5 Gill 51 | Md. | 1847
delivered the opinion of this court.
The will of Lewis Neth was dated on the 7th October, 1832. The testator died a few days after the execution of his will and codicil. At the time of the death of the testator, his wife
The clauses of the will having reference to the question before us, will be found in the statement of this case.
The question presented for our consideration, is, whether the profits of the estate, devised contingently to the child, should, upon its death, pass to the personal representative of the child, or should pass over to those to whom the estate in remainder was limited ? .
The intention, it has been argued, is clearly evinced by the use of the word “estate” in the devise to the child, and to those in remainder; and it is urged that as the eeestate” is left to the child, and the same word “ estate” is used in describing what those in remainder should take; that if the child takes the property devised and the profits, that those in remainder should also take the property devised and the profits—to this the answer is apparent. The property devised to the child is the property as it exists at the time of the death of the testator. The profits constitute no part of such estate, but are fruits of the subject of the devise or bequest which spring up after the death of the testator, and which belong to the child in virtue of the devise of the property to it.
If this construction should prevail, although the testator manifestly intended a benefit to his child, it could get nothing. The profits having to pass over to those in remainder, the same could not be appropriated for the child. It is supposed., however, that the testator meant that what might be necessary for the child’s support and maintenance might be appropriated. We perceive nothing in the will to indicate such an intention on the part of the testator.
The effect of such a construction would be to pass over the profits, though the child of the testator might leave children, such clearly could not have been his design.
Again, it has' been argued that the testator did not mean to enlarge the bounty to his wife by any contingency which might occur; and that no construction should be given to the will which would have the effect on the death of the child to enable
It has been further urged, that if no child had been born, the profits would have gone over to those to whom the estate was limited in remainder, in virtue of the word “ estate,” and that a different construction cannot be given to the words if a child should be born. If no child had been born, the profits would pass as the fruits of the estate devised on the failure of the contingency; but if the contingency contemplated occurred, then the estate devised rested in the child, and the profits would belong to the child.
There is nothing therefore in the terms of the will to indicate an intention on the part of the testator to devise to the child, on the event of its dying under twenty-one years, only so much of the profits as might be necessary for the maintenance of the child.
The authorities cited clearly demonstrate that the estate left to the unborn child, became on the birth of the child, by the terms of the will, a vested estate, which carries the profits, and there is no intention discoverable from the will to defeat the rule of law. We need not comment on the authorities cited; for it was conceded in the argument, that they established the principle contended for by the appellee; but it was insisted, that the profits should not pass in a case, where the intention ivas clear, to the contrary; and that the legal intent ought to yield to the actual intent We have endeavored to show that the actual intent does not differ from the legal intent*
It has been further argued, that all the profits of the estate, arising between the death of the testator, and the birth of the infant, should pass over to those in remainder. But we feel satisfied that such profits ought to be allowed to accumulate for the benefit of the child.
DECREE AFFIRMED WITH COSTS.
