54 Md. 619 | Md. | 1880
delivered the opinion of the Court.
In the will of John Jordan, executed in June, 1844, and admitted to probate in July, 1845, there is the following clause:
“ Item. 1 will and bequeath unto my niece, Catharine J. Edie, all that part of my real estate lying on the east side of the Elkton road, on which I now reside, adjoining the lands of Joseph Alexander, Jones Mathias, and others, containing about ninety acres, more or less,
At the date of the will Mrs. Edie was a married woman, hut had no children, and she died in April, 1864, without ever having had a child horn alive, and left her husband surviving her, who is still living. The only subject of controversy in the present case is the construction of this clause of the will, and the question is, whether under it, Mrs. Edie took an estate tail which by our law is converted into a fee, or whether she took only a life estate.
In support of the position that she took an estate tail, the appellants’ counsel contend that the rule in Shelley’s Case must be applied. This Court has frequently, and especially in recent years, considered the application of this celebrated rule of property, which undoubtedly has become, and still remains a part of our system of real law. The cases in which it has thus been considered have all been cited in argument, and we shall not repeat here what we have so recently said on the subject. The definition of the rule as given by Mr. Preston, and approved by Chancellor Kent as the most full and accurate is this : “ Where a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of re
The devise after the life estate, is not to the “ heirs,” nor to the “issue,” hut to the “children” of the life tenant,, if she have any. In its ordinary and popular signification the word “ children ” means immediate offspring, and such in general is its legal construction. It is a word of purchase and not of limitation, unless the context clearly shows it to he otherwise intended. The cases in which it has a broader signification, and where it has been held synonomous with “heirs” or “issue” or “descendants,” ai’e well illustrated by the resolutions in Wild’s Case, 6 Rep., 16. In that case, says Lord Coke, “it was resolved for good law that if A. devises his lands to B. and his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail; for the intent of the testator is manifest and certain that his children or issues should take, and as immediate devisees they cannot take because they are not rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, therefore such words shall be taken as words of limitation, scilicet as much as children or issues of his body.” In such a.case there is no difficulty in discovering the plain intent or in discerning the reason why the word “children” should have the same effect as the word “heirs.” The distinction between the case put and one like this, is clearly stated by the other resolution in the same case, which is this: “ But it was resolved that if a man, as in the case at bar, devises land to hus
If therefore the clause had stopped with the devise “ to her children, if any she have,” it is beyond doubt that in this State, since the Act of 1825, ch. 119, the mother would have taken a life estate, and any child or children she might have had, would have taken a remainder in fee. It is well settled that where a life estate is carved out with a gift over to the children of the life tenant, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution, and in cases falling under this rule, the children, if any, living at the death of the testator, take an immediately vested interest in their shares, subject to the diminution of those shares, (i. e. to their being divested pro tanto) as the number of objects is augmented by future births during the life of the tenant for life, and consequently on the death of any of the children during the life of the tenant for life, their shares, (if their interests therein are transmissible,) devolve to their respective representatives. 2 Jarman on Wills, (5th Amer. Ed.,) 704, 707.
But it is contended that the succeeding words, “in the event, however, of her death without lawful issue, I give and bequeath the said land to my next kindred by law,” have the effect to enlarge the meaning of the word “ children ” previously used, from a word oí purchase to a word
We have carefully examined all the cases referred to by the appellants’ counsel, and in the very able opinion of ■one of the Judges of the Circuit Court, besides many others, and find in all of them where the first taker was held to have taken an estate tail, that the words used are ■different—and, in most of them, widely different—from those in the present will. In Cock vs. Cooper, 1 East, 229,
But the case of Hatton vs. Weems, 12 G. & J., 83, has-been relied on as conclusively showing that Mrs. Edie took an estate tail, and as this is a decision of our predecessors, a more extended examination of it is required. In that case the testator devised an equitable estate in land to his daughter Mary “during her natural life, and after her death to her children lawfully begotten, hut if she should die without lawful issue to heir the above mentioned land, then and in that case,” he devised the same to his son Henry in fee. This son was made trustee of the land for his sister, and certain named negroes and their increase, and certain stock, plantation utensils and other personal property, were also devised to him upon the same trusts. After the death of the testator his daughter married Mr. Weems, and she and her husband filed a hill against Henry, the trustee, for an account of the trust property, charging him with misconduct in the management thereof, and praying for his removal from the trust and the delivery up of the whole trust estate. Pending the suit Mrs. Weems died leaving issue, an only daughter, who also subsequently died, and this is a most important fact to he noticed. The Chancellor decided that the suit had abated by the death of Mrs. Weems, and ordered the-cause to stand over with leave to file a supplemental hill
As we have already said we are all clearly of opinion that under this will Mrs. Edie took but a life estate in
Decree affirmed.