Handy v. McKim

Alvey, C. J., delivered the opinion of the Court. This is an action of ejectment brought by the appellants against the appellees to recover two several parcels of ground in the City of Baltimore. The case was submitted to the Court below, without the aid of a jury, upon an agreed statement of facts, and judgment- pro forma was entered for the appellees by consent. It is from this judgment that the appeal is taken; and the object of the appeal, as declared by the agreement of the parties, is to obtain the judgment of this Court ‘-‘as to the true construction and legal effect” of two deeds made part of the agreed statement of facts submitted to the Court.

The first of these deeds, dated the 20th of April, 1836, is from John McKim, Jr., and wife, the father and mother of Ann McKim, to David T. McKim and John S. McKim, ⁵⁶⁶ trustees, upon certain special trusts set forth, in the deed. The consideration recited is that of natural love and affection for the daughter, and of the sum of five dollars money paid by the grantees. This deed is for one of the parcels, of ground sued .for; and, in the premises thereof, the terms, of conveyance are, “do give, grant, bargain and sell, alien, enfeoff, and convey, unto the said parties hereto of the second part, and the survivor of them, and the heirs of such survivor, in special trust, that the said Ann McKim be permitted and suffered, during the term of her natural life, to have, hold, use, occupy, possess and enjoy, the described premises, and the rents, issues and profits thereof to receive, take and apply to her own separate use and benefit, whether she be sole or covert, so that neither the ground, or any part thereof, nor the rents, issues or profits, of the. same, should, in any manner, be liable or subject to the control, power or disposition of any future husband the said Ann might have, or be in anywise liable for his-debts; and that the receipts of the said Ann alone, whether sole or covert, should be good and effectual acquittances for such rents and profits; and from and immediately after the decease of the said Ann, then in trust, for the child or children that she might have, his, her or their heirs,” &c. “But in case the said Ann McKim shall depart this life without leaving a child or children, or descendants of the same, living at the time of her death, then to the use and benefit and behoof of such person or persons as would, by the now existing laws of the State of Maryland, he entitled to take an estate in fee simple in lands hy descent from her” At the date of the deed just recited, Ann McKim, the cestui que trust, was a feme-sole, but before the date of the second deed, the -28th of November, 1837, she had married Samuel J. K. Handy; for in the deed of that date she is described as the wife of said Handy. This latter deed was made by E. Gr.

Waters and wife, and Samuel ⁵⁶⁷ Hobbs, to David T. McKim and John S. McKim, the trustees named in the former deed, and. was for the other parcel of ground sued for. The deed sets forth a money consideration, and the terms employed in the granting clause thereof, are, “do grant, bargain and sell, alien, enfeoff, release, assign, and convey unto the said parties hereto of the third part (the grantees), and the survivor of them, and the heirs of the survivor, all that piece or parcel of ground,” &c. The general scheme of the trusts declared by this deed is similar to that declared in the former deed, though different in some particulars. The trusts declared are that Mrs. Handy should be permitted and suffered, during her life, to hold, use, possess and enjoy the premises described, and the rents, issues and profits thereof to receive, take and apply, to her own separate use and benefit, her coverture notwithstanding, so that neither the property described, or any part thereof, nor the rents, issues and profits of the same, should in any manner be liable or subject to the control, power, or disposal of her then or any future husband, or be in any way liable for his debts ; and the receipts of Mrs. Handy alone, whether sole or covert, were declared to be good and effectual acquittances for such rents, issues and profits; and from and immediately after her death, then in trust, that the property should descend to and become the estate and property of her child or children, if any she should have, their heirs and assigns forever, &c.

But in case the said Ann McKim Handy shall depart this life without leaving a child or children, or descendants of the same living at the time of her death, then to the use, benefit and behoof of the right heirs of the said Ann McKim Handy and their assigns forever.” Mrs. Handy never had issue of her body, and she survived her husband, Samuel J. K. Handy, and died in 1883. Her husband, Mr. Handy, died in 1871. In 1852, during the coverture, Mrs. Handy, with the assent of her ⁵⁶⁸ husband, duly made her will, whereby she devised the property, embraced in both of the deeds, to her husband, upon the assumption that she took a fee simple estate, either legal or equitable,-under those deeds; and the will was duly admitted to probate after her death. The appellants claim through, and as heirs-at-law of, Samuel J. K. Handy, under and by virtue of the devise to him; and the appellees are in possession of the property, and are the heirs-at-law of Mrs. Ann McKim Handy, though it is not stated that they claim to hold-as the heirs-at-law of Mrs. Handy.

For the appellants it is contended that under the two deeds in evidence Mrs. Handy took estates in fee simple in the- property conveyed, either legal or equitable, by the application of the rule .in Shelley’s Case (1 Co. 93 b.); and that by the will of Mrs.. Handy, (the devise being saved from lapse by statute,) the title devolved on the appellants as heirs-at-law of her deceased husband. While on the other hand it is contended for the appellees, that Mrs. Handy took only an estate for 'her life under the deeds, and that, therefore, she was not competent to dispose of the property by will. These contentions give rise to the questions necessary to be decided on this appeal.

In expounding deeds no principle is more familiar or better established than that the intention of the parties shall prevail, if not repugnant to some principle or maxim of the law; and that the intention is to be gathered by considering the whole deed, and each and every part thereof. As was declared by the Court of Appeals in Budd vs. Brooke, 3 Gill, 234, “In construing a grant, it is the' duty of the Court, first, to ascertain what the parties intended should be effected by it; and that intention being collected from an inspection of the grant itself, it is the duty of the Court to give to it such an interpretation as will effectuate that intention, provided the terms and. expressions used in the grant will admit of such a construction.” And in construing deeds of conveyance of a ⁵⁶⁹ freehold estate, such as those under consideration in this case, the Court will, if appropriate terms be employed, treat them either as deeds of feoffment or deeds of bargain and sale, as will best subserve the objects and purposes in the contemplation of the parties. Matthews vs. Ward, 10 G. & J., 448 , 449; Ware vs. Richardson, 3 Md., 546 . The Act of 1766, ch. 14, provided for recording of deeds of feoffment as well as of deeds of bargain and sale, and the enrollment of such deeds is a substitute for the act of livery, and is equivalent to it.

Here both deeds in question contain operative words to make them either deeds of feoffment, or deeds of bargain and sale ; and whether they are to be taken as being the one or the other species of con.veyance, must depend upon construction to subserve the manifest intention of the parties. If construed to be deeds of bargain and sale, the uses declared are not operated upon by the statute of uses, further than to vest the legal estate in fee in the bargainees, the trustees, and all the uses declared remain unexecuted by the statute, and are trusts and mere equitable estates. Whereas, if construed to be deeds of feoffment, being common law assurances, .the question of the operation of the statute of uses— whether and when it will operate to execute the use or uses declared and convert them into legal estates — will depend upon the nature of the trust and of the duties imposed upon the feoffees as trustees ; for if the duties create a special or active trust in the feoffees, the uses in respect of which such duties are required to be performed are not within the purview of the statute, and remain unexecuted and are mere trusts, and constitute equitable estates in the cestui que trust, the legal estates remaining in the feoffees. But whenever such special trust or active duties shall cease, there being no longer any object to serve by keeping separate and distinct the legal and equitable estates, the statute of uses operates and executes the legal estate in the cestui que trust. 1 Perry on Trusts, sec. 320, and cases there collated. ⁵⁷⁰ 1.

Now, with respect to the deed dated the 20th of April, 1836, the first question is, whether the ultimate limitation in that deed, to such person or persons as would be entitled to take an estate in fee by descent from Ann McKim, is such as could, by force of the rule in Shelley’s Case, unite with the previous life estate limited to Ann McKim, and thus vest in her a fee simple estate, either legal or equitable ? In other words, in order to invest a party with a fee simple estate by deed, and such deed as that before us, is it necessary that the word heirs should be employed in the limitation ? As Lord Ooke has well said, in speaking of the use or office of the word heirs; “there are words so appropriated by the law, as that they cannot be legally expressed by any other word, or by any periphrasis or circumlocution.” Co. Lift. 9 a. From the time before Littleton we find that the word heirs was essential in a deed for the limitation of an estate in fee.

In Littleton’s Tenures, ch. 1, sec. 1, the author says, “if a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his purchase. To have and to hold to him and to his heirs; for these words (his heires) make the estate of inheritance. For if a man purchase lands by these words, To have and to hold to him forever; or by these words, To have and to hold to him and his assigns forever; in these two cases he hath but an estate for term of life, for that there lacke these words (his heires), which words only make an estate of inheritance in all feoffments and grants.” And Coke, in commenting upon this section of Littleton, after speaking of the comprehensive meaning and peculiar office of the words his heirs, says, “the reason wherefore the law is so precise to prescribe certaine words to create an estate of inheritance, is for avoiding of uncertainty, the mother of contention and confusion.” And so Blackstone, (2 Comm. 107, 108,) Wooddeson, (Lect. Vol. 2, p. 276,) Cruise, (4 Dig. tit.

Deed, ch. 21, p. 295,) and Kent, (4 Comm. 5-6,) all’ ⁵⁷¹ concur in stating the- rule, that in order to create an estate in fee by deed the word heirs is essential and cannot be supplied by any other word. And the same general principle, as applied to deeds, is embodied by Preston in his statement of the rule in Shelley’s Case: 1 Prest. Est., 263-4. But we are not without authority in this Court upon the subject.

In the case of Hollingsworth vs. McDonald, 2 H. & J., 235, it was laid down by the Court of Appeals as an indisputable rule of real property law, that “In a deed or conveyance of a freehold or legal estate, technical words are appropriated by law to the creation or limitation of particular estates ; for instance, to create an estate in fee, the limitation must be to J. S. and his heirs, and to create a fee tail, to J. S. and the heirs of his body. It is established, however, that the words de cor-pore suo are not indispensably necessary, but may be supplied by words equipollent or tantamount, plainly designating or pointing out the body from which the heirs inheritable are to issue or descend.” In that case the limtation was to T. P. and his heirs, and in case of his death without lawful issue, the estate to revert to R. P. and his heirs. And it was held that the subsequent words, “ in case of his death without lawful issue,” should be allowed to qualify and restrain the generality of the precedent expressions, (to T. P. and his heirs,) and point out the heirs intended to inherit, and confine them