Smith v. Clark

10 Md. 186 | Md. | 1856

Mason, J.,

delivered the opinion of this court.

The testator, after having devised his home farm to his wife Harriet Smith, for her natural life, with remainder over in fee, to his four single daughters, as tenants in common; and his other estate, to his son Walter Smith in fee, he proceeds by the fourth clause of his codicil, to make the following additional devise, to wit:

“4th. And whereas, since the execution of the said will, I have purchased from Motley Young a parcel of land called ‘'Swanston’s Lot,* and whiclx is particularly described in a deed from said Young and wife to mo, of the fifteenth of February 1844, and which parcel of land was purchased by me as a support for die estate on which 1 now reside, and the estate devised by me to my son Walter, now therefore I do give and devise and bequeath the said parcel of land to my said wife and my three daughters, Salina Huntington, Cornelia and Rozcna, and my son Walter, on the express condition that the same is not, at any time, to be cleared or converted into arable land, but that they are respectively to be allowed to take therefrom as much wood and timber as will be required and necessary, with care, for the purpose for which it was purchased as aforesaid.”

To declare the proper meaning and legal effect of the above clause, is our duty upon the present appeal. The question as it arises upon the record is, whether the plaintiff, Walter Smith, acquired such a title to Swanston’s Lot, under the above recited clause of the codicil, as will enable him to maintain this action against the defendant, as alienee of the other devisees? In other words, whether the several devisees took a fee-simple interest in Swanston’s Lot, or a mere incorporeal hereditament, or easement to cut timber, &c?

That two different and distinct interests may be created in different persons to the.same land, cannot be denied, as for example, a right of common, or estovers, or way, may exist in one party, while the absolute right to use the property for all other purposes may exist in another. And, in this case, it was clearly within the power of the testator to have devised two distinct interests in the land in question to different persons, as the fee to one, and the mere right to cut wood therefrom to another, but the point is, does the language of the will manifest such an intention, and in such terms as to effectuate it ? We think not.

It is clear to our mind that the purpose of the testator was, to confer a substantial, valuable benefit upon each of the devisees mentioned in the clause in question, and that benefit was to consist of the enjoyment of the whole estate. No interest, in terms, is attempted to be reserved or carved out of the land for any other person, and if any other did take, it would be by mere operation of law, and contrary to the clear intention of the testator. The difficulty which has arisen, grows out of the circumstance, that the testator attempted to do that which the law will not permit him to do, to the extent he proposes, namely, to prescribe the mode by which this benefit or property, during all time, was to be enjoyed by the devisees. To adopt the views of the appellant, the interest in this land, as a distinct right, would virtually become unalienable, or rather a right inseparable from that to sell the main tract. It is substantially an attempt to restrict a devisee from ever dividing and selling in separate parcels his real estate, which would be a condition wholly inconsistent with a fee-simple interest, as well as public policy. As we have said, the testator designed this land as a benefit for his children, and none others. If they think proper to use'that, right or benefit in a mode different from that designed by the testator, or to abuse or sacrifice it, no one but themselves is prejudiced thereby. There are no rights or interests reserved in others, which would be invaded by such a course.

A similar effort is made by the testator, in the fifth clause of the codicil, wherein he says, that the land devised to his wife and daughters, for life to the first, and in fee to the latter, “shall be at all times held together by those who may be entitled to the same, by virtue of my will.” This is but in furtherance of his purpose elsewhere manifested in his will, to have his whole estate kept together by his family, and is an attempt to annex a condition to a fee-simple estate, wholly inconsistent with it.

We think we can discover a marked difference between the cases cited and relied on by the appellant’s counsel, and the one before us. In all those cases there were distinct, valuable, but not conflicting interests in different parties to the identical thing, and the point in each was, merely as to the extent and character of those interests. The thing or land remained entire, while the interests in it were distinct. In the case of Leyman vs. Abeel, 16 Johns. Rep., 30, there was no question as to where the fee in the realty was, but the point was as to an incorporeal hereditament, how and by whom it was to be enjoyed and aliened ? Here, on the other hand, the, inquiry is, where is the fee, and in whom did the testator design to deposit it ? The interest in these several devisees were intended to be identically the same. The fee is not. in one, with an incorporeal hereditament in the other, but they are tenants in common of one and the same interest, and that interest is, we think, a fee-simple, subject to partition.

We cannot discover how any party can be prejudiced by the construction we have given this clause of the will. The portals of the grave having closed upon the testator, he no longer feels any interest in Swanston’s Lot, or any other lot, except that to which his course of life in this world may have consigned him in the other. Swanston’s Lot was designed as a support, in timber and fuel for the main tracts, and if prevented from that purpose, it can only be done by those who own the main tracts, and they alone will be the sufferers. If the value of the tract sold to Berry, has been impaired, by separating it from the wood lot, the former owners sustain the loss. Clark and Smith, each having an absolute and independent interest, can, by partition, use it as they please, and without conflicting with one another; and it would seem to matter not whether their interests were diffused over the whole lot, as if it were an incorporeal hereditament, or were condensed and concentrated upon a part.

In the opinion we have given, we have not deemed it necessary to say any thing upon the question, how far a restriction upon a devisee not to convert woodland into arable land, would be inconsistent with public policy, and therefore void?— a question which need not be decided on this appeal.

Believing the judgment below is in accordance with the true and legal effect of the will of Walter Smith, we affirm it.

Judgment affirmed.

In a case in equity between the same parties, in which the appellant Smith had filed a bill for an injunction, to restrain the appellee from cutting wood irpon this lot, and which was argued with the preceding case, and by the same counsel, Mason, L, delivered the opinion of this court.

The bill in this case prayed for an injunction, to prevent the defendant Clark from committing trespasses by cutting timber, &c., on Swanston’s Lot, devised in the will of the late Walter Smith. The clause of the will presented on this appeal, being the same (hathas already been interpreted by this court, in a case at law, between the same parties, we affirm the decree disolving the injunction, for the reasons assigned upon the previous appeal.

Decree affirmed with costs.