Tongue's Lessee v. Nutwell

Eccleston, J., delivered the opinion of this court. This is an action of ejectment, in which the judgment below was in favor of the defendant, the present appellee. Both parties claim under Benjamin Harrison, deceased, who died seized and possessed of the premises now in dispute, in the year 1825, leaving a last will and testament, in which he devised the same, and also gave certain personal property, to his son, John Harrison, his heirs, executors and administrators, in trust, for the sole and separate use of his (the testator’s) daughter, Eleanor Stephenson,‘wife of John Stephenson, during the life of her husband, and providing, "In case my said daughter should die before her said husband, and without leaving issue, then I give, devise and bequeath all the said real estate and personal estate to my said son, John Harrison, his heirs and assigns forever. But in case my said daughter should die before, or survive her said husband, leaving issue, then T. give and devise all the said property to such issue, and their heirs, as tenants in common. But in case my said daughter should die without leaving issue, then I give, devise and bequeath all the said real estate to my son John, his heirs and assigns forever. “Item. — It is my will and intention, that in case my said daughter should survive her husband, that then the trust hereinbefore created, shall cease and determine, and the legal estate in the said property shall vest, in my said daughter, for and during her natural life, as regards the real estate, and absolutely in fee as respects the personal property, and after her death, in case she leave issue, that then such issue shall have a legal estate in fee in the said real property, and on failure of such issue, then to vest in my said son John and his heirs for ever. “Item. — I give and devise to my daughter, Ann Tongue, all the rest and residue of my real estate whatsoever, to her and her heirs forever.” — 422 — The proof shows, that after the decease of Benjamin Harrison, his son John, as trustee under the will, became seized and possessed of the land in dispute; that afterwards, by his permission, the said John Stephenson and Eleanor his wife, entered upon the premises. That in the year 1828, John Stephenson died, leaving Eleanor, his wife, surviving him, •who became seized and possessed of the said land, and died in the year 1834, without ever having had issue. That Ann Tongue, the lessor of the plaintiff, was sister of the whole blood to the said Eleanor. That after the decease of Eleanor, the defendant entered into possession of the premises, claiming title thereto under the said John Harrison. It also appears that John Harrison was brother of the whole blood to Eleanor Stephenson. “The defendant prayed the court to instruct the jury, that if they should find the said Eleanor Stephenson survived the said John Stephenson, and afterwards departed this life, without ever having had issue of her body, the said land and premises, mentioned in the declaration, became thereby vested in the said John Harrison, in fee, by force and effect of the limitation thereof over to him on the failure of issue of the said Eleanor, and that their verdict ought to be for the defendant; and further insisted, that if the court should be of opinion, that the said Eleanor, in her lifetime, became seized of an absolute estate, in fee, in the premises, and died seized thereof and without leaving issue of her body, and if the jury shall find, that the said Eleanor was a sister of the whole blood to the said Ann Tongue and John Harrison, that then the premises descended to the said Ann and John, and the plaintiff will be entitled to recover no more than an undivided moiety of the premises, and prayed the court so to instruct the jury.” But the plaintiff objected to said prayers, insisting, that if the jury should find the facts offered in evidence by the parties, then the plaintiff would be entitled to their verdict for the entirety of the premises, in the declaration mentioned; and prayed the court so to instruct the jury. The court, however, granted the defendant’s prayers, and refused the prayer offered by the plaintiff; and thereupon the — 423 — plaintiff excepted to the granting of the defendant’s prayers and the refusal of the plaintiff’s. The verdict and judgment being in favor of the defendant the plaintiff appealed; and he now insists, that the limitation over to John Harrison, after the decease of Eleanor Stephenson, without leaving issue, means an indefinite failure of issue, and therefore the limitation is void. And because Eleanor died, after the decease of her husband, without issue, the entire premises vested absolutely in the lessor of the plaintiff, as sole residuary devisee. Chelton vs. Henderson Wife’s Lessee, 9 Gill, 432, has been referred to on both sides. But the defendant’s counsel has urged it as a controlling authority in the interpretation of the will before us. There the testator gave to his son Isaac the use of the land in dispute, “to the said Isaac, during his natural life, and if it should please God, that the said Isaac should have issue born of his body, lawfully begotten, then such issue, after the death of the said Isaac, to have the aforesaid devised premises in fee-tail, but if the said Isaac should die without issue of his body, lawfully begotten,” then the will provided, that the land should “descend” to the testator’s son, Thomas, and his heirs in fee simple. The court below held, that Isaac, the son, took an estate-tail general, but this was reversed by the Court of Appeals. There the rule in Shelley’s case was insisted upon in argument, as conclusive upon the question before the court, no matter what may have been the intention of the testator, as disclosed in the provisions of his will. It was held, however, that, by the explicit terms of the will, it was undoubtedly the manifest intention of the testator, that his son Isaac should have but a life estate in the premises, and that if he should have “issue,” such “issue,” after his decease, should have the devised premises in fee-tail. And this intention was carried into effect by the decision. The rule in Shelley’s Case, has been long recognised and adhered to both in England and in this State, and we do not mean to deny or disregard its authority; nor do we understand the decision in Chelton vs. Henderson, as designed to exclude the operation of that rule in the interpretation of a will, to any — 424 — greater extent than to hold, that where the intention of the testator to create no larger estate in the first devisee than for life; is clearly depressed by the will, such intention must prevail. In the case alluded to, the will was construed as giving'but a life estate to the son of the testator. And if the language of that will was sufficient to manifest a clear intention to create but a life estate in the son,* surely the will before us must be considered as furnishing conclusive evidence of an intention to give'Eleanor Stephenson no more than a life estate. It is evident, from the provisions contained in it, that the testator had the requisite information to enable him to create a trust, to give both a legal and an equitable estate, and also to give either a fee simple or a life estate. In the first place, he created a trust for the use of Eleanor, during the life of her husband. Then in case she became the survivor of her husband, the trust was to cease and the legal estate to vest in her/ but expressly, “for and during her natural life, as regards the real estate, and absolutely in fee as respects, the personal property.” And when providing for the issue of Eleanor, after her death, in the first instance, in case of her leaving issue, the property is given to such issue and, their heirs as tenants in common. If, after the cessation of the trust and the vesting of the legal estate in her, she should die leaving issue, then the will directs, that such issue shall have a legal estate in fee, in the realty. A.nd the premises are given to John: Harrison in fee simple, either in the event of the decease of Eleanor without issue, or in case of her leaving issue, and' on failure of such issue. By these provisions we think there is manifested a clear intention to give the property to Eleanor Stephenson, for life only, and then to her issue, if she should leave any; issue being here considered as a word of purchase, and not of limitation; which we understand tobe in accordance with the effect given to the word issue in Chelton vs. Henderson. There the first devisee, Isaac, was held to take a life estate' only, and his issue a fee-tail, by the -words of the will; which in this State,, under our act of Assembly amounts to a fee «imple. — 425 — The next inquiry is, whether the devise to John Harrison is void, because too remote ? Authorities need not be cited to show, that if the event is an indefinite failure of issue, on which John should take the estate, the devise to him is void. In Newton vs. Griffith, 1 H. & G., 125, it is said, “The rule is, not that the ‘limitation’ over must take effect within a life in being, or not at all, but that the 'contingency’ on which it is made to depend, must happen, (if at all,) within the compass of a life or lives in being, and twenty-one years and a few months afterwards; and the distinction is a very dear one.” Again, on page 126, the court say: “The several general expressions, ‘having no issue,’ ‘leaving no issue,’ and ‘without issue,’ when used in relation to real estate, meaning, according to the settled legal construction, ah indo finite failure of issue, they must, whenever they are found in a will, be taken in their technical legal sense,-unless there be something clearly demonstrating a different intention on the part of the testator,' and restricting them to a failure of issue at the death of the first taker.” The expressions thus cited from Newton vs. Griffith, are similar to most of those, on the like subject, which occur in the will before us. If it should be said, that the first contingency, on which John should take, is made to depend upon the death of Eleanor without issue, during the life of her husband, and, therefore, the intention was to provide for a definite failure of issue— definite because required to occur before the decease of her husband — still there are two other provisions not restricted or limited to any such event; they certainly are not,- in terms, so restricted or limited; but in one case the will simply provides for the event of the death of Eleanor,- “without leaving issue,” after surviving her husband; and the last provision-on the subject may be construed, without any forced construction of the language, as providing for a case of her leaving issue, and the subsequent failure of such issue. It will therefore be difficult to discover, in the present will, a “clear manifestation” of an intention by the testator to restrict the failure' of the issue of — 426 — his daughter to the period of her decease. The expressions’ used on this subject should, therefore, be construed according to the “technical legal sense” ascribed to such expressions, when used in a will with respect to real estate. See, also, Biscoe vs. Biscoe, 6 G. & J. 232, 236 and 237. Edelen vs. Middleton, 9 Gill, 161. In Torrance vs. Torrance, 4 Md. Rep., 11, the court had under consideration the portion of the estate of which Charles Torrance died seized, which his daughter, Dorcas, took under his will and the will of her mother, by virtue of the power-conferred in his will. Dorcas was held to take but a life estate, the fee being conferred upon her children by the following provision, “And from and immediately after the decease of the said Dorcas, then that the said share shall become the estate of all and every child or children she may have, and be equally divided between them, their heirs, executors, administrators and assigns, for ever, as tenants in common, share- and share alike.” Elizabeth Torrance, the mother, had, besides Dorcas, two other daughters, Mary and Louisa, for whom the mother’s will made provisions, similar to those for Dorcas. Then follows this clause: “In the event, of the decease of any of my aforesaid daughters, without leaving any child or children, os descendants of such child or children, the part or share of the estate hereinbefore devised to her or them, so dying, shall descend to, and be equally dividend between, all my surviving children, and their respective representatives, as tenants in. common, share and share alike.” Dorcas died without issue, never having been married. The court held that, under the authority of Newton vs. Griffith, and all the leading and well adjudicated cases upon the subject, both in England and in this country, “the expression, dying without leaving any child or children, or descendants of such child or children, amounts to an indefinite failure of issue, and that the limitation over being too remote, is consequently void.” They then say: “Descendants and. issue, in this instance, mean the same. The devisee in the present will, it will be seen, can only take effect over, at the — 427 — period when the issue or discendants of the first taker shall become extinct, and when there are no longer any descendants of the issue, or children of the grantee, without any reference to any particular time or any particular event.” The court, having decided the devise over to be void, they held that the portion of the estate in which Dorcas had a life estate, descended upon her decease without issue, to the heirs at law of Charles Torrance, her father, as undisposed of property. If in that case descendants of children and issue are regarded as the same, and there the devise over is considered void, as depending upon an indefinite failure of issue, we think the devise over to John Harrison must also be void, because it is made to depend upon a contingency too indefinite and remote. This being so, it becomes necessary to consider whether the land in dispute must descend to the heirs at law of Benjamin Harrison, or whether, upon the death of Eleanor Stephenson, without issue, it passed to Ann Tongue, the lessor of the plaintiff, as sole residuary devisee. The plaintiff insists, although it may be true that in case of a lapsed devise the heir at law will be entitled to the property, yet where a devise is void by the rules of law, the estate passes to the residuary devisee, as a general rule. The defendant’s counsel contends that where the devisee named in the will does not take, whether it be in consequence of a lapsed or a void devise, the heir at law becomes entitled, and not the residuary devisee, in either event. He refers to the case of Lingan vs. Carroll, 8 H. & McH., 333, as a decision in favor of the former and adverse to the latter. The bill in that case had been filed in chancery by the residuary devisees, claiming the estate, because of a void devise. The defendant demurred, and the bill was dismissed, because it “contained no matter of equity.” In the opinion of Chancellor Hanson, as reported, he held “the law to be settled, that, in case of a lapsed devise, the land should pass to the heir and not to the residuary devisee, and that there was no solid distinction between the case of a lapsed devise — 428 — and the case of a devise void by the rules of law, it being manifest, in both cases, that the testator did not intend the land de facto devised to go to the residuary devisees.” (Decided May 31st, 1859.) Upon an appeal taken by the complainants, and argued by distinguished counsel, the decree of the chancellor was affirmed, in 1793. But there is no report of any opinion given by the Court of Appeals. In respect to this question there has not been perfect uniformity among the decisions. It must be conceded, however, that the preponderance of authority, outside of Maryland, is jn favor of the residuary devisee. But, inasmuch as the decision in Lingan vs. Carroll, was made by an able chancellor, and affirmed by the Court of Appeals, nearly seventy years ago, and no reference having been made to any decision in this State, overruling it, or even doubting its correctness, we may suppose it has been followed and acquiesced in by the legal profession as sound Maryland law. We are therefore not inclined to overrule that case, in deference to other decisions. And more especially so, believing, as we do, with Chancellor Hanson, that there is no solid distinction between the case of a lapsed devise and the case of a devise void by the rules of law, in regard to a question, whether the heir at }aw or the residuary devisee should take the estate? jn this view of the subject the lessor of the plaintiff is not pptit]pd to the whole of the premises under the residuary devise, as insisted upon by her counsel, but she is entitled to an undivided moiety, as heir at law of her father, Benjamin Harrison. He left three children, John Harrison, Eleanor Stephenson, and Ann Tongue. Eleanor died without issue, and John died leaving children. Ann is therefore entitled to one undivided half of the land in dispute; and for the purpose of enabling her to recover the same, the judgment below will be reversed and a procedendo awarded. Judgment reversed and procedendo awarded.