Torrance v. Torrance

Mason, J., delivered the opinion of this court. Charles Torrance devised to his wife, Elizabeth Torrance, for her natural life, the whole' of his estate, both real and personal. He then confers upon her the power to dispose of the estate, with two restrictions attached. In the first place, she is required to dispose of the estate “among all or such of my children or their issue, in such manner and proportion, and for such time and estate, as she shall think fit.” The second restriction or condition requires, “that the respective shares or portions, designed for my daughters, shall be secured to them, for life, free and clear of any control of their respective husbands, or without being liable to the payment of their debts, and after their decease for the benefit of their children, and their legal representatives, in equal proportions forever.” Subsequently, Mrs. Elizabeth Torrance, in supposed pursuance of the power delegated to her by her husband, made her will disposing of the whole estate.

The first question which arises is, were the bequests under Mrs. Torrance’s will made in accordance with the power conferred upon her, by her husband ; and secondly, if they were, what are the nature and effect of those bequests'? This court is of opinion that the testatrix did not transcend her powers, in the will which is now before us. As directed by her husband, she disposed of the estate among his children and their issue, and also directs that the several interests designed for his daughters should he held as separate estates free from, the control or dominion of their husbands. We cannot discover that any limit was placed upon the power, as relates to the quantity and quality of the estate to be devised, further than those already enumerated.

We are next to consider what interest did the several devisees take under Mrs. Torrance’s will? Her three sons, Charles, George and John Torrance, each took one-eighth part of the estate in fee-simple. There is no dispute upon this point. Nor is there any question in regard to the interest taken by Mrs. Clopper and Mrs. Mitchell, ²⁴ Each took an equitable life estate, with remainder in fee to their children.

The present controversy grows out of the proper construction to be given to the clauses of the will which relate to the devises to the three daughters, Mary, Louisa and Dorcas Torrance, and especially that clause which relates to their dying without children, &c. Those three, we are of opinion, took each but a life estate under the will. Whether this life estate was created by the mother by virtue of the general power conferred upon her, in her husband’s will, that she might dispose of the estate in such manner and proportion, and for such term and estate, as she shall think fit; or whether it was taken in pursuance of the direction or condition imposed by the husband, that the respective shares or portions designed for my daughters shall he secured to them for life, it is immaterial for us to inquire at present. The result would be the same.

The case of Chelton vs. Henderson’s Lessee, 9 Gill, 432, we think conclusively determines the construction which we have placed upon Mrs. Torrance’s will to be the proper one. See, also, the case of Ware, and Others, vs. Richardson, decided at the present term. ( 3 Md. Rep., 505 .) Dorcas, one of the daughters, has since died, without having left issue, or been married; and the next question to be determined is, what is the legal effect of the following clause of the will of her mother upon her interest? That clause is in these words, viz: “Item. — In the event of the decease of any of my aforesaid daughters, without leaving any child or children, or descendants of such child or children,