Devecmon v. Shaw
| Decision Date | 08 February 1889 |
| Citation | 16 A. 645,70 Md. 219 |
| Parties | DEVECMON ET AL. v. SHAW ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Allegany county; R. H. ALVEY, Judge.
When the widow renounces a provision in lieu of dower, the property so devised and bequeathed falls into the residue subject, life the rest of the estate, to the widow's rights under the law. In equity. Bill by Alexander Shaw and Christian Devries executors of the last will and testament of John Sampson Combs, deceased, against Wilhelmina J. Combs, the widow Althea M. Devecmon, and others, to construe said will. The case was submitted on briefs, and the following opinion filed by Judge ALVEY:
"This case, in its present stage, has been submitted on briefs of counsel, for the purpose of obtaining a judicial construction of the last will and testament of the late John S. Combs, deceased, with respect to certain questions supposed to be of doubtful solution. The testator was the owner of a considerable estate, both real and personal, and he left surviving him a daughter, Althea Louisa Combs, his only child and heir at law, who is still a minor, and his widow, Wilhelmina J. Combs, who is still living. By the will, after giving some pecuniary legacies to certain persons named, and devising a house and lot as a law-office, and its contents, in the city of Cumberland, to his nephew, the testator makes provision for his wife, by devising and bequeathing to her, absolutely, certain portions of his estate, both real and personal. This provision made for the widow she has renounced, and elected to take such portion of the estate as the law allows her to take. The testator, after thus providing for his widow, proceeds to dispose of the great bulk of his estate in favor of his daughter. He devises to her certain described parcels of real estate, generally, without words of limitation; and then, in the same clause of the will, he gives her certain moneys, bonds, and stocks, by general words of gift, without limitation or restriction. But at the end of the paragraph of his will, containing these devises and bequests, the testator adds this provision: 'But in case my said daughter should die without leaving any child or children at the time of her death, or if leaving such child or children such child or all such children should die before arriving at the age of 21 years, then all the real estate and personal estate devised to my said daughter shall go to my sister, Althea M. Devecmon, and her children and grandchildren then living, in equal proportions; such grandchildren to stand in the place of their deceased parents.' As will be observed, this devise over, upon the contingencies mentioned, includes both the real and personal estate given to the daughter, and there can be no question of the validity of this limitation over.
1. On the part of Mrs. Devecmon and her children, it is contended that the daughter of the testator takes but a life-estate in the property given her by this clause of the will, while on the part of the daughter it is contended that she takes a fee-simple estate in the realty, and the entire interest in the personalty; but, as to both realty and personalty, the estates so taken are defeasible on her dying without leaving a child, or, if she leave child or children, upon their all dying before attaining the age of 21 years. It is not perceived how it can be a matter of importance to Mrs. Devecmon and her children whether the testator's daughter takes but a life-estate, or a feesimple defeasible estate in the property. The devise and bequest over can only take effect upon the happening of the contingencies mentioned; and whether the subject-matter of the devise and bequest over shall come to the devisees and legatees by way of remainder, rather than by way of executory devise or bequest, would seem to be a matter in which they could have no special interest,--certainly none of a substantial nature. If the testator's daughter takes but a life-estate, as contended for on behalf of Mrs. Devecmon, then, so far as the realty is concerned, the daughter, and after her death, if she die leaving child or children, her heirs at law, would take the reversion by way of inheritance, subject to be divested upon the happening of the contingencies provided for in the will, and in such case the ultimate devisee would take by way of contingent remainder. And so, with respect to the personalty, the child or children of the daughter, after her death, would take as distributees the interest or income of the personalty until the happening of the contingencies, or until one of her children should attain the age of 21 years, when the possibility of the contingency happening would cease; whereas, if the first devisee and legatee takes an estate in fee in the realty, and the entire interest in the personalty, both defeasible upon the happening of the contingencies mentioned, the ultimate devisees and legatees would take by way of executory devise and executory bequest, and not by way of contingent remainder.
Upon consideration of the whole context of the will, I can entertain no doubt of the opinion that the daughter was intended to take, and that she does by fair construction take, an estate in fee in the realty, and the entire interest in the personalty, defeasible as to both realty and personalty upon the happening of the contingencies specified. The daughter was doubtless the principal object of the testator's care and bounty, and we may suppose that it was his purpose to secure to the daughter and her children the full enjoyment of the property given to the daughter. He intended to dispose of his entire estate, and he never for a moment contemplated the possibility of a state of intestacy as to any part of his estate, or for any duration of time. But if the daughter takes but a life-estate, as contended, there would be an intestacy as to the reversion, subject to the happening of the contingencies mentioned; and if the daughter was to die leaving child or children, none of whom had attained the age of 21 years, the state of intestacy would continue, and the property would devolve upon the children as heirs at law and distributees taking or claiming through the mother, subject to be divested upon the happening of the contingencies provided for in the will. This, it is clear, would be the case unless the child or children left by the daughter could take as devisees or legatees by implication under the will. But it is quite clear that the children the daughter may have can take nothing as devisees or legatees under their grandfather's will. All interest that they could take in the property must be derived through the mother. They are merely mentioned in the description of the contingency on which the property, both real and personal, shall go over to Mrs. Devecmon and her children, and, in such case, it is clear they could take nothing by implication. Weakley v. Rugg, 7 Term R. 322; Doe v. Wetton, 2 Bos. & P. 324, 328; Cooper v. Pitcher, 4 Hare, 485; 2 Pow. Dev. side p. 212; 2 Jarm. Wills, (Rand. & T. 5th Amer. Ed.) 146.
In regard to the realty devised to the daughter, if, instead of the general terms employed, the devise had been to her and her heirs, or to her in fee-simple by express terms, there could have been no room for the least doubt as to the nature of the estate taken by the daughter; but the act of 1825, c. 119, (Code, art. 93, § 305,) has declared that, in every will devising real estate, where no words of perpetuity or limitation are used, 'the devisee shall take, under and by virtue of such devise, the entire and absolute estate and interest of the testator in such lands or real property, unless it shall appear by devise over, or by words of limitation or otherwise, that the testator intended to devise a less estate and interest.' Now, it is not deemed that the testator intended to devise his entire estate in the property mentioned, and, as I think, it is manifest he intended it to vest in his daughter, with the contingent limitation over. That limitation is in no way inconsistent with the devise of a fee-simple estate to the daughter, and the limitation over, therefore, does not furnish the least evidence of an intention to give to the daughter a less estate than a fee-simple; and, if the daughter takes a fee-simple estate in the realty, there can be no good reason suggested why she does not, in like manner, take the entire interest in the personalty, subject to the contingencies specified.
(2) With respect to the trusts created by the will for the benefit of the daughter, little need be said. The trustees do not take estate in the property confided to their care, but only...
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