Stump v. Jordan

Miller, J., delivered the opinion of the Court. In the will of John Jordan, executed in June, 1844, and admitted to probate in July, 1845, there is the following clause: “ Item. 1 will and bequeath unto my niece, Catharine J. Edie, all that part of my real estate lying on the east side of the Elkton road, on which I now reside, adjoining the lands of Joseph Alexander, Jones Mathias, and others, containing about ninety acres, more or less, — 627 — to her the said Catharine J. Edie during her natural lifetime, and at her death, I will and devise the said land to her children if she have any; in the event however of her death without laioful issue, I devise and bequeath the said land to my next kindred by law; I also direct that in the event of my said niece Catharine J. Edie’s dying without lawful issue, then in that case her husband, Arthur J. Edie, (should he survive her,) shall have the free use and benefit of the land heretofore and above bequeathed to her, the said Catharine J. Edie, for the period of thirteen years, from the decease of his wife, the said Catharine J. Edie; provided, that the said Arthur J. Edie does not wantonly injure the said property during the period of thirteen years.” At the date of the will Mrs. Edie was a married woman, hut had no children, and she died in April, 1864, without ever having had a child horn alive, and left her husband surviving her, who is still living. The only subject of controversy in the present case is the construction of this clause of the will, and the question is, whether under it, Mrs. Edie took an estate tail which by our law is converted into a fee, or whether she took only a life estate. In support of the position that she took an estate tail, the appellants’ counsel contend that the rule in Shelley’s Case must be applied. This Court has frequently, and especially in recent years, considered the application of this celebrated rule of property, which undoubtedly has become, and still remains a part of our system of real law. The cases in which it has thus been considered have all been cited in argument, and we shall not repeat here what we have so recently said on the subject. The definition of the rule as given by Mr. Preston, and approved by Chancellor Kent as the most full and accurate is this : “ Where a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of re — 628 — mainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” Whether it prevails in a given case always depends on the language the testator or grantor has used, and we are all clearly of opinion it is not applicable to the clause of the will now under consideration. The devise after the life estate, is not to the “ heirs,” nor to the “issue,” hut to the “children” of the life tenant,, if she have any. In its ordinary and popular signification the word “ children ” means immediate offspring, and such in general is its legal construction. It is a word of purchase and not of limitation, unless the context clearly shows it to he otherwise intended. The cases in which it has a broader signification, and where it has been held synonomous with “heirs” or “issue” or “descendants,” ai’e well illustrated by the resolutions in Wild’s Case, 6 Rep., 16. In that case, says Lord Coke, “it was resolved for good law that if A. devises his lands to B. and his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail; for the intent of the testator is manifest and certain that his children or issues should take, and as immediate devisees they cannot take because they are not rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, therefore such words shall be taken as words of limitation, scilicet as much as children or issues of his body.” In such a.case there is no difficulty in discovering the plain intent or in discerning the reason why the word “children” should have the same effect as the word “heirs.” The distinction between the case put and one like this, is clearly stated by the other resolution in the same case, which is this: “ But it was resolved that if a man, as in the case at bar, devises land to hus — 629 — band and wife, and after their decease to tbeir children or the remainder to their children, in this case although they have not any child at the time, yet every child which they shall have after, may take by way of remainder, according to the rule of law; for his intent appears that their children should not take immediately, but after the decease of the husband and wife.” To the same effect are the cases cited by counsel of Parkinson vs. Bowdoin, 1 Sumner, 350; Nightingale vs. Burrell, 15 Pick., 104, and Broadhurst vs. Morris, 2 Barn. & Adol., 1. If therefore the clause had stopped with the devise “ to her children, if any she have,” it is beyond doubt that in this State, since the Act of 1825, ch. 119, the mother would have taken a life estate, and any child or children she might have had, would have taken a remainder in fee. It is well settled that where a life estate is carved out with a gift over to the children of the life tenant, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution, and in cases falling under this rule, the children, if any, living at the death of the testator, take an immediately vested interest in their shares, subject to the diminution of those shares, (i. e. to their being divested pro tanto) as the number of objects is augmented by future births during the life of the tenant for life, and consequently on the death of any of the children during the life of the tenant for life, their shares, (if their interests therein are transmissible,) devolve to their respective representatives. 2 Jarman on Wills, (5th Amer. Ed.,) 704, 707. But it is contended that the succeeding words, “in the event, however, of her death without lawful issue, I give and bequeath the said land to my next kindred by law,” have the effect to enlarge the meaning of the word “ children ” previously used, from a word oí purchase to a word — 630 — of limitation, and, therefore, to give to the first taker an estate tail; that the words “ dying without lawful issue,” used in this devise over, indicate a general intent which must prevail over any particular intent, to give the land to his niece and to her issue, as long as she or any of her issue might continue to exist, thus making her the stock from which the title should pass from generation to generation. But to this we cannot yield our assent. In the devise after the life estate the testator has used the most appropriate word, and the one usually adopted in order to avoid the operation of the rule in Shelley’s Case, and to enable the children to take as purchasers, and prevent the ancestor from depriving them of the estate hy alienation. This is followed by a devise over to his “ next kindred by law ” in case his niece should die without “ lawful issue.” Here again, he avoids using the words, “ heirs ” or “ heirs of her body,” and adopts the term “issue,” a word which, as we have said in Shreve vs. Shreve, 43 Md., 382, and Timanus vs. Dugan, 46 Md., 402, may be employed either as a word of purchase or of limitation, as will best effectuate the testator’s intention, a word which is much more flexible than the words “ heirs of the body,” and which the Courts more readily interpret as the synonym of children, and as a mere description of the person or persons to take, a word which is not ex vi termini within the rule in Shelley’s Case, and which is dependent upon the context as to whether it will give an estate tail to the ancestor. Here we think it clear, the testator used and intended to use it as having the same meaning as children. In giving to the surviving husband the use and benefit of the land for thirteen years he uses the same words, and gives it only in case the wife should die “ without lawful issue.” This, it must be observed, is not an interest created or arising intermediate the devise for life to the niece and the devise in remainder to her children, but takes effect only in case the — 631 — devise to the children should fail by reason of there being none living at the death of the niece to take, and in that event it is interposed between the wife’s death and the enjoyment of the property by the next of kin. We find nothing in either or both of these devises over, which induces us to suppose the testator had a general intent requiring a sacrifice of the particular intent, or an enlargement of the estate for life given to the niece into an •estate of inheritance, or the wresting of the word “ children ” from its popular and ordinary legal signification of a word of purchase to a word of limitation. As said in 2 Wash, on Real Prop., (4th Ed.,) 603, the recent cases show that the words “ ‘child or children/ are in their usual sense words of purchase, and are always so regarded, unless the testator has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees.” We find nothing in the will manifesting a general and main intent that the remote descendants of his niece should take the land in preference to the testator’s heirs-at-law. It seems to us plain that this uncle meant by his will to give to his niece a life estate only in this land, and if at the time of her death she left living children they should have it in fee, and he the stock of succession, but if at the time of her death there were no such •children, then there being no special objects of his bounty in existence, the land was to go, after user thereof for thirteen years by the surviving husband, to his heirs-at-law, or, as he expresses it, his “ next kindred by law, as ■a class having equal claims upon him. We have carefully examined all the cases referred to by the appellants’ counsel, and in the very able opinion of ■one of the Judges of the Circuit Court, besides many others, and find in all of them where the first taker was held to have taken an estate tail, that the words used are ■different—and, in most of them, widely different—from those in the present will. In Cock vs. Cooper, 1 East, 229, — 632 — the devise, after the life estate, was to the lawful issue of the.first taker as tenants in common, and the devise over was after his dying without lawful issue. The word “ children ” was nowhere used in the will. In Wood and Wife vs. Baron, 1 East, 259, the testator, after giving a life-estate therein to- his wife,' devised his whole estate, real and personal, to his daughter Ann, “ who shall hold and enjoy the same as a place of inheritance to her and her children, or her issue forever; and if it should happen that my daughter Ann should die leaving no child or children, or if it so happen my daughter Ann’s children should-die without issue,” then' over. The Court of King’s, Bench was of opinion, and so certified, that, under the terms of this will, the daughter took an estate tail, and Lord Kenyon remarked that it was a case in which “ one-spells, as it were, every word in order to get at the real intention of the testator.” The difference between that, case and this is so obvious as not to need comment. In Jones vs. Davies, 4 Barn. & Adol., 43, the will was very complicated, .and unskilfully drawn. The Court, however,, placed ' much reliance upon the fact that the testator, in the preface to the devise, had declared his intent that, in case his “daughter should die unmarried,” “his small estate should not he frittered away, but should he entailed.” Parke, J., said it was “one of those cases where the will had apparently been drawn by the testator himself, and was one of those unfortunate instances of a. person wishing to tie up his estate with limitations and upon contingencies, without knowing what language to-use for the purpose.” He held that the paramount intent, which was plain and manifest upon the face of the will,; could not he gratified without giving to the daughter an estate tail, and he thought the language of the will would justify such a construction. In Voller vs. Carter, 82 Eng. C. L. Rep., 172, there was another very peculiar will. The testator devised two freehold houses to his niece E„. — 633 — “for her life only,” and “ should she marry and have issue, then to go to her children, or if she have no issue, then to. go to ” her nephew, and “ should he have no issue, then to go to ” another niece; “ and furthermore, it is my desire that the freehold shall never be sold or mortgaged, hut shall remain independent of any husband in some branch of my family.” It was held the niece E. took an estate tail. The ground of the decision, as shortly stated by Lord Campbell, was that the devisor first says “issue,” then “children,” then “ no issue,” and that this clearly shows that he used “children” as synonymous with, and to designate “ issue.” But the case of Hatton vs. Weems, 12 G. & J., 83, has-been relied on as conclusively showing that Mrs. Edie took an estate tail, and as this is a decision of our predecessors, a more extended examination of it is required. In that case the testator devised an equitable estate in land to his daughter Mary “during her natural life, and after her death to her children lawfully begotten, hut if she should die without lawful issue to heir the above mentioned land, then and in that case,” he devised the same to his son Henry in fee. This son was made trustee of the land for his sister, and certain named negroes and their increase, and certain stock, plantation utensils and other personal property, were also devised to him upon the same trusts. After the death of the testator his daughter married Mr. Weems, and she and her husband filed a hill against Henry, the trustee, for an account of the trust property, charging him with misconduct in the management thereof, and praying for his removal from the trust and the delivery up of the whole trust estate. Pending the suit Mrs. Weems died leaving issue, an only daughter, who also subsequently died, and this is a most important fact to he noticed. The Chancellor decided that the suit had abated by the death of Mrs. Weems, and ordered the-cause to stand over with leave to file a supplemental hill — 634 — ■of revivor. Mr. Weems, the surviving husband, who had also become administrator of the estate of his deceased daughter, then filed the hill of revivor and prosecuted the suit. The controversy in the case upon the merits was mainly over the accounts. Counsel for Hatton set up no claim to the real estate nor to any part of the personal property except the negro slaves. Mr. Alexander, his counsel, in arguing the case in the Court of Appeals said “the title to the personal property alone is in question in this suit,” and he conceded “ that the limitation over to the appellant (Hatton) was dependent on an estate in tail previously given to Mary, the appellee’s late wife, or to her children, and it is immaterial to determine in whom such estate vested.” He likewise conceded that the limitation over of the personal property other than the negroes was void, hut insisted that Hatton as ultimate legatee was entitled to them under the decision in the case of Biscoe vs. Biscoe, 6 G. & J., 232. Mr. John Johnson, who argued the case for Weems, the successful party, contended that the limitation over of both the real and personal estate was void, hut said that even if that limitation was good, still as Mrs. Weems “ did leave laivful issue, living at the time of her death, the contingency upon which the limitation to the defendant was to take effect did not happen, and consequently he had no title to the property.” And Mr. McMahon, who also argued on the same successful side, admitted that “the estate which Mrs. Weems took under her father’s will was not an estate tail by implication; it was an estate for life, remainder to her child in fee, and if she dies without child then a remainder over by way of executory devise, and this disposes of the whole case, as all limitations over are defeated by the birth of her child.” It thus appears that the eminent and leading counsel for the complainant, in whose favor the case was ultimately decided, did not contend or ask the Court to decide in the interest of his client, that Mrs. Weems took — 635 — an equitable estate tail in tbe land, but on the contrary admitted she took but a life estate. But what is the decision itself, and how is it expressed ? It is simply in these few words: “We differ from the Chancellor in his construction of the will of Henry Hatton and believe that by its true construction Mrs. Weems took an equitable estate tail, which in this State is converted into an estate in fee in the lands devised to her, and that in the personal property she took an absolute estate, and that the limitation over to Henry, being after an indefinite failure of issue, is void.” Ho reasons are assigned, and no authorities are cited in support of the construction that Mrs. Weems took an equitable estate tail in the land, and we are left te conjecture on what grounds this construction proceeded. Such a decision can, of course, be received as a binding authority only in a case where the same or substantially the same words are used. But in our opinion there is a substantial difference between the language of Hatton’s will and that used in this case. In the former, the terms of the devise over are “in case she should die without lawful issue to heir the above mentioned land.” These are the exact words of the will as set out in the original record in the case which we have examined, and they are the words used in the manuscript opinion of Judge Archer. which we have also examined. There is therefore a misprint in the opinion as reported (12 G. & J., 108,) of “to have” instead of “to heir.” The Court may have considered this language as plainly indicating the testator’s intention to let her children or issue take as heirs of his daughter. In the absence of any intimation to the contrary it is not unreasonable to suppose the decision was rested upon the force of the words “issue to heir” the estate, and there are no such words in the will now before us. We cannot therefore accept the decision in Hatton vs. Weems as controlling the present case. As we have already said we are all clearly of opinion that under this will Mrs. Edie took but a life estate in — 636 — this land, and as that is the only question, which hy the agreed statement of facts, is submitted for our decision, it follows that the decree appealed from must he affirmed. (Decided 21st October, 1880.) Decree affirmed.