96 A. 615 | Md. | 1914
The will of J. Alexander Shriver, of the City of Baltimore, after devising and bequeathing all of his estate to his wife, Olivia B. Shriver, during her life, or so long as she remained his widow, provided as follows:
"After the death of my wife or her marriage again, (upon the happening of the latter, I give and bequeath to her absolutely, such portion of my estate as would be her proper share thereof under the existing law of the State of Maryland,) then and thereupon I desire and direct all the remainder of all my property devised and bequeathed to her for life or widowhood, shall be divided equally among my heirs, namely: Alice S. Clendinen, Frederick, John Shultz, Clarence and Joseph Alexis, share and share alike, or to their heirs, should either have deceased at that time."
The testator died in 1891 survived by his wife and all the children named in the will. The estate, consisting of both real and personal property, passed to the widow under the provision in her favor and was held by her until her death, which occurred within the past year. During the life tenancy, Frederick Shriver, one of the sons mentioned in the will, died without issue but leaving a widow, Martha N. Shriver, who is now living, and the only question we are to consider is as to the nature and extent of her interests, if any, *488 in the portion of the estate to which her husband would have been entitled if he had lived until the period of distribution.
It was determined by the Court below that, according to the proper construction of the will, Frederick Shriver had a vested but defeasible interest in remainder in one-fifth of the estate, and that his interest was subject to be divested in the event of his death during the period of the life tenancy, and, as that contingency had happened, it was ruled that his share of the estate passed to his "heirs," who, in reference to the realty, were decreed to be those only who would have inherited that kind of property from the deceased remainderman, and with respect to the personalty were held to be those, including the widow, who would be entitled, under the statute of distributions, as in case of intestacy. In consequence of this decision the widow was excluded by the decree from any interest in the real property, but was awarded, under the statute, one-half of the personal estate which her husband would have received if he had survived. The widow objects to the decree because it does not recognize her claim of dower in the realty, and her husband's brothers and the children of his sister, Mrs. Clendinen, who also died before the life tenant, object to the admission of the widow to a share of the personalty. The two appeals in the case represent these conflicting theories.
Whether the qualified estate devised and bequeathed by the will to Frederick Shriver in remainder be regarded as vested though defeasible, or as merely contingent, there can be no question that, in view of his death before the termination of the preceding life tenancy, the share of the estate which he would have received has become vested, by way of substitution or succession, in the persons to whom the will refers as his "heirs." Reiff v. Strite,
The single inquiry we are to make, therefore, is as to the meaning and application of the term "heirs" as used in the clause of the will which provides for the ultimate vesting of the estate. *489
In regard to the question as to who are entitled to the realestate devised in remainder, we must hold, upon elementary principles, that the widow is not to be classed as an "heir" of her husband with respect to that species of property. The word "heir" is technically and literally applicable only to one whoinherits real estate, and the widow's interest in her husband's lands is not thus acquired. The title of the heir originates at the death of the person from whom he inherits, while the widow's dower attaches as an inchoate interest during her husband's life. The heir takes the fee by descent, and the widow takes her limited life estate by virtue of the marriage. According to the settled meaning of the term at common law, an "heir" is one in whom the law vests the estate in the lands of the ancestor immediately upon his death. Hoover v. Smith,
The question as to whether the widow is to be regarded as one of the "heirs," so far as the disposition of the personalestate is concerned, was properly determined by the Court below in accordance with a principle of construction which was stated in Gordon v. Small,
The theory of this distinction was applied in Fabens v.Fabens,
The present case is plainly subject to the principle of the distinction and rule stated in the Maryland and Massachusetts decision to which we have referred and the English cases therein cited with approval. The limitation here is to the primary remaindermen "or to their heirs," and the element of substitution by way of legal succession is involved. When the term is thus employed in regard to a bequest of personalty, the question is not who would be the heirs at law, in a technical sense, of the person named, but who would be entitled to his personal estate upon the theory of his death without a will. Under our Statute of Distributions, the widow succeeds to one-half of her deceased and intestate husband's personalty, where, as in this case, there are no children or descendants, and she was properly allowed by the decree to share in the estate to that extent.
The cases cited in the briefs, and others which we have examined, disclose a wide difference of judicial opinion as to the scope and effect of the term "heirs" as applied to legatees or donees of personal estate, but the citations we have made are sufficient to illustrate and support the rule on the subject which has been recognized in this State, and which is precisely adapted to the special conditions of the case presented by this record.
Decree affirmed, as to each of the appeals, one-half of thecosts, including the cost of printing the record, to be paid bythe respective appellants. *493