| Md. | Jan 27, 1867
delivered the opinion of this Court.
The controversy in this case arises under the will of Mrs.
“I give and bequeath to my dear nephew, Tilghman Hilleary, with the reservation hereinafter specified, all-my real estate, which I own, lying and situate in Maryland, to him and- his children forever; but should he die before my nephew, Leonard Hilleary, leaving no children or issue, I then give and bequeath the said real estate to my nephew, Leonard Hilleary, to him, his heirs and assigns forever.”
This clause of the will is unaffected by any other provision, and must be 'construed by the terms therein expressed.
The construction placed on this will by Tilghman Hilleary was, that he took an estate tail, and influenced by this construction, and to dock the entail, he executed a •deed of conveyance to Daniel Clarke on the 27th of-March, 1863, for the property devised to him, and Clarke, by a deed of the same date, reconveyed it to Tilghman Hilleary, who, by his will dated the day of the deeds, devised this property to the parties named in his will.
’.1 he appellants took possession of the estate in controversy, and defended the action of ejectment on the theory, that Tilghman Hilleary, by the will of his aunt, took an estate tail, which by operation of the deeds was docked, and became an estate in fee absolute capable of being devised, and that the devise over to the appellee was upon a contingency too remote to take effect in any aspect of the case.
The appellee insists that Tilghman Hilleary took an ■estate in fee-simple, subject to the executory devise over to Leonard and his heirs, to take effect in the event of Tilghanan’s dying, leaving no children or issue in the lifetime
A vast amount of learning has been elicited and applied to the subject of estates tail, contingent remainders and executory devises, both in England and in this country, still the adjudications both there and here, have not left us without precedents, by which we can arrive at a solution of this case in conformity with those precedents, and our view of the law. While cases may be found decided by eminent jurists in England, seeming to sanction the doctrine contended for by the appellants, those decisions may in some measure, he attributed to that policy which supports and encourages estates tail as important to family settlements. On the contrary, it has been our policy to consider all the children of a parent, and by parity of reason as in this case, the nephews of the testatrix, on an equal footing, without any distinction as to the feeling and affection of a parent or relation disposing of his or her estate by will, nor is there any expression in the will under consideration to cast a suspicion upon the perfect impartiality of the testatrix.
Is there any inflexible rule of law to affect or defeat the plain language of Mrs. Hilleary’s will ? The estate given to Tilghman is certainly contingent, while that given to the appellee is absolute and certain, with apt words to express a fee-simple. Can it be doubted that the testatrix intended to make a provision for the appellee upon the contingencies which, in her judgment, might happen, and which, in fact, did happen, were they to happen within a life or lives in being certainly in the lifetime of the appellee ? If such a testamentary provision created a fee-simple with a conditional limitation and not a fee tail, as we think it did, the title is unaffected by the deeds and will of Tilghman, and the estate passed by way of executory devise to the appellee and his heirs. We shall pro»
The case of Pells vs. Brown, Cro. James, 590, is cited by this Court both in Dallam vs. Dallam, 7 H. & J., 237, and in Biscoe vs. Biscoe, 6 G. & J., 232. In the former, this Court said, Pells vs. Brown is a leading case put as an example of a good executory devise, and as the foundation of this branch of the law. In the case of Pells vs. Brown, the Court construed the will to indicate the intention of the testator to designate an event, on the happening of which, that is, the death of Thomas without issue, leaving William, his brother, the estate in fee-simple before devised to Thomas, was to determine or be defeated, and the contingent limitation to William to take effect by way of executory devise.
The case of Walsh vs. Patterson, 3 Atkins, 193, is also a case where the first devisee took an estate in fee-simple, upon the contingency that if he died under the age of twenty-one years, and without issue living at the time of his death, by the happening of which the preceding estate in fee was to be defeated and the limitation over to take effect by way of executory devise. See Powell on Devises, 223, 228, 380, 389, note.
This interesting and abstruse branch of the law is so fully considered by this Court in the case of Dallam vs. Dallam, that we have only to refer to that case and the numerous authorities there reviewed,'to sustain our view of this. We may, however, quote from the opinion the following illustrative sentence: “Theplain meaning of such a clause is, that if the party died before twenty-one, ( or as in this case, in the lifetime of his brother,) ea instanti, the fee before given to him shall determine, and the estate pass over to another, provided there be no issue at the time of his death, the dying before twenty-one and also childless*
The counsel tor the appellants rely on the views of Chancellor Kent, as expressed in Anderson vs. Jackson, 16 Johns. Rep., 382, in which the case of Pells vs. Brown is regarded by him as a special case. Still, the Supreme Court of New York sustained the executory devise in Anderson vs. Jackson, and that decision was affirmed by a majority of the Court of Enors. It may be appropriate to suggest, that the above case was decided upon the force of the statute of New York, by which estates tail are converted into estates in fee, therefore similar to our Act of Descents as decided in Newton vs. Griffith, 1 H. & G., 111, and Posey vs. Budd, 21st Md. Rep., 477.
Recurring to the prayer offered by the plaintiff and defendants, we think the ruling of the Circuit Court was right on all the prayers. In granting the plaintiff’s, the Court could not have granted the first and the third prayers of the defendants, and their second prayer could not be granted because it rested the defence upon her claim of dower. Supposing she was entitled to dower, about which we express no opinion, still it is expressly laid down in Park on Bower, 334, ch. 16, that “although the title to dower is consummate, the title of entry does not accrue until the ministerial act of assigning to her a third part in certainty, has been performed by some person.” In this case, her possession*of the whole worked a disseizin, and was an eviction of the appellees' right of possession.
Judgment affirmed.