Lednum v. Cecil

Irving, J., delivered the opinion of the Court. Andrew Callahan of Queen Anne’s County, in this State, made his will on the last day of May, 1810, and the same was admitted to probate on the 14th of June of the same year. By the fifth clause of his will he devised as follows: “I give, devise and bequeath to my daughter, Anna Laura and to her heirs, all my real estate in Queen Anne’s County, subject to her mother’s third, but if my daughter, the said. Anna Laura should [151] die without heirs, 1 give and devise the said real estate (consisting of the farm whereon I now reside, and the farm where Henry Carter resides, containing about four hundred and seventeen acres in both tracts) to my brother, John Callahan, and my sister, Rebecca Cecil, share and share alike, and in the event of their death then to their children respectively, to he divided in equal shares between them.” By the fourth clause of the will the testator devises to his wife as follows: “I also give and devise to my said wife, Sarah Anne, the one-third of the rents and profits of all my real estate in Queen Anne’s County during her life. ” The hill in this case was originally filed by Anna Laura Callahan, a minor, by her next friend, Wm. W. Busteed, against her mother, and all parties claiming any interest in the property devised to her, to procure a sale thereof, as being for her interest and advantage, and the advantage of all parties. The question now presented is by interlocutory petition of Anna Laura Callahan, now Lednum, by her husband and next friend. It avers the filing of the bill, which averred that the complainant was at least entitled to a defeasible fee in the estate, and that it was for the interest of all the parties to have the property sold, and the proceeds invested so as to enure to the interest of all the parties interested in it; that all parties interested were summoned to answer, and after due proceedings the property was decreed to be sold, and has been sold, and that after deducting all expenses, the sum of five thousand nine hundred and fifty-five dollars and twenty-three cents remains in the hands of the trustees for investment or disposition, of which no order has yet been passed. The petition then claims that she is absolutely entitled to this fund as the owner of the estate in fee, and prays the Court to construe the will and determine the rights of the parties [152] under it. An order was passed requiring the defendants to answer the petition, and afterwards, by agreement of parties reserving the right of appeal, a pro forma decree was passed on the 18th of March, 1892, “that Anna Laura Lednum, wife of J. Frank Lednum, is entitled to. the fee in the real estate in the above entitled cause, defeasible on the condition that she die without issue living at the time of her death, subject to the right of Sarah Ann Callahan, widow, in and to one-third of the rents and profits thereof during her life; and that, in the event of the death of said Anna Laura Lednum without issue living at the time of her death, the said real estate in the proceedings mentioned, and the proceeds of sale thereof, be and they are hereby adjudged and decreed to be the property of George T. Cecil, Amanda Cecil and Milton Cecil, children of Rebecca Cecil, a deceased sister of Andrew Callahan, the testator, and George Callahan, Mary Johnson and Sallie Moore, children of John Callahan, a deceased brother of said testator, share and share alike.” The decree further proceeds to order investment of the fund arising from the sale so as to protect the interests of all the parties mentioned in the decree. We think this decree unquestionably right. The testator gave his real estate to his daughter and her heirs. The technical language necessary to create an estate in fee was used by him, and effected his purpose to give the daughter a fee. By the succeeding language he attempted to make that fee defeasible upon a contingency, which he mentions, and the question is has the testator effected, by the language employed, his manifest purpose. He says, “but if my daughter, the said Anna Laura should die without heirs,” then he gives the estate to his brother and sister, share and share alike, and “their children respectively, to be divided in equal shares between them.” [153] As a general rule, all authorities agree that a limitation over upon the dying “without heirs ” of the first taker is void for remoteness. This rule, however, is not without exception, for if the person to whom the limitation over is made is such person as is capable of being heir to the first taker, only an estate tail will be taken, because the testator has indicated that he means the failure provided for to be of heirs of the body or lineal descendants — the issue of the first devisee. Fearne on Remainders, 466-67; Porter vs. Bradley, 3 Term R., 145; Gambrill vs. Forrest Grove Lodge, No. 4, &c., 66 Md., 25. Here the testator could not have intended a general failure of heirs at his daughter’s death, for he makes the limitation over on the failure named to her uncle and aunt and their children, who, if she had no descendants, could be and would be her heirs-at-law. Giving the word “ heir-s” in the connection used the meaning which the testator, manifestly, had in his mind, the contingency provided for was the “dying without issue,” and the will is to be read as if he had used that language; and the case is brought directly within the provisions of the Act of 1862, ch. 161, now codified as section 817 of Art. 93 of the Code of 1888. It reads thus: “In any devise or bequest of real or personal estate, the words ‘die without issue,’ or ‘die without leaving issue,’ or any other words which may import either a want or a failure of issue of any person in his life-time, or at the time of his death, or an indefinite failure of his 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 his issue, unless a contrary intention shall appear by the will. ” We have already said that the will shows on its face that the testator did not .mean an indefinite failure of heirs or issue. This Act has been construed and applied several times; and this case falls strictly within the rulings of this Court on [154] the subject. Mason vs. Johnson, et al., 47 Md., 355; Gambrill vs. Forrest Grove Lodge, No. 4, 66 Md., 17. The limitation over to the uncle and aunt and their children, in the event of the appellant dying without issue, as hereinbefore stated, being good under the statute, the Court was clearly right in directing the investment to be made so as to protect the interests of the remaindermen. It is also clear from the will that the testator designed that the wife should have an income during life, and it was right that she should he allowed one-third of net revenue from the investment ordered to made, during her life. The decree must he affirmed, and the costs of the proceedings will be allowed from the fund. (Decided 7th June, 1892.) Affirmed and remanded.