Benson v. Linthicum

Robinson, J., delivered the opinion of the Court. This is an appeal from a proforma decree of the Circuit Court of Baltimore City, rendered on a special case stated, under Equity Bules Eos. 47, 48 and 49. The sole question arises under the following clause of the will of Wm. A. Linthicum: “I give and bequeath to my son, William Amasa, all my property, both real1 and personal, and, in case-he should die without heir, then, and in that case, it is my will and desire that it should be equally divided between my brothers and sisters.” (naming them). ¹⁴⁴ The son thus named was the testator’s only child.

He took possession of the property thus devised, and occupied it till his death in 1875, leaving a will hy which he devised all of his property of every kind to his mother, the appellee. The question is, what estate did the son, William Amasa, take under the will of his father ? Under the Act of 1825, ch. 119, now sec. 314 of Art. 93 of the Code, the devisee of real property without words of ■perpetuity, takes an absolute estate “ unless it shall appear hy devise over, or hy words of limitation, or otherwise, that the testator intended to devise a less estate.” Here the devise over, upon the death of the son, “tuithout heir,” to the brothers and sisters of the testator, shows that the word “heir” was not used in the sense of