Mason v. Johnson

Bartol, C. J., delivered the opinion of the Court. Lovey Johnson, late of Somerset County, by her will dated the 24th day of January 1874, devised as follows: “I give, devise and bequeath unto my son Elijah T. Johnson, and my daughters MaryE. Johnson and Lavinia E. Johnson, the farm whereon I now dwell, to be equally divided between them, and in case either of them shall die without an heir of their body lawfully begotten, I then devise the share of the one so dying to the survivor or survivors of them.- And I further direct that in case all [355] three of my said children shall die without an heir of the bodjr lawfully begotten, I then give, devise and bequeath all of my said farm unto my grand-daughter Annie Laird, and her heirs and assigns forever.” ******* Mary E. Johnson, one of the devisees, afterwards intermarried with the appellant, and in 1876, died intestate leaving no issue ; her brother and sister, the other devisees surviving her. Her husband, the appellant, filed his bill of complaint claiming to be entitled to a life estate in the land devised to her by the will of her mother, and praying for partition. The defendants Elijah and Lavinia, demurred generally and the Circuit Court sustained the demurrer and dismissed the bill, and the complainant has appealed. The first question to be considered is what estate did Mary E. Johnson take under the will, and in disposing of this question we are first to determine whether the devise over to the survivors is valid. At the common law it would be inoperative because too remote, being limited to take effect after an indefinite failure of issue,-or what is of equivalent import after a failure of the heirs of her body whenever that might occur. But by the Act of 1862, ch. 161, this rule of construction has been changed. That Act provides “that in any devise or bequest of real or personal estate, the words 1 die without issue’ or £die without leaving issue ’ or £ have no issue,’ or any other words which may import either a want or failure of issue, of any person in his life-time, or at the time of his death, or an indefinite failure of issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of the death of such person, and not an indefinite failure of issue, unless a contrary intention shall appear by the will.” This statute operates to save the limitation over, and make it valid and effectual; the will, is to be read as if the limitation to the survivors was by the terms of the will to take effect upon the death of either of the children, dying [356] without an heir of their body, living at the time of his or her death. Now the devise to Mary is of one undivided third part of the land, as a tenant in common, but without words of perpetuity or limitation, this at the common law, the limitation over being valid, would give her a life estate only ; and upon the happening of the contingency at her death, the survivors would take the estate as a contingent remainder. Hoxton vs. Archer, 3 G. & J., 199 ; Turner vs. Withers, 23 Md., 18. Here a question arises upon the effect of the provision of the Code, Art. 93, see. 305. (Act of 1825, ch. 119.) That section provides that ‘ ‘ in every will whereby any lands or real property shall be devised to any person, and no words of perpetuity or limitation are used in such devise, the devisee shall take under and by virtue of such devise, the .entire and absolute estate and interest of the testator in such lands or real property unless it shall appear, by devise over or by words of limitation or otherwise that the testator intended to devise a less estate and interest.” If we are to consider that the effect of this provision of the Code is to enlarge the life estate given to Mary, in the same manner as if words of perpetuity or limitation were formed in the will, then the effect of the limitation over, • which we have said is good and valid ■ under the Act of 1862, would constitute her estate a fee-tail general by implication, which by the operation of our law of descents, Code, Art. 47, sec. 1, is converted into an estate in fee-simple. But assuming that such is the operation and effect of the 305th section of Article 93 of the Code, without however meaning so to decide, then it would follow that the estate of Mary would not be an absolute estate in fee, but a fee defeasible upon the happening of the contingency of her leaving no heir of her body living at the time of her death, a contingency which has actually occurred. [357] Now the remaining question is whether, if such be the nature of her estate, her husband, the complainant, is entitled to a life estate ? In determining this question, it is quite immaterial to consider whether at the common law the husband would be entitled to curtesy where the wife is seized during the coverture of an estate in fee defeasible upon the happening of a contingency. Upon this question there seems to have been much contrariety of opinion among the learned text writers and conveyancers in England, and some conflict in the decisions by the Courts there as well as in this country. Many authorities on this point have been cited in the briefs; but they can have no application, for the reason that the tenancy by the curtesy as it was at the common law no longer exists in Maryland, in lands held, as in this case, by a married woman under the provisions of the 45th Article of the Code; and the appellant must claim if at all, under the provisions of the Code. Art. 45, sec. 2, .is in these words: “ The property acquired or owned according to the provisions of the preceding section, by a married woman, she shall hold for her separate use, with power of devising the same as fully as if she were a feme sole, or she may convey the same by a joint deed with her husband; Provided that if she die intestate and leaving children, her husband shall have a life estate in her property, real and personal, but if she die intestate leaving no children, her husband shall have a life estate in her real property, and her personal property shall vest in him absolutely.” That no estate by the curtesy can exist with respect to any lands so held by a married woman, no matter how absolute and unqualified her estate, is clear ; for the power is expressly given to her to devise the same as fully as if she were a feme sole, thereby defeating the curtesy of the husband, and depriving him of any interest therein, for his interest can exist only in case his wife dies intestate — and in that event, the [358] Code provides that, he shall have a life estate in her lands. Now this is not in any sense an estate by the curtesy, as known at the common law ; hut a statutory life estate, which devolves upon him only under the provisions of the Code. (Decided December 20th, 1877.) Construing these provisions, it seems to be quite clear that the life estate of the husband is given only in cases where the. wife has such an estate as she may dispose of by will. It is given only in case she shall die intestate, and as said by Chief Justice Buchanan in Newton vs. Griffith, 1 H. & G., 130, 131, “ a man cannot die intestate of that which is not devisable,” — so the real ■ property of the wife in which the husband takes a life estate, must be understood to mean such real property as is devisable by the wife, and does not exist where, as in this case, the wife had not an estate which she could have disposed of by will. Whether therefore the estate of Mrs. Mason was a mere life estate, or a .fee defeasible upon the happening of the contingency named in the will; it is clear in our judgment that the appellant is not entitled to a life estate, or any other estate or 'interest therein under the provisions of the Code. The decree of the Circuit Court will he affirmed. Decree affirmed.