Thomas v. Higgins

Brent, J.,

delivered the opinion of the Court.

The questions arising upon this appeal, depend upon the construction of a deed executed by a certain Daniel Martin, wherein he conveyed on the 19th of March, 1841, the land in controversy as follows:

“Unto James A. Waddell and Emmeline, his wife, for their joint and natural lives, and to the survivor of them during his or her natural life, * * * * remainder to the said Daniel James Waddell and William Waddell, as tenan'ts in common, during the natural life of each of them; remainder to the heirs of the body of the said Daniel James Waddell and William Waddell respectively, and in default of such issue living at the time of the death of the said‘Daniel James and William respectively, remainder to the heirs of the bodies of the said James A. Waddell and Emmeline, his wife, living at the death of the survivor .of them, and in default of such issue living at the death of the survivor as aforesaid, remainder to the heirs of the said Emmeline Waddell in fee-simple.”

Upon the facts, as set forth in the agreed statement of counsel, the first and main question to be determined, is, what estate did Daniel and William take under the terms of this deed? That the rule in Shelley’s Case is of binding force in this State is well settled, and it is so recognized in the briefs filed by the respective counsel.

This rule, is so fully set out in the decisions of this Court, and especially in the cases of Ware vs. Richardson, 3 Md., 544 , and Simpers’ Lessee vs. Simpers, 15 Md., 160 , that it is unnecessary to repeat it here. So imperative are its requirements when it is applicable, that.it will control the operation of the grant and vest the whole estate in the ancestor, though the instrument declares he shall only have a life estate.

It is claimed on the part of the appellee, that it controls the estate taken by Daniel and William Waddell under the deed in question. The appellants, while they concede *451 that the terms, “remainder to the said Daniel and William as tenants in common, during the natural life of each of them, remainder to the heirs of the body of the said Daniel and William respectively,” standing alone would vest the whole estate in them, contend that the subsequent words ‘ in default of such issue living at the time of the death of the said Daniel and William respectively,” &c., so modify the meaning of the words “ to the heirs of the body of the said Daniel and William respectively,” as to make them a particular designation of certain persons as a root from whom the inheritance is to emanate.

This narrows very much the question presented, and leaves us to consider whether the legal meaning of the word heirs is modified by the subsequent words “such issue living' at the time of the death,” &c. The word issue is one of doubtful import. Its legal sense is one of very general signification and includes all persons having a common ancestry. Its true interpretation must be found from the connection in which it is used, noscitur a sociis. It may bo used in the sense of heirs, and if from its connection and association with words of reference it is plain that it is used in that sense, it must be so taken. In the deed before us its use, in connection with the word such, refers back to the words heirs of the body, and these latter words must be held as a guide and index to the sense in which it is to be construed. When the grantor therefore says, in default of such, issue living, &c., he must in legal contemplation be held to mean in default of such issue of the brothers, living at the time of their death, who may be regarded, as described and designated by the preceding words, heirs of the body of the said Daniel and William.

The word issue used in a deed, it is true, as argued by the counsel for the appellants, is construed to be a word of purchase, Horne vs. Lyeth, 4 H. & J., 439 ; Chelton vs. Henderson, 9 G., 432, but this is where it occurs without any controlling or modifying expression used in connection *452 with it. We have not been referred to any case, nor have we found one, in which it is held to modify the meaning of the word heirs, when used as it is in the present deed. On the contrary, in the case of Simpers vs. Simpers, 15 Md., 187 , the expression'heirs of the body is followed by the words such issue. Yet in that case the rule was applied and the ancestor took the whole estate.

Nor do the additional words, living at the time of the death, c&c., alter or affect the rule. The use of them would be important/if the question presented was one of an indefinite failure of issue, but how they can be understood as modifying the term heirs, and showing that the persons meant thereby were not to take as heirs of and through the ancestor, is not perceived. His estate descends at his death to his heirs then living. They and none others are capable of taking by inheritance from him. So that the addition of the words living at the death, &c., give no other designation to the word heirs, than is supplied by the law without them.

We think .the rule in Shelley’s Case very clearly controls the present deed, and that Daniel and William Wad-dell, immediately upon its execution, took as tenants in common a fee-tail at common law in the lands granted, which estate under our statute law is converted into and becomes a fee-simple.

William Waddell, who thus became entitled in fee to an undivided moiety, died in infancy, leaving his brother Daniel the only other child of their parents then living. Some years afterwards the appellant, Maria J. Thomasj a sister, was born, and the question is presented, whether she inherited any part of this estate of William. This is settled by the Act of 1820, ch. 191, sec. 2, codified in section 25 of Art. 47 of the Code, which provides that “no right in the inheritance shall accrue to or vest in any person, other than to children of the intestate and their descendants, unless such person is in being and capable in *453 law to take as heir at tbe time of the intestate’s death.” As Maria, the appellant, was not born until long after the death of William, she does not therefore take any part of his moiety of the land in question, but the whole of it descended to Daniel.

(Decided February 15th, 1878.)

It follows that we agree with the Court below in the view taken by them of the law, and the judgment will be affirmed.

Judgment affirmed.