Pennington v. Pennington

Alvey, C. J., delivered the opinion of the Court. This case was instituted under the provisions of the Act of 1888, ch. 478, now embraced in the Code as sections 26, 27, 28, 29, 30 and 31, of Article 16, sub-title, “Declaratory Decrees,” for the purpose of obtaining a judicial declaration as to the rights of the parties upon a proper constniction of the will of Charles C. Harper, deceased. The bill prays for no specific relief, but only for a declaration of the rights of the parties. And as the statute under which the proceeding is taken is new, and introduces a new feature into the practice of our Courts of equity, it is not improper for us to say in this case, the first that has been brought into this Court under the statute, that care is to be observed whether the case presented is of a nature proper for the discretionary exercise of the jurisdiction conferred.

Doubtless, in some cases the jurisdiction may be very beneficially exercised; but it should never be invoked for the purpose of having determined mere moot-points, or mere abstract or experimental questions. In all cases the Court should see that there is a real bona fide question for controversy involved, as between the parties to the cause, and that there is an existing propriety for ⁴³¹ its immediate decision. It is only in those cases where equity would have jurisdiction, if some specific or ultimate relief were asked, that the Court would he warranted in proceeding under the statute to make a declaratory decree; and the statute expressly provides, that, “no Court shall make any such declaratory decree where the plaintiff is, in the opinion of the Court, able to seek further relief than a mere declaration of title, but omits to do so.” In the case before us it does not appear that the plaintiff was able to seek other relief than a declaration of title, and consequently the Court below assumed jurisdiction and passed a decree pro forma declaring the rights of the plaintiff; and it is from that decree that this appeal is taken. The will of Charles C. Harper bears date the 2d of August, 1834, and was admitted to probate on the 28th of October, 1837.

That clause of the will that gives rise to the questions presented on this appeal is as follows : “1. To my beloved wife, Charlotte, to whom I owe so much happiness, I devise and bequeath, for and during the term of her natural life, my farm in Baltimore County, called ‘Oakland/ as a home and residence for her and my children, with reversion at her death to my eldest son (if I have one, either born or in ventre sa mere,) for life, and after him to his eldest son in fee; and if my eldest son die without leaving male issue, then to my second son for life, with reversion to his eldest son in fee; and if he also die without leaving male issue, then to my third son, and so on, in the same manner. And if I have no sons, or they all die without leaving male issue, then I devise and bequeath the reversion of Oakland to my dear daughter, Harriet, for her life, with reversion to her eldest son in fee; and if she die without male issue, then to my dear daughter Catharine for life, with remainder to her eldest son in ⁴³² fee ; and if she also die without male issue, then to my next daughter, and so on, in the same manner. And if none of my daughters leave male issue, then I devise and bequeath the reversion of the said farm, after the death of my beloved wife, to the eldest daughter of my eldest son for life, with remainder to her eldest son in fee; and if he leave no daughter, then to the eldest daughter of my second son for life, with remainder to her eldest son in fee, and soforth, with the daughters of my sons.

And if none of my sons leave any issue, then to the eldest daughter of my daughter Harriet for life, with remainder to her eldest son in fee ; and if she die without issue, then to the eldest daughter of my daughter Catharine for life, with remainder to her eldest son in fee, and so on with my other daughters, each in her turn. And if none of my children should leave issue, then” he proceeds to devise the farm to collateral relations. And at the conclusion of the clause containing the devises of the farm, he adds this: “But as I do not wish to establish too great an inequality among my descendants, I hereby require and direct that before any person or persons herein named or specified, shall have possession or property under this will, he or she, if my son or daughter, shall pay to his or her brother or sister (if there be but one) the sum of five thousand dollars, or distribute aifiong his or her brothers or sisters (if there be two besides himself or herself) the sum of six thousand dollars, and (if there be three besides) the sum of seven thousand dollars, and (if there be four or more) the sum of eight thousand dollars. And if at the death of my beloved wife none of my children by her be living, these sums as above named shall be paid and distributed among their descendants per stirpes; and if some of them only be dead, then the money shall be paid and distributed to those who are living, and to the descendants of those ⁴³³ who are dead, the children standing in the place of their parents, and sharing equally among themselves.

But this clause shall extend only to my children, grandchildren and their lineal descendants." The facts as alleged aud proved are, that Charles C. Harper, the testator, died in 183⁷, leaving his wife Charlotte surviving him, and that she died in 186⁷. That he, the testator, never had any sons, hut had three daughters; the eldest of whom, Harriet, was horn in 1828 and died in 1836, unmarried; Catharine, who was horn in 1832, and died in 1841, unmarried; and Emily, one of the plaintiffs, who was horn in 1835, and intermarried in 1853 with William C. Pennington, the other plaintiff, by whom she has had four children, two of whom died in infancy unmarried; and that Robert Gf. H. Pennington, one of the defendants, is her eldest child. All parties who could by possibility take interest under the will are made defendants to the proceeding.

The contention on the part of Mrs. Pennington, now the sole surviving daughter and heir-at-law of her father, is, that the limitations over in her father’s will to her, and to her son, are both void, because too remote, and that she takes the farm called “Oakland" in fee, as heir-at-law, and not as devisee. But, as opposed to this, it is contended on the part of Robert G. H. Pennington, that his mother takes a life estate only as devisee under the will, with remainder over in fee to himself, as eldest son. Which of these contentions is maintainable is the leading question presented on this appeal. In construing the will we must have reference to the condition of the testator’s family at the date of the will, and also at the date of the testator’s death, from which time the will took effect.

In the events that have occurred, this reference is of importance in the ⁴³⁴ construction of the limitations of. some of the devises of the will. There is no question in regard to the estate taken hy the wife of the testator in the farm, Oakland. She took a life estate, which continued until 186!. The remainder of the estate in the farm was limited to the unhorn son or sons of the testator, for life, and to the eldest son of the first son of the testator who might have .a son to take, in fee.

But the testator had no son, and in the will he contemplated that contingency, and provided, that if he had no sons, the remainder of the estate in the farm, subject to the life estate of the wife, should go to his daughter Harriet for life, with remainder to her eldest son in fee; and if she should die without male issue, then to his daughter Catharine for life, Avith remainder to her eldest son in fee; and if she should die without made issue, then over Avith similar limitations to his next and other daughters, and their eldest sons, in succession. The devise over to the eldest son of the devisee for life Avas a devise in fee simple; for, as laid down hy Littleton, sec. 293, it is to he understood Avhen it is said “that a man is seized in fee, without more saying, it shall he intended in fee simple; for it shall not he intended hy this Avord in fee that a man is seized in fee tayle, unless there he added to it this addition, fee tayle, &c.” And Coke, (Co. Lit., 189a,) in his Commentary on this sec. of Littleton, says: “This is evident, and secundum excellentiam it shall he taken for the highest and best fee, and that is fee single.” And so Blaclcstone, (Com., bk. 2, p. 106) lays it down, that when the terms in fee, without adjunct, are used, as applied to estates, they are to he taken as descriptive of the highest and most enlarged estate, as contradistinguished from a fee conditional at the common law, or a fee tail hy the statute de donis. Therefore, ⁴³⁵ as the preceding executory limitations to the eldest son of the sons of the testator, in succession, carried the whole interest in the estate, the subsequent limitations to the daughters and their eldest sons in succession are not to be considered as limitations upon the preceding, and only to take effect after them, but the latter are to be taken as alternatives substituted in the room and stead of the former, and to take effect only in case the preceding limitations should fail and never take effect at all. Fearne, Cont.

R. & Ex. Dev., 523. Hence, as the preceding limitations to the sons had failed, such son or sons never having come into being, the devise to the daughter Harriet, with the limitation over to her eldest son, would have been good, if she had survived her father, or had had a son living after the date of the will. But Harriet died in the life-time of the testator unmarried; and unless she took a descendible estate by the limitations of the will, such as would descend in fee simple to her kindred, male and female, as provided by the Act of 1820, ch. 191, to .direct descents, all her possible interest in the farm terminated with her death; and the Act of 1810, ch. 34, sec. 4, to prevent the lapsing of devises could have no application.

By the express terms of the will she was given a life estate only, with a contingent remainder over to her unborn eldest son in fee. But the limitation over to her sister Catharine was upon her dying without male issue; and therefore, giving ■these latter words their natural and legal effect, the most that could be claimed that she could take under the will, would be an estate tail male by implication, by way of executory devise. And conceding (as we think mav well be done) such to be the estate that would have become vested in her, if she had survived the testator, the question is, would such an estate be within .the meaning of the terms “fee tail general," ⁴³⁶ as employed in the Act to direct descents, of 1820, ch. 191, sec. 1? According to settled construction, estates tail male, or estates tail female, are not included within the definition of estates tail general, as these latter terms are employed in the Act, and hy which Act estates tail general are converted into fee simple estates, and which estates tail general, upon being so converted into fee simple estates, are saved from lapse by -the statute.

Act 1810, ch. 34, sec. 4; Newton vs. Griffith, 1 H. & G., 111, 128, 129 ; Simpers’ Lessee vs. Simpers, 15 Md., 160 ; Posey vs. Budd, 21 Md., 477, 486 . The distinction is a clear one between the case of a limitation to a person and the heirs of his body, which creates an estate tail general, and that of a limitation to him and the heirs male or the heirs female of his body, which creates an estate tail special, descendible in the male or female line, to the exclusion of heirs of the body generally. 1 Crui. Dig., tit. 2, ch. 1, secs. 13, 14, 15, p. 79; 2 Wooddes., sec. 9; 3 Jarm. on Wills, 89; 1 Washb. R. P., 90, 91.

It is clear, therefore, if the elder daughter had survived the testator, but died without having had male issue, and supposing that she would have taken under the will an estate tail male by implication, by way of executory devise, that estate would have been held per formam doni, unaffected by our Act to direct descents, but subject to be docked under the Act of 1782, ch. 23. Newton vs. Griffith, 1 H. & G., 112 . But having predeceased the testator, 'without ever having had male issue, the limitations both to her and to her eldest son totally failed of