Gable v. Ellender

Irving, J., delivered the opinion of the Court. The appellants brought ejectment in the Superior Court of Baltimore City, against the appellees to recover possession of a house and lot on Madison street, in the City of Baltimore. The case was submitted to the Court without the intervention of a jury. A pro forma judgment was entered for the defendants and appeal taken to this Court.

The property sued for is leasehold property, and the appellants’ right to recover depends upon the construction ³¹³ of the fourth clause of the will of Charity Ellender. The will is dated the 9th day of January, 1860, and the clause giving rise to this controversy is as follows: “ I give and bequeath to my beloved daughter, Eliza Gable, the wife of Henry Gable, my brick house and lot fronting on Madison street, during her life, and at the death of the said Eliza Gable, it shall descend to Sarah Jane Gable, her daughter, and to her heirs forever, and should the said Sarah Jane Gable die without heirs, it shall then descend to my children then living and be equally divided between them, share and share alike.” The testatrix died December 31, 1861, and the will was admitted to probate on the tenth of January, 1862. Eliza Gable, the first taker, died January 18th, 1874, leaving the said Sarah Jane Gable, her daughter, who is referred to in the will, and the appellants, William H. Gable and Benjamin Gable, her sons, survivin g her. These persons were her only children, and her husband had died before she did.

Sarah Jane Gable, died intestate on the 7th of June, 1877, without any child or descendant, leaving her husband, John J. Jones, surviving her. It is admitted that Sarah Jane and her husband had possession of the property from the death ot Eliza, until the death of Sarah Jane, when her husband surrendered possession to George W. Ellender, one of the defendants. It is also admitted that the testatrix at the time of her death left eight children living, all of whom were living and in esse when the will was made. It is also admitted that at the time of the death of Sarah Jane, only four of the children of the testatrix were living, namely, George W. Ellender, Mary Ann Ellender, Julia A. Wilcox, and Amanda Clark.

It is also admitted that those children who are mentioned in the will as to take if living at the death of Sarah Jane, in the contingency named, were living and in esse at the date of the will of the testatrix. The appellants admitting the devise over to be a good and valid executory devise, contend that the contingency ³¹⁴ mentioned and provided for has not happened, because Sarah Jane has left the appellants as her heirs, and they claim as such; that the word heirs is to he taken in its technical sense, and as applied to personal property it means that persons who would take hy the Statute of Distributions. The appellees contend also that the limitation over is a good executory devise in law, but insist that hy the proper construction of the will the word heirs is to he taken to mean heirs of the body, and that there is language in the will which is quite sufficient to restrict the failure provided for hy the testatrix to a failure of such heirs at the death of Sarah Jane Gable; and that Sarah Jane having died without such heirs, the contingency has arisen whereby the children of the testatrix, who were living at Sarah Jane’s death, are hy the will to take the property. From an early period in England, and always in this country and State, in the construction of wills, Courts have adhered to the technical meaning of the word “ heirs ” and “ isssue,” much less rigorously, when the devise over on the failure thereof was made, when the devise was of personal estate, than when of real estate.

In the same will where both real and personal estate were devised over on the failure of issue or of heirs, the words have been held to import indefinite failure when applied to real estate, and to mean a definite failure when applied to the personalty, hy reason of some expression in the will on which the Court in the one case, felt justified in relying as indicative of the intent of the testator, and not in the other. This originated no doubt in the more permanent and enduring character of real than personal estate, and the natural presumption that the testator did not intend, as to anything destructible in its character, to provide against the indefinite failure of issue in the intended taker thereof. The doctrine of Forth vs. Chapman, 1 P. W., 663, has been accepted law in this State, and it has been so adjudi ³¹⁵ cated in many reported cases. Dallam vs. Dallam, 7 H. & J., 220 ; Newton vs. Griffith, 1 H. & G., 117 ; Biscoe vs. Biscoe, 6 G. & J., 232 ; Budd, et al. vs. State, use Posey’s Adm’rs, 22 Md., 48 ; and Woodland vs. Wallis, 6 Md., 151 .

The rule now is, that the Court will, in cases of the devise of personal property, seize upon any