64 Md. 560 | Md. | 1886
delivered the opinion of the Court.
This is an action of ejectment brought by the appellants against the appellees to recover two several parcels of ground in the City of Baltimore. The case was submitted to the Court below, without the aid of a jury, upon an agreed statement of facts, and judgment- pro forma was entered for the appellees by consent. It is from this judgment that the appeal is taken; and the object of the appeal, as declared by the agreement of the parties, is to obtain the judgment of this Court ‘-‘as to the true construction and legal effect” of two deeds made part of the agreed statement of facts submitted to the Court.
The first of these deeds, dated the 20th of April, 1836, is from John McKim, Jr., and wife, the father and mother of Ann McKim, to David T. McKim and John S. McKim,
At the date of the deed just recited, Ann McKim, the cestui que trust, was a feme-sole, but before the date of the second deed, the -28th of November, 1837, she had married Samuel J. K. Handy; for in the deed of that date she is described as the wife of said Handy. This latter deed was made by E. Gr. Waters and wife, and Samuel
Mrs. Handy never had issue of her body, and she survived her husband, Samuel J. K. Handy, and died in 1883. Her husband, Mr. Handy, died in 1871. In 1852, during the coverture, Mrs. Handy, with the assent of her
For the appellants it is contended that under the two deeds in evidence Mrs. Handy took estates in fee simple in the- property conveyed, either legal or equitable, by the application of the rule .in Shelley’s Case (1 Co. 93 b.); and that by the will of Mrs.. Handy, (the devise being saved from lapse by statute,) the title devolved on the appellants as heirs-at-law of her deceased husband. While on the other hand it is contended for the appellees, that Mrs. Handy took only an estate for 'her life under the deeds, and that, therefore, she was not competent to dispose of the property by will. These contentions give rise to the questions necessary to be decided on this appeal.
In expounding deeds no principle is more familiar or better established than that the intention of the parties shall prevail, if not repugnant to some principle or maxim of the law; and that the intention is to be gathered by considering the whole deed, and each and every part thereof. As was declared by the Court of Appeals in Budd vs. Brooke, 3 Gill, 234, “In construing a grant, it is the' duty of the Court, first, to ascertain what the parties intended should be effected by it; and that intention being collected from an inspection of the grant itself, it is the duty of the Court to give to it such an interpretation as will effectuate that intention, provided the terms and. expressions used in the grant will admit of such a construction.” And in construing deeds of conveyance of a
As Lord Ooke has well said, in speaking of the use or office of the word heirs; “there are words so appropriated by the law, as that they cannot be legally expressed by any other word, or by any periphrasis or circumlocution.” Co. Lift. 9 a. From the time before Littleton we find that the word heirs was essential in a deed for the limitation of an estate in fee. In Littleton’s Tenures, ch. 1, sec. 1, the author says, “if a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his purchase. To have and to hold to him and to his heirs; for these words (his heires) make the estate of inheritance. For if a man purchase lands by these words, To have and to hold to him forever; or by these words, To have and to hold to him and his assigns forever; in these two cases he hath but an estate for term of life, for that there lacke these words (his heires), which words only make an estate of inheritance in all feoffments and grants.” And Coke, in commenting upon this section of Littleton, after speaking of the comprehensive meaning and peculiar office of the words his heirs, says, “the reason wherefore the law is so precise to prescribe certaine words to create an estate of inheritance, is for avoiding of uncertainty, the mother of contention and confusion.” And so Blackstone, (2 Comm. 107, 108,) Wooddeson, (Lect. Vol. 2, p. 276,) Cruise, (4 Dig. tit. Deed, ch. 21, p. 295,) and Kent, (4 Comm. 5-6,) all’
This general rule, however, that the word heirs is absolutely necessary in a deed to create an estate in fee, has some few well recognized exceptions, as shown in Cruise’s Digest (4 Cr. Dig. tit. Deed, ch. 21); but the excepted cases do not embrace deeds of the character of the one under consideration. As instances of exceptions to the rule, we may refer to the cases of Budd vs. Brooke, 3 Gill, 234, 235; Spessard vs. Rohrer, 9 Gill, 261; Farquharson vs. Eichelberger, 15 Md., 73; Hawkins vs. Chapman, 36
2. We come now to the deed of the 28th of November, 1837, and that gives rise to the application of different principles from those applied to the deed just considered.
Mrs. Handy never having had children, if the use limited to her was executed, and converted into a legal estate, by force of the statute of uses, though the use was expressly limited to her for life only, that use thus executed into a legal estate would coalesce with the ultimate limitation to her right heirs, and vest in her a fee simple legal estate, by operation of the rule in Shelley’s Case. That rule, briefly stated, is this: Where an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited either mediately or immediately to his heirs, or heirs of his body, as a class to take in succession as heirs to such ancestor, the word heirs is a word of limitation and not of purchase; and the ancestor takes the whole estate. But in order that this rule may operate, the interest limited to the ancestor, and that to his heirs, must bo of the same quality; that is, both legal, or both equitable ; for if the first limitation be of a trust estate of freehold, and the subsequent one carries the legal estate, the rule will not apply, and the subsequent limitation must take effect, if at all, by wmy of remainder. This is in accordance with all the authorities upon the subject, and among them several cases decided in this Court.
What then was the nature and quality of the estate vested in Mrs. Handy, under the limitation to her for life, for her sole and separate use ? Or, in other words, treating the deed as a deed of feoffment, did the statute of
To support the action of ejectment the plaintiff is required to have the legal title and right of possession ; and in view of that requirement the appellants must have brought this action upon the assumption that the deeds in question operated as feoffments, and that all the uses declared were executed legal estates, whereby Mrs. Handy became seized of a legal fee simple estate in'the property sued for. For otherwise, upon the assumption that the conveyances were deeds of bargain and sale, the legal estate would be executed in the bargainees or trustees, and all the uses declared would be mere trust estates; and therefore, even conceding that Mrs. Handy did take an equitable fee by force of the rule in Shelley’s Case, this action could not be maintained. Matthews vs. Ward, 10 G. & J., 443.
But treating the deed as a feoffment, as we think we must do, in deference to precedent, and to effectuate the plain intention of the parties, the question whether the remainder limited to the right heirs of Mrs. Handy is an executed legal estate, is not open to any doubtful construction, but is really concluded by authority that we are not at liberty to disregard. It is true, the estate is limited to the surviving trustee in fee, but it is not to be supposed that it was intended that the estate should be held intrust
In the case of Ware vs. Richardson, supra, there was involved the construction of a deed in no material respect differing from the present, that deed being to a trustee and his heirs, in trust for the separate use of a married woman for life, and after her death to and for the use and benefit of her legal heirs; and it was held, after careful and elaborate consideration, that the married woman took only an equitable estate for life, and the heirs in remainder' a legal estate, by virtue of the statute of uses, and therefore the rule in Shelley’s Case did not apply. The present deed cannot, upon any substantial ground, be distinguished from the deed in that case, which was construed as a feoffment, and, of course, the same construction must be adopted here. That case has been frequently referred to in subsequent cases, and the principle of it re-affirmed by the Court; and any attempt to distinguish this from that case could hardly fail to restrict if not seriously to impair it as an authority, and thus produce doubt and distrust of titles held under deeds of that class. We must therefore hold that Mrs. Handy acquired no estate under either of the deeds in evidence, that she could dispose of by will; and consequently the appellants have no title, either legal or equitable, in the property sued for, by virtue of the devise to the husband of Mrs. Handy.
In conclusion, it may be proper to say that the will of Mrs. Handy was made in 1852, upon the advice of that
It follows that the judgment below must be affirmed, ■
Judgment affirmed.