Timanus v. Dugan

Alvey, J., delivered the opinion of the Court. The questions that are presented in this case arise upon the construction of the last will and testament of Mrs.Isabella Nelson, late of the City of Philadelphia, who died in the year 1835. The will bears date the -24th of ⁴¹⁵ June, 1885, and was executed in manner and form to pass real estate in this State. The testatrix left surviving her two children ; Charlotte Nelson and Ann Buchanan, wife of James Buchanan.

The clause of the will that is here involved reads as follows : “I also give and devise unto my daughter, Charlotte Nelson, all my lands in the State of Maryland, during Tier natural life, and if she leave lawful issue, then I give and devise the same to the said issue in fee; but should she die without lawful issue, then and in that case I give and devise the same to my other daughter, Ann Buchanan, wife of James Buchanan, during her natural life, and after her death to the heirs of her body then living, in fee.” Miss Charlotte Nelson was never married and never had issue, and she died in January, 1811. Mrs. Ann Buchanan, the other daughter, died in 1836, leaving surviving her her husband, James Buchanan, and two children, namely, Thomas Buchanan, who died in the year 1855, intestate, unmarried and without issue ; and Hai’riet B. Dugan, one of the plaintiffs in this cause, who was born in the year 1832, and was married to Cumberland Dugan, the other plaintiff, in the year 1856. James Buchanan, the father of Thomas and Harriet B., died in the year 1846. 1. Upon the construction of the recited clause of the will, the first question is, What estate did Charlotte Nelson take in the lands devised ?

On the part of the plaintiffs it is contended that she took only an estate for life ; while on the part of the defendants it is insisted she took an estate in fee-tail, which, by operation of the statute, was converted into a fee-simple estate. To a mind untrained and uninfluenced by the technical rules of the common law, as applied in the construction of wills, we suppose there could be no doubt as to what was really designed to be accomplished by the testatrix. Giving to the language employed its ordinary import, we are plainly told what right or estate she designed the ⁴¹⁶ several devisees to take, and upon events she designed the estate to vest. To her daughter Charlotte she devised the lands during her natural life, and if she left lawful issue, then she devised the same to the said issue in fee; and, in default of such issue, over to her other daughter for life, and after her death to the heirs of her body then living, in fee.

According to the ordinary reading and understanding of this language, the daughter Charlotte would take but a life estate, and the issue, if she left any, would take the fee-simple estate in the land. But the ordinary meaning and understanding of the language employed in a devise are frequently restrained and controlled by force of certain technical rules of construction, which have been applied from the early ages of the common law, and which have become fixed rules of property. And the question here is, whether the plain intent of the testatrix, as manifested in the language employed by her in the devise before us, shall be controlled and made to yield to the well known rule in Shelley’s Case, 1 Co. Rep., 104, whereby, if a devise be to one for life, and afterwards, in the same instrument, there is a limitation, either immediately or mediately, to his heirs generally, or heirs of his body, he takes an estate in fee-simple or fee-tail in possession in the one case, and in remainder in the other. Now, it is contended, the word “issue,” as used in the devise before us, is synonymous with, and means, “heirs of the body.,” and that the devise is therefore brought within the rule just stated; and that such is generally the case, in the absence of any explanatory or qualifying expressions, may be conceded to be the well established doctrine of the law.

But the term issue may be employed either as a word of purchase or of limitation, as will best effectuate the testator’s intention ; and it is much more flexible than the words “heirs of the body.” Courts more readily interpret the word issue as the synonym of children, and as a mere description of the person or persons to take, ⁴¹⁷ than they do the words “heirs of the hody.” As is said by Mr. Preston, “the word issue is not ex vi termini within the rule in Shelley’s Case. It depends upon the context whether it will give an estate tail to the ancestor.” Preston on Estates, 379 ; Lyles vs. Diggs, 6 H. & J., 373 ; Lees vs. Mosley, 1 Y. & C., 589 ; Slater vs. Dangerfield, 15 M. & W., 273; Daniel vs. Whartenby, 17 Wall., 639 . As a word of limitation, it is collective, and signifies all •the descendants in all generations ; but as a word of purchase it denotes the particular person or ■ class of persons to take under the devise. And the question is, whether, in the devise under the consideration, the word should be construed as a word of limitation, or as a word of purchase, denoting the person or persons to take?

If it be taken as a word of limitation, then Miss Charlotte Kelson took an estate tail, which was enlarged by the operation of the statute to an estate in fee-simple; but if it be taken as a word of. purchase, she took an estate for life only. It is laid down in 3 Cruise’s Dig., tit. 38, C. 14, sec. 48, p. 360, that where an estate is devised to a person for life, remainder to his issue, with words of limitation super-added, the word issue will in that case be considered as a word of purchase; and for this proposition the cases of Luddington vs. Kime, 1 Ld. Raym., 203; S. C., 1 Salk., 224; Backhouse vs. Wells, 10 Mod., 181; and Doe vs. Collis, 4 T. Rep., 294, are cited. In the first of these cases the devise was to A. for life, and if he had issue male, then to such issue male and his heirs, and if he died without issue male, to B. and his heirs.

It was held ■that A. took but a life estate, and that both the remainders •were contingent. In the case of Backhouse vs. Wells, the devise was to one for life, and after his death to the issue male of his body, and to the heirs male of the bodies of such issue, and it was there held that the first taker took only an estate -for life; and in the case of Doe vs. Collis, the testator devised his estate to his two daughters, to be ⁴¹⁸ equally divided between them, viz : one moiety to one and her heirs, and the other moiety to the other for life, and after her decease to the issue of her body and their heirs for ever; and it was held that the second daughter took only an estate for life, with remainder to her children as purchasers. These cases, and the principle maintained by them, although criticised by text writers of high authority, have been sanctioned and adopted by the Courts of this State, as was fully shown in the recent case of Shreve vs. Shreve, 48 Md., 382 , and in which latter case the doctrine of Luddington vs. Kime, 1 Ld. Raymond, 203, was re-affirmed and applied to its full extent.

In the case of Shreve vs. Shreve the clause of the devise involving the question now under consideration, when stripped of its verbiage and reduced to its legal elements, as stated in the opinion, was to the child of the devisor for life, remainder to the issue of such child, lawfully begotten, and to their heirs for ever; and it was because of the super-added words of limitation that the word issue was there construed to be synonymous with children, and therefore a word of purchase. Without the superadded words of limitation, the devise would, according to the rule in Shelley’s' Oase, have created an estate tail in the first-taker ;