A for life, with a subsequent devise to the heirs general or special of A; and the testator has shown by explanatory words, a particular intent to give an estate for life only to A, and a general intent to give estates to all the descendants of A. And in such case, if the devise be construed so as to give effect to the particular intent, the first devisee will take an estate for life only, and the words heirs, or heirs of the body, must then operate as words of purchase, and not as words of descent. But there is always — 83 — found great difficulty in this mode of construction, for if the remainder be devised to the heirs of A, it must vest in the persons who answer to the description of such heirs general to A at the time of his death, whether such persons are heirs of the lineal or collateral line of A, the first devisee; and, in the meantime, the estate remains in contingency. The cases upon this subject are very numerous, and it would be a difficult task to reconcile them all to any one general principle. Mr. Jarman, in his work on Wills, has given a very clear analysis of all the English cases, as well those referred to by the counsel for the complainants in this case, as many others, and the result of his review, even alt the risk of an undue amplification of this opinion, we shall’ give in the words of the author. At page 144 of Yol. 3 of his work, he says: “We next proceed to inquire into the effect of coupling a limitation to heirs of the body "with words of modification Importing that they are to take concurrently or distributively, or in some other manner inconsistent with the course of devolution under an estate tail, as by the addition of the words, * share and share alike', or ' as tenants in commonor * whether sons or daughters! or ‘ without regard to seniority of age or priority of birth! In such cases the great struggle has been to determine whether the superadded words are to be treated as explanatory of the testator’s intention to use the term heirs of the body in some other sense, and as descriptive of another class of objects, or are to be rejected as repugnant to the estate which those words properly and technically create. It will be seen by an examination of the following cases, that, after much conflicting decision and opinion, the latter doctrine has prevailed, and it seems to' stand on the soundest principles of construction. Those principles were violated, it is conceived, in permitting words of a clear and ascertained signification to be cut down by expressions from which an intention equally definite could not be collected. The inconsistent clause shows only that the testator intended the heirs of the body to take in a man — 84 — ner in which, as such, they could not take; not that persons other than heirs were meant to be the objects. To make expressions of this nature the ground of such an interpretation is to sacrifice the main scope of the devise to its details. The courts have, therefore, wisely rejected the construction which reads heirs of the body with such a context as meaning children, and thereby restricts the testator’s bounty to a narrower range of objects; for, it will be observed, that although children are included in heirs of the body, yet the converse of the proposition does not hold, for an estate tail is capable of transmission through a long line of objects whom a gift to the children would never reach (as grandchildren and more remote descendants); to say nothing of the difference in the order of its devolution. This rule of construction is supported by a series of decisions, commencing from an early period, and sufficiently numerous and authoritative to outweigh any opposing decision and dicta which can be adduced.” And if such be the rule of construction in cases where the devise in remainder is to the heirs of the body of the first devisee, a fortiori should the same rule of construction apply in such case as the present, where the devise is to the heirs general of the first devisee. In such case the word heirs is of much larger and more comprehensive import, and hence more difficult to restrain to mean children or even lineal descendants. Suppose the first devisee had died without issue; or suppose, instead of two children, she had had three, two of whom died in her lifetime, one leaving two children and the other three — in whom would the remainder have vested in the first instance put? or how divided in the second? If the person within the description of heirs take as purchasers, they would take per capita; but it would be quite unlikely that the testator intended, in the case put, that the estate should be divided equally. While, on the other hand, if the heirs general can claim only as heirs by descent from the mother, the first devisee, the words, “share and share alike,” would be subject to no very strained construe — 85 — tion to make them conform to the rules of partition ,as prescribed by the Statute of Descents. By the Maryland act to direct descents, of 1786, ch. 45, in force in this District, the land descends to any child or children and their descendants, if any, equally; and if there be no child or descendants of the intestate, and the land be acquired by purchase, it descends to the brothers and sisters of the intestate of the whole blood, and their descendants in equal degree, equally. But however this may be, according to a settled rule of construction, these words, “share and share alike,” following the word heirs, are not effective or of sufficient import' to change and control the legal meaning of the preceding word of limitation. Jones v. Morgan, supra; Jesson v. Wright, supra; Poole v. Poole, supra; Jordan v. Adams, 9 C. B. (N. S.), 483, 497; Clarke v. Smith, 49 Md., 106, 118. It has, however, been argued for the complainants, that this was a case of an executory trust, and that it is a settled principle that the rule in Shelley’s case does not apply in cases of executory trusts. The principle stated may be conceded, but was this an executory trust? An executory trust, as we understand it, is where a trust is raised or created either by stipulation or direction, in express terms or by necessary implication, to make a settlement or conveyance to uses or upon trusts which are simply indicated but not finally declared by the instrument containing the stipulation or direction; and the form and limitations of the settlement or trusts are subsequently directed by the court. Smith on Executory Interests, annexed to Fearne, Sec. 489. This is substantially the definition given by Lord Eldon, in the case of Jervoise v. Duke of Northumberland, 1 J. & W., 539, where he says, that is an executory trust, where the testator has directed something to be done, and has not himself, according to the sense in which the court uses these words, completed the devise in question; and in such case the court has been in the habit of looking to see what his intention was; and if what he has done amounts to an imperfection, with respect to the execution of that intention, the court inquires — 86 — what it is itself to do, and it will mould what remains to be done so as to carry that intention into execution. But there is no such imperfect declaration or direction as to the trust in this case; indeed, no declaration or direction as to the execution of the trust at all. The trust here was purely constructive; and the truth is, the testator was not aware, as we may well infer, when he made his will, that the legal title was outstanding. There is no foundation, therefore, for the contention that there was an executory trust for execution by the court. It is next contended that this is a devise to the daughter for life, “ to hold as her separate estate, free from the control of her husband; and that such an estate is entirely different in quality from the common law legal estate which would go to the heirs.” But, as we have already seen, the devise here, both for life and in remainder, was of the same equitable estate. There is, therefore, no difference in the nature and quality of the estate devised. But an estate, either legal or equitable, in real or personal property, may be acquired by a married woman, to her separate use, by gift, devise, or bequest, and that without the intervention of trustees; and where the legal estate devolves on the husband, or to the extent that any interest may vest in him as husband, he will be decreed to be trustee, as to that interest, for his wife; but he holds as trustee pro tanto only. The separate use in land, it is true, before the act of Congress of the loth of April, 1869, relating to the District of Columbia, was created by deed or devise, in such terms as expressly excluded the marital rights of the husband, and placed her, in respect of that property, exactly in the condition of a feme sole; and as this separate use was the invention of a court of equity, it remained subject to the control of that jurisdiction exclusively. But the separate use is distinct from the estate vested in the woman, and it in no manner alters the nature 01-quality of the estate; nor did it in any manner interfere with the application of the rule in Shelley’s case, in the execution of the limitation to the heirs in the married woman as — 87 — ancestor, and devisee of the preceding freehold estate. This was so held expressly in the case of Douglas v. Congreve, 1 Beav., 59, 72. And as to the nature and extent of the separate use, as enforced by. courts of equity, see the cases of Woodmeston v. Walker, 2 Russ. & M., 197, and Tullett v. Armstrong, 4 Myl. & Cr., 377, 393. Upon the whole, this court is clearly of opinion that the devise in question to the daughter, Margaret Sims, was of an equitable fee simple estate, and having the right to call for the conveyance of the legal title to the property devised, the deed by the defendant corporation invested her with the legal title, and consequently the complainants have no ground for the claim made by them, and therefore their bill was properly dismissed by the court below. The decree appealed from must be affirmed, with costs to the defendant. Affirmed.