33 Md. 11 | Md. | 1870
delivered the opinion of the Court.
The record shows that judgment was rendered and the exception signed in this case on the 5th of June, 1866. The appeal was taken on the 21st of the same month, and, being thus in time, the delay in the transmission of the record is presumptively the fault of the clerk and not of the appellant. The case does not come within the operation of the new rule on that subject, recently adopted by this Court, which took effect on the 1st of January, 1870, after the present record had been brought up. The fact that official copies of two documents, used in evidence and contained in the exception, appear to have been made as late as August, 1869, cannot affect the,appeal which the record shows was taken in- due time. The motion to dismiss is, therefore, overruled.
The property in dispute appears to be leasehold, and the prayers on either side raise the question of the construction of a clause in the will of William Price, executed in 1828, and admitted to probate the 15th of October, 1831, under which it is assumed the title is derived. By this will the testator devised to several of his grand-children certain houses and lots in the city of Baltimore, among which, that in dispute is alleged to be embraced in the following clause: “And to my grand-daughter, Sarah John Price, her heirs, executors, administrators and assigns, my lot of ground on Alice Anne street, with the three story brick house thereon, (including basement,) adjoining that on the same street above devised to my grandson, William Price. But in case of the decease of
ISTo doubt could exist of the correctness of the construction placed upon this will by the Court below if the subject of the devise were a freehold estate. The authorities on this point are too numerous and clear to leave room even for argument. There is, however, a distinction, subtle it may be, but too well settled now to be overturned, between an executory limitation of personal property upon a dying “without leaving issue,” (the words of the present will,) and the same limitation of real estate. This distinction, the leading authority for which is Forth vs. Chapman, 1 Peere Wms., 663, runs through all the decisions, and applies even where real and personal estates are comprised in the same gift. Biscoe vs. Biscoe, 6 G. & J., 236; Usilton vs. Usilton, 3 Md. Ch. Dec., 36; Budd vs. Posey, 22 Md., 48; Woodland and Wife vs. Wallis, 6 Md., 151; and Wallis vs. Woodland and Wife, et al., 32 Md., 101. In most, if not all the Maryland cases in which this distinction has been taken and followed, the subject of the limitation has been money or personal chattels. But, in Forth vs. Chapman, there was a devise of both freehold and leasehold estates to two nephews, and if either
In Beauclerk vs. Dormer, 2 Atk., 314, also a leading case upon this law of executory devises and contingent limitations Lord Hardwicke said : “ It would be of very mischievous consequence and introduce great confusion if the Court should admit of a distinction between chattels personal and chattels real” in this respect. In Peake vs. Pegden, 2 Term Rep. 720, there was a devise of leasehold premises to a grandson and the heirs lawful of him forever, “but in case he should happen to die and leave no lawful heir” then over, and Lord
Upon these authorities and for these reasons we are of opinion the limitation over in the clause of the will under review, if the subject be a leasehold estate, is not void for remoteness, and hence there was error in the Court’s rulings upon the prayers for which the judgment must be reversed, and the cause remanded for a new trial.
Judgment reversed and
new trial atoarded.