3 Gill 83 | Md. | 1845
delivered the opinion of this court.
The codicil to the last will and testament of William Beanes contains the following devises, viz: “Whereas, by my said .will, I do will and devise to John Read Magruder, my present .dwelling, and all the grounds, garden, buildings and enclosures attached thereto; also the mill, meadows, and all tire land attached to and adjoining the same, during the life of my brother,
On reading the herein before recited clause of the codicil, we think the intention of the testator is apparent, that the one-third part of the debts and residue of the testator’s estate, bequeathed in trust for Millicent Magruder, should vest in her trustee at the same time, and upon the same contingencies, with the moiety of the proceeds of the sale of the real estate mentioned in the preceding part of the said clause. Such intention being conceded, it is the duty of the court to carry it into effect, if not inconsistent with some unbending rule of law. In order, therefore, to arrive at a correct interpretation of the bequest in relation to the residue, &c., it is proper to ascertain the true construction of the devise of the real estate disposed of in the preceding part of this section of the codicil. That a trust estate, for life only, is in the first instance given to Philip Key, cannot be denied. That there is no limitation over of the property devised, (conceding that the life estate had been unincumbered by the trust,) to the heirs or issue of the body of Philip Key, so as to let in the operation of the rule in Shelly’s case, is equally undeniable. The limitation over, after the trust estate to him
Assuming this to be a correct view of the intention of the testator, let us see what is the character of the estates, created by this codicil, and how far, according to the established principles of law, applicable to such subjects, this intention of the testator can be carried into effect. In Hoxton and wife’s lessee vs. Archer and others, 3 Gill and John., 199, this court say ccii is a general rale, in the construction of wills, that a limitation, which may operate as a remainder, shall not be construed an executory devise.” And this is but the assertion of a horn-book principle of the Jaw of England. The limitation in fee simple (o Philip Key, cannot operate as a vested remainder as its coming into existence, or vesting, depends on a contingency which may never happen, to wit: Philip Key’s having lawful issue. It is good as a contingent remainder, because of the previously given particular estate for life, on which it depends, and which supports it. The happening of the contingency terminates the life estate in Philip Key, and creates a fee simple in its stead And the non-occurrence of the contingency, and natural termination of ihe particular estate for life, by the death of Philip Key, gives effect to the substituted contingent remainder in fee, in favor of John H. Beanes and Millicent
Having, as we suppose, ascertained what, according to the rules of law, was the intention of the testator in the devise made by him, in favor of John H. Beanes and Millicent Magruder, of the real estate mentioned in the first part of his codicil; and having assumed, what we think cannot be denied, that the testator intended that his bequest, in their favor, of the residue of his estate and debts should take effect at the same time, and upon the same contingences that are applicable to tire realty; let us see, as this bequest of the residue, &c., is to be regarded as a disposition of personalty, how far the intention of the testator, in relation to it, can be effectuated according to the established rules of law applicable to such subjects.
According to the old doctrines of the common law, a gift or grant of chattels for life, vested the absolute property in the donee or grantee; and a bequest of them by will for life,f (amounted to so absolute a gift as to invalidate any further limitation after the first legatees death,” But in note (E.,) to Fearne Con. Rem., 402, it is stated, that “in personal property, under which both chattels real and chattels personal are included, there cannot be a remainder in the strict sense of the word; and therefore,
Assuming then, that John H. Beanes, or he who represents him, is entitled to the fund sought to be reached in the present proceeding, and that the trastee of Millicent Magruder is entitled to the sum bequeathed to her under the residuary clause of the testator’s codicil, the remaining enquiries are, has he shewn himself entitled to recover it, under the proceedings now before us? And if so, to what amount is the recovery to be had?
The opinion we have formed upon the first of these enquiries superseded the necessity of our consideration of the second, and also our determination of a large proportion of the numerous questions which were raised and discussed in the trial of this cause.
To entitle a party seeking to recover in a court of equity, against one of several sureties in a trustee’s bond, the whole amount of his claim against the defaulting trustee, he must prove not only the insolvency of the principal in the bond, but of all the other co-securities. In the record before us there is no evidence to shew, that Philip Key, one of the securities, died insolvent, or that his estate in die hands of his representatives is not abundantly sufficient to meet all liabilities against him, in virtue of his suretyship. Nor have his representatives been made a party to this proceeding of the trustee of Millicent Magruder, nor have they had any opportunity of answering his petition. The order of the chancellor, appealed from, is erroneous upon this ground, if exempt from the many other errors which have been imputed to it. But apart from this objection the whole proceeding on die part of die trustee is clearly erroneous, upon another ground: a court of chancery has no power to grant the relief prayed for under the circumstances existing in this case; it has no such jurisdiction over the subject matter as would warrant its granting the relief which, has been prayed.
It is true, that where, in a suit in chancery, there is a fund in court for distribution, a person, not a party to the suit, (if all the necessary parties are before the court,) may, in the sum
The order of the chancellor, of the 12th of May 1843, appealed from in this case, is reversed with costs.
order reversed with costs.