43 Md. 382 | Md. | 1875
delivered the opinion of the Court.
..The record in this case shows that Mrs. Mary E. Shreve died in 1855, leaving a will duly executed to pass real estate, which contains this clause:
“I give, devise, and bequeath all my lands, tenements and hereditaments, lying in the States of Maryland or Virginia, or either of them, to my children, namely: Daniel T. Shreve, Benjamin F Shreve, Charles W. Shreve, Thomas J. Shreve, Mary E. Shreve, Ann Olivia 'Shreve and Arthur B. Shreve, for and during their natural lives, to be equally divided between them, and on the death of said children, or either of them, I give, devise and bequeath the share or portion of said child to his or her issue lawfully begotten, and their heirs or assigns forever,
These seven children survived the testatrix and were her sole lieirs-at-law. One of them, Mary E. Shreve, subsequently died intestate and without issue. The Maryland lauds of the testatrix consisting of about eight hundred and twenty acres, lie in Montgomery and Frederick Counties, and in 1866 a hill was filed on the equity side of the Circuit Court for the former county, by four of the surviving children against the oilier two, setting out the above clause of the will, and praying for a partition of the estate, and if that could not ho effected, then that the same he sold and the proceeds distributed to the parties according to their respective interests. XJnder this hill Commissioners were appointed, who divided the lands into three parts, and valued the same, the total valuation amounting to over $30,000. Two of the sons, Charles and Thomas, then elected to take these parts at this valuation, hut the latter abandoned his election, and the former on petition and order of the Court, was substituted in his place, and in March, 1867, decrees or orders were passed ratifying the Commissioners’ return, directing bonds to he given for the shares due the other children, and authorizing the Commissioners, on payment of these liens, to convey the whole estate to Charles W. Shreve. The latter tiren took, and has since remained in possession of the property, and in June, 1874, he aud his wife filed the hill in the present case in the Circuit Court for Frederick County. '
This hill sets out the will, the proceedings in the partition case, and avers that the complainant has paid the whole valuation of the Commissioners except $10,120, to two of the children which he has secured by mortgage, that the Commissioners have executed to him a deed for the property, and all the children of the testatrix now
The surviving children and all the grandchildren of the testatrix in esse (the latter to the number of twenty and all infants) are parties to this bill. The adult defendants by their answer admit the averments of the bill, and submit to such decree as the Court may deem proper. The infants answered by guardian that they do not admit any of the matters charged in the bill, and submit their rights to the protection of the Court. ■ Certain testimony was then taken under a commission, which need not be particularly stated, and the case submitted for a decree. The Circuit Court decided the children took but life estates, but being
We have therefore to decide what interest the complainant, Charles W. Shreeve, has acquired in this real estate ; and this depends upon the question whether the seven children of the testatrix took under her will, estates for life or in fee. But it is said that in construing this will, we are not to be confined to the instrument itself, but may resort for aid to the extrinsic testimony taken under the commission. That testimony consists of parol declarations by the testatrix after she had made the will as to its effect, .and her intentions in executing it, and like proof as to what interpretation had been placed upon it by the devisees, the Court in the partition case, and the Commissioners who divided the estate. The position is that as this testimony was not excepted to in the Court below, it may be resorted to by this Court in ascertaining the rights of the parties, and must be allowed its full force, and for this the case of Gibbs vs. Gale, 7 Md., 76, is cited. All this testimony was clearly inadmissible to affect the construction of the will or the rights of the infant defendants, and the Court below in fact refused to consider it for that purpose. The adult defendants having parted with all their rights in the property, had no interest in resisting the complainant’s claims, and the infants whose interests alone were antagonistic to those of the complainant do not appear to have been represented by counsel, either at the taking of the testimony, or at the hearing of the case, when exceptions to it ought to have been filed on their behalf. Under these circumstances, it would be an unreasonable extension of the doctrine in Gibbs vs. Gale, to apply it to this case, and we must therefore construe this will by the light afforded by the paper itself.
And in doing this, it is necessary to notice at the outset, two clauses of that instrument, other than the one
Thus far the case is a plain one, but what estates the sons take under this will, depends solely upon the construction of the clause first above cited, and this is by no means free from difficulty. The immediate question is, does this clause call into operation the rule in Shelley’s Gase. That rule with its qualifications has been so often recognized and adopted by the Courts of this State, that nothing but an Act of the Legislature, can strike it out of our system of real law. The rule has been clearly and accurately defined, but the question of its application to particular cases has perplexed judicial tribunals (more perhaps than any other) from the time of its first introduction to the present day. And when we consider how
Stripped of verbiage, separated, and reduced to its legal elements, the first part of the clause before us, contains a devise to each of these children to this effect, viz: to the child for life, remainder to his issue lawfully begotten, and their heirs forever. And here it is to be noted,, first, that the devise is not to the heirs but to the issue of the life tenant, and, not wi! listan ding what has been said by some writers, the eases show that the Courts have applied the rule more readily where the devise is to the heirs or heirs of the body, than where it is to the issue of the first taker. The latter is regarded as a term of equivocal import, being either a word of limitation or of purchase, meaning heirs of the body or children, according to the intention of the testator deduced from the expressions contained in his will. Again, there are words of limitation superadded to the gift to the issue ; it is to them and their heirs forever. Now in the well known case of Luddington vs. Kime, 1 Ld. Ray., 203, the devise was in very nearly the same terms, viz: to A for life without impeachment of waste, and in case he should have any issue male, then to such issue male and his heirs forever, with a limitation over in default of such issue, and the Court held the testator intended tile word issue should be designalio personie, and not a word of limitation “because he added a further limitation to the issue, viz: and to the heirs of such issue forever.” The principle deduced from this case is thus stated in Cruise’s Digest, Vol. 6, (3 Am. Ed.,) page 259, sec. 48. “Where an estate is devised to a person for life, with remainder to his issue, with words of limitation superadded, the word issue will in that case be construed
It may be as stated by Mr. Powell, that subsequent decisions in England have in effect overruled Luddington vs. Kime, and that at the present time the will before us would receive a different construction in the English Courts, but we have been referred to no decision in this country, nor are we aware of any in which that case has been overruled or its authority questioned. It is, with others cited by Chancellor Kent, as authority for the position that where the testator superadds words of explanation, or fresh words of limitation and a new inheritance is grafted upon the heirs to whom he gives the estate, the case will be withdrawn from the operation of the rule. 4 Kent’s Com., 221. It meets an approving reference in the very able opinion of Yeates, J., in Findlay vs. Riddle, 3 Binney, 156, where there was a devise to A for life, and if he died leaving lawful issue, to his heirs as tenants in common and their respective heirs and assigns, and the Court held that A took only an estate for life with a contingent remainder to his heirs.
But what is more important to the decision of this case, is the fact that the doctrine of Ltddington vs. Kime, and other similar cases, has been repeatedly recognized and approved by the Courts of this State. Thus in Horne vs. Lythe, 4 H. & J., 435, a case which Chancellor Kent cites as containing a learned and accurate exposition of the rule under all its modifications and exceptions, we find an exception to its operation thus stated: “So where the persons to take cannot take as heirs by the description by
After this repeated and recent recognition by our predecessors of this rule of construction derived from Luddington vs. Kime, and other like cases in the earlier English Reports, we are constrained to hold that it applies to and governs that part of that clause of this will, which we have thus far considered, even though we may be of opinion a different construction would be given to it by the Courts of England. Having thus determined the word issue is here used as a word of purchase, it is clear it must bear the same construction when used in the immediately following sentence, “and if any of said children shall die without issue lawfully begotten, I give, devise and bequeath his or her portion to the surviving child or children and their issue and to the heirs of said issue forever.” In other words the portion given to each child for life, goes in case
Two other positions taken by the distinguished counsel for the appellants remain to he considered.
1st. It is insisted that the estates for life in the children, are enlarged to estates in fee, because of a subsequent clause of the will by which the testatrix bequeaths the sum of $300, to he annually paid by lier heirs and devisees, for tlie support of her husband during bis single life, and charges all her real estate with the payment of this annuity. But the doctrine of enlarging estates by implication has no application here. It is only in eases where the testator has himself left it uncertain what estate he intended to give that this implication arises. This is made plain by a moment's consideration of the origin, reason and limitation of the doctrine of implication. It was first, settled that a general devise of lands without words of limitation confers on the devisee an estate for life only ; but the rule which thus gave to an indefinite devise, the restricted construction of an estate for life, was always viewed with disfavor as subversive of the intention oí testators, who generally suppose that a devise in indefinite terms includes all their interest'in the property, as in the case of personalty, and the Courts evinced an anxiety
2nd. It is next contended that the complainant has acquired a fee in these lands, and that the construction of the will was conclusively settled in his favor, under the decree and proceedings in the partition case. But none of these grandchildren were parties to that proceeding, and probably most of them were not in esse at that time. If these proceedings had resulted in a simple partition of these lands into seven equal parts, and the allotment of one part to each of the parties to that suit, then each life tenant would have sufficiently represented his own children for that purpose, and the partition so made could not afterwards be disturbed.. But that is not what was done.
We also entirely agree with the Court below, that the allegations of this bill, and the proof now in the case, do not authorize a decree for a sale or lease of the lands. But we are of opinion that by amendment of the pleadings and further proof, a case may be made for such sale or lease under the Act of 1862, ch. 156, and as the counsel for the appellees in this Court has expressed in his brief a willingness, that the case shall be remanded for that purpose, we shall accordingly remand the same, under the Code, Art. 5, sec. 28, without affirming or reversing the decree appealed from.
Cause remanded.