Lee v. Waltjen

I exes, J., delivered the opinion of the Court. While this case and the one immediately preceding’ involve the construction of different wills, the parties to both appeals are identical, the questions for determination are closely analogous, and both are subject to similar decisions. The will now to be considered is that of Florence Patterson Carroll, and the particular clause to be construed is as follows: “I devise and bequeath all the property covered by item 5th of this will to my cousins, Emma iVIordeeai and Frank Brown, their respective heirs, share and share alike, for their respective lives, and at their respective deaths to any child or children they may have respectively in fee simple and absolutely, per stirpes. But in case either the said Emma or the said Frank should die without issue, the share of the one so dying shall go to my cousin, Alice Patterson Harris, her heirs and representatives.” As in the companion case just decided, the question here is whether the estate devised and bequeathed 'to Governor Frank Brown for life vested in remainder in both of his two children, or only in the one by whom he was survived.

The amount of the estate affected by the decision in this case is $80,160.56. The appeal is from a decree sustaining the claim of the widow and child of the deceased son of the life tenant to onedialf of the fund, and awarding the other half to the personal representatives of the surviving daughter, who has died since the life estáte terminated. The limitation in remainder, under this will, at the death of the life tenants was “to any child or children” they “may hare respectively in fee simple' and absolutely, per stirpes.” ⁴⁶⁰ This language does, not disclose an intention that the vesting in interest of the remainder should be postponed until the expiration of the life estate. The children of Governor Brown were born after the death of the testatrix, but the purpose that any children he might have should be entitled to the remainder was definitely expressed.

According to the rule quoted with approval in Cox v. Handy, 78 Md. 121 , and Lewis v. Payne, 113 Md. 135 , and repeated in the opinion just filed, a “remainder is vested in interest as -soon as the- remainderman is in esse and ascertained,” “provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession,” and if the “remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by tire efflux of time.” These conditions existed under the will now being considered. In' Mr. Tiffany’s admirable work on tire Law of Real Property, vol. 1, p. 498, it is said: “Where a remainder is limited in favor of a class of persons, and the members of the class are not necessarily ascertained at one time, as in the case of a remainder in favor of children, grandchildren, issue, or brothers and sisters, it is ordinarily regarded as vesting, in the first place in any person or persons within the class at the time the instrument takes- effect, the benefit of the remainder being extended to other persons who subsequently become members of the class before the termination of the particular estate, with the result that the shares of the previous members of the class are proportionately diminished. Thus in the case of a devise to A for life, and after his death to his children, or to the children of B,