Turner v. Withers

Bartol, J.,

delivered the opinion of this Court:

James Oalder, late of Baltimore county, died in the year 1808, leaving a last will and testament, executed on the 14th day of May 1807. This will was duly attested, so as to pass real estate. Those parts of the will, upon the construction of which the decision of these appeals depends, are as follows:

i£I give and bequeath unto my wife, Margaret Calder, the one-sixth part of the rents and profits of all my lands during her life, in six equal parts to be divided, and the one equal sixth part of all my personal estate, after my debts and funeral expenses are paid, according to an agreement made between us previous to marriage.

“I give and devise to my son, George, and to my four daughters, Margaret, Mary, Sarah and Charlotte, all my lands, tenements, hereditaments and real estate whatever and wheresoever, during the term of their natural lives, to be equally divided between them, without impeachment of waste, and with full power to grant leases, reserving a reasonable rent of all or any part of the said lands for any term not exceeding the term of seven years, subject, nevertheless, to the above devise of one-sixth part of the rents and profits of my said lands to my wife, during her life.

C£I also give to my said son George, and to each of my said daughters, the one equal sixth part of mjr personal estate, share and share alike with my wife.

££I further will and devise, that if my said son or either of my daughters shall die without leaving any children or descendants alive at his or her decease, the part or parts of my lands and estate devised to such child or children so dying, shall be equally divided between my remaining children during the term of their natural lives, without impeachment of waste, and with like power to lease the same, as above provided.

££I also will and direct, that at the death of any of my said children, who shall leave any child or children alive at his or her decease, or any descendant of such child or children, the part of my lands which my child so dying shall he entitled to for his or her life, shall belong to, and I do hereby devise the same, unto the child or children of my child so dying, or to their descendants, as the case may he; if more than one, to he equally divided between them and to their heirs forever, per stirpes, and not per capita.

“In case of the death of all my children without issue, 1 give and devise all my estate to my friend, John Grwynn, and to his heirs forever.” „

The widow and five children of the testator survived him. The widow renounced her rights under the will, and died long since. George, the son, died in 1809, without any children, never having been married.

In 1811 the four daughters made a division between them, by metes and bounds, of all the real estate of the testator, including the interest of George. Mary, one of the daughters, having married-Little, whom she survived, died in 1852, leaving children and descendants of deceased children, among whom the part allotted to her in the division' was divided by proceedings in the Circuit Court for Baltimore county. No question arises upon those proceedings, and it is unnecessary to refer to them further, except to say, that by the original division two tracts of land, consisting of about 1,174 acres, near Parkton, in Baltimore county, became the property of Margaret Park, one of the daughters, in severalty for hef'Tife, and after her death^ to be held in severalty by those entitled in remainder under the will of James Calder.

Margaret Park survived her husband, and died on the 1st day of July 1860, leaving no children or descendants.

The;-questions in this case are upon the proper division of the real estate held by Margaret under the will.

The only children of James Calder now living, are Sarah Turner, one of the complainants, and Charlotte Withers, one of the respondents, both of whom have children living, who are parties to this suit. The children and descendants of Mary Little are also parties.

The complainants, and Charlotte Withers and her representatives, contend, that by a proper construction of the will of James Calder, the land acquired thereunder by Margaret Part, that is, the one-fifth of his estate devised to her for life, and her one-fourth of George's share, which, on his death, survived to her, passed, on her death, to her two surviving sisters, Sarah Turner and Charlotte Withers, in undivided moieties for their several lives, and after their several deaths, will pass to their children or descendants who may he living at the time of their several deaths, in fee; the children or descendants of each to have the undivided moiety of their mother, per stirpes, and not per capita.

The judge of the Circuit Court adopted this construction of the will, and decreed accordingly, as to the original share or one-fifth part devised to Margaret by the will; but deciding that a share having once survived, would not survive again, decreed that the part of Margaret’s estate which had accrued to her by the death of George, (being one-fifth thereof,) should be divided between the heirs-at-law of James Calder, to whom .it had descended. From this decree all parties have appealed.

The cause has been argued with much ability and learning ; and a great number of cases have been cited and relied upon in support of the various points and theories presented by the counsel in argument. Without attempting a particular examination of the various theories and rules of construction suggested by counsel, or entering upon an analysis of the cases cited in their support, we think the true construction of the will can be more easily and satisfactorily determined by a careful examination of the terms of the will itself, keeping in view the well-settled rules of law governing the questions before us; and aided in their application by reference to a few adjudged cases.

The question in dispute is, whether the children and descendants of Mary Little, deceased, are entitled to a share of the land of Margaret Park, devised under the will oí James Calder; and that question involves, first, the inquiry as to that part of Margaret Park's lands originally devised' to her for life; and secondly, as to that part which accrued to her by the death of her brother George.

1st. As to the original share: By the plain words of the will the estate of Margaret Park was for her life only, and the limitation over after -her death, is a contingent remainder. This is clear upon all the authorities. “It is a general rule in the construction of wills, that a limitation which may operate as a contingent remainder, shall not he construed an executory devise.” Hoxton vs. Archer, 3 G. & J., 211.

The remainder is limited with a double aspect, — if she leave any child or descendants alive at the time of her death, then to them in fee; if she leave none, (which is the contingency that has actually hajjpened,) then the devise is to the remaining children of the testator for life. Who are the remaining children of the testator ? Only Sarah Turner and Charlotte Withers. They therefore take, by the plain terms of the will, as tenants for life.

The counsel for the heirs of Mrs. Little, have contended that the words •remaining children, are to he construed, not as meaning surviving children, hut as other children, meaning all the other children of the testator named in the will; and many cases have been cited to shew that the Courts, in order to carry out the intention of a testator, have construed the word surviving as synonymous with other. It is unnecessary to refer to those cases, or to discuss the principles upon which they rest. They seem to us to he inapplicable here, and afford no aid in the construction of this will. The testator gives the remainder, upon the death of Margaret, to his “remaining children for life.” The parties taking the remainder, take by purchase as devisees under the will, and must answer the description of the parties named as devisees, and it is clear that no one can take except a child of the testator. The children of Mary Little do not answer this description, and cannot claim as devi-sees, See Melson vs. Aubrey, 5 Ves., 465. Winterton vs. Crawford, 1 Russ. & M., 407, (4 Cond. Eng. Ch. Rep., 489.) Cover vs. Burgess, 31 Eng. L. & E. Rep., 529. Northway vs. Reed, 3 De G. M. & G., (17 Eng. L. & E. Rep., 150.) Leeming vs. Sherratt, 2 Hare, (24 Eng. Ch. Rep., 14.) Many other cases might he cited.

Prom these authorities, it is clear that the children of Mary cannot take as devisees under this clause of the will; nor can they claim hy descent from Mary; for the estate in remainder is given for life only.

As we have said, the interest devised on the death of Margaret, is a contingent remainder, and must vest, if at all, on the death of Margaret.

To adopt the construction contended for, and to suppose that the testator intended to include the children who were dead, under the denomination of remaining childron, would have the effect of vesting in Mary a life-estate after her own death, which cannot he. Luddington vs. Kime, 1 Ld. Raym., 203.

We are of opinion, that hy the words rema/ining children, the testator intended those children who might remain alive at the death of the first devisee for life' — surviving children. This is the natural and ordinary meaning of the words, and we find nothing in the will to warrant any other interpretation.

By the subsequent clause of the will, the children of Mary take nothing except “the part which their mother was entitled to for life;” hut Mary was not entitled to any part of Margaret’s share, she not having survived her. Besides, the estate limited hy the will to the children and descendants of Mary, is a contingent remainder in fee, which must vest eo instanti on the death of Mary, or never; they cannot therefore take, under this clause, any part of Margaret’s lands. 1 Preston on Estates, 74, 75, 76, 88, 92, 119, 121, 122. 1 Ld. Raym., 203. 31 Eng. L. & E. Rep., 336, Miller vs. Chapman. 12 M. & W., 299, Festing vs. Allen.

It follows, from what has heen said, that hy the true construction of those provisions of the will to which we have referred, the share devised to Margaret would devolve, at her death, upon the two remaining children of the testator, Sarah Turner and Charlotte Withers, for life, to the exclusion of the children and descendants of Mary Little. In this respect, the intent of the testator is expressed in clear and unambiguous terms. It is possible, that if he had foreseen the event which has happened, he might have so framed his will as to give to the children of Mary a share in these lands; but he has not done so, and the Court cannot do violence to the express language of the will, to supply any supposed wish of the testator; to do so, would be to make a will for the testator.

Nor do we think the construction of these provisions of the will is in any respect altered by the last clause, which limits the whole estate to John G-wynn, in fee, in case of the death of all the children without issue. This clause, it is argued, manifests a general intent of the testator in favor of all his children and descendants of his children, which controls the particular intent expressed in the previous parts of the will; and in order to carry out that general intent, cross-remainders in tail between the children will be implied.

This construction is based upon the assumption, that the limitation over to Grwynn is after an indefinite failure of issue. Without meaning to express the opinion, that the devise over to G-wynn, even if it were so construed, would raise such a necessary implication as to enlarge or defeat the estate, before expressly limited, a majority of the Court are of opinion that the words of this limitation, when read, as they must be, with the context, are to be understood in their limited and restricted sense, and import a failure of issue at the time of the death of the devisees for life; they mean when all the children die without issue, as expressed in the other pa/rt of the will. The devise over is not too remote, and it is defeated when any of the children have died leaving issue. On this question we concur with the views expressed by the judge of the Circuit Court. The rules of construction in casos like this, are very well expressed in Lewis on the Law of Perpetuity, 52 Law Lib., 183,184. We refer also to Blackburn vs. Edgerly, 1 P. W., 600. Baker vs. Tucker, 2 Eng. L. & E. Rep., 7. East vs. Twyford, 31 Eng. L. & E. Rep., 84. Goodright vs. Dunham, 1 Doug., 264. Upon this construction of the devise over to Gwynn, no question of implication arises. The law being well settled, that upon such a devise over, no estate tail can ever be implied. 1 Jar. on Wills, 490, m.

2nd. We proceed to the consideration of the question as to the share or part which accrued to Margaret by the death of George. On this question we dissent from the views expressed by the judge of the Circuit Court. The general rule is well established, “that where there are no particular and sufficient words used for that purpose, surviving shares will not survive again, and particularly in relation to real estate.” Hoxlon vs. Archer, 3 G. & J., 213. 2 Jar. on Wills, 620. Yet, we think the case does not fall within the general rule. In our opinion, there is upon the face of this will a clear intention expressed, that the survived shares, as well as the original share of a child dying without children or descendants, shall pass to the surviving children. There seems to be little question that, under the devise to children and descendants of the tenant for life, all the estate of the mother will pass — as well her accrued share as her original share — because the gilt, in that event, is of “the part which the child so dying shall be entitled to for his or her life.” And so the judge of the Circuit Court construed that clause. By the same reasoning, we think the preceding clause of the will carries to the survivors, on the happening of the contingency there named, as well the accrued as the original shares. The language is quite as comprehensive; it gives to the “remaining children the part or parts of my lands and estate devised to such child or children so dying.” All the land held by Margaret Park, at the time of her death, had been devised to her by the will, as well her one-fourth part of the share given to George, as the part originally given to herself, and therefore, by the express language of the will, passes to the surviving sisters, Sarah and Charlotte, for life.

(Decided April 28th, 1865.)

This construction derives support from the subsequent clause, devising the estate over to Gwynn. The intent of the testator is clearly expressed, that the whole shall go over upon the happening- of the contingency named, thus showing still more clearly his intention to he, that the accruing shares should survive with the original shares. See Milson vs. Audrey, 5 Ves., 465. Eyre vs. Marsden, 4 Myl. & Cr., (18 Eng. Ch. Rep., 231.) Leeming vs. Sherratt, 2 Hare, 14. Vandergucht vs. Blake, 2 Ves., Jr., 534. Goodman vs. Goodman, 1 De G. & Sm., 699. Chamberlaine vs. Chamberlaine, 6 Ellis & Bl., (88 Eng. C. L. Rep., 624.) In re Crawhall’s Trusts, 39 Eng. L. & E. Rep., 449.

The decree from which these appeals were taken will he reversed, and the cause remanded to the Circuit Court, in order that a decree may he passed by that Court, in conformity with this opinion.

Considering that there was reasonable ground for contest with reference to the true construction of the will, this Court will not award costs upon the appeals to the successful parties. In our opinion, the costs of these appeals ought to he paid out of the estate, and the Circuit Court will so direct by their decree.

Decree reversed cmd cause remanded.