Mason v. Johnson

Bartol, C. J., delivered the opinion of the Court. Lovey Johnson, late of Somerset County, by her will dated the 24th day of January 1874, devised as follows: “I give, devise and bequeath unto my son Elijah T. Johnson, and my daughters MaryE. Johnson and Lavinia E. Johnson, the farm whereon I now dwell, to be equally divided between them, and in case either of them shall die without an heir of their body lawfully begotten, I then devise the share of the one so dying to the survivor or survivors of them.- And I further direct that in case all ³⁵⁵ three of my said children shall die without an heir of the bodjr lawfully begotten, I then give, devise and bequeath all of my said farm unto my grand-daughter Annie Laird, and her heirs and assigns forever.” ******* Mary E. Johnson, one of the devisees, afterwards intermarried with the appellant, and in 1876, died intestate leaving no issue ; her brother and sister, the other devisees surviving her. Her husband, the appellant, filed his bill of complaint claiming to be entitled to a life estate in the land devised to her by the will of her mother, and praying for partition.

The defendants Elijah and Lavinia, demurred generally and the Circuit Court sustained the demurrer and dismissed the bill, and the complainant has appealed. The first question to be considered is what estate did Mary E. Johnson take under the will, and in disposing of this question we are first to determine whether the devise over to the survivors is valid. At the common law it would be inoperative because too remote, being limited to take effect after an indefinite failure of issue,-or what is of equivalent import after a failure of the heirs of her body whenever that might occur. But by the Act of 1862, ch. 161, this rule of construction has been changed.

That Act provides “that in any devise or bequest of real or personal estate, the words 1 die without issue’ or £die without leaving issue ’ or £ have no issue,’ or any other words which may import either a want or failure of issue, of any person in his life-time, or at the time of his death, or an indefinite failure of issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of the death of such person, and not an indefinite failure of issue, unless a contrary intention shall appear by the will.” This statute operates to save the limitation over, and make it valid and effectual; the will, is to be read as if the limitation to the survivors was by the terms of the will to take effect upon the death of either of the children, dying ³⁵⁶ without an heir of their body, living at the time of his or her death. Now the devise to Mary is of one undivided third part of the land, as a tenant in common, but without words of perpetuity or limitation, this at the common law, the limitation over being valid, would give her a life estate only ; and upon the happening of the contingency at her death, the survivors would take the estate as a contingent remainder. Hoxton vs. Archer, 3 G. & J., 199 ; Turner vs. Withers, 23 Md., 18 . Here a question arises upon the effect of the provision of the Code, Art. 93, see. 305.

(Act of 1825, ch. 119.) That section provides that ‘ ‘ in every will whereby any lands or real property shall be devised to any person, and no words of perpetuity or limitation are used in such devise, the devisee shall take under and by virtue of such devise, the .entire and absolute estate and interest of the testator in such lands or real property unless it shall appear, by devise over or by words of limitation or otherwise that the testator intended to devise a less estate and interest.” If we are to consider that the effect of this provision of the Code is to enlarge the life estate given to Mary, in the same manner as if words of perpetuity or limitation were formed in the will, then the effect of the limitation over, • which we have