Shreve v. Shreve

• Decision Date: 21 December 1875
• Citation: 43 Md. 382
• Parties: CHARLES W. SHREVE and ANNA E. his Wife v. DANIEL T. SHREVE and others.
• Court: Maryland Court of Appeals

43 Md. 382

CHARLES W. SHREVE and ANNA E. his Wife v. DANIEL T. SHREVE and others.

Court of Appeals of Maryland

December 21, 1875

APPEAL from the Circuit Court for Frederick County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, and MILLER, J.

Wm. H. Tuck, for the appellants.

If the rule in Shelley's case applies to this will, the first devisees took estates in tail, which estates in Maryland, are converted into estates in fee-simple. And the devisees, being right heirs of the testatrix, and taking the same interest under the will as they would have taken if there had been no will, they are in, by the superior title, as heirs and not as devisees, by descent and not by purchase.

Does the rule in Shelley's case apply to this will? It is not an unbending rule; its application sometimes depends on the intention of the testator, to be collected from the whole will. But it is a rule of construction to be followed in all cases, and to have its legal effect, unless there is a clearly expressed intent that the first taker shall have only an estate for life. The rule with its qualifications must prevail as a part of our system of real law, because it has been fully adopted, &c., &c. Ware vs Richardson, 3 Md., 545; 1 Preston on Estates, 272--279; Chelton vs. Henderson, 9 Gill, 432; Tongue vs. Nutwell, 13 Md., 423; Simpers vs. Simpers, 15 Md., 160.

The word issue is nomen collectivum, as fully as heirs of the body, and a devise to a man and his issue will pass an estate tail, made here an estate in fee. They both clearly indicate that the property is to go in the same direct line. 2 Powell on Dev., ch. 26; King vs Melling, 1 Ventr., 214, 225, Same Case, 2 Levinz, 58, 61; Cooper vs Collis, 4 Term, 294; King vs Burchall, 4 Term, 294, note; Blandford vs. Applin, 4 Term, 82.

But it is said that words of limitation are added to the word issue, which alters the interpretation that would otherwise be given to this devise; in other words, that the devise is thereby restricted to a life estate in the first taker, which, under Shelley's case, would have been an estate tail, converted into a fee simple. This was a reason assigned by Judge MAGRUDER in his opinion in Chelton vs. Henderson, 15 Md., 191.

This proposition is too broadly stated, because there are many authorities to show that superadded words do not always defeat the estate of inheritance in the first taker, though they may have had that effect properly in that case, for according to that will the issue were to have the lands in fee tail, shewing an intent that the word issue was used to designate a class of persons with whom the estate tail was to commence, and negativing the implication that he intended the first taker to have such an estate, or more than an estate for life. Such words will not destroy the estate of inheritance in the ancestor, where the remainder, after the life estate, is to heirs of the body. 2 Powell on Devises, 460, 526; 1 Preston on Estates, 383. Why should they, when added to issue, seeing, as the books shew, that this term comprises all who could claim as heirs of the body, and who might take from generation to generation, until the extinction of the direct line? It is as fully nomen collectivum, as heirs of the body.

The construction has sometimes depended on whether issue was used in the singular or plural. It is stated by counsel in the case of Cooper vs. Collis, 4 Term, 298, after referring to cases, that "there is no case in which issue has not given an estate tail, when used in the plural." To the same effect, see-- King vs. Burchall, 4 Term, 298, note; Dodson vs. Grew, 2 Wilson, 322; 2 Powell on Devises, 515, 517; Candler vs. Smith, 7 Term, 533; 1 Preston on Estates, 380, 381; Hodgson vs. Ambrose, 1 Doug., 337.

In the cases where superadded words have had the effect of destroying the estate of inheritance of the first taker, the limitation, after the word issue was so worded, as clearly to shew an intent that an estate should commence with the issue as a designated class, and not with the ancestor; sometimes by enlarging the estate that would, under the rule in Shelley's case, vest in the ancestor, and sometimes by restricting it. But if the superadded words are of the same import, they have no effect. 1 Preston on Estates, 347, 380, and cases cited.

There is nothing in this will to restrict the word issue to mean children, sons, or any individuals. The limitation over could not take effect until the entire line of issue had failed, just as there must have been a failure of the entire line of heirs of the body, if these words had been used, and this shows an intent to vest estates of inheritance in them. Candler vs. Smith, 7 Term, 531, 533.

Where the term children is used, the testatrix means her own children named in the will, and not their children; and having used different words as to ancestors and their issue, a different interpretation must be presumed to have been intended by her.

But, aside from the rule in Shelley's case, the estates for life of the devisees under this will were enlarged to estates tail--in fee in this State-- by reason of the limitation over in default of issue, because in such cases it is the manifest intention of the testator that said estate should not go over until the whole line of the issue was extinct. 2 Powell on Devises, ch. 30, pp. 526, 602; Knight vs. Ellis, 2 B. C. C., 598; Blackborn vs. Edgley, 1 P. Wms., 600; Brice vs. Smith, Willes, 5; Murthwaite vs. Jenkinson, 2 Barn. & Cres., 359; 1 Preston on Estates, 347.

It is necessary to give this construction to the will in order to effect the general intent, as to the children and their issue, which general intent must prevail over a particular intent. If the word issue be construed as children, or as designating a class, for the commencement of a new estate in them, and not derivative from their several ancestors--the first takers--the will would apply only to those living at her death, if any, whereas it must have been the design of Mrs. Shreve to put all her descendants on the same footing, that is, to give to her after-born grandchildren the same interest that those in esse took under the will. By any other construction those born afterwards would be excluded. Benson vs. Wright, 4 Md. Ch. Dec., 278.

There are cases to shew that the rule in Shelley's case has been applied on this distinction. King vs. Burchall, 4 Term, 296-- note; Webb vs. Puckey, 5 Term, 299.

The result of the cases seems to be this: Where the remainder, after the life estate, is given to the heirs general or special, as a class, to take in succession from generation to generation, and not given to some individual of the class of heirs, with a limitation to the heirs of such individuals, then the rule applies; and if the class, to take in succession, comprises all and no one else, of the general or special heirs of the devisee for life, then his estate is enlarged to an estate of inheritance. It is for this reason that a remainder to the issue of the first devisee will give the inheritance to him. That term embraces all the persons who could be heirs in tail, and no one else, to take in succession from generation to generation.

The evidence shows the intent of the devisor, and the interpretation by the devisees, the Court and the Commissioners. Not being excepted to in the Court below, it may be resorted to in ascertaining the rights of the parties; "and must be allowed its full force." Gale vs. Gibbs, 7 Md., 76.

The will creates a trust for her husband by directing her heirs and devisees, annually to pay a sum of money for his support, and charging all her real estate with its payment. This laid a personal obligation upon all the children; each would be liable for the whole, and not rateably according to the value of his interests under the will. The charge on the lands would not render them less liable, personally, and if the lands as might happen in many cases of this kind, proved inadequate, they would still be individually responsible. And if they took only estates for life, their several estates in other property might be answerable after their interest in this land had ceased by death; and making their representatives liable to pay this annuity when they were deriving nothing from the property charged with its payment. West vs. Biscoe, 6 H. & J., 460; Spencer vs. Spencer, 4 Md. Ch. Dec., 462; Glen vs. Fisher, 6 Johns. Chy., 33; Tolson vs. Tolson, 8 Gill, 376.

In cases of this kind the testator intends the devisee to pay the legacy out of the funds or estate with which he is intrusted, and if there be any doubt as to the quantum of estate arising on the face of the will, the law will imply a fee-simple to enable the devisee to carry out the design of the testator, in requiring the money to be paid. 2 Story's Eq., 1247; Crawford vs. Severson, 5 Gill, 446.

The proceedings and decree in the partition case, conclusively settled the construction of the will, and virtually decided that the children of Mrs. Shreve took estates in fee. The Court had no jurisdiction to proceed, as was done in that case, by allowing the complainant to take the land at a valuation under the Act of descents, unless it had construed the will as now insisted on by the appellants, and having jurisdiction according to that view of the case, and having by such construction, and the confirmation of the partition and election, vested a fee-simple estate in the party electing, it was the duty of the Court below to have respected those proceedings, and quieted the title of the complainant. The appellant relies upon his title under that decree, and it is too late now to question the correctness of the proceedings,...