Doe v. Sussan

Miller, J., delivered the opinion of the Court. The record shows that judgment was rendered and the exception signed in this case on the 5th of June, 1866. The appeal was taken on the 21st of the same month, and, being thus in time, the delay in the transmission of the record is presumptively the fault of the clerk and not of the appellant. The case does not come within the operation of the new rule on that subject, recently adopted by this Court, which took effect on the 1st of January, 1870, after the present record had been brought up.

The fact that official copies of two documents, used in evidence and contained in the exception, appear to have been made as late as August, 1869, cannot affect the,appeal which the record shows was taken in- due time. The motion to dismiss is, therefore, overruled. The property in dispute appears to be leasehold, and the prayers on either side raise the question of the construction of a clause in the will of William Price, executed in 1828, and admitted to probate the 15th of October, 1831, under which it is assumed the title is derived. By this will the testator devised to several of his grand-children certain houses and lots in the city of Baltimore, among which, that in dispute is alleged to be embraced in the following clause: “And to my grand-daughter, Sarah John Price, her heirs, executors, administrators and assigns, my lot of ground on Alice Anne street, with the three story brick house thereon, (including basement,) adjoining that on the same street above devised to my grandson, William Price.

But in case of the decease of ¹⁵ all or either of my grand-children above named -without having lawful issue or descendants of the same, then I give and devise the property so bequeathed to him, her or them so dying, unto my said son, Walter Price, his heirs, executors, administrators and assigns forever.” Sarah John Price died several years since, without ever having had children, and never having been married. The plaintiff is the administrator of Walter Price, and his prayer places his right to recover upon the ground that the devise over to his intestate is good, leaving it to the jury to find that the defendant derives his title from and claims under Sarah John Price, and that the latter derived her title from the will of her grandfather as above stated. The defendant’s prayer which was granted, denies the plaintiff’s right to recover upon the evidence of title he had submitted, because the devise over to Walter Price is too remote. ISTo doubt could exist of the correctness of the construction placed upon this will by the Court below if the subject of the devise were a freehold estate.

The authorities on this point are too numerous and clear to leave room even for argument. There is, however, a distinction, subtle it may be, but too well settled now to be overturned, between an executory limitation of personal property upon a dying “without leaving issue,” (the words of the present will,) and the same limitation of real estate. This distinction, the leading authority for which is Forth vs. Chapman, 1 Peere Wms., 663, runs through all the decisions, and applies even where real and personal estates are comprised in the same gift. Biscoe vs. Biscoe, 6 G. & J., 236 ; Usilton vs. Usilton, 3 Md. Ch.

Dec., 36; Budd vs. Posey, 22 Md., 48 ; Woodland and Wife vs. Wallis, 6 Md., 151; and Wallis vs. Woodland and Wife, et al., 32 Md., 101 . In most, if not all the Maryland cases in which this distinction has been taken and followed, the subject of the limitation has been money or personal chattels. But, in Forth vs. Chapman, there was a devise of both freehold and leasehold estates to two nephews, and if either ¹⁶ “ should depart this life and leave no issue of their respective bodies,” then over, and the question arose whether the limitation over of the leasehold premises was void as too remote. The Court was of opinion and decreed that the devise over was void, among other reasons, because of a distinction between things merely personal and chattels real.

But after-wards, when the case came before Lord Parker upon appeal, his Lordship reversed the decree and said, “ if I devise