Halstead v. Hall

Ritchie, J., delivered the opinion of the Court. The determination of this appeal depends upon the construction to be given the following clause in the will of Mrs. Ann Lamden, under which the appellant claims to be entitled to an undivided one-fourth in the premises sued for: ²¹¹ “I will and bequeath unto my aunt, Miss Harriet Goldsmith, all the rest and residue of my estate, real and personal, for her own use dtiring her life; at her death, I will and bequeath it to my cousin, Captain William Henry Gardner, to descend to his female children and grandchildren, and to their heirs forever.” The will was made in 1848, and the testatrix died in 1872. Both Miss Harriet Goldsmith and Captain William Henry Gardner died before the testatrix; the latter in 1871, and intestate, leaving two daughters, Mrs. Fannie A. Halstead and Mrs. McKnight, and two grand-daughters, to wit, Fannie F. Gardner, a daughter of Farragut Gardner, son of said Captain Gardner, who died in 1859, and the present plaintiff, born in the life-time of Captain Gardner, who is the daughter of the said Mrs. Fannie A. Halstead, who is still alive. Upon these facts, the appellant submitted a prayer, the substance of which is, that she took under the will an undivided one-fourth in the premises with her mother, Mrs. McKnight and Miss Gardner, they taking the other three-fourths, respectively.

This prayer was rejected. The appellee offered three prayers; the first submitting that under the said devise Captain Gardner took a vested estate in fee in the remainder in the real estate, the subject of the suit, which on the death of the testatrix descended to his heirs-at-law, of whom the plaintiff is not one, and, therefore, not entitled to recover; the second, that Captain Gardner took an estate tail female general in the real estate mentioned, Avhich on the death of the testatrix, under the statute laAv of this State, descended to his heirs-at-law, of which the plaintiff is not one, and, therefore, is not entitled to recover. Both these prayers were rejected. His third prayer contains the proposition that the plaintiff took no interest hr or claim to the real estate in suit, under said devise, because her mother, the said Mrs. Hal-' ²¹² stead, one of' the daughters of said Captain Gardner, was living at the time of the death of the said testatrix, and is-still alive.

This prayer was granted. The case having been submitted to and tried by the Court, the finding and judgment were for the defendant. After full consideration of the clause in the will of Mrs. Lamden, before us for construction, we have reached the conclusion that the devise is to Miss Goldsmith for life, remainder to Captain Gardner for life, with remainder in fee to his female children and grand-children. That Captain Gardner did not take the fee, or an estate tail, as contended ibr by the appellee, seems clear from the explicit declaration of the testatrix, that the property first given to Miss Goldsmith for life, and at her death to Captain Gardner, is “to descend to his female children and grand-children, and to their heirs forever.” She uses the terms children and grand-children, and not the term heirs, words which are, in their usual sense, words of purchase and not of limitation, and are to be always so regarded unless the testator has unmistakably used them otherwise, which is not the case here.

Stump, et al. vs. Jordan, et al., 54 Md., 631 ; In re Sanders, and others, 4 Paige’s C., 293; 2 Wash. on Real Prop., (4th Ed.,) 603. That these words were not employed as words of limitation is further apparent because the words to carry the fee — “ their heirs forever ” — are explicitly grafted on the estate to descend to the children and grand-children, and do not relate or apply to the interest devised to Captain Gardner. In Shreve, et al. vs. Shreve, et al., 43 Md., 399 , even the words “heirs and assigns forever,” were held not to operate as words of limitation because corrected or explained by words which followed that were irreconcilable with the notion of descent. In this case no apt words, nor, indeed, any whatever are employed to indicate an absolute estate in Captain Gardner, but are expressly reserved to describe that devised to the children and grand ²¹³ children.

See Lord Brougham in Fethuston vs. Fethu ston, 3 Clark & Finnelly, 75. The use of so technical a word as “