Clarke v. Smith

49 Md. 106 | Md. | 1878

Alvey, J.,

delivered the opinion of the Court.

The principal question in this case depends upon the construction of the third clause in the will of William Williams, deceased. The testator left three sons, to each of whom he devised land ; and the devise to his son Robert D. Williams, being the third clause in the will, is as follows : “I give and bequeath unto my son, Robert D. Williams, the farm I purchased of Wm. A. Dick, containing one hundred and fifty acres, more or less, and also the farm where Charles Wayman now lives, containing 202 acres, more or less, during the term of his natural life, and no longer, and after the death of my said son, I give and devise the said farm to his heirs laiofully begotten, forever, to be equally divided between them ; but should my said son, Robert, desire to sell the farm whereon Charles Wayman now resides, I hereby authorize and empower him so to do, and also to convey the said land in fee to the purchaser or purchasers.”

The devises made to the other two sons, William A. Williams and John B. Williams, by the first and second clauses of the will, are in substantially the same terms as those employed in the devise to Robert D., omitting only the express power of sale appended to the third clause. There is also a residuary clause in the will, whereby all the rest and residue of the testator’s estate is given to his three sons, to he equally divided between them.

The question is, whether the estate taken by Robert D. Williams, the son, was one for life only, or one in tail general, converted by the statute into a fee simple.

It would seem to he clear on authority, that a devise to a party and his- heirs lawfully begotten confers only an estate tail; the word heirs, in such case, being construed heirs of the body. Co. Litt., 20b, and n. 2; Good vs. Good, 7 El. & Bl., 295; Pratt vs. Flamer, 5 H. & J., 10. Hence we may read the devise in this case as being to the first devisee for life, and no longer, and after his death to the heirs of his body lawfully begotten.

But it is insisted by the appellees that the word heirs, as used in this devise, should he taken to mean children, and instead of being a word of limitation, it should he taken as a word of purchase. And upon this construction, the result would he, that the son, the first devisee, would take hut a life estate, with remainder to the children as purchasers. For this construction, reliance is placed upon what is supposed to be the apparent intent of the testator; and as evidence of that intent, the negative or restrictive words used in connection with the devise of the estate for life, and the subsequent words of division, used in connection with the devise to the heirs, followed by the power of sale to the first devisee, are urged as making the matter plain and incontrovertible. But, in our view of the case, these indications of design do not remove all the difficulties out of the way of the construction contended for by the appellees.

It is a well settled rule of construction, that technical words of limitation used in a devise, such as heirs generally, or heirs of the tody, shall be allowed their legal effect, unless from subsequent inconsistent words it is made perfectly plain that the testator meant otherwise. Or, to use the language of Lord Eldon, in Wright vs. Jesson, 2 Bligh, 1, the words heirs of the body will indeed yield to a particular intent that the estate shall he only for life, and that may he from the effect of superadded words, or any expression showing the particular intent of the testator, but that must be clearly intelligible and unequivocal.

This principle is very clearly stated and adopted by this Court, in the case of Simpers vs. Simpers, 15 Md., 160, 187, It results from the great necessity, always acknowledged by the Courts, of adhering to established rules of construction, in order to maintain certainty and stability of titles.

It maybe assumed as certain, that the testator intended, by the devise of the remainder to the son’s heirs lawfully begotten, that the son’s descendants, or posterity should take the estate ; and that, too, without restriction to the son’s children that might be living either at the death of the testator or the devisee for life. This being so, the question is, by what principle does the law provide for executing that intent? A general rule of construction must bo invoked, and that rule is, if an estate of freehold be devised to a man, and either mediately or immediately, an estate is limited to the heirs of his body, he will take an estate tail. If all embraced within the description of heirs or heirs of the body of the first taker are designed to take, giving to those words their legal and technical meaning, then the only mode of effecting that general intent is by the application of the general rule just stated. All taking in the character of heirs, in such case, must take by descent from the first taker. This is the operation of the rule in Shelley’s Case, which has been for ages an established rule of property. Jones vs. Morgan, 1 Bro. C. C., 206; Simpers vs. Simpers, 15 Md., 187. And the question here is, whether the force of this rule is fairly overcome by the circumstances indicative of a particular intent, relied on by the appellees.

It has been settled by numerous decisions, that a devise to one for his natural life, or for his life only, with remainder to his heirs, will not restrict the first devise to a life estate. And in the case of Robinson vs. Robinson, 1 Burr., 38, the devise was of “ all my real estate, &c. to H. for and during the term of his natural life, and no longer,” provided he take the name of the testator, and live at the house, &c.; “and after his decease, to such son as he shall have, lawfully to be begotten, &c.; and for default of such issue,” then over. That devise was, upon most thorough consideration, determined, first in the King’s Bench, then in Chancery, and finally in the House of Lords, to pass an estate tail to H., the first devisee. And the decision proceeded upon the ground, that it was necessary that H. should take an estate tail, in order to effectuaté the manifest general intent, notwithstanding the express estate devised to H. for his life and no longer. See, also, the case of Thong vs. Bedford, 1 Bro. C. c., 313, and note thereto by Eden. Indeed, it is text-book law, that no expressions negativing the continuance of the devisee’s estate beyond the period of his life, however express or unequivocal, when not combined with other indications of intent, will be sufficient to exclude the rule ; for the intent to give but a life estate is as clearly evinced by the mere limitation of a life estate as by any'additional expressions. 2 Pow. Dev., 433; 2 Jarm. Wills, (Ed. of 1855,) 246. And .it is equally clear that the terms to be equally divided between them, have no such effect as to restrain the operation of the words heirs of the body, and convert them into words of purchase. 2 Pow. Dev., 464; 2 Jarm. Wills, 277. In the leading English case of Wright vs. Jesson, in the House of Lords, reported in 2 Bligh, 1, where the whole subject was most thoroughly discussed and considered, the devise was to W. for the term of his natural life, he keeping the buildings in repair; and from and after the death of W. to the heirs of the body of the said W. lawfully issuing, in such shares and proportions as he, the said W. b}r deed or will, should appoint, and for want of such appointment, then lo the heirs of the body of the ■said W. lawfully issuing, share and share alike as tenants in common, and if but one child, the whole to such only child ; and for want of such issue, then over. That devise was held to confer upon W. an estate tail; and the reasoning upon which the judgment was based, proceeded upon the familiar doctrine, that where there is a particular and a general or paramount intent, the latter must prevail, and Courts are bound to give effect to it. There the general intent was, that all the descendants of W., to the remotest generation, should take before the devise over became operative ; and the apparent particular intent was, that W. should take but a life estate; and in order to effectuate the general intent, it was held, that the remainder limited to the heirs of the body became immediately executed in W., and that he thereby took an estate of inheritance. So in this case ; and, according to our law, though different in England, the direction that the estate should he equally divided among those taking as heirs, is not inconsistent with or repugnant to the descent from the first taker to his heirs as such.

It is quite clear then, if there was nothing more than the negative or restrictive words connected with the gift for life, and the direction that the estate, when it devolved on those in remainder, should be equally divided among them, an estate of inheritance would he executed in the first devisee.

It is urged, however, that, the power of sale expressly given the son as to part of the estate devised, is strongly indicative of the testator’s intention-to give hut a life estate to the son. But the most that can he said of such power is, that it may he regarded as some evidence of the testator’s construction of his own words used in the previous devise. There is nothing conclusive in regard to it; and, as will he observed, there is no direction as to the proceeds of sale. If we take the power of sale appended to the third clause of the will as evidence of what the testator understood to he the effect of the devise to his son Robert, that evidence equally applies to the two preceding devises to his sons William and John. But, upon authority, the giving of such power after the devise, can have no such controlling influence as is claimed for it. It has been decided in numerous cases, that the interposition of an estate to preserve contingent remainders, between the estate for life and the limitation to the heirs of the body, or a declaration that the first taker shall' have power of jointuring, or that the estate shall he without impeachment of waste, will not vary the legal import' of the technical words, or prevent the remainder to the heirs from becoming an executed estate in the ancestor. 2 Pow. Dev., 434; 2 Jarm. Wills, 246; Poole vs. Poole, 3 Bos. & Pul., 620, 627. Such provisions of the will are as strongly confirmatory of the intention to give the first taker but a life estate, as the power of sale can he ; for all such powers and provisions are nugatory, upon the supposition that the first taker acquires an estate of inheritance.

We must therefore conclude, that none of the circumstances relied on, considered either separately or all combined, sufficiently indicate a plain and unequivocal intention of the testator, to use the words heirs lawfully begotten in the sense of children, rather than in their strict technical sense. Those words are of strict legal import, denoting in themselves the nature and character of the estate devised ; and they have less flexibility than the word issue, Which has frequently, upon the context of the will, and in deference to a plain intent, been construed as synonymous with children. Horne vs. Lyeth, & H. & J,, 439; Chelton vs. Henderson, 9 Gill, 432.

(Decided 26th June, 1878.)

Having concluded that Robert D. Williams took an estate tail general under the devise to him, that estate, by operation of the statute to direct descents, is converted into a fee simple estate, and, as such, is liable' to the debts of.the devisee. Newton vs. Griffith, 1 H. & G., 111; Wells vs. Beall, 2 Gill & John., 458.

The next question is, whether the contract of the 27th of May, 1873, between the appellant and Robert D. Williams, can be specifically enforced? Robert D. Williams is dead, and at the time of his death he was largely indebted by judgment and otherwise, according to the allegations of the bill, the truth of which is admitted by the demurrer. By the contract, Robert D. Williams obligated himself to relieve the farm sold to the appellant of all liens created by his debts, and to fix and charge such liens exclusively upon the Dick farm, retained by him. In the present attitude of the case, with nothing disclosed except the matters charged in the bill, and the contract as an exhibit, we can perceive no good reason why the contract should not be specifically enforced against the land that was agreed to be charged to the exoneration of the land sold to the appellant.

We shall therefore reverse the pro forma decree of the Court below, sustaining the demurrer and dismissing the hill, and shall remand the cause for further proceedings.

Decree reversed, and cause remanded.