Donnelly v. Turner

| Md. | Mar 29, 1883

Robinson, J.,

delivered the opinion of the Court.

The testator devised all his property to his wife for life or widowhood, and upon her death or marriage, he directed that the property should be equally divided between his two children, George and Eliza, their heirs and assigns for ever.

Do the children take the property by descent or purchase is the question in this appeal ? It is said they take by descent, because the will gives to them the same estate, which they would have taken if there had been no devise of the property after the death of their mother.

Howr when one devises property to his children, it is but fair to presume, he intended they should take the property under the will. But in England, title by descent was favored by the Courts, first, because the lands in the hands of the heir-at-law by descent, was chargeable with the payment of the ancestor's debts, and then again because it favored the right of escheat upon the failure of heirs on the part of the ancestor, from whom the lands descended. On the other hand, land acquired by purchase, was not liable for debts, and upon the death of the owner, it descended first to the heirs on the paternal side, and upon failure of such heirs, then to the heirs on the part of the mother.

Title by descent was considered the worthier title, and where the will gave to the devisee the same estate in quantity and quality, which he would have taken as heir-at-law, he was adjudged to take not under the will, hut by descent or operation of law.

But it is very plain the devisees in the will now before us do not take the same estate which they would have taken as heirs-at-law, because by the common law the eldest male heir took the entire estate, to the exclusion of all others, and if the ancestor died without male heirs, the daughters took the property as co-parceners. If the testator devised his property, as in the will now in question, to all his children in equal shares, it is well settled that the devisees would take as tenants in common, and if as tenants in common they must take by purchase, there was no such thing as tenancy in common by descent. So if the common law rule in regard to descent is to he invoked, it can only he applied to cases where the devisees take by will, the same estate in quantity and quality, which they would take by operation of law.

But he this as it may, the question before us is concluded by the decision in Gilpin vs. Hollingsworth, 3 Md., 190. In that case as in this, the testator devised all his property to his children, in equal shares, and it was held that the children took by purchase and not by descent.

In this case both of the children died unmarried, intestate, and without issue, and without either brothers or sisters of the half blood. Their estate in the land, therefore, descended to their mother. Code, Art. 47, secs. 19, 20, 21. She remained unmarried, and died in August, 1874, leaving a will by which she devised all her estate to Sarah E. Turner, the appellee, in fee. Under this will the appellee acquired a perfectly valid title to the land in question, and as the appellant, in his answer to the bill’ for specific performance of the contract of sale, admits his willingness to perform it if the title be adjudged good, the decree appealed from, which directs him to execute it, must be affirmed.

(Decided 29th March, 1883.)

.Decree affirmed, and cause remanded.