Wallis v. Woodland

Alvey, J., delivered the opinion of the Court. The will that gives rise to the question in this case, was executed in 1826, and admitted to probate in 1829; and in it is the following devise to the daughter of the testator, his only child: ¹⁰⁴ “1 give and bequeath to my daughter, Mary Matilda Mason, all and singular the property, real and personal, that I now possess, to her and her heirs forever, except my negro man, Thomas, and my negro woman, Ann, who, it is my will that Thomas should serve four years and Ann seven years after my death. Also the children, Elizabeth, George and Jarvis, should each of them be free when they arrive at the age of 'thirty years, if my daughter should die without heir, but if not, then the said children to serve for life. But if my daughter should die without heir, it is my will that the children of Hugh Wallis and Margaret B. Wallis, and the children of Philip B.' Travilla and Ann P. Travilla, should have my real and personal estate, with the above exceptions, equally divided between them and their heirs forever.” The first devisee entered into the possession of the land devised, (a moiety of which being that sued for in this action,) and held the same until October, 1843, when she, by her will, devised the same in fee to the appellant, the tenant in possession and defendant to the action in the Court below.

And whether she could rightfully so devise, under the will of her father, is the question in this case. . In reference to the personal estate, bequeathed in the clause above quoted, the will has been construed by this Court, in the case of Woodland and Wife vs. Wallis, Ex’r of Mason, 6 Md., 151 , in which it was held, that the gift of freedom to the negroes was not upon a contingency so indefinite or remote, as to render it invalid; the words “die without heir,” as they applied to such bequest, not being deemed to import an indefinite failure of heirs or issue. But there is a clear distinction in the cases upon this subject, between the rules of construction, as applied to devises of real estate and those applied in bequests of personal estate. In regard to the latter, the Courts, incline to pay attention to any circumstance that seems to afford ground for construing a limitation after dying without heirs or without issue, to mean a dying without heirs or issue living at the death of the party, in order ¹⁰⁵ to support the bequest over, though, as to real estate, the construction is generally otherwise; for, in the latter case, the interest of the heir is involved, which is always favored.

And hence in the construction of the will before us, in the case reported in 6 Md., 151 , the circumstances that the negroes were in esse at the date of the will, and freedom being a personal privilege to be enjoyed only by the person to whom it was given, justified the conclusion that the contingency upon which the gift over depended must necessarily happen, if at all, within a life in being, and therefore good as an executory request. This diversity in the application of the rules of construction, depending upon the nature of the estate devised, has long existed and been repeatedly recognized and acted on by Courts of the highest authority. In Forth vs. Chapman, 1 P. Williams, 663, one of the earliest cases in which the distinction was clearly taken, the devise was of both real and personal estate to A and B, and if either should depart this life, and leave no issue of their respective bodies, then a devise over of the leasehold property. The Master op tiie Rolls held that the devise over of the personal estate was void, as being upon an indefinite failure of issue; but, on appeal to the Lord Chancellor, the decree was reversed, and he held that there was a clear distinction to be observed between an executory devise of real and personal estate; as to the freehold, said he, “the construction should be, if William or Walter died without issue generally, by which there might be at any time a failure of issue; and with respect to the leasehold that the same ivords should be intended to signify their dying without leaving issue at their death.” And of the many cases recognizing this well established distinction, there are none more unequivocal in their full adoption of the principle of Forth vs. Chapman, than those of our own Court of Appeals, as will be seen by reference to Newton vs. Griffith, 1 Har. & Gill, 111; Posey’s Lessee vs. Budd, 21 Md., 477 ; Budd vs. Posey, 22 Md., 48 . ¹⁰⁶ Such distinction being well