Combs v. Combs, 67 Md. 11

Combs v. Combs

67 Md. 11 | Md. | 1887

Bryan, J.,

delivered the opinion of the Court.

The will of Alexander Combs contained the following clause: “I give and devise all my estate, real and personal, to my son, George H. Combs, to him and the heirs of his body lawfully begotten, with full power and authority to him, the said George H. Combs, to sell and convey the same in his life-time, or to dispose of the same by last will and testament; but should he, the said George H. Combs, die without issue of his body lawfully begotten, and without having disposed of the same by sale, or by last will and testament, either in whole or in part, then I give and devise my said estate, both real and personal, or the part remaining as above undisposed of, to my cousins, James Nathaniel Combs and Thomas B. Price, in equal portions, share and share alike, to them and their heirs.”

We are to decide whether the limitation to James N. Combs and Thomas B. Price is valid. By virtue of the Act of 1862, chapter 161, the words of the will “die without issue of his body lawfully begotten,” must be construed to mean a definite failure of issue, and will support the limitation over, if other words in the will do not prevent this result. The testator gives his estate to his son George and the heirs of his body lawfully begotten, with full power and authority to sell and convey it in his life-time, or to dispose of it by last will and testament. It is difficult to see how the devisee could have more absolute control and dominion over the property. Even if there had been no words of inheritance, and the estate had merely been devised to George generally and indefinitely, the absolute power of disposition would have carried the fee. Benesch vs. Clark, 49 Md., 497. An executory devise may be limited after a fee simple; but in such case, the *17fee must be made determinable on some contingent event. It must be provided that the fee is to cease, and the executory devise to vest on a contingency, which must happen, if at all, within a lile or lives in being and twenty-one years and a fraction thereafter. In the case before us, the fee given to George is absolute and unqualified, and is not determinable on any event whatsoever. In Ide vs. Ide, 5 Mass., 500, Chief Justice Parsons in speaking of a similar case said: “Whenever it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void, because it is inconsistent with the absolute property supposed in the first devisee. And a right in the first devisee to dispose of the estate devised at his pleasure, and not, a mere power of specifying who may take, amounts to an unqualified gift.” And Chancellor Kent in delivering the unanimous opinion of the Court of Errors in Jackson vs. Robins, 16 Johnson, 537, said: “We are obliged to say that an absolute ownership or capacity to sell, in the first taker, and a vested right by way of executory devise in another, which cannot be affected by such alienation, are perfectly incompatible estates, and repugnant to each other, and the latter is to be rejected as void.” Both of these great jurists cited and relied upon The Attorney-General vs. Hall, (Fitzgibbons, 314,) decided by Lord Chancellor King, assisted by the Master of the Rolls and Chief Baron Reynolds, and quoted with approval by Lord Hardwicke in Flanders vs. Clarke, 1 Vesey’s Reports, 9. These assuredly are authorities of great weight. We think that they ought to be considered as settling the law; although contrary opinions have been declared by some very learned Courts.

(Decided 15th March, 1887.)

We agree with the Circuit Court in holding that the executory devise is void, and that on the death of George Combs intestate, the land descended to his heirs-at-law.

Judgment affirmed.