Josetti v. McGregor , 1878 Md. LEXIS 36 ( 1878 )

Alvey, J.,

delivered the opinion of the Court.

This is an action of ejectment brought by the appellants against the appellee, to recover a certain parcel of land, being part of the land formerly owned by Ann Berry, and by her devised by will dated the 8th day of November, 1817.

The question involved in this appeal arises as to the true construction of the devise in the will of Ann Berry to her grand-daughter Ann Eleanor Eversfield Berry ; and the specific question is, whether, upon the terms of the will, the devise over to Elisha Berry, after the death of Ann Eleanor, ivithout issue of her body lawfully begotten, is void because too remote.

The facts necessary to be noticed are but few, and they are all free of question or dispute.

At the date of the will, in 1817, Ann Berry, the testatrix, was a widow, without children living, and Ann Eleanor Eversfield Berry and Elisha Berry, the only children of William Berry, a deceased son of the testatrix, were her only grand-children or living descendants. After the will was executed, but in the same year of its date, Ann Eleanor inter-married with Richard Ay ton, who died a few years thereafter, and in 1831 she inter-married with Roderick M. McGregor, but there were no children born of the marriage.

The testatrix died in 1834; Elisha Berry, the grandson, died in 1841, leaving several children ; Roderick M. McGregor died in 1857; and in 1876, Ann Eleanor, the grand-daughter of the testatrix, died, without children, or descendants of children ; and at the time of her death, the only children or descendants of Elisha Berry were the-female plaintiffs in the present action. It was also shown that in 1843, Roderick M. McGregor and his wife, Ann Eleanor, were divorced a vinculo; hut before the decree was passed, they conveyed a part of the land devised to Ann Eleanor to Thomas G. Pratt, and the residue to-Margery Fergusson, the mother of Ann Eleanor ; and after the decree of divorce, that part of the land conveyed to Margery Fergusson was re-conveyed to Ann Eleanor, and that part conveyed to Pratt was re-conveyed to Roderick M. McGregor. McGregor left a will, under which the present appellee claims as one of the residuary devisees therein ; the land here in question being part of the-land embraced in the deeds to and from Pratt.

With these facts in view, the question of construction arises upon the following clause of Ann Berry’s will: "I give, devise and bequeath unto my grand-daughter, Ann Eleanor Eversfield Berry, otherwise called Ann Eleanor Eversfield Fergusson, daughter of Margery Fergusson, my dwelling plantation, called "Berry’s Grove,” lying and being in Prince George’s County, together, &c., as. heretofore devised to me by the last will and. testament of my deceased husband, Elisha Berry, supposed to contain about two thousand acres, be the same-more or less, to her,, the said Ann Eleanor Eversfield Berry, otherwise called Ann Eleanor Eversfield Fergusson, and the heirs of her body lawfully begotten; and in case the said Ann Eleanor Eversfield should die without issue of her body lavfully begotten, then, and in that case, I give, devise and bequeath my said dwelling plantation, &c., as above described, unto my grandson, Elisha Berry, son of the aforesaid Margery Fergusson, and to the heirs of his body lawfully begotten, forever.”

If there he any thing settled in the law, it is that a devise to a person, and the heirs of his body lawfully begotten, creates an estate tail in the first taker, by operation. of the rule in Shelley’s Case ; and it is equally well settled, by a multitude of cases, that a devise over, dependent upon an indefinite failure of issue of a prior devisee, is a contingency too remote to support a valid executory devise. In regard to these propositions there can he no question.

In this case, no words could have been more appropriate to create an estate tail in Ann Eleanor Eversfield Berry, than those chosen by the testatrix; and that estate having the qualities of a fee simple given it by the Act to direct descents, the devise over to Elisha Berry, made dependent upon the first taker dying without issue of her body lawfully begotten, would seem to present a case so completely within the principles of previous decisions of this Court, as to preclude all question as to the proper construction of the devise. The case, however, has been most ably and ingeniously argued, and all the grounds of discrimination that could possibly distinguish it from previous cases, have been urged ; and a long array of .authorities have been quoted.

We shall not attempt to go through all the cases upon this subject. They are numerous, and a general review of them would show, not only the great variety in the phraseology of wills, hut a considerable conflict of decision among the highest Courts of the country. On this question there is no need of resorting to the decisions of other Courts than our own. The decisions of this Court are ample and sufficiently in point to rule this case, in all the aspects in which it can he presented.

The case of Newton vs. Griffith, 1 H. & G., 111, much commented upon and criticised in the argument at bar, is an authority quite conclusive in this case. There, the devise was. to J., his heirs and assigns forever ; and a separate devise to G., his heirs and assigns forever ; with direction or devise, “ that all the land which I am now possessed of, either by deed, bond or patent, be equally divided between my said two sons J. and G., according to quantity and quality, share and share alike, to them, their heirs and assigns forever ; and in case either of my said sons should decease, having no laioful issue or heirs of his body, that then the surviving son to have his deceased brother’s part or moiety of the land aforesaid, to him, his heirs and assigns forever, as aforesaid ; and in case both my said sons J. and Gf. should decease, leaving no laioful heirs of their bodies, that then, and in such case, I give and devise all my aforesaid lands, devised as aforesaid, unto my -three daughters, S., S. and N., to he equally divided between them.”

Upon this devise the question arose as to the rights of the three daughters, under the limitation over to them, upon the brothers dying “ leaving no lawful heirs of their bodies.” And after a most exhaustive review of all the leading cases down to that time, it was held that the two brothers, J. and G., took, by the general rules of law, irrespective of the statute to direct descents, estates tail general, in the lands respectively devised to them, with cross-remainders in tail general, remainder to the three sisters for life ; but, by operation of the Act to direct descents, the brothers took virtually estates in fee; and, consequently, the devise over to the daughters was void, because it was after an indefinite failure of issue, and therefore too remote. It was also held, that the words without issue, without leaving or having issue, have acquired a technical meaning injudicial construction, and, when used in devises of real estate, mean an indefinite failure of issue, unless restricted by something in the will to import a failure of issue at the death of the first taker, or at some other definite time or event, within the time allowed by law for the taking effect of an executory devise.

Following this case of Newton vs. Griffith there are many cases in our reports ; and among them the case of Posey vs. Budd, 21 Md., 477, and 22 Md., 48, bears a strong analogy to the present. In that case the devise was ífto J. P., my son, my plantation, &c. to him the said J. P., and the heirs of his body laiufully begotten; should J. P. die without heirs or an heir of his body lawfully begotten, I will and bequeath all of my estate, &c. to the children of J. L. B., in equal proportions, share and share alike.” Upon construction of this devise, as to the real estate, it was held, that J. P. took an estate tail general, converted into a fee simple by operation of the statute, and that the devise over, dependent upon J. P. dying without heirs or an heir of his body, was inoperative and void, because the contingency was too remote.

If we compare the devise in the present case with those construed in Newton vs. Griffith, and Posey vs. Budd, it is difficult to discover any substantial distinction between them, as to the nature of the estate devised to the first taker, and the event upon which the devise over was designed to take effect. In each case, appropriate terms were and have been employed to create an estate tail general in the first taker; in the two cases referred to the devise over being made dependent upon the first taker dying without heirs, or without leaving heirs of the body, and in the present case, without issue of the body; terms, as we have seen, clearly importing an indefinite failure of issue. Unless then there be something in the will, connected with the devise in question, to restrict the technical meaning of the words upon which the devise over is made to depend, clearly this case falls exactly within the principle of the cases of Newton vs. Griffith, and Posey vs. Budd, and must be controlled by them.

It was with a view of restricting the words die without issue, and to make them import a dying without issue living at the deatli of the first taker, that so much stress was placed in argument upon the words then, and in that case, following the words die without issue of her body lawfully begotten. It was insisted that the word then, taken as an adverb of time, has reference, not to the contingent event when issue might become extinct, but to the time of the death of the first taker. And there are cases where- that form of expression, especially in regard to bequests of personalty, where slight circumstances are relied on to support an exequtory bequest over, has been allowed some weight. But bearing in mind that this devise is to be read and construed now as it would or should have been read and construed at the date of the will, and that no subsequent events can operate to change that construction, the question is, was it not the real intention of the testatrix to devise the property to her grand-daughter and her issue or posterity, if any she should have ; but if she should have none, or if her issue should become extinct, no matter when, that then the property should go over to the next devisee or his heirs. If this be the real intent and scope of the devise, the case is too plain for argument; and it is difficult, indeed impossible, to discover anything on the face of the will sufficient to countervail that construction. But in the case to which we have already made so much reference, that of Newton vs. Griffith, the words “ then, and in such case,” were there used in connection with the devise over to the daughters, and though there were more circumstances in that case than the present that looked to the meaning of a definite failure of issue, yet there was no stress laid upon those words whatever.

It has been strongly urged, however, that - because it does not appear that these words were deemed of importance in that case, and were not considered in deciding upon the validity of the devise over, or, in other words, because the decision is silent in regard to them, they should be laid hold of in this case, in order to distinguish this from the case of Newton vs. Griffith. But we are not. of that opinion.

The case of Newton vs. Griffith has stood the test of a half century, and has become a landmark in the real property law of this State. How many valuable titles may have been acquired and are still held upon the authority of that case, it would be difficult to conjecture, though we may suppose them to be many. After this great length cf time, and the repeated recognition of the- authority of the case by the Courts, any decision by this Court, in the slightest manner questioning or qualifying the decision made in that case, might and probably would lead to the most pernicious consequences. Over refinements and unsubstantial distinctions should he indulged in no class of cases ; but above all others should such refinements and distinctions he excluded in cases involving the principles 'of real property law. Indeed, if this Court were now to give to the words then, and in that case, the force and effect for which the appellants contend should be allowed them, we should virtually overrule Newton vs. Griffith;—an act, the responsibility for which we are not willing to assume.

In the argument for the appellants much reliance was placed on the recent case of Woollen, Trustee vs. Frick & Golder, 38 Md., 428.

It was supposed that in that case the Court had adopted a more liberal rule than that declared in Newton vs. Griffith. But it requires only slight examination to discover that that case has no application to this whatever.

In fact, though peculiar in its circumstances, it can hardly be said to belong to the same class of cases as the present. As evidence of this, neither in the argument of counsel in that case, nor in the opinion of the Court, were the cases of Newton vs. Griffith and Posey vs. Budd referred to. There the estate to Woollen was not limited after a fee to Watson, but only in the event that the previous life estate of Watson was not, by the events specified, enlarged into a fee. The enlargement of Watson’s estate from a life estate to a fee, depended upon his leaving issue or descendants. If he left issue or descendants at the moment of his death, the estate was enlarged, while, on the other hand, if he died without leaving such issue at the time of his death, his life estate terminated, and the devise over took effect. In the nature of things, the time of his death was the period at which the contingency was to determine, whether the estate was to he enlarged or to terminate. Watson died without ever having had issue, and the limitation over to Woollen was adjudged good, though resisted upon the ground that it was dependent upon an indefinite failure of issue, and therefore too remote. It is-plain, therefore, that there is nothing in that case that tends to support the position of the appellants.

(Decided 27th June, 1878.)

Upon the whole, we are of opinion, that Ann Eleanor Eversfield Berry, the first devisee, took by the devise to her an estate tail general, which, by operation of the statute to direct descents, was converted into an estate in fee simple;, and that, therefore, the devise over to Elisha Berry, being after an indefinite failure of issue of the first devisee, was-void, because on a contingency too remote. It results that-there was no error in the rulings of the Circuit Court, in granting the three prayers on the part of the appellee, and refusing all those offered on the part of the appellants. Therefore, the judgment of the Court below must be-affirmed.

Judgment affirmed.'