Garrison v. Hill

| Md. | Mar 14, 1894

Briscoe, J.,

delivered the opinion of the Court.

This is an appeal in an action of ejectment. The property sought to be recovered is real estate, situate on Lexington street, in Baltimore City, together with its rents and profits.

The main questions for our consideration arise upon a construction of the fifth item of the will of a certain Maria E. Weise, and the will of a certain Emma M. O. Johnson.

By the fifth clause of the will of Maria E. Weise, she devised as follows: “All the rest, residue, and remainder of my estate, effects, and property of every kind and description whatsover, inclusive of my house and lot of ground on Lexington street,. I give, devise, and bequeath to Thomas Hill, of the City of Baltimore. In trust and special confidence, however, for the separate use and benefit of my cousin, the said Emma Maria C. Johnson, for and during the term of her natural life, so that she during that period be permitted and suffered to have, receive, take and enjoy the rents, issues and profits of said residuary estate, and property, free from the control, power, or disposal of any future husband she may marry; and from and after the death of said Emma Maria O. Johnson, in trust, that the said residuum shall go. to and become the property of any children of the said Emma Maria O. Johnson, their heirs and assigns, absolutely; but, in case the said Emma Maria O. Johnson should depart this life without leaving a child or children, or descendants of a child, living at the time of her -decease, then the said trust property and premises shall go to my cousin, the said William Worthington Johnson, absolutely.”

The will was dated April 12,1880, and was duly executed to pass real estate. The testatrix died December 7th, 1881, unmarried and without issue.

Emma M. '0. Johnson executed her last will and testament on the 23rd of August, 1887, and died April 22, 1891, unmarried and .without issue. By her will she devised and bequeathed, after the payment of her debts and funeral expenses, all her property to her mother, Maria M. Johnson. After the death of the testatrix, the life tenant, Emma M. ’ O. Johnson received the rents and profits of the property until her death. William Worthington Johnson, the remainderman under the will, died on the 14th of October, 1886, intestate, unmarried, and without leaving issue, but left an only sister, Emma M. O. Johnson, and Maria M. Johnson, his mother. The latter died in January, 1889.

Upon this state of facts, the question then is, do the heirs at law of William Worthington Johnson, the remainderman, take the' interest in the property which he would have taken had he survived the life tenant, Emma, or did it descend to his sister Emma, who was living at the time of his death, and pass under her will to her mother, Maria M. Johnson?

Here there is, first, a life estate given to Emma Johnson, and a remainder is limited with a double aspect — if she left children then to them in fee, if she left none, which contingency actually happened, then the devise is to Wm. Worthington Johnson.

It is well settled that contingent estates of inheritance will pass by descent and are also devisable. Reid vs. Walbach et al., 75 Md., 205.

But while this is true, and it is unnecessary to refer to the cases or to discuss the principles upon which they rest, yet it is also clear that those, only, can take who were in esse at the time when the contingency happened, and the estate falls into possession. Justice Stout, in the case of Barnitz’s Lessee vs. Casey, 7 Cranch, 456, states the rule thus: "It is very clear that contingent remainders and executory devises at common law are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happens.” It was held in that case, that those who were heirs of the remainderman on the 12th of February, 1808, the date of the happening of the contingency, were entitled to the estate, though he had died in 1802, six years before the contingency happened. And to the same effect are the cases of Spence vs. Robins, 6 G. & J., 512; Sniveley vs. Beavans et al., 1 Md., 222; Buck vs. Lantz, Trustee, 49 Md., 444; Demill vs. Reid et al, 71 Md., 190; Goodright vs. Searle, 2 Wilson, 34. Applying, then, this well established doctrine to the facts of the case now under consideration, we are clearly of the opinion that as the contingency — the death of the life tenant, Emma, without children — did not occur until five years after the death of the remainderman, she could not be heir, or take, or transmit any interest in the estate by wfil or otherwise. She was not in esse when the contingency happened, and when the estate fell into possession. Being dead, she could neither inherit nor devise it. The property, therefore, passed to those of William Worthington Johnson’s heirs alive at the happening of the contingency, viz., the death of Emma M. O. Johnson, unmarried and without issue. The plaintiffs’ prayers were therefore properly rejected. The first prayer was defective because it proceeded upon the theory that when the remainder-man, William, died on the 14th of October, 1886, his contingent interest passed to his sister Emma, and, uniting with her life estate created a fee which was transmissible by will to her mother, and passed from her to the plaintiffs. This, for the reasons we have given, was error. The second prayer involves the proposition that the estate devised to the trustee was executed by the Statute of Uses, the life tenant, Emma M. O. Johnson, being an unmarried woman, that thereby the' said Emma became the owner of the legal life estate therein, and the fee was vested in the heir at law of the testatrix, Maria E. Weise. This prayer, for the reasons we have assigned, was also erroneous.

(Decided 14th March, 1894.)

The first, second, third and fourth prayers of the defendant were properly granted, and contained the correct propositions of law bearing upon the case.

The fifth prayer granted on behalf of the defendant in•structed the jury that there was no legally sufficient evidence in the case to entitle the plaintiffs to recover. This prayer was correct, and was properly granted under the facts of the case. The judgment below being for the defendant, and finding no error in the rulings of the Court, we shall affirm the judgment.

Judgment affirmed.