Dickson v. Satterfield

Irving, J., delivered the opinion of the Court. The will of Mary E. A. Reed is dated 15th March, 1847, and was admitted to probate in July, 1855. In April, ³¹⁹ 1878, the executor to whom letters testamentary had. been granted being dead, the Orphans’ Court of Caroline County granted letters of administration de bonis non c. t. a. to William C. Satterfield and George H. Moore. On their application for an order to sell certain real estate devised to Elizabeth Baynard for life, “and in case of her' death without issue,” directed to be sold and proceeds disposed of as the will directed, the Orphans’ Court directed the sale.

The administrators d. b. n. c. t. a. made the sale, and reported it to the Court. An order of ratification nisi was passed and published; when exceptions to the ratification were filed by the appellant. These exceptions were overruled, the sale was ratified, and appeal taken.- The exceptions are: “1. That the administrators d. b. n. c. t. a. were not authorized to make the sale. “ 2.

That the cestui que trust named in the will of the said Mary E. Reed was, and is not a corporate body, and has no existence. “ 3. That the alleged power of sale in said will depends on a contingency which may or may not happen, and is therefore void. “4. That under the item of said will in which said alleged authority is claimed, Elizabeth Baynard, late of Caroline County, deceased, took a fee simple estate.” In effect all these exceptions mean hut one thing, that the devise over, in the event of the death of Elizabeth Baynard without issue, is void, and as the object of the sale no longer exists, the sale cannot he made; and the property must be left without sale, to the heirs-at-law of Elizabeth Baynard, to whom it is alleged the property passes in fee. The clause of the will on which the question arises is as follows: “ To my cousin, Elizabeth Baynard, I will and bequeath the late residence of my father in Greensboro’, consisting of one lot, a two story double house, stone house, granary, carriage house and stable, and all the buildings thereon, during her life; and in case ³²⁰ of her death without issue I direct that it he sold and the proceeds given to the Home and Foreign Missionary fund of the Maryland Protestant Episcopal Church at Baltimore ; I will to her my eight-day clock during her natural life, and then if she die without a will, to Sarah Anne Warren, daughter of my aunt, Sarah White, and her heirs forever.” The first object in construing a will is to ascertain the intent of the testator, if possible from the language of the whole will, and then to give it effect, if consistent with the rules of law.

Here the devise is to Elizabeth Baynard for life. She is the first object of bounty in this bequest. “ In case of her death without issue ” there is a devise over to the “ Home and Foreign Missionary fund of the Maryland Protestant Episcopal Church.” If she has issue the charitable bequest is not to take effect. The inference, therefore, is irresistible that the testator intended that if Elizabeth Baynard had issue, that such issue should have and enjoy the property; for it would he, in the language of Mr. Jarman, “ attributing the grossest absurdity to the testator,” to suppose she intended her missionary charity to fail because of the first object of her bounty having issue, unless she intended that issue should enjoy her bounty in preference to the charitable object to which she gave the property in the event of there being-no such issue. 1 Jarman on Wills, 431. If issue in this will is to be regarded in its usual and technical sense as meaning the same as “heirs of her body,” the devise being Elizabeth Baynard for life, follow by a devise to her issue, the word issue must he construed under the operation of the rule in Shelley’s Case, as a word of limitation, and not as a word of purchase, and the two estates would coalesce and form an estate tail general in the first taker.

The Yice-Chancellor in Mackell vs. Weeding, 8 Simons, 4, says, in a case of like character; “ I consider it to he a settled point that whether an estate he given in ³²¹ fee or for life, or generally without any particular words to limit its duration, if it be followed by a devise over in case of the devisee dying without issue, the devisee will take an estate tail.’’ 1 Jarman, 447. Unless there be something in the context of the will to rescue the word “ issue ” from its ordinary and technical signification, or to indicate with reasonable certainty that the testatrix intended to create in the issue a new stock of inheritance,