67 Md. 11 | Md. | 1887
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
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.