4 Md. 11 | Md. | 1853
delivered the opinion of this court.
Charles Torrance devised to his wife, Elizabeth Torrance, for her natural life, the whole' of his estate, both real and personal. He then confers upon her the power to dispose of the estate, with two restrictions attached. In the first place, she is required to dispose of the estate “among all or such of my children or their issue, in such manner and proportion, and for such time and estate, as she shall think fit.” The second restriction or condition requires, “that the respective shares or portions, designed for my daughters, shall be secured to them, for life, free and clear of any control of their respective husbands, or without being liable to the payment of their debts, and after their decease for the benefit of their children, and their legal representatives, in equal proportions forever.”
Subsequently, Mrs. Elizabeth Torrance, in supposed pursuance of the power delegated to her by her husband, made her will disposing of the whole estate. The first question which arises is, were the bequests under Mrs. Torrance’s will made in accordance with the power conferred upon her, by her husband ; and secondly, if they were, what are the nature and effect of those bequests'?
This court is of opinion that the testatrix did not transcend her powers, in the will which is now before us. As directed by her husband, she disposed of the estate among his children and their issue, and also directs that the several interests designed for his daughters should he held as separate estates free from, the control or dominion of their husbands. We cannot discover that any limit was placed upon the power, as relates to the quantity and quality of the estate to be devised, further than those already enumerated.
We are next to consider what interest did the several devisees take under Mrs. Torrance’s will?
Her three sons, Charles, George and John Torrance, each took one-eighth part of the estate in fee-simple. There is no dispute upon this point. Nor is there any question in regard to the interest taken by Mrs. Clopper and Mrs. Mitchell,
The present controversy grows out of the proper construction to be given to the clauses of the will which relate to the devises to the three daughters, Mary, Louisa and Dorcas Torrance, and especially that clause which relates to their dying without children, &c.
Those three, we are of opinion, took each but a life estate under the will. Whether this life estate was created by the mother by virtue of the general power conferred upon her, in her husband’s will, that she might dispose of the estate in such manner and proportion, and for such term and estate, as she shall think fit; or whether it was taken in pursuance of the direction or condition imposed by the husband, that the respective shares or portions designed for my daughters shall he secured to them for life, it is immaterial for us to inquire at present. The result would be the same. The case of Chelton vs. Henderson’s Lessee, 9 Gill, 432, we think conclusively determines the construction which we have placed upon Mrs. Torrance’s will to be the proper one. See, also, the case of Ware, and Others, vs. Richardson, decided at the present term. (3 Md. Rep., 505.)
Dorcas, one of the daughters, has since died, without having left issue, or been married; and the next question to be determined is, what is the legal effect of the following clause of the will of her mother upon her interest? That clause is in these words, viz: “Item. — In the event of the decease of any of my aforesaid daughters, without leaving any child or children, or descendants of such child or children, the part or share of the estate hereinbefore devised to her or them, so dying, shall descend to, and be equally divided between all my surviving children, and their respective representatives, as tenants in common, share and share alike.” The above clause is to be construed in connection with the previous clause, wherein the life estate is created in Dorcas, and where, after her death, the fee is conferred upon her children, in the following words, to wit: “and from and after the de
Under the authority of Griffith vs. Newton, 1 Harr. and Gill, 111, and indeed of all the leading and well adjudicated cases upon the subject, both in England and in this country, we think, that the expression, dying without leaving any child or children, or descendants of such child or children, amounts to an indefinite failure of issue, and that the limitation over, being too remote, is consequently void. Descendants and issue, in this instance, mean the same. The devise in the present will, it will be seen, can only take effect over, at the period when the issue or descendants of the first taker, shall become extinct, and when there are no longer any descendants of the issue, or children of the grantee, without any reference to any particular time, or any particular event. An executory devise upon such an indefinite failure of issue, upon principle, is clearly void, because it might tie up property for endless generations.
In the case of Tenny vs. Agar, 12 East., 253, the devise was to the son and daughter in fee, but if they should happen to die without having any child or issue lawfully begotten, then remainder over. Upon this clause of the will Lord Ellenborough held, that nothing could be clearer than that the remainder-man was not intended by the testator to lake any thing until the issue of the son and daughter were all extinct, and the remainder over, was consequently held void and inoperative. Issue in that case was a term clearly not more comprehensive than descendants is, in this. There are numerous authorities sustaining these general propositions, and to those already cited we would add, King vs. Rumball, Cro. Jac., 448. Holmes vs. Meynel, T. Raym., 452. Denn vs. Slater, 5 Term Rep., 335. Doe vs. Ellis, 9 East., 382. Barlow vs. Salter, 17 Ves., 479. Dallam vs. Dallam, 7 Har. and John., 220. Bells vs. Gillespie, 5 Rand., 273. Ide vs. Ide, 5 Mass., 500. Irwin vs. Dunwoody, 17 Serg. and Rawle, 61.
The estate, therefore, in which Dorcas had an interest, the
The father of the complainant being dead at the time Dorcas died, the complainant takes one-sixth of the property in which Dorcas had a life estate, as heir directly of his grandfather, and not as heir of his father, who never was seized of any interest in her share of the estate. Neither was his uncle, Charles, ever seized of any interest in Dorcas’ share, which could descend to the complainant, the uncle having also died intestate and without children, before Dorcas.
We are also of opinion, that the averments in the bill, and the proof, are sufficient to warrant the sale and the relief prayed for, and that therefore the decree below must be affirmed
We remand the cause with instructions to distribute the fund arising from the sale when brought into court, in accord-with the principles announced in this opinion.
Decree affirmed and cause remanded, costs in both courts to be paid out of the proceeds of sale.
