119 A. 249 | Md. | 1922
While this case and the one immediately preceding involve the construction of different wills, the parties to both appeals are identical, the questions for determination are closely analogous, and both are subject to similar decisions. The will now to be considered is that of Florence Patterson Carroll, and the particular clause to be construed is as follows:
"I devise and bequeath all the property covered by item 5th of this will to my cousins, Emma Mordecai and Frank Brown, their respective heirs, share and share alike, for their respective lives, and at their respective deaths to any child or children they may have respectively in fee simple and absolutely, per stirpes. But in case either the said Emma or the said Frank should die without issue, the share of the one so dying shall go to my cousin, Alice Patterson Harris, her heirs and representatives."
As in the companion case just decided, the question here is whether the estate devised and bequeathed to Governor Frank Brown for life vested in remainder in both of his two children, or only in the one by whom he was survived. The amount of the estate affected by the decision in this case is $80,160.56. The appeal is from a decree sustaining the claim of the widow and child of the deceased son of the life tenant to one-half of the fund, and awarding the other half to the personal representatives of the surviving daughter, who has died since the life estate terminated.
The limitation in remainder, under this will, at the death of the life tenants was "to any child or children" they "may have respectively in fee simple and absolutely, per stirpes." *460 This language does not disclose an intention that the vesting in interest of the remainder should be postponed until the expiration of the life estate. The children of Governor Brown were born after the death of the testatrix, but the purpose that any children he might have should be entitled to the remainder was definitely expressed.
According to the rule quoted with approval in Cox v. Handy,
In Mr. Tiffany's admirable work on the Law of Real Property, vol. 1, p. 498, it is said: "Where a remainder is limited in favor of a class of persons, and the members of the class are not necessarily ascertained at one time, as in the case of a remainder in favor of children, grandchildren, issue, or brothers and sisters, it is ordinarily regarded as vesting, in the first place in any person or persons within the class at the time the instrument takes effect, the benefit of the remainder being extended to other persons who subsequently become members of the class before the termination of the particular estate, with the result that the shares of the previous members of the class are proportionately diminished. Thus in the case of a devise to A for life, and after his death to his children, or to the children of B, all such living at testator's death take a vested remainder, and, likewise those afterwards born before the termination of A's life estate, though until one of such children is born the remainder is necessarily contingent." *461
In the case reported under the title of In re Gilman Estate,
Apart from the effect of the limitation over if the life tenant should die without issue, it would probably not be contended in this case that the remainder to the children was contingent. But it is argued that the provision for such a possibility reveals a purpose to defer the vesting of the remainder until the life tenant's death. This contention is disposed of adversely by our ruling in regard to a similar theory advanced in the preceding case.
An additional reason for applying the principle of that decision to the present question is to be found in the particular form of this ultimate limitation. The event upon which it depended was the death of Governor Brown "without issue." That contingency would not have occurred even if he had left no children, but only his grandson, surviving. Upon the assumption that the remainder was to vest exclusively in the child or children who survived the life tenant, *462 an intestacy would have resulted if both of his children had predeceased him, because the survival of issue in the person of the grandson would have made it impossible for the contingent limitation to take effect. The testatrix could hardly be supposed to have intended that if the life tenant should die leaving issue, but no children, then neither the issue nor the final remaindermen should receive the estate, but that a condition of intestacy should exist. It seems more reasonable to conclude that the use of the term "issue" in the limitation was designed to enlarge the meaning of the word "children" so as to make it equivalent to "descendants," or to adopt the view that each child born to the life tenant acquired a vested remainder, subject to the admission of after-born children, and defeasible only in the event of his death without issue. Upon either of these theories the claim of the appellants to the whole of the estate would have to be denied. But we rest our decision upon the ground that the son of the life tenant had a vested interest in remainder which passed, upon his death intestate, to his widow and infant child.
Decree affirmed, the costs to be paid out of the estate. *463