78 Md. 108 | Md. | 1893
delivered the opinion of the Court.
William W. Handy by his will devised and bequeathed certain real and personal property to his wife for life, and also made devises and bequests to his children.
If the words referring to the “child or children of any deceased child” had been omitted, we suppose that the meaning of the clause would have been quite clear. In a book of great authority, a very simple and satisfactory test is given by which a vested estate may be known. It is thus stated: “Now, when a remainder is limited to a person in esse and ascertained, to take effect, by words of express limitation, on the determination of the preceding particular estate, this remainder is most clearly and unquestionably vested. The person to whom the remainder is limited may, in respect of the limitation of his estate, assert a right to the possession, as soon as the possession shall fall. ” 1 Preston on Estates, 10. In the reports of decided cases, we may" find paraphrases and amplifications of the language in which this rule is expressed. For instance in Moore vs. Lyons, 25 Wendell, 144, in the Court of Errors, the Chancellor said: “Eor where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the
Jesse T. Handy, one of the sons, survived the testator and died without children before the life tenant. By his last will he gave all his property to his wife for life, with power to dispose of it at her death. She also died
Theyw'o forma decree of the Court below not being in agreement with our views must he reversed, and the cause remanded in order that a decree may be passed in accordance with this opinion.
Decree reversed, with costs, and cause remanded.
(Decided 22nd June, 1893.)
A motion was made on the 10th of July, 1898, in behalf of Julia J. Handy, for a re-hearing of the foregoing case. The motion was overruled.
delivered the opinion of the Court.
A motion for a re-argument has been filed in behalf of Julia J. Handy. She is the only child of Charles Handy, a son of the testator, who died in the life-time of his father. The motion is made on the supposition that we decided that she was not entitled to participate in the division of that portion of her grandfather’s estate which was left to his widow for life.
In the hill of complaint filed in this case, it is alleged that she and certain other descendants of the testator are the only persons entitled to an interest in this property. It was not denied in the pleadings or in the argument that she was entitled to an interest in the property; but in one of the answers it was maintained that the representatives of Jesse T. Handy, a son of the testator who survived him, and who died in the life-time of the widow were also entitled to a share. And this was the controversy in the case. We decided this controversy; but had no occasion to consider the rights of Julia J. Handy, as they were not drawn in question.
The property at the death of the widow was to he divided among the testator’s children; “the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled.” A share of the property vested in each of the children who were living at the time of his death, and if any child died before the period of distribution leaving children, they were substituted in his place; his share however, was not divested if he left no children, but it went to his representatives. Jesse T. Handy was in this latter category. Julia J. Handy’s father died before the testator made his will; and he, therefore, had no interest in the property. But, nevertheless, the testator’s intention was clear that she should take a child’s part. The child of any deceased child was, by the terms of the will, to take the portion to which the parent would have been entitled, if living at the time when the division was appointed to take place. It made no difference whether the death occurred in the life-time of the testator or after his decease; the mere fact that the parent was dead at the time of the expiration of the widow’s life estate was sufficient to complete his child’s title. If the deceased parent survived the testator, the child took by substitution in his place; but if he died in the life-time of the testator, the child’s title was by direct and original gift.
We see no necessity for a re-argument and shall therefore overrule the motion.
Motion overruled as unnecessary.