Shreve v. Shreve

Miller, J., delivered the opinion of the Court. ..The record in this case shows that Mrs. Mary E. Shreve died in 1855, leaving a will duly executed to pass real estate, which contains this clause: “I give, devise, and bequeath all my lands, tenements and hereditaments, lying in the States of Maryland or Virginia, or either of them, to my children, namely: Daniel T. Shreve, Benjamin F Shreve, Charles W. Shreve, Thomas J. Shreve, Mary E. Shreve, Ann Olivia 'Shreve and Arthur B. Shreve, for and during their natural lives, to be equally divided between them, and on the death of said children, or either of them, I give, devise and bequeath the share or portion of said child to his or her issue lawfully begotten, and their heirs or assigns forever, ³⁹¹ and if any of said children shall die without issue lawfully begotten, I give, devise and bequeath his or her "portion to the surviving child or children and their issue, aud to the heirs of said issue forever These seven children survived the testatrix and were her sole lieirs-at-law. One of them, Mary E. Shreve, subsequently died intestate and without issue. The Maryland lauds of the testatrix consisting of about eight hundred and twenty acres, lie in Montgomery and Frederick Counties, and in 1866 a hill was filed on the equity side of the Circuit Court for the former county, by four of the surviving children against the oilier two, setting out the above clause of the will, and praying for a partition of the estate, and if that could not ho effected, then that the same he sold and the proceeds distributed to the parties according to their respective interests. XJnder this hill Commissioners were appointed, who divided the lands into three parts, and valued the same, the total valuation amounting to over $30,000.

Two of the sons, Charles and Thomas, then elected to take these parts at this valuation, hut the latter abandoned his election, and the former on petition and order of the Court, was substituted in his place, and in March, 1867, decrees or orders were passed ratifying the Commissioners’ return, directing bonds to he given for the shares due the other children, and authorizing the Commissioners, on payment of these liens, to convey the whole estate to Charles W. Shreve. The latter tiren took, and has since remained in possession of the property, and in June, 1874, he aud his wife filed the hill in the present case in the Circuit Court for Frederick County. ' This hill sets out the will, the proceedings in the partition case, and avers that the complainant has paid the whole valuation of the Commissioners except $10,120, to two of the children which he has secured by mortgage, that the Commissioners have executed to him a deed for the property, and all the children of the testatrix now ³⁹² living have also executed deeds to him therefor; that all the real estate in Virginia, valued at about $19,000, was • taken by Daniel, another son, under a similar understanding and construction of the will; that of the surviving children, Thomas has died leaving a widow' and two children, that Daniel, Ann Olivia, and the complainant Charles have each married and have children now living, and that Benjamin and Arthur have no children and have never married. The hill then charges that the children of the testatrix took under her will and the law of this State a fee in the property thus devised, and that the complainant has by this will, the proceedings in the partition case, and the deeds from his brothers and sisters, become the absolute owner in fee of the whole estate, but that doubts have arisen as to his title, and it is urged and claimed that the children of the testatrix took only life estates, and that the fee is vested in her grandchildren; that by reason of this doubt and cloud upon his title he is unable to sell, lease, or make any satisfactory disposition of the estate or any part of it, and he therefore prays the Court to quiet his title and remove this cloud upon it, or if he has but a life estate then that the propertjr be leased or sold, and the proceeds invested for his use.during the continuance of his interest, and then to the grandchildren, and for general relief. The surviving children and all the grandchildren of the testatrix in esse (the latter to the number of twenty and all infants) are parties to this bill.

The adult defendants by their answer admit the averments of the bill, and submit to such decree as the Court may deem proper. The infants answered by guardian that they do not admit any of the matters charged in the bill, and submit their rights to the protection of the Court. ■ Certain testimony was then taken under a commission, which need not be particularly stated, and the case submitted for a decree. The Circuit Court decided the children took but life estates, but being ³⁹³ of opinion a case was not made out authorizing a decree for a sale or lease of the lands, dismissed the bill, and the complainants have appealed. We have therefore to decide what interest the complainant, Charles W. Shreeve, has acquired in this real estate ; and this depends upon the question whether the seven children of the testatrix took under her will, estates for life or in fee.

But it is said that in construing this will, we are not to be confined to the instrument itself, but may resort for aid to the extrinsic testimony taken under the commission. That testimony consists of parol declarations by the testatrix after she had made the will as to its effect, .and her intentions in executing it, and like proof as to what interpretation had been placed upon it by the devisees, the Court in the partition case, and the Commissioners who divided the estate. The position is that as this testimony was not excepted to in the Court below, it may be resorted to by this Court in ascertaining the rights of the parties, and must be allowed its full force, and for this the case of Gibbs vs. Gale, 7 Md., 76 , is cited. All this testimony was clearly inadmissible to affect the construction of the will or the rights of the infant defendants, and the Court below in fact refused to consider it for that purpose.

The adult defendants having parted with all their rights in the property, had no interest in resisting the complainant’s claims, and the infants whose interests alone were antagonistic to those of the complainant do not appear to have been represented by counsel, either at the taking of the testimony, or at the hearing of the case, when exceptions to it ought to have been filed on their behalf. Under these circumstances, it would be an unreasonable extension of the doctrine in Gibbs vs. Gale, to apply it to this case, and we must therefore construe this will by the light afforded by the paper itself. And in doing this, it is necessary to notice at the outset, two clauses of that instrument, other than the one ³⁹⁴ above cited. In one of these the testatrix devises the share she had previously given to her daughter Mary, to a trustee, in trust, for the sole and separate use of the said 'Mary during her natural life, free, clear and discharged from all liability and control of any husband she may marry, and after her death, to the issue of the said Mary lawfully begotten, and their heirs forever, and in case the said Mary shall die without issue, then to her surviving brothers and sisters, and their issue, to be equally divided between them and their heirs forever.

The estate thus limited to the daughter, is' an equitable, whilst that to the issue is a legal, estate, and hence, the rule in Shelley’s Gase can have no application, for it is well settled, that if the estate limited to the ancestor be an equitable or trust estate, 'and. that to the heirs be an executed use or legal estate, the two estates will not coalesce in the ancestor under that rule. Ware vs. Richardson, 3 Md., 545 ; Horne vs. Lyeth, 4 H. & J., 435 . By the other clause, she also disposes of the share of her daughter Ann Olivia in a similar manner, that is, the estate to the daughter is made an equitable life estate, whilst that to the issue is a use executed. Both these daughters therefore took but life estates.

Thus far the case is a plain one, but what estates the sons take under this will, depends solely upon the construction of the clause first above cited, and this is by no means free from difficulty. The immediate question is, does this clause call into operation the rule in Shelley’s Gase. That rule with its qualifications has been so often recognized and adopted by the Courts of this State, that nothing but an Act of the Legislature, can strike it out of our system of real law. The rule has been clearly and accurately defined, but the question of its application to particular cases has perplexed judicial tribunals (more perhaps than any other) from the time of its first introduction to the present day.

And when we consider how ³⁹⁵ the language of different instruments constantly varies, that scarcely any two-are couched in precisely the same terms, and that title to real property has always been a fruitful source of litigation, it is not surprising to find the decisions on this vexed question numerous, and in some instances, apparently conflicting and irreconcilable. Stripped of verbiage, separated, and reduced to its legal elements, the first part of the clause before us, contains a devise to each of these children to this effect, viz: to the child for life, remainder to his issue lawfully begotten, and their heirs forever. And here it is to be noted,, first, that the devise is not to the heirs but to the issue of the life tenant, and, not wi! listan ding what has been said by some writers, the eases show that the Courts have applied the rule more readily where the devise is to the heirs or heirs of the body, than where it is to the issue of the first taker. The latter is regarded as a term of equivocal import, being either a word of limitation or of purchase, meaning heirs of the body or children, according to the intention of the testator deduced from the expressions contained in his will.

Again, there are words of limitation superadded to the gift to the issue ; it is to them and their heirs forever. Now in the well known case of Luddington vs. Kime, 1 Ld. Ray., 203, the devise was in very nearly the same terms, viz: to A for life without impeachment of waste, and in case he should have any issue male, then to such issue male and his heirs forever, with a limitation over in default of such issue, and the Court held the testator intended tile word issue should be designalio personie, and not a word of limitation “because he added a further limitation to the issue, viz: and to the heirs of such issue forever.” The principle deduced from this case is thus stated in Cruise’s Digest, Vol. 6, (3 Am. Ed.,) page 259, sec. 48. “Where an estate is devised to a person for life, with remainder to his issue, with words of limitation superadded, the word issue will in that case be construed ³⁹⁶ tobe a word, of purchase.” Iu Powell on Devises, (Vol. 2, cli. 26,) a work of high authority, the learned author strenuously argires that Luddington vs. Kime, cannot be reconciled' with subsequent decisions, and is clearly overruled by them, as well as the case of Doe vs. Collis, 4 Term Pep., 294.

In that case, the testator devised his estate to his two daughters to be equally divided between them, viz: one moiety to one and her heirs, and the other moiety to the other for life, and then to the issue of her body and their heirs, with no limitation over, and it was held the second daughter took an estate for life only, with remainder to her children as purchasers. That decision was made by Ld. Kenyon who said the position to be collected from all the authorities cited, is “that in a will, issue is either a word of purchase or of limitation, as will best answer the intention of the devisor, though in the case of a deed it is universally taken as a word of purchase,” and that the words heirs of the body which “always give way with greater difficulty than the word issue” have in some instances been construed words of purchase, and “therefore without disputing any of the cases cited; but on the contrary in conformity with them all and relying upon them for the foundation of this judgment, namely: that the intention of the devisor must- prevail, I am of opinion that the devisor in this case used issue as a word of purchase.” In support of the construction he gave to that will, his Lordship relied upon the circumstance that the property was to be equally divided, which it would not be if the second daughter weYe held to take an estate tail, for in that case the reversion in fee in that moiety would be again subdivided between the heirs of the two daughters, but Mr. Powell thinks it is difficult to accede to.the reasoning which ascribes to the words of division this operation upon the construction, since they were merely applied to the corpus of the land and not to the inheritance, and in the light of subsequent decisions, ³⁹⁷ which he reviews, insists the case is overruled “and that a devise to A for life, remainder to his issue, and the heirs of such issue with or without a limitation over, is an estate tail in A,” and adds “such a case can hardly again he deemed a proper subject for adjudication.” He also contends that upon principle, words of distribution annexed to the