52 Md. 592 | Md. | 1879
delivered the opinion of the Court.
This appeal brings up for our construction the will of Joshua T. Estep, which was dated the 6th day of August, 1861, and which was admitted to probate on the 13th day of April, 1864. That part of the will, which we are called upon to interpret, reads as follows : “ Item 2nd, I give and bequeath to my following named illegitimate sons by Mary Emily Cross, as follows: to Henry Clay Cross, Arthur Cross and Julian Cross, all my real and personal property, to he equally divided among them, after reserving property enough to rent or hire yearly for the sum of one hundred and fifty dollars, for the support of Mary Emily Cross during her life-time, or so long as she lives a life of a virtuous woman, and all my just debts are paid. I also make this provision in my will, that in case one, or more, or all of the above named children should die before deceased shall arrive at the age of maturity, or after they have arrived at the age of maturity, and die without issue or lawful heirs, the property, both real and personal, belonging to the deceased one to he equally divided among the other two surviving children; and in case that one more should die before he arrived of age, or without issue or lawful heirs, the surviving child to have all of the two deceased ones property, both real and personal; and I furthermore provide, that if all of the children named in this will should die without heirs, then the property contained in this will I devise and bequeath to the heirs of John C. Estep, and the heirs of Margaret P. Shaw, to he equally divided among them, share and share alike.” The next and last clause of the will appoints an executor and a guardian for his said children.
It is not necessary for us to consider the question, raised in argument, whether the averments of the hill are suffi
The will before us must he construed without the help of the Act of 1862, ch. 161, which has been invoked in its aid by the appellants. The case of Magruder & Tuck, Ex’rs vs. Carroll, 4 Md., 335, so strongly relied on by counsel to establish the right to construe this will by the provisions of that Act, which was passed after the will was made, so far from sustaining that proposition, is adverse to it. In that case the Court was considering the effect of the Act of 1849, ch. 229, on wills made before its passage, and the Court puts its decision expressly upon the presence of the second section in the Act, which provided for its retroactive effect upon wills made before its passage, where the makers thereof should not die before the first day of June, 1850. In the opinion, Judge LeGrand says, “if the Act were constituted of the first section, we would not experience any difficulty in deciding that it was intended, and did in fact operate only on wills executed after the first day of June, 1850.” In Johns vs. Hodges, 33 Md., 521, the same question was before the Court, after the Code had been adopted, wherein the second section of the Act of 1849 was omitted; and the Court decided, that with the repeal of the second section, which the Code had effected, by its omission, its retroactive effect was destroyed and it must be held to operate only on wills made subsequent to it. The Court there says “ the will, having been executed before it, is beyond its reach, and must he governed by the law as it existed when it was made.” The reason for such a decision is substantial. The testator is presumed to know the law as it exists, and to . have made
The intent, however, must clearly appear from the language used in the various parts of the will; and unless the intent is clearly and certainly different from that which the technical language he has used may import, we must adhere to their technical signification, and give effect to the will accordingly. The first object the testator, in this case, had in view, was suitable provision for his three sons named in the will. The general intent manifestly was to give his estate to them, in equal proportions, and the issue of each was to succeed to the father’s estate. If either died “without issue or lawful heirs,” the survivors or survivor, as the case might he, was to take the whole. In this expression, “that in case one or more, or all of the above named children should die before deceased should arrive at maturity, or after they have arrived at the age of maturity,” and die “ without issue or lawful heirs, the property both real and personal, belonging to the deceased one to he equally divided among the other two surviving children,” the word all, on which so much stress has been laid in argument, can mean nothing more than the word “any.” In the connection in which it is used, and with reference to the provision which the testator was then making, the testator has bunglingly said that he means the qualification .he is imposing to apply to every one of them, as respects the devolution of the estate on the survivors in the contingency named. It is very certain from the language used what object the testator had in view. He intended to give more than a bare life estate. If the word issue meant children only in that connection, he would not have added, by way of more clearly defining his
Dying “without issue” or “without heirs,” by a long list of cases in this State, beginning with Davidge vs. Chaney, 4 H & McH., 393, and ending with James vs. Roioland, page 462 of this volume, when applied to real estate, have uniformly been held to mean an indefinite failure of issue or heirs, unless there were other words or provisions in the will which enabled the Court to see with reasonable certainty that the testator did not so mean. The absence of such language to qualify that expression, so that we can limit it, without doubt as to what the testator meant, compels us to give these words in this will their technical signification. When the testator was making a limitation over as between the children (his devisees) to the survivor of them in the contingency named, he uses terms which may very naturally he understood, under the circumstances, to mean heirs of the body; hut when he comes to make a limitation over to collaterals, when the last of the sons should die, he uses very different language to designate the contingency he had in his mind. He does not say now “without issue or lawful heirs,” but “without heirs,” which in legal contemplation means a very different thing; and it is to he observed that in designating the contingency he intended to provide for, and in describing the contingent devisees he used the same term “ heirs,”
The contingency, upon which the limitation over is made to depend, being an indefinite failure of heirs, the devise over is void. This being so, the estate of the first takers becomes absolute; and the appellee, Henry Olay Cross, being admitted to he the son of the testator and the said Mary Emily Cross, and only heir-at-law of the survivor of the three devisees, his brothers, is entitled to the real estate. The decree of the Circuit Court for Prince George’s County, dismissing the hill, will be affirmed.
Decree affirmed, with costs.