135 A. 245 | Md. | 1926
This appeal is from a judgment of the Circuit Court for Dorchester County in favor of the defendant, in an action brought against him by the appellants, claiming as devisees under the will of Richard Rhodes, late of Dorchester County, deceased.
Richard Rhodes died in 1883, leaving a last will in which he devised to Thomas and William L. Rhodes, his two nephews, certain real property located in that county, "to them the said Thomas Rhodes and William L. Rhodes for and during the respective terms of their natural lives only, and at the death of the said Thomas Rhodes and William L. Rhodes, the one-half of all the above devised lands shall be equally divided among the heirs at law of the said Thomas Rhodes, and the remaining half to be equally divided among the heirs at law of the said William L. Rhodes, in fee simple." Thomas and William held and occupied the property jointly until the death of Thomas, and after that his heirs at law, a widow and six children, occupied it jointly with William until 1901, when Mamie Rhodes, one of the children of Thomas, conveyed her interest to Zoro H. Brinsfield, and later James E. and Bessie Rhodes, other children of Thomas, and William, the surviving devisee, conveyed their interests in the property to him. On November 24th, 1903, Brinsfield, during the lifetime of William L. Rhodes, filed a bill quia timet against his children, the appellants, all *479 of whom, excepting Herbert, were infants, in which he asked that the devise to Thomas and William be construed, under the rule in Shelley's case, to have vested a fee simple estate in the said William and Thomas, nephews of the testator. The infant defendants were summoned and answered by guardian ad litem. The case was tried in due course and, at the conclusion of the trial, the court decreed that Thomas and William took "an undivided one-half of the lands" devised to them by the fourth item of the will of Richard Rhodes. After that Brinsfield reconveyed to James the interest he had acquired from him, and James thereupon filed a bill for the sale of the property, in lieu of the partition thereof, against Brinsfield and those of the heirs at law of Thomas Rhodes who still held an interest therein. A decree for the sale of the property in lieu of partition was in due course entered, under which Zoro H. Brinsfield was appointed trustee, and he, on October 1st, 1904, sold and conveyed it to D'Arcy Brinsfield, his son, who in 1911 reconveyed it to him. William L. Rhodes died in or about the year 1921, intestate, leaving as his only heirs at law seven children, the appellants in this case, who on January 23rd, 1924, brought this suit. There were several declarations filed in the case, the last of which, the one under consideration in this court, was filed on February 9th, 1925. In it, in addition to the facts stated above, it is alleged that the defendant, from the date of the purchase of the property by his son, used and occupied the property as his own, cut and sold the timber growing thereon, and sold a "great portion" of the real estate as well, for which sales he refused to account to the plaintiffs. The court sustained a demurrer to that declaration, with leave to amend, but the plaintiffs declined to amend, and judgment was accordingly entered for the defendant for costs.
The appellants' theory of the case is that, under a proper construction of the will of Richard Rhodes, his nephews, William L. and Thomas, took only a life interest in the property devised to them, and that at his death the fee in that *480 portion of the estate devised to William vested in the appellants, his heirs at law, and that the deed from William to Brinsfield did not convey anything more than an estate for the life of William in one-half of the property devised by the fourth clause of the will of Richard Rhodes, and could not affect the interests of the appellants in the property.
The defence is twofold, first, that the question is resadjudicata, since it was directly in issue in the equity proceeding brought by Brinsfield in 1911 to quiet title to the property, to which proceeding all the appellants were parties, and, second, that, under the rule in Shelley's case, William and Thomas took a fee simple estate in the property, and that the appellants never had any interest therein.
The rule in Shelley's case was, when the rights of the parties to this proceeding accrued, a part of the law of this State.Ware v. Richardson,
Counsel for the appellants contends very earnestly that an examination of the entire will discloses an intention to designate the respective heirs of Thomas and William to take as classes respectively at their deaths. A sufficient answer to that would be that in our opinion there is nothing in the will other than what has been referred to to indicate such an intention. But the inquiry in such a case is never, whether the testator intended the first taker to have a life estate or a fee, but always whether the phrase used to effect the devolution of the estate after the termination of the particular estate, in fact referred to the general heirs of the ancestor, or designated particular persons. Tiffany on Real Property, par. 151; 2Washburn on Real Property, p. 655, et seq. And in such an inquiry the fact that the donor or testator used the words "heirs" and "children" in different parts of the same instrument is without significance, because it is presumed that he knew the difference in their legal meaning. Devlin on Deeds, p. 1549. Nor are the cases cited by the appellants in any sense in conflict with these principles. Tongue v. Nutwell,
It would be idle to further prolong any discussion of the authorities, for in this case it may be said, as in Warner v.Sprigg,
In view of this conclusion, it becomes unnecessary to discuss the question of res adjudicata, and the judgment appealed from will be affirmed.
Judgment affirmed, with costs to the appellee.