Pennington v. Pennington

70 Md. 418 | Md. | 1889

Alvey, C. J.,

delivered the opinion of the Court.

This case was instituted under the provisions of the Act of 1888, ch. 478, now embraced in the Code as sections 26, 27, 28, 29, 30 and 31, of Article 16, sub-title, “Declaratory Decrees,” for the purpose of obtaining a judicial declaration as to the rights of the parties upon a proper constniction of the will of Charles C. Harper, deceased. The bill prays for no specific relief, but only for a declaration of the rights of the parties. And as the statute under which the proceeding is taken is new, and introduces a new feature into the practice of our Courts of equity, it is not improper for us to say in this case, the first that has been brought into this Court under the statute, that care is to be observed whether the case presented is of a nature proper for the discretionary exercise of the jurisdiction conferred. Doubtless, in some cases the jurisdiction may be very beneficially exercised; but it should never be invoked for the purpose of having determined mere moot-points, or mere abstract or experimental questions. In all cases the Court should see that there is a real bona fide question for controversy involved, as between the parties to the cause, and that there is an existing propriety for its immediate decision. It is only in those cases where equity would have jurisdiction, if some specific or ultimate relief were asked, that the Court would he warranted in proceeding under the statute to make a declaratory decree; and the statute expressly provides, that, “no Court shall make any such declaratory decree where the plaintiff is, in the opinion of the Court, able to seek further relief than a mere declaration of title, but omits to do so.” In the case before us it does not appear that the plaintiff was able to seek other relief than a declaration of title, and consequently the Court below assumed jurisdiction and passed a decree pro forma declaring the rights of the plaintiff; and it is from that decree that this appeal is taken.

The will of Charles C. Harper bears date the 2d of August, 1834, and was admitted to probate on the 28th of October, 1837. That clause of the will that gives rise to the questions presented on this appeal is as follows :

“1. To my beloved wife, Charlotte, to whom I owe so much happiness, I devise and bequeath, for and during the term of her natural life, my farm in Baltimore County, called ‘Oakland/ as a home and residence for her and my children, with reversion at her death to my eldest son (if I have one, either born or in ventre sa mere,) for life, and after him to his eldest son in fee; and if my eldest son die without leaving male issue, then to my second son for life, with reversion to his eldest son in fee; and if he also die without leaving male issue, then to my third son, and so on, in the same manner. And if I have no sons, or they all die without leaving male issue, then I devise and bequeath the reversion of Oakland to my dear daughter, Harriet, for her life, with reversion to her eldest son in fee; and if she die without male issue, then to my dear daughter Catharine for life, with remainder to her eldest son in fee ; and if she also die without male issue, then to my next daughter, and so on, in the same manner. And if none of my daughters leave male issue, then I devise and bequeath the reversion of the said farm, after the death of my beloved wife, to the eldest daughter of my eldest son for life, with remainder to her eldest son in fee; and if he leave no daughter, then to the eldest daughter of my second son for life, with remainder to her eldest son in fee, and soforth, with the daughters of my sons. And if none of my sons leave any issue, then to the eldest daughter of my daughter Harriet for life, with remainder to her eldest son in fee ; and if she die without issue, then to the eldest daughter of my daughter Catharine for life, with remainder to her eldest son in fee, and so on with my other daughters, each in her turn. And if none of my children should leave issue, then” he proceeds to devise the farm to collateral relations. And at the conclusion of the clause containing the devises of the farm, he adds this: “But as I do not wish to establish too great an inequality among my descendants, I hereby require and direct that before any person or persons herein named or specified, shall have possession or property under this will, he or she, if my son or daughter, shall pay to his or her brother or sister (if there be but one) the sum of five thousand dollars, or distribute aifiong his or her brothers or sisters (if there be two besides himself or herself) the sum of six thousand dollars, and (if there be three besides) the sum of seven thousand dollars, and (if there be four or more) the sum of eight thousand dollars. And if at the death of my beloved wife none of my children by her be living, these sums as above named shall be paid and distributed among their descendants per stirpes; and if some of them only be dead, then the money shall be paid and distributed to those who are living, and to the descendants of those who are dead, the children standing in the place of their parents, and sharing equally among themselves. But this clause shall extend only to my children, grandchildren and their lineal descendants."

The facts as alleged aud proved are, that Charles C. Harper, the testator, died in 183*7, leaving his wife Charlotte surviving him, and that she died in 186*7. That he, the testator, never had any sons, hut had three daughters; the eldest of whom, Harriet, was horn in 1828 and died in 1836, unmarried; Catharine, who was horn in 1832, and died in 1841, unmarried; and Emily, one of the plaintiffs, who was horn in 1835, and intermarried in 1853 with William C. Pennington, the other plaintiff, by whom she has had four children, two of whom died in infancy unmarried; and that Robert Gf. H. Pennington, one of the defendants, is her eldest child. All parties who could by possibility take interest under the will are made defendants to the proceeding.

The contention on the part of Mrs. Pennington, now the sole surviving daughter and heir-at-law of her father, is, that the limitations over in her father’s will to her, and to her son, are both void, because too remote, and that she takes the farm called “Oakland" in fee, as heir-at-law, and not as devisee. But, as opposed to this, it is contended on the part of Robert G. H. Pennington, that his mother takes a life estate only as devisee under the will, with remainder over in fee to himself, as eldest son. Which of these contentions is maintainable is the leading question presented on this appeal.

In construing the will we must have reference to the condition of the testator’s family at the date of the will, and also at the date of the testator’s death, from which time the will took effect. In the events that have occurred, this reference is of importance in the construction of the limitations of. some of the devises of the will.

There is no question in regard to the estate taken hy the wife of the testator in the farm, Oakland. She took a life estate, which continued until 186!. The remainder of the estate in the farm was limited to the unhorn son or sons of the testator, for life, and to the eldest son of the first son of the testator who might have .a son to take, in fee. But the testator had no son, and in the will he contemplated that contingency, and provided, that if he had no sons, the remainder of the estate in the farm, subject to the life estate of the wife, should go to his daughter Harriet for life, with remainder to her eldest son in fee; and if she should die without male issue, then to his daughter Catharine for life, Avith remainder to her eldest son in fee; and if she should die without made issue, then over Avith similar limitations to his next and other daughters, and their eldest sons, in succession.

The devise over to the eldest son of the devisee for life Avas a devise in fee simple; for, as laid down hy Littleton, sec. 293, it is to he understood Avhen it is said “that a man is seized in fee, without more saying, it shall he intended in fee simple; for it shall not he intended hy this Avord in fee that a man is seized in fee tayle, unless there he added to it this addition, fee tayle, &c.” And Coke, (Co. Lit., 189a,) in his Commentary on this sec. of Littleton, says: “This is evident, and secundum excellentiam it shall he taken for the highest and best fee, and that is fee single.” And so Blaclcstone, (Com., bk. 2, p. 106) lays it down, that when the terms in fee, without adjunct, are used, as applied to estates, they are to he taken as descriptive of the highest and most enlarged estate, as contradistinguished from a fee conditional at the common law, or a fee tail hy the statute de donis. Therefore, as the preceding executory limitations to the eldest son of the sons of the testator, in succession, carried the whole interest in the estate, the subsequent limitations to the daughters and their eldest sons in succession are not to be considered as limitations upon the preceding, and only to take effect after them, but the latter are to be taken as alternatives substituted in the room and stead of the former, and to take effect only in case the preceding limitations should fail and never take effect at all. Fearne, Cont. R. & Ex. Dev., 523. Hence, as the preceding limitations to the sons had failed, such son or sons never having come into being, the devise to the daughter Harriet, with the limitation over to her eldest son, would have been good, if she had survived her father, or had had a son living after the date of the will. But Harriet died in the life-time of the testator unmarried; and unless she took a descendible estate by the limitations of the will, such as would descend in fee simple to her kindred, male and female, as provided by the Act of 1820, ch. 191, to .direct descents, all her possible interest in the farm terminated with her death; and the Act of 1810, ch. 34, sec. 4, to prevent the lapsing of devises could have no application. By the express terms of the will she was given a life estate only, with a contingent remainder over to her unborn eldest son in fee. But the limitation over to her sister Catharine was upon her dying without male issue; and therefore, giving ■these latter words their natural and legal effect, the most that could be claimed that she could take under the will, would be an estate tail male by implication, by way of executory devise. And conceding (as we think mav well be done) such to be the estate that would have become vested in her, if she had survived the testator, the question is, would such an estate be within .the meaning of the terms “fee tail general," as employed in the Act to direct descents, of 1820, ch. 191, sec. 1? According to settled construction, estates tail male, or estates tail female, are not included within the definition of estates tail general, as these latter terms are employed in the Act, and hy which Act estates tail general are converted into fee simple estates, and which estates tail general, upon being so converted into fee simple estates, are saved from lapse by -the statute. Act 1810, ch. 34, sec. 4; Newton vs. Griffith, 1 H. & G., 111, 128, 129; Simpers’ Lessee vs. Simpers, 15 Md., 160; Posey vs. Budd, 21 Md., 477, 486. The distinction is a clear one between the case of a limitation to a person and the heirs of his body, which creates an estate tail general, and that of a limitation to him and the heirs male or the heirs female of his body, which creates an estate tail special, descendible in the male or female line, to the exclusion of heirs of the body generally. 1 Crui. Dig., tit. 2, ch. 1, secs. 13, 14, 15, p. 79; 2 Wooddes., sec. 9; 3 Jarm. on Wills, 89; 1 Washb. R. P., 90, 91. It is clear, therefore, if the elder daughter had survived the testator, but died without having had male issue, and supposing that she would have taken under the will an estate tail male by implication, by way of executory devise, that estate would have been held per formam doni, unaffected by our Act to direct descents, but subject to be docked under the Act of 1782, ch. 23. Newton vs. Griffith, 1 H. & G., 112. But having predeceased the testator, 'without ever having had male issue, the limitations both to her and to her eldest son totally failed of all eifect, and may be considered as completely eliminated as if they never had ]3lace in the will. And that being the case, the principle is, that as the preceding executory or contingent limitations have failed to arise or take eifect, (and whether it be by the death of the devisee in the life-time' of the testator, or the non-existence of such devisee, the consequence is the same,) the remainder over will nevertheless take effect, the first estate being considered only as a preceding limitation, and not as a preceding condition to give effect to the subsequent limitation. Fearne, Cont. R. & Ex. Dev., 510-513; 1 Pow. on Dev., 196-202, and notes; Redf. on Wills, pt. 2, (1st Ed.,) 595. For as declared by Lord Hakdwicke, in Avelyn vs. Ward, 1 Ves., Sen., 420, “if the precedent limitation, by what means soever, is out of the case, the subsequent limitation takes place.” The mere lapsing of intervening estates will never be allowed to defeat the remainder over, unless those estates be coupled with conditions upon which the subsequent limitations are, in some way, made to depend. This principle, as founded in justice, and as having due respect to the manifest intention of the testator, has been affirmed in many cases; and it is the leading principle of the important cases of Hopkins vs. Hopkins, Cas. Temp. Talbott, 44; Avelyn vs. Ward, 1 Ves., Sen., 420; Gulliver vs. Wickett, 1 Wils., 105, and Doe, dem. Wells vs. Scott, 3 M. & S., 300. And such being the well established principle, the limitation over to the daughter Catharine was good and effectual, she having survived the testator, though she died without a son. That limitation, as we have already seen, was to her for life, with remainder to her eldest son in fee; and if she should die without, male issue, then over to the next daughter of the testator, the plaintiff in this cause, upon similar limitations. The will operated only from the death of the testator; and all the preceding devises and limitations of the estate to the children and grandchildren of the testator having failed to become effectual, the limitations to Catharine and her son, subject to the life estate of the widow, were the first to have vitality and operation; the limitation to the unborn son of Catharine operating as a contingent remainder, dependent upon the precedent freehold estate for life. But Catharine died a few years after the death of the testator, without ever having had issue, male or female; and the question is, whether the succeeding limitations over he good and effectual to carry the estate.

There is nothing in the terms of the subsequent de — •* vise over to restrict the failure oí male issue of Catharine to the time of her death; and if not so restricted by circumstances apparent in other parts of the will, it is. clear, upon all authorities, the devise over would be too remote. The simple fact that the devise over was to a party in esse for life, was not sufficient, as the law stood at that time, to qualify the general rule of construction ; for the settled rule of construction in this State is, (except in cases arising under the Act of 1862, ch. 161,) that a limitation over of land to a devisee for life, after an indefinite failure of issue of a prior devisee, does not convert the indefinite into a definite failure of issxie. Newton vs. Griffith, supra; Watkins vs. Sears, 3 Gill, 492. According to established rules of construction, therefore, the terms, male issue, would embrace all male descendants of the male line of Catharine to the remotest generation; and a limitation over, by way of executory devise, can only take effect on an event or contingency that must happen, if at all, within a life or lives in being, and twenty-one years and a fraction of a year afterwards. Dallam vs. Dallam, 7 H. & J., 220. The devise or limitation must be good at the time of its creation; for if not good at its creation, it is well settled that no subsequent accident or occurrence can make it good. Or, as Mr. Eearne states the rule, “if the expiration of that preceding limitation, or if that future event, be of too remote a nature, the future limitation is void in its creation, and no subsequent accident can make it good; because it is not limited to take effect or to fail upon the event of a contingency -which must be determined one way or other within the period allowed by law for the vesting of an executory devise, but is limited absolutely to take effect on an event which may not happen within such a period.” Rem. & Dev., 524. The general principle, therefore, that the contingent event of a party dying without issue generally, or without issue male or female, where there are no terms of restriction used, is too remote to support a devise over, is so familiar a doctrine, that nothing more is required than a simple reference to some few of the cases in this Court, where the subject has been discussed and the principle maintained; as in the cases of Dallam vs. Dallam, supra; Newton vs. Griffith, supra; Wallis vs. Woodland, 32 Md., 105, 106; Woollen vs. Frick, 38 Md., 428. It is clear, therefore, if there be nothing else in the will to restrict the event of the limitation over, than the terms of the devise itself, such limitation is void and wholly without effect.

"What particular estate the daughter Catharine took under the will, may not, perhaps, be very material to decide in this case, except to show that she did not take an estate that was converted into a fee simple estate by virtue of the statute to direct descents. Upon principle, and the force of decided cases, it would seem clear that she took an estate for life, remainder to her eldest son in fee, with an executory devise, by implication, to her in tail male, until such eldest son became in esse; and which estate, as we have already shown, terminated with her death. In the case of Bean vs. Halley, 8 T. Rep., 5, under a devise to A. for life, without impeachment of waste, remainder to his eldest son, and the heirs of such eldest son, and in default of issue male of A. then to B., &c. A. died without ever having had issue male, and it was held, that A. took an estate for life, remainder to his eldest son in tail, remainder to himself in tail male. See also Key vs. Key, 4 De Gex, M. & G., 73; Andrew vs. Andrew, L. R., 1 Ch. Div., 410; 3 Jarm. on Wills, 272.

The counsel for the defendant, while they- do not question that the devise over would he void for remoteness if that devise rested simply upon the terms of the devise itself, yet they argue that there are circumstances apparent on the face of the will that are sufficient to modify and' cut down the ordinary construction of those terms, and to coniine the meaning of them to a dying without male issue within a period of time that does not infringe the rule of law against perpetuities. They insist that the requirement, as provided in the latter paragraphs of the first clause of the will, that any child or person named, taking the estate under the will, should pay out to brothers or sisters, or their descendants, a sum of money, varying according to the number of such brothers and sisters, constitutes a condition precedent to the vesting of the estates devised by the will; and that, as the money was not to be paid before the death of the widow, whenever that might occur, no estate could vest until then; and that, therefore, the rule against perpetuities does not apply. Or, in other words, as the proposition is stated by counsel, that the true meaning of the will is, that those in the series of devises living at the death of the widow could, in the order of priority fixed, become entitled to a vested estate by then performing the condition precedent, that is, the payment of the money as required; and until then no estates vested in the devisees under the will.

But, however ingenious such contention may be, we cannot accede to it as the true legal construction of the limitations upon which the several devises are made. It is true, it is declared by the testator that before any of his devisees named should have possession or property under the will, his son or daughter, as the case might be, should pay a certain sum of money. But we cannot construe this requirement as constituting a condition precedent to the vesting of the estates under the devises, whatever might be its effect as a condition to the possession or enjoyment of the property. It could hardly have been intended, and it is certainly not the legal construction of the terms employed, that all the estates devised by the testator to his children and grand-children should remain suspended until the death of the widow, however remote that event' might be.' Suppose the widow had died within a year after the death of the testator, what would have been the condition of the estate and family in such an event? There would have been two infant children, Catharine and Emily, entitled to the estate. Catharine, according to the construction of the limitations of the will, would have been entitled in the first instance to a life estate, and, by way of executory devise, to an estate in tail male, with the reversion in fee in the two children, as heirs-at-law of the testator, subject to be divested upon the happening of a future event, but which in fact has never happened. If by possibility Catharine had survived her mother and paid the money as required to produce equality with her sister, would that have conferred upon her the absolute fee simple estate ? Clearly not. If she, surviving her mother, had in the course of years married and had issue a son, would not that son have been entitled, by the express .limitation of the will, to the fee simple estate, notwithstanding his mother had paid the equality money to her sister, upon the death of the widow of the testator? Of this we think there could be no doubt. How then does the charge upon the devisee taking the estate operate as a condition precedent and confine the period of the vesting of the estate to the death of the widow? By the terms of the will an indefinite failure of issue male is made the event upon which the devise over is to arise and take effect, and that -event might not occur within a'century after the death of the widow; and unless we were to do violence to the terms of the limitation in the devise, and disregard the established rules of construction, this Court could not say that the indefinite should he reduced to a definite limitation by the death of the widow and the payment of the equality money. The vesting of the estate under the devises is in no manner dependent upon the event of the death of the-widow. Whether the required payment should he construed to he a condition subsequent, or a mere trust operating as a charge upon the estate, are questions that we need not decide; hut Courts are averse to construing conditions to he precedent where they might defeat the vesting of estates under a will. Creswell vs. Lawson, 7 G. & J., 228, 240.

The case of Doe, dem. Smith vs. Webber, 1 B. & Ald., 713, relied on by the defendant, is well explained by Rolfe, B., afterwards Lord Chancellor Ckanwoeth, in delivering the opinion of the Court of Exchequer in Doe, dem. Todd vs. Duesbury, 8 M. & Wels., 514. The case as there explained gives no support to the contention of the defendant in this case. There the party for whose benefit, or for the benefit of whose immediate nominee, the charge was to take effect, was herself the party the failure of whose issue was in question, and the Court, ujmn the whole context of the will, concluded that the charge, which was certainly not to arise till after the failure of issue in question, was to arise (if at all) immediately on the death of the tenant for life ; and the consequence necessarily was, that the failure of issue contemplated by the testator was a failure of issfie at the death of the tenant for life. The case of Todd vs. Duesbury is a well considered case, and is a strong authority against the contention of the defendant in this case.

(Decided 27th March, 1889.)

It follows that this Court is of opinion, that the devises over to Mrs. Pennington and her son were void, as being too remote, and, as the consequence, the estate has devolved upon Mrs. Pennington as heir-at-law of her father and of her sister ; and therefore the decree of the Court below must be affirmed.

Decree affirmed.