Jones v. Jones , 8 Gill 197 ( 1849 )

Prick, J..

delivered the opinion of this court.

The controversy in this case arises under the construction of ■an instrument of writing purporting to be the will of Evan Jones, in which ¡he testator undertakes to dispose of the lands of his wife upon conditions, which it is claimed impose upon the devisee, one of his heirs, the obligation to confirm to the •other a devise to him of “all the testator’s (own) estate, real, personal and mixed.” It was presented in the court of chancery, by the appellee, as a case of election, and the chancellor having so treated it, the present appeal is from his decree to the Court of Appeals.

The testator was a citizen of Pennsylvania, and the will in question was executed in the presence of two witnesses, conformable to the laws of that State, and admitted to be valid and operative, to pass the property of the testator there. But he had also other lands in the State of Maryland, upon which, for want of proper attestation under the laws of this State, the will could not operate, unless under certain conditions therein, which, it is contended, impose an election on the parties, and give effect to the will, in regard to its action upon the lands in this State.

The intention to raise an election must be clear and manifest from the will itself. That intention must be collected from the face of the instrument, and without a clear and express manifestation, it cannot be presumed to extend to property which did not. otherwise pass under it. If the will is susceptible of a construction that does not require it, then, by reason of its imperfect execution here, it is not a case where the party can be put to his election as to the property in this State. This instrument, in the first instance, may seeni to indicate, on the part of the testator, an attempt, to dispose of the whole of his property. The first clause is: “T give and bequeath, to my son Benjamin, all my estate, real, personal and mixed, with the following exceptions.” These general terms would necessarily pass all which the testator had power to dispose of. But it' must be by an instrument perfect in all the conditions which the law requires, to make it operative. To pass lands in Mary■ land, required the presence of three witnesses at its execution; and as owner of such lands, the testator must be presumed to know the laws that regulate the disposition, and .constitute a valid devise of it. As it stands, it c.ould so far pass no other than lands in Pennsylvania, where, in point of statutory execution, it is adequate to that purpose. As to the lands in Maryland, he died intestate, unless the further provisions in the will, by manifest and .clear intention, express such conditions as impose on one of the heirs, by his election in Pennsylvania, to release to the other the lands of the testator in Maryland. And in the case of an imperfect will, such condition canpot be raised by implication.

What, then, are the conditions of this will, so far as they are susceptible of analysis, and of being extracted from the confused repetition and transposition of the views of the testator? He, had one other son, John, the appellant, and to carve .out an estate for him, he devises lands in Pennsylvania, adjoining his own, and held by him in right of the mother, to John, and s.ays: “If John marries, and has children, Benjamin is to r/iake John a title for his half of his another’s land, ivhich is a condition of this, my will.” He had before given to John l( the improvements on the farm belonging to his mother,” and established a “line of boundary between them,” (the brothers;) which allots to John, with a very slight exception, the whole of the mother’s lands, and then imposes on Benjamin the condition stated, to make to John a title to his share thereof. This condition is imposed on Benjamin exclusively, who, under the general devise, took all the testator’s land in Pennsylvania, at least, and which, as is in proof, was far the larger portion of the whole property. But can this condition, from its terms, and in connection with its immediate antecedent, be stretched beyond the express limitation and import of it, to make to John the title there directed? To this, by every sound rule of construction, it must be restricted; and so far, we find no express Condition on John to do any act but the one mutual between tbe brothers, to preserve the ditch and fencing.

The testator then proceeds, “John to have the use of Benjmnin’s half of his mother’s farm, according to the above prescribed bounds;” and after recurring for the third time for additional certainty, to the division line, he says: “I make the above a sine qua no?t, and if either attempts to break it, is to have no benefit of my estate, but all to go to the one willing to fulfil.” Construed as a condition to what here precedes it, we have another stipulation prescribed to Benjamin, alone, to leave John in the possession of the mother’s property, and an obligation on both, not to break the line established by the will. If either attempt to break this Iasi division line, or Benjamin disturbs the possession in John of the mother’s property, he forfeits all benefit under the will. To these clauses immediately following the first condition, this sine qua non must be restricted. To extend it beyond, and apply it to all the component parts of the will, would be to enlarge its terms, and make an intention for the testator which is not expressed, and cannot even be faiily implied against the form of expression used by the testator. ic To break it.” Not the will certainly, or he would naturally so have expressed it; but the condition which is the antecedent to the pronoun “ it,” and restricted to that by the construction which we think it, alone warrants.

If the general scope of this will can be gratified without including the Maryland lands, the presumption in favor of the heir will prevail. In prescribing this sine qua non condition, it is next to impossible that the testator could have had in his mind the Maryland property, and not so expressed it.; and it is difficult to find a case raising an election, where the property operated upon has not been particulariy designated, or clearly embraced or referred to in the will Boughton vs. Boughton, 2 Vez., Sr., 12, is among the first cases in which an heir at law was put to his election under a will imperfectly executed. But there the express condition is relied upon. And unless such condition be expressed, the heir is not bound to confirm the devise. 1 Jarman, 390. 8 Vez., 481. If a legacy be given by a will, sufficient in its requisites to pass peisonal property, and which devises the realty away from the heir, to whom the legacy is given, he may take the legacy and claim the estate in virtue of title by descent. But if the legacy be on the express condition annexed, that he shall confirm the devise, he cannot take the legacy and disaffirm the devise. 1 Jarman, 377. So the will of an infant being void as to realty, raises no implication, and the heir may claim both the legacy and the land devised to another by such a will. 1 Vez., Sr., 278. Jarman, 389. And so also with regard to the will of a feme covert. 9 Vez. 370.

If, then, there be no express condition upon John to convey this Maryland property to Benjamin, we are not at liberty to imply it. The intention to make such a condition, and raise a case of election, must plainly appear (as we have seen,) on the face of the will. We must be sure that it was the testator’s intention to include these Maryland lands in his will; and wherever the devises rest upon condition, nothing is to be left to interpretation, but it must be clearly expressed.

We find a condition upon Benjamin, that he should convey to John, in the contingency mentioned of John’s marriage, and the birth of a child, and this conveyance Benjamin has executed. We find further, that the possession in the meantime, in John, of the mother’s property, and the acquiescence of both in the line of boundary established between them, is another condition in the will; and that John is in possession, and no controversy exists about the lines.

Thus far the disposition of the testator, as to his property in Pennsylvania, seems to be gratified; or if otherwise, it becomes a subject of the consideration of the proper/brw?» in that State, and not in Maryland. Upon a careful examination we can find no condition that requires of John to convey his interest in the Maryland lands to Benjamin; and without such condition it cannot be said, that a will otherwise inoperative in this State, can impose upon him an election here, between the lands devised to him in Pennsylvania, and his rightful inheritance in this State. A will of lands that is not executed and attested according to our statutes, can create no election as to lands here, from implication; for the reason given, that such an instrument is no will here, and, therefore, inoperative. Whatever raay bo its construction and effect in Pennsylvania, it cannot operate to divest either party of his inheritance here, or put him to his election. There is no such express condition in this will, and we cannot, as before said, imply it.

Finding nothing, therefore, in this will of Evans Jones, that can impose upon John a release of his claim upon the lands, or to make his election in Maryland,, we are compelled to reverse the decree of the chancellor.

DECREE REVERSED.