Garrison v. Hill

Briscoe, J., delivered the opinion of the Court. This is an appeal in an action of ejectment. The property sought to be recovered is real estate, situate on Lexington street, in Baltimore City, together with its rents and profits. The main questions for our consideration arise upon a construction of the fifth item of the will of a certain Maria E. Weise, and the will of a certain Emma M. O. Johnson.

By the fifth clause of the will of Maria E. Weise, she devised as follows: “All the rest, residue, and remainder of my estate, effects, and property of every kind and description whatsover, inclusive of my house and lot of ground on Lexington street,. I give, devise, and bequeath to Thomas Hill, of the City of Baltimore. In trust and special confidence, however, for the separate use and benefit of my cousin, the said Emma Maria C. Johnson, for and during the term of her natural life, so that she during that period be permitted and suffered to have, receive, ⁸⁰ take and enjoy the rents, issues and profits of said residuary estate, and property, free from the control, power, or disposal of any future husband she may marry; and from and after the death of said Emma Maria O. Johnson, in trust, that the said residuum shall go. to and become the property of any children of the said Emma Maria O. Johnson, their heirs and assigns, absolutely; but, in case the said Emma Maria O. Johnson should depart this life without leaving a child or children, or descendants of a child, living at the time of her -decease, then the said trust property and premises shall go to my cousin, the said William Worthington Johnson, absolutely.” The will was dated April 12,1880, and was duly executed to pass real estate. The testatrix died December 7th, 1881, unmarried and without issue.

Emma M. '0. Johnson executed her last will and testament on the 23rd of August, 1887, and died April 22, 1891, unmarried and .without issue. By her will she devised and bequeathed, after the payment of her debts and funeral expenses, all her property to her mother, Maria M. Johnson. After the death of the testatrix, the life tenant, Emma M. ’ O. Johnson received the rents and profits of the property until her death.

William Worthington Johnson, the remainderman under the will, died on the 14th of October, 1886, intestate, unmarried, and without leaving issue, but left an only sister, Emma M. O. Johnson, and Maria M. Johnson, his mother. The latter died in January, 1889. Upon this state of facts, the question then is, do the heirs at law of William Worthington Johnson, the remainderman, take the' interest in the property which he would have taken had he survived the life tenant, Emma, or did it descend to his sister Emma, who was living at the time of his death, and pass under her will to her mother, Maria M. Johnson? Here there is, first, a life estate given to Emma Johnson, and a remainder is limited with a double aspect — if she left ⁸¹ children then to them in fee, if she left none, which contingency actually happened, then the devise is to Wm.

Worthington Johnson. It is well settled that contingent estates of inheritance will pass by descent and are also devisable. Reid vs.