Garrison v. Hill

• Decision Date: 14 March 1894
• Citation: 28 A. 1062,79 Md. 75
• Parties: GARRISON ET AL. v. HILL.
• Court: Maryland Court of Appeals

28 A. 1062

79 Md. 75

GARRISON ET AL. v. HILL.

Court of Appeals of Maryland

March 14, 1894

Appeal from court of common pleas.

Ejectment by Mary De Charms Garrison and another against Thomas Hill. From a judgment for defendant, plaintiffs appeal. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, PAGE, and BOYD, JJ.

Attorney General Poe, W. B. Trundle, and Hyland P. Stewart, for appellants.

Tho. Ireland Elliott, for appellee.

BRISCOE J.

This is an appeal in an action of ejectment. The property sought to be recovered is real estate situate on Lexington street, in Baltimore city, together with its rents and profits.

The main questions for our consideration arise upon a construction of the fifth item of the will of a certain Maria E. Weise and the will of a certain Emma M. C. Johnson. By the fifth clause of the will of Maria E. Weise she devised as follows: "All the rest, residue, and remainder of my estate, effects, and property of every kind and description whatsoever, inclusive of my house and lot of ground on Lexington street, I give, devise, and bequeath to Thomas Hill, of city of Baltimore; in trust and special confidence however, for the separate use and benefit of my cousin, the said Emma Maria C. Johnson, for and during the term of her natural life, so that she during that period be permitted and suffered to have, receive, take, and enjoy the rents, issues and profits of said residuary estate and property, free from the control, power, or disposal of any future husband she may marry; and, from and after the death of said Emma Maria C Johnson, in trust that the said residue shall go and become the property of any children of the said Emma Maria C. Johnson, their heirs and assigns, absolutely; but, in case the said Emma Maria C. Johnson should depart this life without leaving a child or children, or descendants of a child, living at the time of her decease, then the said trust property and premises shall go to my cousin, the said William Worthington Johnson, absolutely." The will was dated April 12, 1880. and was duly executed to pass real estate. The testatrix died December 7, 1881, unmarried and without issue. Emma Maria C. Johnson executed her last will and testament on the 23d of August, 1887, and died April 22, 1891, unmarried and without issue. By her will she devised and bequeathed, after the payment of her debts and funeral expenses, all her property to her mother, Maria M. Johnson. After the death of the testatrix, the life tenant, Emma M. C. Johnson, received the rents and profits of the property until her death. William Worthington Johnson, the remainder-man under the will, died on the 14th October, 1886, intestate, unmarried, and without leaving issue, but left an only sister, Emma M. C. Johnson, and Maria M. Johnson, his mother. The latter died in January, 1889. Upon this state of facts, the question, then, is, do the heirs at law of William Worthington Johnson, the remainder-man, take the interest in the property which he would have taken had he survived the life tenant, Emma, or did it descend to his sister Emma, who was living at the time of his death, and pass under her will to her mother, Maria M. Johnson?

Here there is, first, a life estate given to Emma Johnson, and a remainder is limited, with a double appeal: if she left children, then to them in fee; if she left none (which contingency actually happened), then the devise is to William Worthington Johnson. It is well settled that contingent estates of inheritance will pass by descent, and are also devisable. Reid v. Walback, 75 Md. 206, 23 A. 472. But while this is true,...