100 A. 635 | Md. | 1917
This is a special case stated for the construction of a will and codicil executed by Corrilla W. Mullikin, a resident of Prince George's County, who died in the year 1906. The provisions with which the case is concerned are contained in the second and fifth clauses of the will and in the first and third clauses of the codicil, and are as follows:
*440"I give and devise to Corrilla Mullikin Bowie, daughter of said John M. Bowie" (a nephew of the testatrix), "two hundred acres of land, with the dwellings and other improvements, of the lands conveyed to me by William B. Claggett and wife, the said lands being known as `Locust Hill' and part of `Mount Oak,' the said land to be laid off so as to give her one hundred and seventy-five acres of arable land and twenty-five acres of woodland; and to Cornelia M. Bowie, the younger daughter of said John M. Bowie, *439 all the rest and residue of the said tracts of land recently purchased by me from the said William B. Claggett. In the event of the death of either of said girls without leaving issue, the property devised to either of them shall go to the survivor, in fee simple."
"The devises of `Locust Hill' farm, hereinbefore made to Corilla M. Bowie and Cornelia M. Bowie, shall vest in them, respectively, a fee simple estate and possession shall be had by them at arrival at full age; their father, as their guardian without bond, shall have charge of said real estate, manage the same in his discretion during their minority, applying the rents, etc., first as provided in the second and fourth items of this will, and then for their benefit in his discretion; in case of the death of either of said girls the survivor to have all of `Locust Hills' farm * * * and the proceeds therefrom, provided the one so dying shall leave no issue or descendants."
"It is my will and desire, and I so herein expressly declare it to be such, that either one of the devisees * * * to whom I devised my farm called `Locust Hill' * * * shall have the power and right to dispose of their said portions of said farm, when and as soon as they or either of them shall respectively attain the age of eighteen years of age by last will and testament, duly executed, to whomsoever they see fit and proper in their best judgment and discretion."
"I further amend said fifth clause * * * in this respect also, that, while I give to said Corilla Mullikin Bowie and Cornelia M. Bowie a right of disposition of said farm and the proceeds therefrom by last will and testament upon the arrival of each at eighteen years of age respectively, that neither one, if living, is to be entitled to come into the possesion of said farm or the portions thereof so devised to them in said will, or the proceeds therefrom, until they or either one of them shall respectively attain the age of twenty-one years, but that until then the same is to contiune under the control and management of their father."
The two devisees of the lands composing the Locust Hill farm survived the testatrix and are now above the age of twenty-one years. They have agreed upon a division of the lands, in accordance with the terms of the will, and have entered into possession of their respective portions. A question having been raised as to whether their title is absolute or defeasible, the present case has been stated and submitted in order that the nature of their estate may be judicially determined. The specific inquiry to be made is concerned with the meaning and effect of the provision that in the event of the death of either of the devisees without leaving issue, the land devised to the one so dying should go to the survivor. Whether this limitation was intended to apply to the death of one of the devisees at anytime without leaving issue, or is to be construed as confining that contingency to the lifetime of the testatrix, or to the period of the devisee's minority, is the question to be decided.
The provisions we have quoted from the will and codicil indicate, we think, with reasonable clearness, an intention upon the part of the testatrix that when the grandnieces, to whom she devised the farm, arrived at the age of twenty-one years, their estates should become absolute and indefeasible. It is distinctly stated in the will that the devises "shall vest in them, respectively, a fee simple estate and possession shall be had by them at arrival at full age." The management of the farm is committed to their father, as guardian, during their minority, with directions to apply the rents, in the first instance, to the payment of bequests to other persons, and then, in his discretion, for the benefit of his daughters, the devisees, until they should attain their majority and become entitled to the possession of the portions of the land devised to them in severalty. In connection with the provision to that effect the will repeats the contingent limitation of the entire farm to the surviving devisee in case of the death of one of them without leaving issue. Inasmuch as neither of the devisees was to have in possession *441 her allotted portion of the farm until she became of full legal age, and as each was then to possess her portion individually under a fee simple title, the provision that the survivor shouldhave the whole farm in case of the death of her sister without leaving issue plainly intends that the contingency specified is to be referred to the period prior to the time when the separate estates of the devisees were to vest in possession. By the codicil each of the devisees was given the right to dispose of her portion of the farm by will when she arrived at the age of eighteen years. No reference to the exercise of that right is contained in the limitation of the property to the surviving devisee upon the contingency mentioned. The devise of the farm as a whole to the survivor is made to depend solely upon the death of one of the devisees without leaving issue, and not also upon the omission of the one so dying to dispose by will of her portion of the land. The fact that the testatrix, in providing for the vesting of the farm in the surviving devisee, in the event of the death of one without issue, made no allusion to the exercise of a testamentary right which the will was conferring upon each devisee, and which was repugnant to the limitation over, suggests the idea that the stated contingency was intended to be determined prior to the existence of the declared right of disposition. But it was manifestly not the purpose of the will that the death of one of the devisees, without leaving issue, at some later period than the one fixed for the vesting of the estate in possession, should defeat the fee simple title expressly devised.
There are cases in which limitations over in the event of the death of the first devisee without leaving issue have been held to refer to the occurrence of such a contingency in the lifetime of the testator. Duering v. Brill,
Decree affirmed, with costs. *443
