Demill v. Reid

Miller, J., delivered the opinion of the Court. This appeal brings before us for construction the sixth item or clause of the will of John Willett, which was executed in 1857. . By this clause the testator devised certain real estate to his son, Henry J. Willett, “to hold the same unto the said Henry J. Willett, his heirs, executors and administrators, in trust and confidence nevertheless, and to and for and upon the uses, trusts and purposes following, that is to say: In trust for the use and benefit of my grandson, John Willett Belt, during the term of his natural life, so that he, during that period, be permitted and suffered to have and enjoy the said trust property and premises, and the rents, issues and profits thereof to receive, take and apply to his own use and benefit; and from and immediately after the decease of the said John Willett Belt, then in trust that the said principal estate and property shall go to and become the property of the child or children of the said John Willett Belt, by him lawfully begotten, if any, their heirs, executors, administrators and assigns, if more than one, to be equally divided between them as tenants in common. But in case the said John Willett Belt should depart this life, without leaving a child or descendant thereof living at the time of his death, or in case he should have a child, children or descendants of the same living at the time of his death, and such child, children, descendant, and descendants should all subsequently depart this life under lawful age, and without issue living at the time of his, her or their decease, then in trust that the said principal estate and property shall go to and become the property of the children of my sa/id son Henry J. Willett, their heirs and assigns, to be equally divided between them as tenants in common. ’ ’ The testator died in October, 1860, and his son Henry J. Willett accepted the trust for the benefit of his grand — 188 — son, John Willett Belt, who enjoyed the property during his life, and died in October, 1886, without leaving, a child or descendant thereof living at the time of his death. The son, Henry J. Willett died in August, 1877, and had six children three of ivhom are now living. One died in 1875 intestate and leaving no descendants; another died in the life-time of her father, leaving an only child, who also died in the life-time of the said Henry J. Willett leaving no issue. The other, Mrs. Emily M. Demill died before her father in May, 1874, 'leaving four daughters, her only heirs-at-law, all of whom are now living. Uj)on this state of facts the question is, do these four daughters of Mrs. Demill take the interest in this property which their mother would harm taken had she survived the life tenant, John Willett Belt, or does it all go to the three children of Henry J. Willett who did survive the life tenant? As to the character .of the estates thus created, we have no difficulty. It is a clearly established general rule in the contraction of wills that a limitation which may operate as a remainder shall not be construed an executory devise. Here there is first a life estate given to the grandson, Belt, and upon his death alternative contingent remainders in fee are limited, first, to the child or children of Belt, if he leaves any, which shall attain lawful age, or die before that time leaving issue, and failing this then to the children of the testator’s son Henry. If Belt had left a child who attained the age of twenty-one, or died before that time leaving issue, the fee would have vested in such child or issue, and such vesting would forever have excluded any possible future interest in the children of Henry J. Willett. Their interest took effect only upon the failure of the preceding contingency. 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 — 189 — exclusion of tlie other, and the falling out of the contingencies is to decide which of the two is to take effect. It is a case illustrating the statement made by Fearne, 318: “However, we are to remember, that 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; but 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. Thus in the above cited case of Loddington vs. Kime, it was held, that the first remainder was a contingent remainder in fee to the issue of A, and the remainder to B, was also a contingent fee, not contrary to, or in any degree derogatory from the effect of the former, but by way of' substitution for it. And this sort of alternative limitation, was termed a contingency with a double aspect. For if' A had issue male, the remainder was to vest in that issue in fee; but if A had no issue male, then it was to vest in B, in fee; and these were limitations of which the one was not expectant upon, and to take effect after the other, but were cotemporary; to commence from the same period, not indeed together, but the one to take effect in lieu of the other, if that failed.” Other authorities to the same effect are the cases of' Clagett vs. Worthington, 3 Gill, 83; Woollen, Trustee vs. Frick and Golder, Ex’rs, 38 Md., 428; Herbert vs. Selby, 2 Barn. & Cress., 927; Waddell vs. Rattew, 5 Rawle, 231. As to the other question there is more difficulty, Mrs. Demill was one of the children of Henry J. Willett, was in esse at the death of John Willett the testator, but died before the happening of the contingency, which made the substituted contingent remainder in fee to the children of John Henry Willett take effect or vest. Did she take an interest which was transmissible to her — 190 — children? As a general rule a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chances to die before the contingency happens. Fearne, 364. Chancellor Kent states the rule thus: “It is settled that all contingent estates of inheritance, as well as springing and executory uses, and possibilities coupled with an interest, where the person to take is certain, are transmissible by descent, and are devisable and assignable.” 4 Kent, 262. This doctrine is vigorously criticised by Mr. Bingham in his hook on Descents, {see. 6,) hut it has been recognized by this Court in several cases,-and Ave are, of course, bound by those decisions. The rule by its terms applies where the person to take is certain, that is, Avhere an individual is named or definitely described as the party to take when the contingency happens; and of this the case of Hambleton vs. Darrington, 36 Md., 435, affords an illustration. Of like character are the other Maryland cases to which reference has been made. Snively vs. Beavans, et al., 1 Md., 208; Buck vs. Lantz, 49 Md., ■444. Now does this rule apply to a case where there is a limitation by way of contingent remainder to children as a class, and where there are those of the class answering the description, and capable of taking at the time the contingency happens and the estate arises and becomes vested? A large number of cases have been cited to sustain either side of this proposition, but we do not deem it necessary to refer to them at length, or to discuss the principles, or draw the distinctions on which they rest. We must look to the will before us, and keep in mind certain familiar rules applicable to the construction of all wills. Now the first object the testator had in view in constructing this clause of his will undoubtedly was to provide for his grandson and his children or descendants. This was his primary purpose, and there he sup — 191 — posed the property would go. But should it so happen that his grandson should leave no child or descendants, then, and in that event, he said the property should go, not to his own children or his own surviving children, hut “to the children of his son Henry.” He describes those who should. take in that event, as he had a clear right to do, and fixed the time at which the description was to be applied. He had the clear right to do this, and a Court has no right to put other words into his will, or to place upon those he has used any other than their usual and accepted meaning; and clearly not where there is no necessity for doing so. The word “children” does not ordinarily denote “grand-children,” and is not to be s.o construed, unless the will clearly manifests that such was the intention of the testator. It is quite impossible to say in this case that the testator meant that grand-children as well as children of his son should share in the estate when the contingency which he had prescribed fell out. Nor is there any necessity for putting such a construction on his language, for there are children here to take, and in such a case Sir William Grant said, “I never knew an instance where there were children to answer the proper description, that grand-children were permitted to share along with them; although, where there is a total want of children, grand-children have been let in under a liberal construction of the word children. ” Orford vs. Churchill, 3 Ves. & Bea., 69. It seems to us to be clear law, as well as good sense, that in a case like this where there is an ultimate limitation upon a contingency to a class of persons plainly described, and there are persons answering the description in esse when the contingency happens, they alone can take. The Supreme Court of New Hampshire, in a very well considered case, and after a careful review of the authorities said: “The result, then, of the authorities, in our opinion, is, that, if there be a bequest to one for life, — 192 — and then to the children of the testator, or the survivors of them, those children will take, who, at the death of the tenant for life, answer the description in the will, to the Exclusion of the representatives of those who are then dead. This, we think, is the rule when the bequest is in these terms and nothing more; subject, of course, to be controlled by a manifestation in the will of a different intention.” Hill vs. Bockingham Bank, 45 N. H., 270. That case is a much stronger one than this, for there the limitation after the life estate was to the testator’s living or surviving children, and if such words, as “living,” “surviving” or “remaining” had been used in this will, it might possibly have opened the way for a reference of them to the children of the son living, surviving, or remaining at the death of the testator, which would have let in Mrs. Demill to a share or interest in this property. Again in Turner vs. Withers, 23 Md., 18, a testator devised property to his son and four daughters for life, to be equally divided between them, and in case his son. or either of his daughters should die leaving children or descendants living at the time of his death, his or her share should go to such child or descendants in fee; but, should either of them die without leaving any children or descendants alive at the time of his or her death, the share of the child so dying “shall be equally divided between my remaining children during the term of their natural lives.” The son died shortly after the testator, without leaving children or descendants, and the four daughters then divided the estate between them. Then, Mary, one of the daughters died leaving children; then Margaret, another daughter, died without leaving children, and the question was, what became of Margaret’s share. The two surviving sisters, children of the testator, claimed the whole of it, while the children of Mary, who were the grand-children of the testator claimed a share of it. The Court held, as here, that the remainder was limited with — 193 — a double aspect; that if Margaret left a child or descendants alive at the time of her death then to them in fee, hut if she left none, (which was the contingency that actually happened,) then the devise was to the remaining children of the testator for life; and in reference to this the Court said: “The parties taking the remainder take hy purchase as devisees under the will, and must answer the description of the parties named as devisees, and it is clear that no one can take except a child of the testator. The children of Mary do not answer this description, and cannot, claim as devisees.” Bo in this case we hold that no one can take as devisee under this limitation except those who were children of Henry J. Willett at the time the contingency happened, and we find nothing in other parts of the will to warrant the inference that the testator intended any thing else, nor any necessity for putting a different construction on his language. (Decided 12th June, 1889.) Decree affirmed.