Clarke v. Smith

Alvey, J., delivered the opinion of the Court. The principal question in this case depends upon the construction of the third clause in the will of William Williams, deceased. The testator left three sons, to each of whom he devised land ; and the devise to his son Robert D. Williams, being the third clause in the will, is as follows : “I give and bequeath unto my son, Robert D. Williams, the farm I purchased of Wm. A. Dick, containing one hundred and fifty acres, more or less, and also the farm where Charles Wayman now lives, containing 202 acres, more or less, during the term of his natural life, and no longer, and after the death of my said son, I give and devise the said farm to his heirs laiofully begotten, forever, to be equally divided between them ; but should my said son, Robert, desire to sell the farm whereon Charles Wayman now resides, I hereby authorize and empower him so to do, and also to convey the said land in fee to the purchaser or purchasers.” ¹¹⁶ The devises made to the other two sons, William A. Williams and John B. Williams, by the first and second clauses of the will, are in substantially the same terms as those employed in the devise to Robert D., omitting only the express power of sale appended to the third clause.

There is also a residuary clause in the will, whereby all the rest and residue of the testator’s estate is given to his three sons, to he equally divided between them. The question is, whether the estate taken by Robert D. Williams, the son, was one for life only, or one in tail general, converted by the statute into a fee simple. It would seem to he clear on authority, that a devise to a party and his- heirs lawfully begotten confers only an estate tail; the word heirs, in such case, being construed heirs of the body. Co. Litt., 20b, and n. 2; Good vs. Good, 7 El. & Bl., 295; Pratt vs. Flamer, 5 H. & J., 10 .

Hence we may read the devise in this case as being to the first devisee for life, and no longer, and after his death to the heirs of his body lawfully begotten. But it is insisted by the appellees that the word heirs, as used in this devise, should he taken to mean children, and instead of being a word of limitation, it should he taken as a word of purchase. And upon this construction, the result would he, that the son, the first devisee, would take hut a life estate, with remainder to the children as purchasers. For this construction, reliance is placed upon what is supposed to be the apparent intent of the testator; and as evidence of that intent, the negative or restrictive words used in connection with the devise of the estate for life, and the subsequent words of division, used in connection with the devise to the heirs, followed by the power of sale to the first devisee, are urged as making the matter plain and incontrovertible.

But, in our view of the case, these indications of design do not remove all the difficulties out of the way of the construction contended for by the appellees. ¹¹⁷ It is a well settled rule of construction, that technical words of limitation used in a devise, such as heirs generally, or heirs of the tody, shall be allowed their legal effect, unless from subsequent inconsistent words it is made perfectly plain that the testator meant otherwise. Or, to use the language of Lord Eldon, in Wright vs. Jesson, 2 Bligh, 1, the words heirs of the body will indeed yield to a particular intent that the estate shall he only for life, and that may he from the effect of superadded words, or any expression showing the particular intent of the testator, but that must be clearly intelligible and unequivocal. This principle is very clearly stated and adopted by this Court, in the case of Simpers vs. Simpers, 15 Md., 160, 187 , It results from the great necessity, always acknowledged by the Courts, of adhering to established rules of construction, in order to maintain certainty and stability of titles. It maybe assumed as certain, that the testator intended, by the devise of the remainder to the son’s heirs lawfully begotten, that the son’s descendants, or posterity should take the estate ; and that, too, without restriction to the son’s children that might be living either at the death of the testator or the devisee for life.

This being so, the question is, by what principle does the law provide for executing that intent? A general rule of construction must bo invoked, and that rule is, if an estate of freehold be devised to a man, and either mediately or immediately, an estate is limited to the heirs of his body, he will take an estate tail. If all embraced within the description of heirs or heirs of the body of the first taker are designed to take, giving to those words their legal and technical meaning, then the only mode of effecting that general intent is by the application of the general rule just stated. All taking in the character of heirs, in such case, must take by descent from the first taker.

This is the operation of the rule in Shelley’s Case, which has been for ages an ¹¹⁸ established rule of property. Jones vs. Morgan, 1 Bro. C. C., 206; Simpers vs. Simpers, 15 Md., 187 . And the question here is, whether the force of this rule is fairly overcome by the circumstances indicative of a particular intent, relied on by the appellees.

It has been settled by numerous decisions, that a devise to one for his natural life, or for his life only, with remainder to his heirs, will not restrict the first devise to a life estate. And in the case of Robinson vs. Robinson, 1 Burr., 38, the devise was of “ all my real estate, &c. to H. for and during the term of his natural life, and no longer,” provided he take the name of the testator, and live at the house, &c.; “and after his decease, to such son as he shall have, lawfully to be begotten, &c.; and for default of such issue,” then over. That devise was, upon most thorough consideration, determined, first in the King’s Bench, then in Chancery, and finally in the House of Lords, to pass an estate tail to H., the first devisee. And the decision proceeded upon the ground, that it was necessary that H. should take an estate tail, in order to effectuaté the manifest general intent, notwithstanding the express estate devised to H. for his life and no longer.

See, also, the case of Thong vs. Bedford, 1 Bro. C. c., 313, and note thereto by Eden. Indeed, it