Demill v. Reid

• Decision Date: 12 June 1889
• Citation: Demill v. Reid, 71 Md. 175, 17 A. 1014 (Md. 1889)
• Parties: DEMILL ET AL. v. REID ET AL.
• Court: Maryland Court of Appeals

17 A. 1014

71 Md. 175

DEMILL ET AL. v. REID ET AL.

Court of Appeals of Maryland

June 12, 1889

Appeal from circuit court of Baltimore city; DANIEL GIRAUD WHITE Judge.

This was a special case stated, under equity rule No. 47, for the construction of the sixth item of the will of John Willett deceased, which is set out in full in the opinion. The circuit court held that plaintiffs Nina C. and Laura O Demill, who are the issue of Emily M. Willett, a daughter of Henry J. Willett, who died before her father, took no interest under the will, and they appeal.

Argued before ALVEY, C.J., and MILLER, ROBINSON, IRVING, BRYAN, and MCSHERRY, JJ.

John J. Donaldson and Wm. A. Hammond, for appellants.

Arthur Geo. Brown, Francis E. Pegram, James Mackubin, pro se, and H. M. Benzinger, for appellees.

MILLER, J.

This appeal brings before us for construction the sixth item or clause of the will of John Willett, which was executed in 1857. By this clause the testator devised certain real estate to his son Henry J. Willett, "to hold the same unto the said Henry J. Willett, his heirs, executors, and administrators, in trust and confidence, nevertheless, and to and for and upon the uses, trusts, and purposes following; that is to say: In trust for the use and benefit of my grandson John Willett Belt during the term of his natural life, so that he during that period be permitted and suffered to have and enjoy the said trust property and premises, and the rents, issues, and profits thereof to receive, take, and apply to his own use and benefit; and, from and immediately after the decease of the said John Willett Belt, then in trust that the said principal estate and property shall go to and become the property of the child or children of the said John Willett Belt by him lawfully begotten, if any, their heirs, executors, administrators, and assigns, if more than one, to be equally divided between them as tenants in common. But in case the said John Willett Belt should depart this life without leaving a child or descendant thereof living at the time of his death, or in case he should have a child, children, or descendants of the same living at the time of his death, and such child, children, descendant, and descendants should all subsequently depart this life under lawful age, and without issue living at the time of his, her or their decease, then in trust that the said principal estate and property shall go to and become the property of the children of my said son Henry J. Willett, their heirs and assigns, to be equally divided between them as tenants in common." The testator died in October, 1860, and his son Henry J. Willett accepted the trust for the benefit of his grandson John Willett Belt, who enjoyed the property during his life, and died in October, 1886, without leaving a child or descendant thereof living at the time of his death. The son Henry J. Willett died in August, 1877, and had six children, three of whom are now living. One died in 1875, intestate, and leaving no descendants. Another died in the life-time of her father, leaving an only child, who also died in the life-time of the said Henry J. Willett, leaving no issue. The other, Mrs. Emily M. Demill, died before her father, in May, 1874, leaving four daughters, her only heirs at law, all of whom are now living. Upon this state of facts, the question is, do these four daughters of Mrs. Demill take the interest in this property which their mother would have taken had she survived the life-tenant, John Willett Belt, or does it all go to the three children of Henry J. Willett who did survive the life-tenant?

As to the character of the estate thus created, we have no difficulty. It is a clearly established general rule in the construction of wills that a limitation which may operate as a remainder shall not be construed an executory devise. Here there is, first, a life-estate given to the grandson Belt and upon his death alternative contingent remainders in fee are limited, first, to the child or children of Belt, if he leaves any, which shall attain lawful age, or die before that time leaving issue, and, failing this, then to the children of the testator's son Henry. If Belt had left a child who attained the age of 21, or died before that time leaving issue, the fee would have vested in such child or issue, and such vesting would forever have excluded any possible future interest in the children of Henry J. Willett. Their interest took effect only upon the failure of the preceding contingency. There are therefore here two contingent fees not limited to take effect the one upon or after the other, but the one to take effect to the entire exclusion of the other, and the falling out of the contingencies is to decide which of the two is to take effect. It is a case illustrating the statement made by Fearne, Rem. 373. "However, we are to remember that although a fee cannot in conveyance at common law be mounted on a fee, yet two or more several contingent fees may be limited merely as substitutes or alternatives one for the other, and not to interfere, but so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect. Thus in the above-cited case of Luddington v. Kime, 1 Ld. Raym. 203, it was held that the first remainder was a contingent remainder in fee to the issue of A., and the remainder to B. was also a contingent fee not contrary to or in any degree derogatory from the effect of the former, but by way of substitution for it. And this sort of alternative limitation was termed a contingency with a double aspect; for if A. had issue male, the remainder was to vest in that issue in fee; but if A. had no issue male, then it was to vest in B. in fee; and these were limitations of which the one was not expectant upon and to take effect after the other, but were contemporary, to...