Ware v. Richardson

Mason, J., delivered the opinion of this court. This case has been argued most elaborately and with distinguished ability. Every suggestion appears to have been made and every authority invoked calculated to elucidate the intricate questions involved in the present controversy. With the benefit of all this light, we are constrained nevertheless to recognize the difficulties which environ the case.

In order to a proper understanding of the case, we deem it important to state somewhat at length the allegations of^ the bill, and the subsequent proceedings thereon. The appellee, Charles Richardson, filed Ms bill of complaint in Baltimore county court, as a court of equity, against the appellants, asking for a sale of the real estate of Eliza Richardson, deceased, for the payment of her debts. He claimed to be a creditor in his own right, and also as administrator de bonis non of Robert R. Richardson, deceased. The bill alleges that letters testamentary were granted on the estate of the said Robert to the said Eliza Richardson, who, by virtue thereof, possessed herself of the personal estate of her testator, and partially administered the same, but died before she had returned any account of her administration.

The complainant thereupon administered upon her estate, and also upon the estate de bonis non of Robert Richardson. The bill charges that Mrs. Richardson died largely indebted ; and that her personal estate was insufficient to pay her debts, and thereupon prays the sale of her real estate under the direction of the chancery court; and that the proceeds of sale may be appropriated to the payment of her debts. The real estate which the complainant seeks to charge with the debts of Mrs. Richardson, was derived by the deed of Areanah Kennedy, executed in the year 1802, to Samuel N. Ridgely, which is set out at length in the record. That deed is, in part, in these words : witnesseth, that the said Areanah Kennedy, in consideration of the natural love and affection ⁵⁴² which she hath and beareth towards Elizabeth Richardson, Wife of Robert Richardson, and in consideration of the sum of five shillings, current money, to her in hand paid by the said Samuel N. Ridgely, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents doth grant, bargain and sell, alien, enfeoff, release, convey and confirm unto the said Samuel N. Ridgely, his heirs and assigns,” (here the property is described,) “ to have and to hold the same and every part thereof unto the said Samuel N. Ridgely, his heirs and assigns forever, in trust, nevertheless that the said Areanah Kennedy shall and may, during the time of her natural life, have, hold, use and enjoy the said piece or parcel of ground and premises, and the rents, issues and profits thereof, and the same convert to her own use and benefit, and from and immediately after her decease, then upon this further trust that the said Elizabeth Richardson shall and may during her life, have, hold, use, occupy, possess and enjoy the 'said piece or parcel of grouud and premises, and the rents, issues, and profits thereof, and the same to convert to her own proper use and benefit, notwithstanding her coverture, and that without the let, trouble or control of her present or any future husband, or being in any manner liable or subject to the payment of his debts, as fully in every respect as if she was sole and unmarried, and from and immediately after the death of the said Elizabeth, then to and for the use and benefit of the legal heirs and representatives of the said Elizabeth, and to and for no other intent and purpose.” The defendants in their answer insist, that under the terms of the foregoing deed, the said Eliza had but a life estate in the premises thereby conveyed, and that on her death the fee devolved upon her children and heirs, namely: the complainant and his deceased brother.

The first question, therefore, which is presented by the present record is, whether Elizabeth Richardson had a fee or a life estate in the realty embraced in the deed from Areanah Kennedy? ⁵⁴³ In determining this question we must first consider whether the rule established in Shelley’s case, applies to the deed which we are now’ called on to construe. No question connected with the law has elicited more learning and discussion than that which relates to the nature and operation of this rule, as a principle of law for the interpretation of wills and deeds; and none occupies a more prominent place in the history of the law of real property. The controversies on this subject from the earliest periods down to the present day, have been vehement, protracted and even bitter, eliciting the profoundest logic, severest criticism, and deepest and most laborious research. In one instance, even, this controversy resulted in the dismemberment of the court of King’s Bench, and at another time this renowned discussion, says Chancellor Kent, became so vehement and protracted as to rouse the sceptre of the haughty Elizabeth.

The great case for example of Perrin vs. Blake, 4 Burr, 2579, which excited the most noble and illustrious talents of the age in its discussion through every department of Westminster Hall, originated in the island of Jamaica, as far back as the year 1746. After the case had travelled through the courts of that island, it passed the Atlantic on appeal to the king in council. The final termination (the result at last of compromise) of this protracted litigation was in 1777, after an exhausting controversy of upwards of thirty years. When Lord Mansfield delivered his opinion in Perrin vs. Blake, he used certain sarcastic expressions which gave offence to his associate Mr. Justice Yates, who immediately thereupon resigned his seat as a judge of K. B., and was transferred to the C. B. Though volumes have been written upon the subject, and more than a century expended in its investigation, still it to this day remains a fruitful subject of strife and discussion, as the present case abundantly illustrates.

In Shelley’s case, 1 Co., 104, the rule was laid down, on the authority of a number of cases from the year books, to be, “ that when the ancestor, by any gift or conveyance takelh an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately, to his heirs, in fee ⁵⁴⁴ or in tail, the heirs are words of limitation of the estate, and not words of purchase.” Chancellor Kent however adopts the following definition of the rule by Mr. Preston, as being more full and accurate. “When 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 remainder, 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.” Preston on Estates, vol. 3, 263. In cases, therefore, where the words “heirs” or “heirs of the body” are used they will be construed to limit or define the estate intended to be conveyed, and will not be treated as words of purchase, and no supposed intention on the part of the testator or grantor arising from the estate being conveyed, in the first instance, for life, will be permitted to control their operation as words of limitation. In all such cases the estate becomes immediately executed in the ancestor, who becomes seized of an estate of inheritance. By force of the unbending construction given to these terms, it imputed to the grantor or testator in legal contemplation, an intention to use the terms in their legal sense, and to give them their legal effect, though it should defeat even a real intention to 'the contrary.

In other words, they are regarded as conclusive evidence of the intent of the testator. There are however well recognised exceptions to this rule: two of which we will advert to at present, in general terms. In the first place, whenever the testator or grantor annexes words of explanation to the word “heirs,” indicating that he meant to use the term in a qualified sense, as a mere descriptio personarum, or particular designation of certain individuals, and that they and not the ancestor were to be the points or termini from which the succession to the estate was to emanate or take its start, then in all such cases where the word heir is thus explained or restricted, it is to be treated as a term of purchase and not of limitation. For example, the expressions, ⁵⁴⁵ heirs now living, children, issue, fyc., are words of limitation or purchase, as will best accord with the manifest intention of him who employs them.

Under this qualification of the rule the intention prevails against the strict construction. The second exception to which we will advert is, that where the estate limited to the ancestor is an equitable or trust estate, the two estates under the rule in Shelley’s case will not coalesce in the ancestor; and the result would be the same if the estate for life was a legal estate, and that limited to the heirs an equitable estate. Horne vs. Lyeth, 4 Har. and Johns., 432. Whatever may have been the origin or philosophy of this rule, whether it was introduced to secure to the lord of the fee the fruits and incidents of wardship and marriage which he had a right to claim from the heir; or whether the more reasonable idea of Mr. Justice Blackstone, be correct that the rule had its origin in the desire to facilitate the alienation of land, and to throw it into the track of commerce, one generation sooner by giving the power to the ancestor of immediate disposition of the estate to the exclusion of the heirs, the rule with its qualifications must nevertheless prevail as a part of our system of real law, because it has been fully recognised and adopted as the settled law of Maryland.

The court in Horne vs. Lyeth say, “to disregard rules of interpretation sanctioned by a succession of ages, and by the decisions of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule itself is unreasonable, would not only prostrate the great land marks of property, but would Introduce a latitude of construction, boundless in its range and pernicious in its consequences.” The rule applies clearly to the deed we are now considering, unless it can be shown that it falls within one or the other of the enumerated exceptions. Did then Mrs. Kennedy use any apt words in the deed to indicate that the heirs of Mrs. Richardson, and not she herself, were to be the termini from which the succession was to commence, and thereby create in Mrs. Richardson a mere life estate ? [n other words, are there any expressions in the deed sufficient to convert the words “legal ⁵⁴⁶ heirs,” from words of limitation into words of purchase? There are none in our opinion capable of restricting the terms to particular individuals, instead of the entire legal representatives of Mrs. Richardson as a class. On the contrary the language employed is of the most general character, and is indeed as full and as comprehensive as that employed in Shelley's case itself, and we cannot suppose that it will be seriously contended that the present deed, if it were a conveyance directly to Mrs. Richardson herself, without the interposition of the trustee, and she was a feme sole, would not be embraced within the operation of the rule.

But in the second place, it is contended that under the peculiar provisions of the present deed an estate of a different nature has been created in Mrs. Richardson, from that conferred upon her heirs, and that therefore the two will not incorporate in Mrs. Richardson, thus bringing the case within the operation of the second exception to the rule. To avoid such a conclusion it is argued by the appellee on the one hand, that the present instrument is a deed of bargain and sale, and that as such, the use was executed in Ridgely the trustee, and that the limitations to use, are mere trusts in equity, and that both Mrs. Richardson and her heirs are cestui que trusts seized only of an equitable estate, and that as such they will coalesce in Mrs. Richardson under the rule. On the other hand it is contended, that the intention of the grantor-should prevail, and that the present deed should be treated as a feoffment to accomplish that purpose. If regarded as a feoffment it is said that the legal estate would be- executed in the heirs of Mrs. Richardson, but that she herself would take but a mere equitable life estate.

Whether the present deed, as an abstract question, be a feoffment or a bargain and sale, is one more difficult than important for us to decide. If it be a case where the intention of the grantor is to prevail against the strict rules of interpretation, then this court will construe the deed as a feoffment or a bargain and sale as will most effectually accomplish that intention. ⁵⁴⁷ In tins connection it becomes necessary to inquire when the legal estate vests in the trustee, and thereby becomes a trust estate, or when it vests in the cestui que use, under the statute of uses. A use is, where the legal estate of lands was in a certain person, and a trust was also reposed in him, that some other person should take and enjoy the rents and profits. In other words, a use was a mere confidence in a friend, (before the statute of uses,) that the feoffees to whom the lands were given, should permit the feoffor, and his heirs, and such other person as he might designate, to receive the profits of the land.

Gilbert on Uses, 1. The whole system of uses, however, was abolished or remodeled by the statute of 27 Henry 8, chap. 10, commonly known as the statute of uses. By the provisions of that statute the use was transferred into possession by converting the estate or interest of the cestui que use into a legal estate, and by destroying the intermediate estate of the feoffee. The strict construction which was given to this statute by the judges of its time, and the inconvenience and injustice which thereby followed, led, after a lapse of time, through the interposition of a court of chancery, and the ingenuity and learning of lawyers, to the establishment of a regular and enlightened system of trusts.

In this way uses were partially revived under the name of trusts. In regard to this revival of the equity jurisdiction in respect to trusts, Lord Mansfield has said in Burgess vs. Wheate, 1 Bl., 123 , “that it has not only remedied the mischiefs of uses so much complained of, but has given occasion to raise up a system of equity, noble, rational and uniform, in place of a system at once unjust and inconvenient. Trusts are made to answer the exigencies of fami • lies, and all purposes, without producing one inconvenience fraud or private mischief, which the statute of Henry 8, meant to avoid.” A trust therefore is a use not executed under the statute of Hen. 8, in the cestui que use, but the legal estate is vested in the grantee or trustee. It becomes, however, frequently a matter of difficult solution ⁵⁴⁸ to determine when the estate is vested under the statute in the cestui que use, or when as a trust it vests in the trustee; and the present case is one by no means free from difficulty on this point.

The inquiry here is, in whom did the legal estate vest under the present deed ? It is to be observed that such a trust as is here contended for, might readily have been created by express terms: as for instance, if the property had been con-, veyed to Ridgely and his heirs, to the use, or unto the use of him and his heirs in trust for Mrs. Richardson, it would have been a complete disposition of the whole legal estate to the trustee. 2 Crabb's Law of Real Prop. 508. In such a case the use and possession which constitute the legal estate are both vested in the trustee, while the rents and profits would belong to the cestui que use. But the supposed case is not this case.

If there is a trust in Mrs. Richardson it is not created by express, technical terms, but it results from the intention of the grantor to do so, as manifested upon the face of the deed, an intention so clear as not to be defeated or controled by the strict rules of interpretation. It is clear that the mere interposition of a trustee to protect and secure a trust estate in a third person even though a married woman, will not prevent the use from being executed in the cestui que use, unless there is attached to the trustee the performance of some active functions or duties in order to support the trust. And a distinction has been taken between a devise or deed to a person in trust to collect and pay over the rents and profits to another, and a devise in trust to permit another to enjoy the rents and profits. In the first, the use is executed in the trustee, in the second, in the cestui que use.

It would follow then; was Mrs. Richardson not a married woman, or was not the estate by the terms of the deed limited to her sole and separate use, independent of her husband, that this would be a conveyance under the statute, and would vest the legal estate in her, notwithstanding her coverture, or the provision that she was to have but a life estate. But in the present case the deed provides that the property shall be held in trust “for her own proper use and benefit, notwithstanding her coverture,” &c., and ⁵⁴⁹ “as if she was sole and unmarried.” As has already been intimated, in all cases where a deed or will involves an object or purpose which cannot be carried into operation without the active agency of the trustee, such as the collecting and paying over of the rents and profits of land to a married woman for her sole and separate use, the execution of conveyances, &c.j then it becomes a special trust, and not a use executed in her; and the question in this case is, does the deed impose such active duties upon the trustee as will render it necessary for him to have the legal estate to discharge those duties, or is he a mere nominal, inactive agent, who is embraced within the statute of uses? Most of the elementary writers broadly assert, that where the trustee is to hold in trust for the sole and separate use of a married woman, it is a trust, and not a use executed under the statute. 1 Cruise Dig. 456. 2 Crabb's Law of Real Prop., 509. Clancy on Hus. and Wife, 256.

It is however to be regretted, for the sake of the simplification of this question, that the adjudications cited by the boobs, do not with unanimity sustain the proposition to the length to which it is stated. Most of the cases cited by the text writers will be found to relate to deeds or wills which impose upon the trustee some active functions, such as collecting and paying over of rents, &c., and while therefore they do not contradict the proposition, they notwithstanding do not sustain it as it is broadly announced. Nevil vs. Saunders, 1 Vern. Rep., 415.

Say and Seal vs. Jones, 1 Ab. Equity Cases, 383. 8 Viner's Alr., 262. Lord Ch. G. Holt, in South vs. Alleine, 1 Salk., 228.

Griffith vs. Smith, Moore, 753. Bush vs. Allen, 5 Mod. Rep., 63; and a number of other cases to the same purpose might be cited. The intention of the grantor is to prevail in cases like the present, but with this qualification, that it must not, contravene or defeat the established rules of construction, or in other words the intention is to be ascertained by the legal rules of interpretation.

Unless therefore this deed, in accordance with one of those rules assigns to the trustee the performance of some ⁵⁵⁰ duty necessary for the enjoyment of the estate by the feme covert, the legal estate would not vest in the trustee. It would seem to follow as a necessary consequence, from the very nature of the present transaction, that a deed to a trustee for the sole and separate use of a married woman, would imply that the trustee’s aid was invoked, and his active services required, to support the independent character of the wife. The rights and powers of married women are ordinarily merged in those of their husbands, and whenever it becomes important to invest her with sole and independent powers, it becomes necessary that that character should be exercised through the medium of a trustee. It is now settled that where bequests or conveyances are made to married women for their separate use, without the nomination of trustees, the husbands in equity will be considered as trustees for their wives, and will be required to comply with the intention of the donor.

Clancy on Hus. and Wife, 257. A separate estate in real property could not be enjoyed by a married woman unless through the interposition of a trustee, which circumstance- of itself would imply the performance of some active duties on his part. Not so however with persons not laboring under the same disabilities 'with married women. In such cases no intervening agent is necessary to enable them to enjoy the property, and therefore the legal estate is vested in them when it would not be in a feme covert.

Thus in the case of Broughton vs. Langley, 2 Ld. Rayd., 873, where lands were devised to trustees and their heirs, to the intent to permit A to receive the rents for his life, &c., it was determined that this would have been a plain trust at common law, and as such executed by the statute. And so it would have been even if the cestui que trust were a married woman; provided the estate was not limited to her sole and separate use. '• ,> It is true that there are some cases which have carried this doctrine so far as to émbrace within its operation deeds and wills conveying property to married women for their separate use, and have declared the estate to be executed under the statute in the feme covert. The only cases brought to our notice favoring this doctrine are Williams vs. Waters, 14. ⁵⁵¹ Mees, and Wels., 166.

Douglas vs. Congreve, 1 Beavans, 59. And South vs. Alleine, 1 Salk., 228.