Clagett v. Bowie

Urner, J., delivered the opinion of the Court. This is a special case stated for the construction of a will and codicil executed by Camila W. Mullikin, a resident of Prince George’s County, who died in the year 1906. The provisions with which the case is concerned are contained in the second and fifth clauses of the will and in the first and third clauses of the codicil, and are as follows: “I give and devise to Corrilla Mullikin Bowie, daughter of said John M. Bowie” (a nephew of the testatrix), “two hundred acres of land, with the dwellings and other improvements, of the lands conveyed to me by William B. Claggett and wife, the said lands being known as ‘Locust Hill’ and part of ‘Mount Oak,’ the said land to be laid off so as to give her one hundred and seventy-five acres of arable land and twenty-five acres of woodland; and to Cornelia M. Bowie, the younger daughter of said John M. Bowie, ⁴³⁹ all the rest and residue of the said tracts of land recently purchased by me from the said William B. Claggett. In the event of the death of either of said girls without leaving issue, the property devised to either of them shall go to the survivor, in fee simple.” “The devises of ‘Locust HilP farm, hereinbefore made to Gorilla M. Bowie and Cornelia M. Bowie, shall vest in them, respectively, a fee simple estate and possession shall be had by them at arrival at full age; their father, as their guardian without bond, shall have charge of said real estate, manage the same in his discretion during their minority, applying the rents, etc., first as provided in the second and fourth items of this will, and then for their benefit in his discretion; in case of the death of either of said girls the survivor to have'all of ‘Locust Hills’ farm * * * and the proceeds therefrom, provided the one so dying shall leave no issue or descendants.” “It is my will and desire, and I so herein expressly declare it to be such, that either one of the devisees * * * to whom I devised iny farm called ‘Locust HilP * * * shall have the power and right to dispose of their said portions of said farm, when and as soon as they or either of them shall respectively attain the age of eighteen years of age by last will and testament, duly executed, to whomsoever they see fit and proper in their best judgment and discretion.” “I further amend said fifth clause * * * in this respect also, that, while I give to said Gorilla Mullikin Bowie and Cornelia M. Bowie a right of disposition of said farm and the proceeds therefrom by last will and testament upon the arrival of each at eighteen years of age respectively, that neither one, if living, is to be entitled to come into the possesion of said farm or the portions thereof so devised to them in said will, or the proceeds therefrom, until they or either one of them shall respectively attain the age of twenty-one years, but that until then the same is to contiune under the control and management of their father.” ⁴⁴⁰ The two devisees of the lands composing the Locust Hill farm survived the testatrix and are now above the age of twenty-one years.

They have agreed upon a division of the lands, in accordance with the terms of the wall, and have entered into possession of their respective portions. A question having been raised as to whether their title is absolute or defeasible, the present case has been stated and submitted in order that the nature of their estate may be judicially determined. The specific inquiry to be made is concerned with the meaning and effect of the provision that in the event of the death of either of the devisees, without leaving issue, the land devised to the one so dying should go to the survivor. Whether this limitation was intended to apply to the death of one of the devisees at awy time without leaving issue, or is to be construed as confining that contingency to the lifetime of the testatrix, or to the period of the devisee’s minority, is the question to be decided.

The provisions we have quoted from the will and codicil indicate, we think, with reasonable clearness, an intention upon the part of the testatrix that when the grandnieces, to whom she devised the farm, arrived at the age of twenty-one years, their estates should become absolute and indefeasible. It is distinctly stated in the will that the devises “shall vest in them, respectively, a fee simple