53 Md. 311 | Md. | 1880
delivered the opinion of the Court.
The appellants brought ejectment in the Superior Court of Baltimore City, against the appellees to recover possession of a house and lot on Madison street, in the City of Baltimore. The case was submitted to the Court without the intervention of a jury. A pro forma judgment was entered for the defendants and appeal taken to this Court. The property sued for is leasehold property, and the appellants’ right to recover depends upon the construction
The appellants admitting the devise over to be a good and valid executory devise, contend that the contingency
From an early period in England, and always in this country and State, in the construction of wills, Courts have adhered to the technical meaning of the word “ heirs ” and “ isssue,” much less rigorously, when the devise over on the failure thereof was made, when the devise was of personal estate, than when of real estate. In the same will where both real and personal estate were devised over on the failure of issue or of heirs, the words have been held to import indefinite failure when applied to real estate, and to mean a definite failure when applied to the personalty, hy reason of some expression in the will on which the Court in the one case, felt justified in relying as indicative of the intent of the testator, and not in the other. This originated no doubt in the more permanent and enduring character of real than personal estate, and the natural presumption that the testator did not intend, as to anything destructible in its character, to provide against the indefinite failure of issue in the intended taker thereof.
The doctrine of Forth vs. Chapman, 1 P. W., 663, has been accepted law in this State, and it has been so adjudi
So also in Woodland vs. Wallis, 6 Md., 151, for .the same reason the Court held the failure to be restricted to the death of the first taker, and having determined that to be the meaning in the case of the negro, they held that the same language being used with reference to the other personal property, the same intention must be held to exist, and the words used with the same meaning, so as to make the failure of heirs a definite one, and the limitation over' good. It is well settled, however, that unless there be words in the will to explain and restrict the legal import of the words dying “without heirs,’' or “without issue,” or the like expressions, the limitation, over on such a contingenc} is void, both as to real and personal estate; “and in no case would it be good, unless made to depend on a contingency that must happen within a life or lives in being, and twenty-one years and a few months thereafter; (Budd’s Case, 22 Md., 48.) except as tocases covered by the Act of 1862. In this case, it is a concession of counsel, that the devise over is good. If that be so, then an indefinite failure of heirs has not been intended in the clause of the will under consideration. It is admitted, that if the decree over was void, the appellants would
Judgment affirmed with costs.