Stump v. Jordan

Miller, J., delivered the opinion of the Court. In the will of John Jordan, executed in June, 1844, and admitted to probate in July, 1845, there is the following clause: “ Item. 1 will and bequeath unto my niece, Catharine J. Edie, all that part of my real estate lying on the east side of the Elkton road, on which I now reside, adjoining the lands of Joseph Alexander, Jones Mathias, and others, containing about ninety acres, more or less, ⁶²⁷ to her the said Catharine J. Edie during her natural lifetime, and at her death, I will and devise the said land to her children if she have any; in the event however of her death without laioful issue, I devise and bequeath the said land to my next kindred by law; I also direct that in the event of my said niece Catharine J. Edie’s dying without lawful issue, then in that case her husband, Arthur J. Edie, (should he survive her,) shall have the free use and benefit of the land heretofore and above bequeathed to her, the said Catharine J. Edie, for the period of thirteen years, from the decease of his wife, the said Catharine J. Edie; provided, that the said Arthur J. Edie does not wantonly injure the said property during the period of thirteen years.” At the date of the will Mrs. Edie was a married woman, hut had no children, and she died in April, 1864, without ever having had a child horn alive, and left her husband surviving her, who is still living. The only subject of controversy in the present case is the construction of this clause of the will, and the question is, whether under it, Mrs. Edie took an estate tail which by our law is converted into a fee, or whether she took only a life estate. In support of the position that she took an estate tail, the appellants’ counsel contend that the rule in Shelley’s Case must be applied.

This Court has frequently, and especially in recent years, considered the application of this celebrated rule of property, which undoubtedly has become, and still remains a part of our system of real law. The cases in which it has thus been considered have all been cited in argument, and we shall not repeat here what we have so recently said on the subject. The definition of the rule as given by Mr. Preston, and approved by Chancellor Kent as the most full and accurate is this : “ Where a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of re ⁶²⁸ mainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” Whether it prevails in a given case always depends on the language the testator or grantor has used, and we are all clearly of opinion it is not applicable to the clause of the will now under consideration. The devise after the life estate, is not to the “ heirs,” nor to the “issue,” hut to the “children” of the life tenant,, if she have any.

In its ordinary and popular signification the word “ children ” means immediate offspring, and such in general is its legal construction. It is a word of purchase and not of limitation, unless the context clearly shows it to he otherwise intended. The cases in which it has a broader signification, and where it has been held synonomous with “heirs” or “issue” or “descendants,” ai’e well illustrated by the resolutions in Wild’s Case, 6 Rep., 16. In that case, says Lord Coke, “it was resolved for good law that if A. devises his lands to B. and his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail; for the intent of the testator is manifest and certain that his children or issues should take, and as immediate devisees they cannot take because they are not rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, therefore such words shall be taken as words of limitation, scilicet as much as children or issues of his body.” In such a.case there is no difficulty in discovering the plain intent or in discerning the reason why the word “children” should have the same effect as the word “heirs.” The distinction between the case put and one like this, is clearly stated by the other resolution in the same case, which is this: “ But it was resolved that if a man, as in the case at bar, devises land to hus ⁶²⁹ band and wife, and after their decease to tbeir children or the remainder to their children, in this case although they have not any child at the time, yet every child which they shall have after, may take by way of remainder, according to the rule of law; for his intent appears that their children should not take immediately, but after the decease of the husband and wife.” To the same effect are the cases cited by counsel of Parkinson vs. Bowdoin, 1 Sumner, 350; Nightingale vs. Burrell, 15 Pick., 104 , and Broadhurst vs. Morris, 2 Barn. & Adol., 1.

If therefore the clause had stopped with the devise “ to her children, if any she have,” it is beyond doubt that in this State, since the Act of 1825, ch. 119, the mother would have taken a life estate, and any child or children she might have had, would have taken a remainder in fee. It is well settled that where a life estate is carved out with a gift over to the children of the life tenant, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution, and in cases falling under this rule, the children, if any, living at the death of the testator, take an immediately vested interest in their shares, subject to the diminution of those shares, (i. e. to their being divested pro tanto) as the number of objects is augmented by future births during the life of the tenant for life, and consequently on the death of any of the children during the life of the tenant for life, their shares, (if their interests therein are transmissible,) devolve to their respective representatives. 2 Jarman on Wills, (5th Amer. Ed.,) 704, 707. But it is contended that the succeeding words, “in the event, however, of her death without lawful issue, I give and bequeath the said land to my next kindred by law,” have the effect to enlarge the meaning of the word “ children ” previously used, from a word oí purchase to a word ⁶³⁰ of limitation, and, therefore, to give to the first taker an estate tail; that the words “ dying without lawful issue,” used in this devise over, indicate a general intent which must prevail over any particular intent, to give the land to his niece and to her issue, as long as she or any of her issue might continue to exist, thus making her the stock from which the title should pass from generation to generation.

But to this we cannot yield our assent. In the devise after the life estate the testator has used the most appropriate word, and the one usually adopted in order to avoid the operation of the rule in Shelley’s Case, and to enable the children to take as purchasers, and prevent the ancestor from depriving them of the estate hy alienation. This is followed by a devise over to his “ next kindred by law ” in case his niece should die without “ lawful issue.” Here again, he avoids using the words, “ heirs ” or “ heirs of her body,” and adopts the term “issue,” a word which, as we have said in Shreve vs. Shreve, 43 Md., 382 , and Timanus vs. Dugan, 46 Md., 402 , may be employed either as a word of purchase or of limitation, as will best effectuate the testator’s intention, a word which is much more flexible than the words “ heirs of the body,” and which the Courts more readily interpret as the synonym of children, and as a mere description of the person or persons to take, a word which is not ex vi termini within the rule in Shelley’s Case, and which is dependent upon the context as to whether it will give an estate tail to the ancestor. Here we think it clear, the testator used and intended to use it as having the same meaning as children.

In giving to the surviving husband the use and benefit of the land for thirteen years he uses the same words, and gives it only in case the wife should die “ without lawful issue.” This, it must be observed, is not an interest created or arising intermediate the devise for life to the niece and the devise in remainder to her children, but takes effect only in case the ⁶³¹ devise to the children should fail by reason of there being none living at the death of the niece to take, and in that event it is interposed between the wife’s death and the enjoyment of the property by the next of kin. We find nothing in either or both of these devises over, which induces us to suppose the testator had a general intent requiring a sacrifice of the particular intent, or an enlargement of the estate for life given to the niece into an •estate of inheritance, or the wresting of the word “ children ” from its popular and ordinary legal signification of a word of purchase to a word of limitation. As said in 2 Wash, on Real Prop., (4th Ed.,) 603, the recent cases show that the words “ ‘child or children/ are in their usual sense words of purchase, and are always so regarded, unless the testator has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees.” We find nothing in