Neal v. Comegys

Bartol, C. J., delivered the opinion of the Court. The appellants, who were plaintiffs below, claim title to the land in question, under the will of George Heal. The appellee claims title under the same will, having acquired by mesne conveyances the estate which was devised to George Heal Hines, the first devisee. The decision of the case turns upon the construction of the following clause of the will : “I give and devise the farm, &c., to my late wife’s, Sarah Heal deceased, nephew, George Heal Hines, and to the heirs of his body, lawfully begotten, forever; and, in case the said George Heal Hines shall die under the age of twenty-one years of age, or without issue of his body lawfully begotten, or child, or descendant of such issue living, then and in that case, I give and devise the said farm-or plantation to Thomas Heal, Ebenezer Heal, Levi Heal and George Heal, the sons of my nephew, Charles Heal, and their heirs forever, as tenants in common; or to such of them or the issue of the body of such of them as shall then be living, and to their heirs forever, as tenants in common: and, in case the said Thomas Heal, Ebenfezer Heal, Levi Heal and George Heal, nor any of them, nor any issue of the body of any of them shall not bo then living, I give and devise the said farm or plantation to my nephew, Richard Smith, and his heirs forever.” The question is what estate did George Heal Hines take in the lands devised? ⁴²⁶ The words of the devise would have created an estate in fee tail general at the common law; but under the laws of Maryland such estates have been abolished, or rather have been converted into estates in fee simple.

Newton vs. Griffith, 1 H. & G., 111 ; Posey vs. Budd, 21 Md., 477 ; Hilleary vs. Hilleary, 26 Md., 275 . It has been conceded by the counsel on both sides that this devise vested in George Heal Hines an estate in fee simple, defeasible upon the condition named in the will; and it is upon the true construction of the words defining the contingency upon which the limitation over is to take effect, that the controversy arises. Construing the words according to their ordinary or grammatical sense, it-would be clear that the limitation over would take effect upon either of two contingencies, that is, if the first devisee should die before attaining the age of twenty-one years; or, if after attaining that age, he should die without lawful issue. The effect of such a construction would be that if the devisee should die under the age of twenty-one leaving issue, the devise over would take effect to the exclusion of such issue.

But this would defeat the plain intent of the testator. It is obvious from the whole terms of the will that the intention of the testator was that the executory devise should not operate so long as there remained lawful issue of George Heal Hines to take the estate, whether he should die before or after reaching the age of twenty-one. In order to effectuate this general intent, it is the settled rule of construction in such cases, established by the current of decisions both in England and in this country, to construe the word or to mean and. Because in no other way can the