Baltimore & Ohio Railroad v. Patterson

Miller, J., delivered the opinion of the Court. The property, the subject of contract between these parties, and the title to which it is the object of this case stated to have settled, consists of two lots on Whetstone Point in the City of Baltimore, which were disposed of by the tenth paragraph of the will of William Patterson, who died in 1835, thus:— “I give and devise” said lots “to my son Edward” for life, “and after his decease, I give and devise” the same “to all and every, the child and children of him, my said son Edward, in equal proportions and equally to be divided between them and to the heirs of such child or children of the blood of their father forever, and for default of such child or children at the death of my said son Edward” he devises the property over to his other three sons for life, and upon their death to their children and “to the heirs of such child and children of the blood of their fathers forever.” Edward Patterson died in 1865 leaving several children, and the question is what estate these children took in this property ? The Court below by the decree appealed from decided they took a fee simple, and after a careful consideration of the question we are of the same opinion. Lord Coke says, if a man giveth lands to a man to have and to hold to him and his heirs on the part of his mother, yet the heirs of the part of the father shall inherit, for no ⁶⁰⁸ man can institute a nexo hind of inheritance not allowed by ■the laxo, and the words “of the part of his mother” are void ; and if a man giveth lands to a man to him and to his heirs male the law rejecteth this word “males,” because there is no such kind of inheritance.

Co. Litt., 13a. He is here undoubtedly speaking of a common law grant or conveyance, for in another place he says, if a man by his last will devise lands and tenements to a man and to his heirs males, this by construction of law is an estate-tail, the law supplying the words “of his body.” Co. Litt., 27a. Another passage. in this connection, much relied on by counsel, is this, “and therefore if lands be given to the son and to his heirs of the body of his father, the son cannot take as heir of the body of his father, because the grant is to him and to his heirs and consequently he hath a fee simple. Co. Litt., 27a.

Counsel have argued as if the words “heirs of the body of the father” mean the samé thing as “heirs of the blood of the father” but to this we cannot agree. The former include only heirs in the descending line, while the latter include heirs both in the ascending and descending line, and in our opinion mean the same thing as heirs on the part of the father. Mr. Preston calls such an estate a qualified fee. Px'eston on Estates, 448.

But we think it may well be classified as a “fee simple conditional” within the purview of our descent laws. Act o/17-86, ch. 45, Act of 1820, ch. 191, and Code, Art. 47, sec. 1. In Plowden it is said that at common law before the Statute de donis there were but two estates of inheritance; the one a fee simple absolute, as where a man hath lands to him and to his heirs generally, and the other a fee simple conditional, as