Cox v. Handy

Bryan, J., delivered the opinion of the Court. William W. Handy by his will devised and bequeathed certain real and personal property to his wife for life, and also made devises and bequests to his children. ¹²¹ His will contained the following clause : “ It is my will that after the death of my wife, Mary Ann Handy, that all the property devised to her for life, except the house and lot hereinbefore devised to my son, Thomas P. Handy, after her death, and which is situate on St. Paul street, and the one thousand dollars of Baltimore City Stock devised to my said wife, which after her death is to be vested and go to my son Thomas, shall be sold if necessary" for equal partition, or if the same can be accomplished without a sale, shall be divided amongst mj" children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled.” The construction of this clause is the object of the present suit. If the words referring to the “child or children of any deceased child” had been omitted, we suppose that the meaning of the clause would have been quite clear. In a book of great authority, a very simple and satisfactory test is given by which a vested estate may be known.

It is thus stated: “Now, when a remainder is limited to a person in esse and ascertained, to take effect, by words of express limitation, on the determination of the preceding particular estate, this remainder is most clearly and unquestionably vested. The person to whom the remainder is limited may, in respect of the limitation of his estate, assert a right to the possession, as soon as the possession shall fall. ” 1 Preston on Estates, 10. In the reports of decided cases, we may" find paraphrases and amplifications of the language in which this rule is expressed. For instance in Moore vs. Lyons, 25 Wendell, 144 , in the Court of Errors, the Chancellor said: “Eor where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the ¹²² remainderman is in esse and ascertained ; provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession.” And this statement of the rule has been highly approved in judicial opinions; we may mention a case in the Supreme Court of Massachusetts, and two in the Supreme Court of the United States : Blanchard vs. Blanchard, et al. , 1 Allen, 227 ; Doe, Lessee of Poor vs. Considine, 6 Wallace, 476; McArthur vs. Scott, 113 U. S., 379 .

The testator mentions his children by name in the previous portions of his will, and by this clause directs an equal partition of the property in question among them at the death of his wife ; it is obvious that the sale which he mentions was only intended as a method of making an equal division. It is well settled that a gift to children to take effect in possession immediately on the testator’s decease, comprehends the children living at the testator’s death, and those only. Jarman on Wills, chapter 30, section 4. And it is also settled that where a particular estate is given, and there is a gift over do children, this gift will embrace the children living at the death of the testator, and all who may subsequently come into existence before the period of distribution.

Jarman on Wills, chapter 30, section 5. In the present case as the gift is to the children of the testator, of course, none of the objects of this clause of the will could come into existence after his death. It is clear then that the devise and bequest (if the part relating to the children of the testator’s children be omitted) is a gift to persons in existence to take effect in possession on the death of the wife; an event which was sure to happen. There would then be no element whatever of contingency about it.

But we must inquire what influence these omitted words have on the construction of this clause. The child of a deceased child is to take the share to which his parent, if living, would have ¹²³ been entitled. Of course, this must mean if living when the shares are to be distributed ; that is to say, at the death of the tenant for life. There is no other point of time to which the living can rationally be referred.

Most certainly not to the death of the testator, because if the parent were not living at that, time, he would not be comprehended in the clause at all, and would not therefore be entitled to any share for his child to take. And this reference to the death of the tenant for life is in accordance with the established construction in like cases. Jarman on Wills, chapter 48, section 2: Harvey vs. McLaughlin, 1 Price, 264, (cited with approbation by this Court in Engel vs. State, use of Geiger, 65 Md., 545 .) Rut this point of time does not determine whether the gifts to the parents were vested or contingent. Expressions such as those used in this clause have been associated in wills with other language complicated and involved in great variety : and the Courts have declared their effect, according as they have been able to ascertain the intention of the testator in each particular case.

The rules of construction which have been established are necessarily modified by the differences in the language of the wills, and the state of things to which it was applied. These rules are intended to aid the Courts in discovering the testator’s meaning ; but we fear that there is some ground for the complaint of an eminent Judge that on many occasions the testator’s intention has been defeated by the application of rules which were intended to effectuate it. We will endeavor to escape this reproach in the present case. The clause declares that the child or children of a deceased child shall take the parent’s portion ; but it does not state what is to become of the portion of a deceased child in case he should die without children.

Is the estate which was granted to him by the previous terms of the clause to be divested? if so, to whom is it given? The words used ¹²⁴ do not state that it is to he divested, and. given to some one else. If they receive this construction, it must be by virtue of some imperative rule. Let us see if there is any such rule.

It will be observed that the meaning of the language is not embarrassed by being associated with doubtful or ambiguous provisions, and that the question is presented rather harely and nakedly. In Strother vs. Dutton, 1 De Gex & Jones, 675, a testator made a bequest to his daughter and her husband, and at the death of the longer liver it was to he distributed equally among her children, and it was then stated, <£in case any lawful children are living from son or daughter being dead, the issue of their marriage, that such child or children, shall he equally entitled to the part