15 MD 160 - Simpers v. Simpers

Bartol, J.,

¶1delivered the opinion of this'court;

¶2The main question presented by this appeal, a!nd the only one which it is necessary for this -court to consider, is, what estate did Henry Simpers lake in -the lánds devisbd tfc> hirii by the will of his father, Thomas Simpers, the elder? That devise is as follows:

“I give and -devise unto my natural son, Henry Simpers, son of M.ary Bouldin, all my present dwelling plantation, <fcc., &c-., to him the said ITenry Simpers (son of Mary Bouidin) for and during the term of his natural life'; and after his decease, to his eldest son; for and during the term of the natural life-of such eldest son; and in default of such issue on the part of the said Henry, I give, devise and bequeath the property real and personal aforesaid, hereby given to the said Henry, unto my natural son, William Simpers, (son of Mary Bouldin,) for and during the term of his natural life, and after his death, to his eldest son, for and during the term of the natural life of such son, and after the death of such eldest son, to the eldest son of such son, and his issue male, of his body, lawfully begotten, forever; but if my Said natural son Henry Simpers (son of Mary Bouldin) shall have a son .as afdresaid-; and such son should die without issue male, in that case.; it is my will and intention, that, if the said Henry should have a second son, or any heir male .of his body, lawfully -begotten, that such son or heir male should have the aforesaid property, real and personal, .to him and his eldest heir male, forever; it being my will, that the said property should pass from my said .son Henry Simpers,- to his eldest son and heir of his body-; lawfully begotten, and so on, front generation to generation.; forever:; and in default of such issue to my son William .and his eldest son, as aforesaid.”

¶3It is contended; on the part of ¡the' appellant,; that this devise vested in Henry an estate tail male, by force of the rule ill Shelley’s case, while; on the .part of the appeleé, -it is argued that this case is not within the rule;; that the intention of the testator being plainly manifested, to giv-e ti> Henry no greater estate than for life, such intention must prevail, and that Henry.) the first devisee, took a life estate Only.-

¶4 *186By the ruling in Shelley's case, the principle was established, “that if land be limited to a person for life, and after his decease to his heirs, or the heirs of his body; the remainder to his heirs or heirs of the body, is immediately executed in the ancestor, who becomes seized of an estate of inheritance.”

¶5This definition of the rule is sufficient for our present purpose; a more full and accurate definition of it, given by Mr. Preston, and adopted by Chancellor Kent, may be found cited in 3 Md. Rep., 544.

¶6Whatever may have been the origin of this rule, it is certain that it was firmly established in the jurisprudence of England before our Revolution, and was introduced into this State as a part of the common law; it has been recognised and enforced by our courts, and many valuable estates have been held under it in Maryland.

¶7In the case of Ware & others vs. Richardson, 3 Md. Rep., 545, this court in speaking of this subject declared, “that the rule with its qualifications must prevail as a part of our system of real law, because it has been fully recognised and adopted as the settled law of Maryland.”

¶8We did not understand the counsel for the appellee as denying the binding force of the rule; but as contending that this case falls within one of its recognised exceptions or qualifications. This brings us to an examination of the words of the will before us, for upon their interpretation must depend the solution of this question.

¶9In thé first part of the devise, the testator gives to Henry a life-estate, with remainder to the eldest son of Henry for life; and in default of such issue, on the part of Henry, to William (another son of the testator) for life, «fee. If the will had stopped here, it is plain that Henry would have taken only a life-estate, and on his death without leaving his eldest son living, the land devised would go to William. That would be the effect of this clause of the will if; the words, “such issue,” are to be construed as referring to the eldest son of-Henry. But it is evident from the subsequent part of the will, that the testator did not intend William to take the land) *187upon the event of Henry failing to leave his eldest son surviving him; his design was that any son of Henry, or any heir male of the body of Henry, should take before William should become entitled. His words are: iC but if my said natural son Henry shall have a son as aforesaid, and such son should die without issue male, it is my intention, that if the said Henry should have a, second son, or any heir male of his body, lawfully begotten, that such son, or heir male, should have the aforesaid properly to him and his eldest heir male, forever; it being my will that the said property should pass from my said son, Henry Simpers, to his eldest son, and heir of his body, lawfully begotten, and so on, from generation to generation, forever; and in default of such issue to my son William and Iris eldest son, as aforesaid.”

¶10.Now, there is no rule better established than that, when there is a particular intent expressed in a will, and a general intent inconsistent therewith expressed in the same will, the latter must prevail.

¶11Here the general intent is manifest, that all the heirs male of the body of Henry shall be entitled, before the devise over to William can take effect; this intent cannot be gratified, without vesting in Henry an estate tail male. The particular intent to be found in the words, which give a life-estate to Henry, cannot control the manifest general intent of the testator; to give to them such effect, would be to repeal or disregard the established rules of interpretation.

¶12In Jones vs. Morgan, 1 Brown’s Ch. Rep., 206, Lord Thur-low said, “that where the estate is so given, that it is to go to every person who can claim as heirs to the first taker; the word Heirs must be a word of limitation; all heirs, taking as heirs, must take by descent.”

¶13In Poole vs. Poole, 3 Bos. & Pull., 627, Lord Alvanley said, “that the courts will not deviate from the rule which gives an estate tail to the first taker, if the will contains a limitation to the heirs of his body, except where the intent of the testator appears so plainly to the contrary, that nobody can misunderstand it.”

¶14 *188The same language was repeated, by Lord C. J. Tindal, in Jack vs. Featherston, 9 Bligh, N. S., 237.

¶15In the case of Ware vs. Richardson, 3 Md. Rep., 544, this court said: “In cases, therefore, when the word ‘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, Avill 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 am estate of inheritance.”

¶16We- do not mean to be understood that the use of the Avords heirs of the body, has, under all- circumstances, this effect. They are susceptible of explanation and qualification, and if the context plainly shows that they were not used by the testator in their ordinary signification, but Avere designed to indicate another clasg of objects less extensive, such as sons, children, &c., there they would be construed so as to effectuate the intention of the testator. Many cases- of this sort have arisen, and have been recognized as exceptions to the rule; but in the will before us, there are no such qualifying or explanatory words; by the terms, “any heir male of his-body,” the testator did not mean to confine the bequest to-the sons of Henry; there is- nothing-in the avüI to authorize-such a restricted construction; on the-contrary, it Avould defeat his intention; for by the plain import and intent of the will*, the land could not go to William, except upon failure of heirs male of the body of Henry. This includes grandsons, as Avel-1 as sons; and, indeed, embraces the whole line-of male descendants of Henry. This is, therefore, not within-that class of eases in Awhich there is a selection of an individual or individuals of the family of the first taker, who are constituted a stock from which the inheritance is to be deduced , and who therefore take by purchase and not by descent. Nor is it like the case of Lyles vs. Digges, 6 H. & J., 364, or the case of Baker vs. Tucker, 2 Eng. Law & Eq. Rep., 1, which have been cited, and relied upon in the argument *189by She- counsel for the appellee. In each of those cases there was a> devise for life, with a limitation in tail to the first and every other son- of the first devisee, to take in succession according to seniority of age and priority of birth, and in default of such issue-, over, and it was held that the first devisee took an estate for life only. The principle of the decision in Baker vs. Tucker is- thus stated by Chancellor Sugden in his very able opinion pronounced in that case: “Where after the devise to the first taker, either generally or expressly for life, particular limitations are introduced, in favor of his issue, followed by a limitation on failure of issue of the same person; if these particular limitations exhaust the entire line of issue, in whose favor they are designed, without calling in any implication of a- more general character, to be deduced from the language of the limitation over, that limitation is to be considered as implying nothing more than has been expressed by the particular limitations which precede it, because the intention which it indicates, has been already expressly and fully carried out.” The-learned Chancellor afterwards, in the same opinion, speaks of a class of cases, “'wherein the enumeration of the lines of issue, the entire number of the same class, which the particular Limitations indicate an intention of selecting, is left incomplete, there the general language of the limitation- over has been laid hold of, as indicating the general intention to include all of the class, and as controlling the particular limitations to a particular number,” and cites as examples of this latter description of cases, Langley vs. Baldwin, 1 Eq. Ca. Ab., 185, and Attorney General vs. Sutton, 1 Peere, Wms., 753. These cases are somewhat analogous to the one before us, for in this will but two sons of Henry are mentioned in the enumeration of the persons selected, while the testator plainly expresses his intention, that any heir male of the body of Henry shall be capable of taking the estate, and the limitation over is “in default of such issue,” which means, upon failure of heirs male of the body of Henry.

¶17It is unnecessary to notice, at any great length, the decision in the case of Chelton vs. Henderson's Lessee, 9 Gill, 432, *190cited in the argument, because it is wholly unlike the case before us. The will in that case gave to Isaac Dixon a life estate with a limitation in tail to the issue of his body, lawfully begotten, and in the event of Isaac dying without issue of his body, lawfully begotten, then over, and it was hold that Isaac took only a life-estate.

¶18Without adopting all the reasoning of the learned Chief Justice, who delivered the opinion of the court in that case, we may remark, that the construction of Dixon’s will may be reconciled with antecedent decisions, and is not inconsistent with the principles expressed in this opinion. It is evident that the ruling of the court in that case turned upon the construction of the word “issue,” as used in the will. On page 436, Judge Dorsey says, “Even if in such a case in England, the technical import of the word ‘heirs’ should be regarded as conclusive evidence of the intent of the testator, that the rule should operate, and countervail all other expressions in the will indicating a contrary intent, yet it by no means thence follows, that the same principle must govern the case now under consideration, where the word ‘heirs’ has not been used. According to all the decisions in England, and in the United States, ‘issue,’ which is in the will before us,, is a term of equivocal import, being either a word of limitation, or of purchase, meaning heirs of the body, or children, according to the intention of the testator deduced from the expressions contained in his will.” English cases might be cited, tending to show that the will of Isaac Dixon would perhaps have received a different construction in Westminster Hall. But looking to the phraseology of the will, no violence was done to,any settled rule of construction, by the adjudication of the Court of Appeals thereon. In that will there were words superadded to the word issue, sufficient to give to the issue the inheritance without enlarging the life-estate given to the first taker, and in such a case, there is authority for construing the word issue as a word of purchase. In Cruise’s Digest, 6 Vol., 3 Am. Ed., page 375, sec. 48, it is said, that “when an estate is devised to a person for life, with remainder to his issue, with words of limitation superadd*191ed; the word issue will, in that case, be construed as a' word of purchase.” Upon that principle the judgment in Chelton vs. Henderson, may be supported, without infringing the rule in Shelley’s case. The case before us is, however, wholly unlike that of Chelton vs. Henderson, and that adjudication cannot control the construction of the will now under consideration.

(Decided March 15th, 1860.)Note by the Reporter. — In the .case of Chelton vs. Henderson, referred to in the above case, it appears that the following opinion was prepared by Judge Magruder, but not filed in the cause:“The appellee brought this action of ejectment, and recovered a verdict and judgment in Somerset county court. A single exception, taken by the appellant in the course of the trial, presents the only question for our decision.“It is admitted, that Isaac Dixon (the eldest) died, seized in fee of the lands in controversy, having, by his -will, bearing date May 1788, devised the same to his son Isaac, ‘except the part already devised’ to the wife of the testator.“What interest (an estate for life, or of inheritance?) was devised to the son ?“The devise is in these words: — T give and bequeath to my son, Isaac ..Dixon, the use of the plantation whereon I now live, (except the part already disposed of) to him, the said Isaac, during his natural life, and, if it should please God, that the said Isaac should have issue, born of his body lawfully begotten, then such issue, after the death of the said Isaac, to have the aforesaid devised premises, in fee tail, but if the said Isaac shall die without issue of his body, lawfully begotten, it is my will and desire that the above mentioned lands and premises, with all other rights and claims in any land whatever, shall descend to my son, Thomas Dixon, and his heirs, in fee-simple.’

¶19 *191Being of opinion, for the reasons stated, that Henry Simpers took under the will an estate in tail male, in the lands in controversy in this case, the judgment will be reversed and a judgment rendered for the appellant.

¶20Judgment reversed, and judgment for the appellant for the premises described in the declaration and costs.

Tuck, J.,

¶21delivered the following dissenting opinion:

¶22Being of opinion that the will of Thomas Simpers shows that he intended his son Henry should take an estate for life, and no greater, in the lands devised to him, Í am constrained to enter my dissent from the opinion and judgment in this case. There is no difference between the court and myself as to the principles of law governing such devises, generally, but I think that this devise is not within the rule in Shelley’s case.

“The intent of this testator may be easily collected from the words in which he has thought proper to express it. Indeed, it would be difficult not to understand correctly his meaning. It is manifestly his will, that Isaac, his son, should never have an estate of inheritance by virtue of this devise, and that no person should have the power of depriving his son Thomas of the fee-simple, unless, at the time of the death of his son Isaac, there was issue of the son Isaac to inherit the estate in tail. Indeed, so anxious does he appear not to be misunderstood, in regard to the interest which his son Isaac was to take under the will, that, instead of devising to him land totidem verbis, devises to him, for life, the use — the usufrnctus, or ‘temporary right of using the thing without the ultimate property and full dominion of'the substance.’ 2 Blk., 327.“Now, it being ‘the great rule to which all other rules must bend, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law,’ the next inquiry is, whether this devise be, in all respects, consistent therewith?“Of the Act of 1786, ch. 45, we need not speak, because the question here is, what estate did Isaac, the son, take?“It is true, the authorities tell us, that a man’s last will and testament 'may manifest two different and inconsistent intents, and thus it sometimes becomes necessary to expunge some of the words of a will; that where there are two intents inconsistent with each other, that which is the primary must control that which is deemed the secondary intent. The case of Smith vs. Bell, 6 Peters, and that of Robinson vs. Robinson, 1 Burr., furnish illustrations of this last rule. These cases, however, are not at all like the present. There is no general intent .in the case before us, which requires a sacrifice of the particular intent, or an enl argement of the estate for life, given to the first devisee, into an estate of inheritance. There is here no ‘manifest main intent,’ to be collected from the will, which can only be gratified by giving to the first devisee a larger estate than an estate for life. It may be added, that a conversion of the estate for life, into an estate tail, instead of effectuating the testator’s intent with re■gard to the issue, would defeat it. Our act of descents would at once make of the estate given to the son by the testator, and of the several estates intended to be given to others, but one estate in fee, and thus have made a tenant for life the owner of the fee-simple.•“We are reminded, however, that the intention of a testator is not always to be gratified, and it is insisted that this is one of those cases in which, according to -‘Preston on Estates,’ instead of seeking the intention of the .parties, and aiming at jts accomplishment, the law interferes, in some cases, with the presumable, and, in many instances, with the express intention; in other words, in dealing with the case now under consideration, we are to regard it as another Shelley’s case, to be disposed of according to the rule which, it is thought, decided that case.“The rule in Shelley’s case is, that ‘where 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 heirs are words of limitation, and not words of purchase. ’“This so called rule in Shelley’s case has given rise to a deal of litigation. In Perrin vs. Blake, Burrows says, the cases cited were many and difficult to reconcile, each side had a string of them. As many treatises, large and small, have been written upon this rule, in which may be found both ‘strings’ of them, it is deemed quite unnecessary, in disposing of this appeal, to prepare another digest of those cases.“In deciding such cases, to ■Eyre, 1 Bos. &,• Pull., 220': ‘Technical rules are not to be relied on in' explaining the intention of testators, and yet cases of intention are much embarrassed by authorities.’ The rule in Shelley’s case, can scarcely aid the appellee. Such expressions used in a deed would give to the first devisee only an estate for life. The word (issue,) in grants, is exclusively a word of purchase, and in devises of real estate often means children, a,nd is then a word of purchase, though it may be used either as a word of purchase or of limitation. A Kent, 223.“The rule, itself, relates to a gift or conveyance to the heir or heirs of the body, whereby a- father may secure an estate to himself and deprive his children thereof. To prevent this, a late writer on wills, (Lovelass, 225) says: ‘It is usual to limit the remainder, not to the heirs of the body, but to the son or sons, or children, so that they may take as purchasers.’“The devise, in the ease now before us, is to the issue, and this word is, to be sure, sometimes a word of limitation. A devise to a man and his issue, gives, in England, an estate tail,- in Maryland, a fee-simple to the devisee. A devise to a man during his life, and after his death to his issue, if there be no words superadded, will receive the same construction; "because if the issue, in such a case, be made a word of purchase, then the issue would take but an estate for life, and thus the general and paramount intent of the testator, to give ’to the issue an'estate of inheritance, would he defeated.“In the case now to be decided, there are words superadded to the word issue, quite sufficient to give to them the inheritance; and the law is that: ‘where an estate is devised to a person for life, with remainder to his issue, with words of limitation superadded, the word issue will, in that case, he construed to be a word of purchase.’ See 6 Cruises’ Digest, 1st Jim. sec. and the authorities there collected.“It has always been, and is still, understood to be law, as was stated in 1 Burr., 41, that where the issue cannot take an estate tail without taking it the father, the father shall have an estate tail — otherwise, not.“The opinion being entertained, that Isaac, the son, and first devisee, took only an estate for life, it follows that this judgment ought to be reversed. The conveyance of the fee, by Isaac, the son, to Isaac Dixon, the 3rd, is an essential link in the chain of the title of the plaintiff below. All the interest which the grantor could convey, was determined by his death, which, it is admitted, took place about the year 1823. As the plaintiff below can claim, now, nothing under the deed,- there is now no title to be asserted in this action.”

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