Budd v. State ex rel. Posey

Cochran, J., delivered the opinion of this Court. The appellees brought this suit, as administrators of Joseph A. Posey, on the bond of John L. Budd, as executor of Ann B. Saxton, for the purpose of recovering the value of certain personal property bequeathed by her to their intestate. The record shows that Joseph A. Posey was a half-brother of the appellee, John V". Posey, on the paternal side, and that the appellant, John L. Budd, had children living when Mrs. Saxton executed her will, and also at the time" of Joseph A. Posey’s decease. By an agreement of the parties, all errors in pleading were waived, and the suit prosecuted for the declared purpose of obtaining a true construction of the following clause of the will on which the appellee’s right to recover depends: “1 will and devise to Joseph A. Posey, my son, my plantation whereon I now dwell, and all my personal estate as it now stands on said plantation,” * * * * “to him the said Joseph A. Posey and the heirs of his body lawfully begotten; should Joseph A. Posey die without heirs, or an heir of his body lawfully begotten, I will and bequeath all my estate, both real and personal, to the children of John L. Budd, in equal proportions, share and share alike; should John L. Budd have no children, from and after his death, I will and bequeath all my estate, both real and personal, in trust to Benedict Joseph Lancaster, for the support of the Newport Catholic Church.” The judgment below was entered on a verdict found for the appellees, in conformity with an instruction of the Court, that by the true construction of the will, Joseph A. Posey took an absolute estate in the personal property bequeathed to him, and in disposing of the question presented by this appeal, we are first to ascertain the proper rule for construing the language of this bequest. In the case of Posey’s Lessee vs. Budd, 21 Md. Rep., the words of this clause, so far as they were used to dispose of the real [56] estate, were considered, and. the devise over was held to be contingent on an indefinite failure* of issue, and therefore inoperative and void. The rule there observed, does not, however, necessarily govern the construction of the same or like w'ords in bequests of personal estate. In the latter class of cases, the interest of the heir which the law so strongly favors in construing devises of real estate, yields to the real purpose of the testator, when any circumstance or expression in the will affords the slightest ground for supposing that a limitation after a dying without issue, was intended to mean a dying without issue then living. And, indeed, the inclination to support limitations over of personalty as not too remote, is so strong that they will be held valid when declared in words which would import an indefinite failure of issue in a devise of real estate. Dallam vs. Dallam, 7 H. & J., 220. Newton vs. Griffith, 1 H. & G., 117. Biscoe vs. Biscoe, 6 G. & J., 232. Forth vs. Chapman, 1 P. Wms. 663. But it is nevertheless well settled, that when an execu-tory bequest is limited to take effect on a dying “without issue,” or “without heirs,” with nothing further to explain or restrict the legal import of these terms, the limitation is bad; and in no case would it be good unless made to depend . on a contingency that must happen within a life or lives in being, and twenty-one years and a few months thereafter. If, therefore, the limitation is made to depend alone on the words “dying without issue,” or “without heirs or an heir lawfully begotten,” the first legatee will take an absolute estate; but if the will discloses any circumstance, or condition of the bequest, which goes to show or indicate that the testator intended the limitation to take effect upon a contingency that must happen, if at all, within a life or lives in being- and twenty-one years and a few days thereafter, then these words may be construed to mean a definite failure of issue, and the limitation over allowed to take effect on the hap57 peniug of the contingent event. And this rule seems to obtain in cases where in regard to lands, the language used would be sufficient to create an estate-tail, and under our statutes vest the first taker with an absolute estate in fee. Biscoe vs. Biscoe, 6 G. & J., 232. Edelin vs. Middleton, 9 Gill, 161. Hatton vs. Weems, 12 G. & J., 83. Iu this case, the limitation depends on the construction of the words: “should Joseph A. Posey die without heirs or an heir of his tody lawfully begotten;” and the question is, whether under all the circumstances of the bequest shown by the will, they import a definite or an indefinite failure of issue. These words, as we have seen, may be restricted to mean dying without issue living at the death of the first taker, and that we think was the sense in which the testatrix used them. It was her purpose, beyond all doubt, to fix the limitations on contingencies that would necessarily occur, if at all, within definite periods, not repugnant to the general policy of the law. The death of John L. Budd without children, and of Joseph A. Posey without heirs or an heir then living, was the event contemplated by the testatrix, on which the ultimate limitation to Lancaster was to take effect, while that to the children of Budd «was made to depend on the death of the first taker, without issue then living, in the lifetime of Budd. We think the conclusion stated in the appellant’s brief is the correct one; that as the ultimate bequest over was to take effect, if at all, on the death of John L. Budd without children, the testatrix must have contemplated the dying of Joseph A. Posey without heirs of his body, as an event to occur in Budd’s lifetime. If that be so, there can be no question as to the sufficiency of the evidence of her intention to make the limitations over depend on a definite failure of issue of the first legatee. We think the limitations in regard to the personal estate [58] were good, and that tbe Court below erred in its instruction to tbe jury, that John A. Posey took an absolute ■estate under tbe will. (Decided October 7th 1864.) Judgment reversed.