Timanus v. Dugan , 1877 Md. LEXIS 56 ( 1877 )

Alvey, J.,

delivered the opinion of the Court.

The questions that are presented in this case arise upon the construction of the last will and testament of Mrs.Isabella Nelson, late of the City of Philadelphia, who died in the year 1835. The will bears date the -24th of June, 1885, and was executed in manner and form to pass real estate in this State. The testatrix left surviving her two children ; Charlotte Nelson and Ann Buchanan, wife of James Buchanan. The clause of the will that is here involved reads as follows : “I also give and devise unto my daughter, Charlotte Nelson, all my lands in the State of Maryland, during Tier natural life, and if she leave lawful issue, then I give and devise the same to the said issue in fee; but should she die without lawful issue, then and in that case I give and devise the same to my other daughter, Ann Buchanan, wife of James Buchanan, during her natural life, and after her death to the heirs of her body then living, in fee.” Miss Charlotte Nelson was never married and never had issue, and she died in January, 1811. Mrs. Ann Buchanan, the other daughter, died in 1836, leaving surviving her her husband, James Buchanan, and two children, namely, Thomas Buchanan, who died in the year 1855, intestate, unmarried and without issue ; and Hai’riet B. Dugan, one of the plaintiffs in this cause, who was born in the year 1832, and was married to Cumberland Dugan, the other plaintiff, in the year 1856. James Buchanan, the father of Thomas and Harriet B., died in the year 1846.

1. Upon the construction of the recited clause of the will, the first question is, What estate did Charlotte Nelson take in the lands devised ? On the part of the plaintiffs it is contended that she took only an estate for life ; while on the part of the defendants it is insisted she took an estate in fee-tail, which, by operation of the statute, was converted into a fee-simple estate.

To a mind untrained and uninfluenced by the technical rules of the common law, as applied in the construction of wills, we suppose there could be no doubt as to what was really designed to be accomplished by the testatrix. Giving to the language employed its ordinary import, we are plainly told what right or estate she designed the several devisees to take, and upon events she designed the estate to vest. To her daughter Charlotte she devised the lands during her natural life, and if she left lawful issue, then she devised the same to the said issue in fee; and, in default of such issue, over to her other daughter for life, and after her death to the heirs of her body then living, in fee. According to the ordinary reading and understanding of this language, the daughter Charlotte would take but a life estate, and the issue, if she left any, would take the fee-simple estate in the land. But the ordinary meaning and understanding of the language employed in a devise are frequently restrained and controlled by force of certain technical rules of construction, which have been applied from the early ages of the common law, and which have become fixed rules of property. And the question here is, whether the plain intent of the testatrix, as manifested in the language employed by her in the devise before us, shall be controlled and made to yield to the well known rule in Shelley’s Case, 1 Co. Rep., 104, whereby, if a devise be to one for life, and afterwards, in the same instrument, there is a limitation, either immediately or mediately, to his heirs generally, or heirs of his body, he takes an estate in fee-simple or fee-tail in possession in the one case, and in remainder in the other.

Now, it is contended, the word “issue,” as used in the devise before us, is synonymous with, and means, “heirs of the body.,” and that the devise is therefore brought within the rule just stated; and that such is generally the case, in the absence of any explanatory or qualifying expressions, may be conceded to be the well established doctrine of the law. But the term issue may be employed either as a word of purchase or of limitation, as will best effectuate the testator’s intention ; and it is much more flexible than the words “heirs of the body.” Courts more readily interpret the word issue as the synonym of children, and as a mere description of the person or persons to take, than they do the words “heirs of the hody.” As is said by Mr. Preston, “the word issue is not ex vi termini within the rule in Shelley’s Case. It depends upon the context whether it will give an estate tail to the ancestor.” Preston on Estates, 379 ; Lyles vs. Diggs, 6 H. & J., 373 ; Lees vs. Mosley, 1 Y. & C., 589 ; Slater vs. Dangerfield, 15 M. & W., 273; Daniel vs. Whartenby, 17 Wall., 639. As a word of limitation, it is collective, and signifies all •the descendants in all generations ; but as a word of purchase it denotes the particular person or ■ class of persons to take under the devise. And the question is, whether, in the devise under the consideration, the word should be construed as a word of limitation, or as a word of purchase, denoting the person or persons to take? If it be taken as a word of limitation, then Miss Charlotte Kelson took an estate tail, which was enlarged by the operation of the statute to an estate in fee-simple; but if it be taken as a word of. purchase, she took an estate for life only.

It is laid down in 3 Cruise’s Dig., tit. 38, C. 14, sec. 48, p. 360, that where an estate is devised to a person for life, remainder to his issue, with words of limitation super-added, the word issue will in that case be considered as a word of purchase; and for this proposition the cases of Luddington vs. Kime, 1 Ld. Raym., 203; S. C., 1 Salk., 224; Backhouse vs. Wells, 10 Mod., 181; and Doe vs. Collis, 4 T. Rep., 294, are cited. In the first of these cases the devise was to A. for life, and if he had issue male, then to such issue male and his heirs, and if he died without issue male, to B. and his heirs. It was held ■that A. took but a life estate, and that both the remainders •were contingent. In the case of Backhouse vs. Wells, the devise was to one for life, and after his death to the issue male of his body, and to the heirs male of the bodies of such issue, and it was there held that the first taker took only an estate -for life; and in the case of Doe vs. Collis, the testator devised his estate to his two daughters, to be equally divided between them, viz : one moiety to one and her heirs, and the other moiety to the other for life, and after her decease to the issue of her body and their heirs for ever; and it was held that the second daughter took only an estate for life, with remainder to her children as purchasers. These cases, and the principle maintained by them, although criticised by text writers of high authority, have been sanctioned and adopted by the Courts of this State, as was fully shown in the recent case of Shreve vs. Shreve, 48 Md., 382, and in which latter case the doctrine of Luddington vs. Kime, 1 Ld. Raymond, 203, was re-affirmed and applied to its full extent. In the case of Shreve vs. Shreve the clause of the devise involving the question now under consideration, when stripped of its verbiage and reduced to its legal elements, as stated in the opinion, was to the child of the devisor for life, remainder to the issue of such child, lawfully begotten, and to their heirs for ever; and it was because of the super-added words of limitation that the word issue was there construed to be synonymous with children, and therefore a word of purchase. Without the superadded words of limitation, the devise would, according to the rule in Shelley’s' Oase, have created an estate tail in the first-taker ; but, to give effect to all the terms of the devise, the superadded words of limitation had the effect of annexing the inheritance to the person or persons answering the description of issue, so that the inheritance was in the issue, and not the first taker. And if the devise under consideration was to the first taker for life, and if she leave lawful issue, then to said issue and their heirs for ever, the question would seem to be entirely concluded by the cases already referred to, and others to which reference could be made; and it only remains to inquire whether the superadded words liin fee” are equivalent to the legal terms for limiting a fee-simple estate.

The usual and ordinary words for conveying a fee-simple estate, are “heirs” or “ heirs ■ and assigns for ever,” but a devise to a man “for ever,” or to one “ and bis assigns for ever,” or to one “ in fee-simple,” will pass an estate of inberitance to tbe devisee, notwithstanding the omission of the legal words of inheritance. Co. Litt., 96 ; 2 Bl. Com., 108. And in a case in South Carolina, where the devise was to A. for life, remainder to his issue for ever, it was held that the words “for ever,” being equivalent to a limitation in fee to the issue, they took as purchasers. Myers vs. Anderson, 1 Strobh. Eq., 844. This, we think, is in accordance with the common sense of the matter; and in the case before us, we think the words “in fee” are fairly to be construed to mean fee-simple. That is their ordinary signification, and it is a short way of expressing an estate in fee-simple, that is in very general use. We take those words as equivalent to the words “ their heirs ;” and our conclusion is, upon the authorities referred to, that Miss Charlotte Nelson took but a life estate in the lands devised.

It appears, by a record offered in evidence, that the Baltimore County Court, as a Court of equity, on a bill filed by one Smith against Charlotte Nelson, and John Russell and wife, in 1842, decided that Charlotte Nelson took a fee-simple estate under the devise in question. That proceeding, of course, does not bind the present plaintiffs, not being parties thereto, and they make no claim through or under any person that was a party. There were no reasons assigned for the decree that was passed, and however much respect we may entertain for the opinion of the learned Judges who determined the question, we have been compelled, by force of authority, to dissent from the conclusion at which they arrived.

2. Having decided that Miss Charlotte Nelson took only a life estate in the land devised, it is next contended that the devise over to Ann Buchanan was after an indefinite failure of issue of Charlotte Nelson, and was, consequently, void, as being too remote; and, upon that supposition, Mrs. Isabella Nelson died intestate of tbe reversion in fee, which became vested in Charlotte Nelson and Ann Buchanan as heirs-at-law of their mother; and as the defendants claim under Charlotte Nelson all the right and estate that she could convey, the plaintiffs would only be entitled, tp recover to the extent of one-half of the land described in the declaration; and in support of this position special reliance is placed upon the case of Tongue’s Lessee vs. Nutwell, 13 Md., 415.

We have just decided that the devise to the issue of Charlotte Nelson was the same thing as a devise to her child or children; that the word issue, as used in the devise, is a word of purchase, and not of limitation, and that if the life tenant had died leaving lawful issue that issue would have taken a fee-simple estate in the land devised ; and we think, upon rules of fair construction, the words “ lawful issue,” used in describing or designating the event upon the happening of which the estate was devised over, should be taken to refer to and mean the same thing as the words “lawful issue” in the immediately preceding devise ; that it would defeat the manifest intent of the testatrix to hold that the devise over in the event of the first taker dying without lawful issue means, not children, but an indefinite failure of issue, that is to say, the failure of all descendants in future generations. In the case of Ryan vs. Crowley, 1 Ll. & Goold, 7, where a similar question arose, Sir Edwabd Sugden, then Chancellor of Ireland, said: “ It is then objected, that the limitation over is to take effect after the general failure of issue, and is, therefore, too remote; hut I cannot consider the clause to mean the failure of issue generally, but the death of the particular class of issue, viz : the first line of issue, the child or children to whom the property is given by the preceding sentence.” And as authorities for the same construction, see the cases of Montgomery vs. Montgomery, 3 Jo. & Latouche, 47; Kavanagh vs. More-land, Kay, 16; Bradley vs. Cartwright, Law Rep., 2 C. P., 511; and Daniel vs. Whartenby, 17 Wall., 639.

In the case of Luddington vs. Kime, before referred to, the Court held, not only that the superadded words of limitations constituted the word “ issue ” a word of purchase, but that the limitation to the issue was not an executory devise, being after a freehold, but a contingent remainder in fee, and that the devise over of the remainder to B. was a fee also ; but that those fees were not like one fee mounted on another, nor contrary to one another, but two concurrent contingencies, of which either would start according as it happened ; so that the remainder were contemporary and not expectant one after the other. Or, as it may be more accurately stated, the devise over takes effect as an alternative contingent remainder, in the event of their being no issue to take the fee as purchaser. Golder vs. Cross, 5 Jur., N. S., 252.

Further examination of the question is unnecessary. It may be considered as settled by this Court in the recent case of Shreve vs. Shreve, 43 Md., 400. And we are of opinion that the devise over, upon the dying without lawful issue of Charlotte Nelson, to'Ann Buchanan for life, and after her death to the heirs of her body then living, in fee, was good as a contingent remainder ; but whether Mrs. Buchanan took but a life estate, or an estate tail, by force of the rule in Shelley’s Case, is, under the admitted facts of this case, unimportant to be decided, for in either case the plaintiffs would be entitled to recover all the land claimed.

The case of Tongue vs. Nutwell, 13 Md., 415, relied on by the defendants, seems to have proceeded upon the conclusion that there was nothing in the will there construed to clearly indicate an intention on the part of the testator that the words “ and on failure of such issue, then to vest,” etc., should be restricted to a failure of issue at the death of the first taker. In this case, we think it clear and unmistakable that the words “lawful issue,” immediately preceding the devise to Mrs. Buchanan, were designed by the testatrix to have the same meaning precisely as the similar words immediately following the devise to Miss Charlotte Nelson.

(Decided 8th March, 1877.)

It results from what we have decided to be the true construction of the devise in question, that the Court below committed no error in granting the prayers on the part of the plaintiffs, and in rejecting the first prayer on the part of the defendants. And as to the defendants’ second prayer, it being admitted and shown that they claim under the late Miss Charlotte Nelson, who died in January, 1871, and as the plaintiffs could assert no claim to the possession of the estate until after her death, it follows that the Court was right in refusing that prayer as well as the first.

We must, therefore, affirm the judgment.

Judgment affirmed.