Wollen v. Frick

Miller, J., delivered the opinion of the Court. A very difficult and embarrassing- question arises in this case, as to the construction of the will of Rachel Watson, executed in December, 1834, and admitted to probate in January, 1835. By this will the testatrix, after directing payment of her debts, devises to her friend, Zachariah Woollen, his heirs, executors and administrators, all the rest, residue and remainder of her estate, real, personal and mixed in trusty to pay out of the income thereof certain annuities, (the principal annuitants being her -mother, her sister Caroline Price, and her two brothers,) and then follows these provisions : “And the residue of such income, with the several sums or amounts above enumerated for my sister and brothers, as the same may cease to be paid to them respectively as aforesaid, I give and bequeath to my son Henry Watson, if he be living, during the residue of his natural life; and if he should be living after my said’ sister ceases to be single, or departs this life, which ever shall first happen, and he shall also (have) survived both of my said brothers, or left issue or descendants, then I give and devise to my said son Henry Watson, his heirs, executors, administrators and assigns absolutely, not only the income but also the entire principal of the said rest, residue and remainder of my estate: But in case of the decease of my said son Henry Watson, before my said sister ceases to be single, or if my two brothers above named or either of them survives him, then (in case my — 437 — said son shall not leave issue or descendants,) I give, devise and bequeath to my said friend Zachariah Woollen, his heirs, executors, administrators and assigns absolutely, not only the income of my estate intended for my said son, but also the entire princiiial of the said rest, residue and remainder of my estate.” Henry Watson survived his two uncles, the brothers of the testatrix named in the will, and died without ever having had issue; but his aunt Caroline Price, survived him and had not been married up to the period of his death. In this state of case the question is, did the limitation of the real estate to Woollen take effect, or is it void for remoteness as a limitation over after an indefinite failure of issue of Watson? It appears that Watson in his life time, had consulted the qaost distinguished and eminent lawyers of the State as to his rights under this will, and the opinions of Messrs. Johnson, Schley and McMahon, found among his papers have been printed and submitted for our consideration. In these opinions the very question we are now to pass upon has been elaborately discussed. In addition to these we have the very able arguments of counsel at bar. We have examined the question with the aid thus afforded, and are all of opinion the limitation to Woollen is good. The reasons upon which this conclusion is based we shall now state. This will took effect prior to the passage of the Act of 1862, ch. 161, and it cannot he doubted that if it contained simply a devise to A for life and “in ease he shall not leave issue or descendants” then over, the limitation over as to real estate would be void. These words, according to their settled legal construction, import a general or indefinite failure of issue, and whenever 'found in a will must be taken in their technical legal sense, unless there be something clearly demonstrating a different intention on the part of the testator, restricting thém to a — 438 — definite failure of issue, or a failure of issue at the death of the first taker. Authorities need not be cited for a rule of construction so familiar and well established as this. If, therefore, the only previous devise in this will were to Henry Watson, for life, and that was, immediately followed by this limitation over to Woollen, there would be the implication of an estate tail in Watson, (made a fee by our statutes,) and of necessity the remainder over would fail, or be barred by law, and if there was not enough in these words to imply such an estate tail, still if there were nothing in the previous devises to give a meaning to the words “in case he shall not leave issue or descendants,” they would make a limitation over, after an indefinite failure of issue. But by reference to the previous devises it will be seen that these words in the limitation over, are what are termed referential words, the reference being to the same contingency in which the fee is given to Watson, only taking the converse side of that eontingenc3r. By the previous devises it is clear, the testatrix intended the life interest of her son should be enlarged to afee if he survived the single life of his aunt, and the natural lives of both his uncles, or if he left issue or descendants, whether he survived his uncles and the single life of his aunt or not. Now leaving out of view the contingency depending upon survivorship, Watson is to have the property in fee if he leaves issue or descendants, and if he does not, then Woollen is to have it in fee. So that when you determine the moment when the “leaving of issue or descendants” gives Watson the fee you determine the moment when that contingency has either failed, or taken effect as to Watson, and therefore, also the period when the limitation over is to take effect if at all. The intention of the testatrix as to Watson’s estate cannot be doubted. It cannot be questioned, that if Watson leaves issue or descendants at his death, his title to the "fee is complete, and that at his death or within the — 439 — usual period of gestation thereafter, it must be determined whether he is ever to have that estate in fee. If he then has no issue or descendants, he never can have them, a,nd therefore, all possibility of that contingent estate ever vesting in him then must cease. It must be observed, there is no estate given to the issue, or to await the running out of issue. Both the life estate and the contingent fee are given to Watson himself. The issue are not designated as parties to whom the estate is limited, but the leaving of them is fixed as the contingency upon which the tenant for life will take the fee. That is the period at which the fee is to begin and if there are none at the deatli of Watson, or within the usual period of gestation thereafter, there can be none afterwards to vest the fee. Now the testatrix certainly intended that when Watson’s estate should fail, the limitation over to Woollen should take effect, and hence the will, after enumerating the contingencies in which the fee is given to Watson, when it gives the estate over to Woollen, evidently refers to and repeats those contingencies, and in the direct and exact converse of them gives it over to Woollen. Thus it says : “if my said son should be living after my sister ceases to be single, or departs this life, and he shall have also survived both of my said brothers, or shall have left issue or descendants, then I give and devise to my said son” the property in fee; “but in case he dies before my said sister ceases to be single, or if either of my said brothers survive him, then in case he shall not leave issue or descendants, I give and devise to my friend Zachariah Woollen,” the property in fee. Her plain design was that the moment the one estate in fee failed the other should take effect, and the words “left issue or descendants” in the devise to her son, and “in case he shall not leave issue or descendants” in the limitation over to Woollen, were intended to refer to the same contingency and the same period, and to give the estate in fee the one or the other — 440 — direction according to the determination of that contingency. It is therefore the case of a devise for life to Watson, on which remainders in fee are limited on a contingency with a double aspect. It is not the case of a fee to Woollen limited on a fee to Watson, and therefore not the case of an executory devise. If Watson once gets the fee by leaving issue or descendants, or by surviving both his uncles' and the single life of his aunt, it cannot be doubted that all the limitations over forever cease. If the fee be once vested in Watson bj either of these contingencies it- forever excludes any possible future interest in Woollen. There are, therefore, here two contingent fees not limited to take effect the one upon or after the other, but the one to take effect to the entire exclusion of the other, and the falling out of the contingencies is to decide which of the two is to take effect. It is a case falling within and illustrating the doctrine stated in Fearne on Contingent Remainders, 373, thus : “although a fee cannot, in conveyances at common law, be mounted on a fee, yet two or more several contingent fees may be limited merely as substitutes or alternatives, one for the other, and not to interfere; so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect.” It is also very similar to the case of Clagett vs. Worthington, 3 Gill, 83. It is very plain from this view of it, that this will does not present a case for the implication of an estate tail in Watson, nor for the application of the rule in Shelley’s Case. There is no limitation to the issue of Watson, but all the limitations affecting his estate, are to himself by way of enlargement of his estate to a fee and not to a fee tail. ■ Such is the construction placed upon this will in the learned and masterly opinion of Mr. McMahon. We have taken the liberty of embodying the substance of his views, and. to a great exte.nt copying the very language — 441 — he has used as expressing in more vigorous terms and clearer reasoning than we could hope to employ, our opinion of the true interpretation of this instrument. It has been objected to this construction, that the limitation in fee to Watson, if he left issue or descendants, is upon a contingency which could not possibly happen in his life time: that upon this construction it must be decided at the moment of Watson’s death, whether the fee vests in Woollen, and if Watson should leave a posthumous son his birth would be after the happening of the contingency which vested the fee in Woollen, and such son could take no title by devise, because there is no devise to the issue of Watson, and could take no title by inheritance because his ancestor did not die seized of the estate or land, and for this is cited the doctrine that a vested legal freehold must not only precede a legal freehold contingent remainder, but the antecedent estate in freehold must subsist and endure until the time when the contingent remainder vests, that is, until the contingency comes to pass ; for it is a general rule that every remainder must vest either during the particular estate, or else at the very instant of its determination. Fearne, 307. But what difficulty is there in determining that the life estate of Watson and seizin in him of that estate continued during the usual period of gestation after his death, so that a posthumous child would take by inheritance from him ? Why should not the possibility of the enlargement of his estate to a fee continue during that period ? If he had had issue during his life, the fee would have vested in him, subject to the contingency of such issue dying before him and his leaving no other issue at his death or within the usual period of gestation thereafter. The point here suggested does not appear to have troubled the acute and accurate mind of Mr. McMahon, nor this Court, in the construction of the will in Glagett vs. Worthington. In that case there was a life estate in real — 442 — property devised to Philip Key, and in case he should have issue of his body lawfully begotten, then to the said Philip Key in fee simple, but in the event of his dying without such issue, then over. There the contingency of having lawful issue could not be definitely ascertained untiL the expiration of the usual period of gestation succeeding the death of Philip Key, and we cannot doubt the Court would have held a posthumous child entitled to the estate by inheritance. They say there was no limitation over to the heirs or issue of the body of Philip Key so as to let in the operation of the rule in Shelley's Case, but the limitation over after his life estate is to Philip Key, himself, in fee simple, in the event of his having lawful issue. They do not say <cin the event of his having such issue in his lifetimeon the contrary, such an expression of opinion is carefully avoided. They say the limitation over to other patties was not intended to follow the fee simple estate in Philip Key, and be enjoyed only after its investiture and contingent determination, but was intended as a substitute for that fee simple estate in case of its never coming into being according to the contingency provided for its creation. They then determine that according to the established principles of law applicable to such subjects, this intention of the testator could be carried into effect. On this point they state the general rule that a limitation in a will which may operate as a remainder, shall not be construed an executory devise, and hold that the limitation in fee simple to Philip Key cannot operate as a vested remainder as its coming into existence or vesting depends on a contingency which may never happen, to wit: his having lawful issue, but that it was good,, as a contingent remainder, because of the previously given particular estate for life, on which it depends, and which supports it. They say the happening of the contingency terminates the life estate in Philip Key and creates a .fee simple in him in its stead, and that — 443 — the non-occurrence of the contingency and natural termination of the particular estate for life, gives effect to the substituted contingent remainder in fee in favor of other parties ; that the vesting of the contingent remainder in fee in Philip Key depends on the contingent termination of his life estate by his having issue¡ whilst the substituted contingent remainder to other parties can only take effect or vest by the natural expiration of the life estate, that is to say, by the death of Philip Key without having had lawful issue. They then determine that this kind of alternative limitation is what is termed a contingency with a double aspect, and held that the ultimate limitation over was good, inasmuch as Philip Key had died without ever having had lawful issue born to him. The language and reasoning of the Court would seem to exclude the idea that the difficulty here suggested would have been deemed insuperable if it had arisen arid been presented in that case. But suppose we are wrong in this, and that there cannot be such a thing as a limitation over in fee to a life tenant, in case he left issue or descendants, because of the impossibility of an estate in fee being given to a party to take effect only after his death. What is the result, as affecting the case and the question before us? Plainly and only this, that the law would hold the limitation to Watson on this contingency inoperative, and void. But that would not strike the words out of the will. They would still remain and afford clear demonstration of the intention of the testatrix that the limitation over to Woollen should take effect upon a definite and not an indefinite failure of issue of Watson, and the Court would look to them for the purpose of determining that question. The referential character of the words used in the limitation to Woollen would still exist. The reference would be the same, and that would control the construction of the latter clause of the will, and make the limita — 444 — tion dependent upon a definite failure of issue, and therefore good and effective. In questions of this kind the general principles governing this branch of real estate law are well settled, and the numerous authorities by which they have been established need not be referred to. The difficulty lies in their application to particular cases, and on this point decisions construing other wills are of little use. Sometimes identical cases may be found, but generally the language and provisions of different instruments are so variant and dissimilar that little or no aid in any given case can be derived from the authorities. We shall, therefore, content ourselves with a reference to a fevfr cases in our own State, not because of their identity with the one before us, but because the reasoning of the Court, and the grounds upon which the decisions are rested, seem to support the conclusion we have here reached. Besides Clagett vs. Worthington, already referred to, there is the case of Watlcins vs. Sears, 3 Gill, 492. In that case a testator had devised all his real estate to his wife for life, and after her death, he devised one-half of it to his son, Dennis, in fee, “provided he shall attain the age of twenty-one years, or die leaving issue; but in case my said son, Dennis, shall die without issue, or before he arrives at twenty-one years, of age,” then over to his daughters. Dennis died without issue, but after he had attained the age of twenty-one, and' the Court held that by attaining that age he took the fee, though he after-wards died without issue. But they also said it was too clear for argument, that the word “or,” in the succeeding part of the devise, prescribing the condition on which the limitation over to the daughters was to take effect, “is to be construed copulatively, as if it were ‘and,’ and that, thereby, the alternative condition (literally construing the will) of indefinite failure of issue, upon which the limitation over is made to depend, became a condition — 445 — of definite failure of issue.” We also, without stopping to point out the provisions of the particular wills, refer to the reasoning of the Court in the cases of Turner vs. Withers, 23 Md., 42, 43, and Hilleary vs. Hilleary, 26 Md., 287, 288, and Dallam vs. Dallam, 7 H. & J., 247 to 250, and Taylor vs. Watson, 35 Md., 524. (Decided 2nd July, 1873.) Being satisfied the limitation over to Woollen was good and took effect, the order appealed from must be reversed, as it makes a different disposition of the funds arising from the proceeds of a sale of part of the real estate which passed under this will, from that which the construction we have adopted would give to thorn. The costs both in the Court below and in tbis Court must be paid out of the fund. Order reversed, and cause remanded.