Williams v. J. C. Armiger & Brother

Thomas, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Anne Arundel County sustaining an exception to a sale of a parcel of land in that county made by the appellant, Raymond S. Williams', trustee under a deed of trust for the bene1fit of creditors from Charles L. Solley. The exception was filed by the appellees, Josiah 0. Armiger and James Si Armiger, co-partners, trading as J. 0.

Armiger and Brother, who purchased the property from the1 appellant at a public sale, and isi based upon an alleged defect in the title- of Charles L. Solley, who claims under two deeds, one dated September 3rd, 1896-, and the other dated the 4th of October, 1909. By the first of these deeds Sarah, Ann Solley, “in consideration of natural lové and affection and the sum of five dollars,” granted and conveyed the property therein described and containing about one hundred and fourteen acres- of land to George II. Solley, “his heirs and assigns, * * " in trust for the sole and separate use and benefit of Mary W. Johnson, wife of William O. Johnson, for and during the period ■of her natural life and no longer, so that she, during the period of her natural life, may be permitted and suffered to have, hold, use, occupy and possess the aforesaid parcel of ground with all the rights, appurtenances and rents, issues and profits- thereof to receive, take and apply to her separate use and benefit, her receipts; alone being good and sufficient acquittances and discharges for all such rents, issues and ²²⁵ profits; so that the said, parcel of ground shall not at any time or in any manner be liable for any debts of her present or any future husband, and from and after the death, of the said Mary W. Johnson, then in trust for all and every the children the said Mary W. Johnson now has or the child or children she may hereafter have, and their executors; administrators and assigns, as, tenants in common equally, the issue of any deceased child of said Mary W. Johnson, if any such issuci there should be, to take the part, or proportion only to which the parent of such issue if living would be entitled.” By the second deed Mary W. Johnson and William C. Johnson, her,husband, Stella S. Thornton and Arthur Thornton, her husband, James, A. Johnson and Emma Johnson, his wife; George W. Johnson and Annie M. Johnson, his wife, Harry M. Johnson and Amanda R. Johnson, his wife, conveyed “all their right, title, interest and estate in and to” said parcel of land to Charles L. ¡Solley, who, on the Kith of October, 1934, conveyed it to the appellant, in trust for the benefit of his creditors. it appears from the agreed statement of facts that Mary W. J ohnson, who at the date of the sale made by the appellant was, a widow aud sixty-eight years, of age, “had only five children,” viz: Stella S. Thornton, James A. Johnson, Harry M. Johnson, George W. Johnson “and a deceased child who died in infancy, unmarried and without issue”; that Stella S. Thornton died “leaving no children”; “that there are no other children of "Mary AM Johnson, * * * nor descendants' of any deceased child of Mary AA7. Johnson,” and that George II.

S'ollev died in April, 39.14, leaving heirs, all of whom are “now of full age and reside in the State of Maryland.” The appellant contends that the deed from Sarah Ann Solley, under the Rule in Shelley’s Case and the Statute of Uses, conveyed to Alary W. Johnson the legal estate in fee simple, and that the deed from Alary W. Johnson and other» operated to vest the same title in Charles L. Solley, while the contention of the appellees is that the deed from Sarah Ann Solley conveyed to the trustee the legal title, and to ²²⁶ Mary M. Johnson only an equitable life estate, with contingent remainders to her children. The rule relied on by the appellant (which has been abrogated by the Act of 1912, Ch. láé, as to instruments executed after the 31st of May of that year) is, “that when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately, to his heirs, in fee or in tail, the hews are words of limitation of the estate, and not words of purchase.” Or as stated in Preston on Estates and adopted by Chaeoellob Keet, “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, edtheiywith 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.” The construction given to the words “heirs” or “heirs of the body” imputes to the grantor an intention to use them in their legal sense, and they are regarded as conclusive evidence of the intent of the grantor notwithstanding it may be ■contrary to the real intention. One of the exceptions to this rule is that where the grantor or testator annexes to the word “heirs” other words indicating that he intended to^ use the term in a qualified sense, as a 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 take its start, then the word “heir” is to be treated as a word of purchase. Eor instance it is said that the words “heirs now living,” “children,” “issues,” etc., are words of limitation or purchase according to1 the manifest intention of the grantor.

Ware v. Richardson, 3 Md. 505 ; Handy v. McKim, 64 Md. 560 . ²²⁷ While the word heirs, in the absence of some qualifying expression annexed to it, is under the rule treated as a word of limitation, the word “children” also has a well-recognized meaning, and unless the context clearly shows it to be otherwise intended, it signifies immediate offspring, and is a word of purchase and not a word of limitation. Stump v. Jordan, 54 Md. 619 ; Reilly v. Bristow, 105 Md. 326 . In Stump v. Jordan, supra, Judge Milleb said: “The devise after the life estate, is not to the ‘heirs/ nor to the ‘issue/ but 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 be otherwise intended. The cases in which it has a broader signification, and where if has been held synonymous with ‘heirs’ or ‘issue’ or ‘descendants/ are well illustrated by the resolutions in Wild's Case, 6 Co. 17. In that ease, says Lobd Ooke, ‘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 estateTail; for the intent of the testator is manifest and certain that his children or issue should take, and as immediate devisees they can not take because They are not rerum natura, and by way of remainder they can not 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 issue of his body.’ In such a case there is no' difficulty in discovering the plain intent or 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 husband and wife, and after their decease to their children or the remainder to their children, in this case although they have not any child at the time, yet every child ²²⁸ which they shall have after, may talc© 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.’ ” After referring to the argument that the succeeding words of the testator, “in the event, however, of her death without lawful issue, I give and bequeath the said land to my next kindred by law,” had the effect of enlarging the meaning of the word “children” previously used, from a word of purchase to a word of limitation, and, therefore to give the first taker an estate tail, Judge Miller said further: “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 by alienation.” In the case of Reilly v. Bristow, supra, the limitation over was in the following words: “To go and he divided between the children the lawful heirs of my aforesaid children.” After referring to the argument of the appellees’ counsel that the'words lawful heirs explained and enlarged the preceding word, children, Judge Pearce said: “Where, as here, there are two possible constructions, one of which would enlarge and the other would restrict the meaning of the word children, we think the spirit of our decisions requires us to adopt the .restrictive construction which will give effect to the natural and primary meaning of the word, rather than the arbitrary meaning placed upon it by an artificial rule of law.” In the case of Hall v. Gradwohl, 113 Md. 293 , where the will provided that after the death of the life tenant the property should be equally divided “among her children or heirs” the Court held that the words “children or heirs” were words of purchase, and Judge Burke, referring to the contention that the rule in Shelley's Case applied, said: “By that construction her ‘children or legal heirs’ would take nothing under the will, and the whole portion which the tes ²²⁹ tator intended his daughter to take for life would he taken by lier absolutely.

Such a construction, which has neither reason, policy, justice, nor equity to support it, can only be sustained by giving the words ‘legal heirs,’ which are super-added to the word children, the arbitrary meaning placed upon them ‘by an artificial rule of law.’ ” In the ease at bar the deed provides that after the death of Mrs. J ohnson the property is to he held in trust “for all and every the children the said Mary W. J ohnson now has or the children she may hereafter have, * * * the issue of any deceased child of said Mary W. Johnson, if any such issue there should he, to take the part or proportion only to which the parent of such issue if living would be entitled.” Here the wof'd heirs is not used, and there is nothing in the context to suggest that the grantor intended the words “child or children” to have any other than their ordinary meaning. To treat, these words as words of limitation would he contrary to the manifest purpose of the grantor to convey to Mrs. J ohn - son only a life estate in the property, and the remainder to her children and their issue. The ease of Cook v. Councilman, 109 Md. 622