Budd v. State ex rel. Posey

Cochran, J., delivered the opinion of this Court. The appellees brought this suit, as administrators of Joseph A. Posey, on the bond of John L. Budd, as executor of Ann B. Saxton, for the purpose of recovering the value of certain personal property bequeathed by her to their intestate. The record shows that Joseph A. Posey was a half-brother of the appellee, John V". Posey, on the paternal side, and that the appellant, John L. Budd, had children living when Mrs. Saxton executed her will, and also at the time" of Joseph A. Posey’s decease.

By an agreement of the parties, all errors in pleading were waived, and the suit prosecuted for the declared purpose of obtaining a true construction of the following clause of the will on which the appellee’s right to recover depends: “1 will and devise to Joseph A. Posey, my son, my plantation whereon I now dwell, and all my personal estate as it now stands on said plantation,” * * * * “to him the said Joseph A. Posey and the heirs of his body lawfully begotten; should Joseph A. Posey die without heirs, or an heir of his body lawfully begotten, I will and bequeath all my estate, both real and personal, to the children of John L. Budd, in equal proportions, share and share alike; should John L. Budd have no children, from and after his death, I will and bequeath all my estate, both real and personal, in trust to Benedict Joseph Lancaster, for the support of the Newport Catholic Church.” The judgment below was entered on a verdict found for the appellees, in conformity with an instruction of the Court, that by the true construction of the will, Joseph A. Posey took an absolute estate in the personal property bequeathed to him, and in disposing of the question presented by this appeal, we are first to ascertain the proper rule for construing the language of this bequest. In the case of Posey’s Lessee vs. Budd, 21 Md. Rep., the words of this clause, so far as they were used to dispose of the real ⁵⁶ estate, were considered, and. the devise over was held to be contingent on an indefinite failure* of issue, and therefore inoperative and void. The rule there observed, does not, however, necessarily govern the construction of the same or like w'ords in bequests of personal estate. In the latter class of cases, the interest of the heir which the law so strongly favors in construing devises of real estate, yields to the real purpose of the testator, when any circumstance or expression in the will affords the slightest ground for supposing that a limitation after a dying without issue, was intended to mean a dying without issue then living.

And, indeed, the inclination to support limitations over of personalty as not too remote, is so strong that they will be held valid when declared in words which would import an indefinite failure of issue in a devise of real estate. Dallam vs. Dallam, 7 H. & J., 220. Newton vs. Griffith, 1 H. & G., 117 . Biscoe vs. Biscoe, 6 G. & J., 232 .

Forth vs. Chapman, 1 P. Wms. 663. But it is nevertheless well settled, that when an execu-tory bequest is limited