Hilleary v. Lessee

Goldsborough, J., delivered the opinion of this Court. The controversy in this case arises under the will of Mrs. ²⁸⁶ 'Sarah O. Hilleary, late of Prince George’s county, who ■diéd seized and possessed of certain real estate therein, and in 1851, devised the same as follows: “I give and bequeath to my dear nephew, Tilghman Hilleary, with the reservation hereinafter specified, all-my real estate, which I own, lying and situate in Maryland, to him and- his children forever; but should he die before my nephew, Leonard Hilleary, leaving no children or issue, I then give and bequeath the said real estate to my nephew, Leonard Hilleary, to him, his heirs and assigns forever.” This clause of the will is unaffected by any other provision, and must be 'construed by the terms therein expressed. The construction placed on this will by Tilghman Hilleary was, that he took an estate tail, and influenced by this construction, and to dock the entail, he executed a •deed of conveyance to Daniel Clarke on the 27th of-March, 1863, for the property devised to him, and Clarke, by a deed of the same date, reconveyed it to Tilghman Hilleary, who, by his will dated the day of the deeds, devised this property to the parties named in his will. ’.1 he appellants took possession of the estate in controversy, and defended the action of ejectment on the theory, that Tilghman Hilleary, by the will of his aunt, took an estate tail, which by operation of the deeds was docked, and became an estate in fee absolute capable of being devised, and that the devise over to the appellee was upon a contingency too remote to take effect in any aspect of the case. The appellee insists that Tilghman Hilleary took an ■estate in fee-simple, subject to the executory devise over to Leonard and his heirs, to take effect in the event of Tilghanan’s dying, leaving no children or issue in the lifetime ²⁸⁷ of Leonard, which in fact occurred, by Tilghman’s so dying.

A vast amount of learning has been elicited and applied to the subject of estates tail, contingent remainders and executory devises, both in England and in this country, still the adjudications both there and here, have not left us without precedents, by which we can arrive at a solution of this case in conformity with those precedents, and our view of the law. While cases may be found decided by eminent jurists in England, seeming to sanction the doctrine contended for by the appellants, those decisions may in some measure, he attributed to that policy which supports and encourages estates tail as important to family settlements. On the contrary, it has been our policy to consider all the children of a parent, and by parity of reason as in this case, the nephews of the testatrix, on an equal footing, without any distinction as to the feeling and affection of a parent or relation disposing of his or her estate by will, nor is there any expression in the will under consideration to cast a suspicion upon the perfect impartiality of the testatrix. Is there any inflexible rule of law to affect or defeat the plain language of Mrs. Hilleary’s will ?

The estate given to Tilghman is certainly contingent, while that given to the appellee is absolute and certain, with apt words to express a fee-simple. Can it be doubted that the testatrix intended to make a provision for the appellee upon the contingencies which, in her judgment, might happen, and which, in fact, did happen, were they to happen within a life or lives in being certainly in the lifetime of the appellee ? If such a testamentary provision created a fee-simple with a conditional limitation and not a fee tail, as we think it did, the