Griffith v. Plummer , 32 Md. 74 ( 1870 )

Miller, J.,

delivered the opinion of the Court.

The decision of this case depends upon the construction of the. following clause of a will, executed in 1836 and admitted to probate in 1839:

“Item. — I give unto my son Lyde, one hundred and sixty acres, to include the buildings where Benjamin King now lives, in trust, together Avitli nine negroes,” (naming them,) “in trust for his sister Rachel; the one hundred and sixty acres of land for her only use and benefit, and none other person to have any control over it, and after her decease to go to her heirs in fee-tail.”

The testator’s daughter Rachel, here named, was, at the date of the will and at his death, a married woman, the Avife of an intemperate and improvident husband, and the sole question presented by the record is, whether she took a life estate or a fee in the land thus devised. The rule in Shelley’s ease, has not been abolished by statute in this State. It still remains a part of pur system of real law, and if the clause of the will now to be construed presents a case falling within its operation, the pretensions of the appellant must be sustained. But one of the conditions essential to the operation of the rule is, that the estate limited to the ancestor and that limited to the heirs must be of the same quality. They must both be legal or both equitable estates, for, if the ancestor takes an equitable or trust estate, and the heirs an executed use or legal estate, the rule does not apply. The estate given in this case to the heirs is, without any dispute, a legal one, and, by operation of our Acts to direct descents, is converted from an estate tail general into an estate in fee simple. But what is the nature of the estate given to Rachel, the ancestor ? The clause is awlcwardly Avorded, but, read by the light of the obvious intention of the testator, it is a devise of the one hundred and sixty acres of land to the son, in trust, for the sole and exclusive use and benefit of the daughter (a feme covert) for life, and after her decease, to her heirs in fee-tail. In Ware vs. Richardson, 3 Md., 505, there Avas a trust for a married woman in a deed expressed in similar terms, and identical in substance and effect with the clause in question, and it was held the use was not executed in the wife and that she took merely an equitable life estate. The same construction, for the reasons and upon the authorities there adduced and relied on, must be given to this will, and- this excludes the operation oT the rule in Shelley’s ease. No objection is made to the decree below in other respects, and it must be affirmed.

(Decided 28th January, 1870.)

Decree affirmed.