Merritt v. Disney

Miller, J.,

delivered the opinion of the Court.

The only question in this case is whether the children of Mrs. Disney, took, after her death, a legal estate in fee in the land conveyed by the deed from Sidney Hall to Hanson P. Rutter, trustee, bearing date the 15th of December, 1852. This deed was executed prior to the Act of 1856, ch. 154, and prior to the adoption of the Code which (Art. 24, sec. 11,) provides that no words of inheritance shall be necessary in any conveyance of real estate to create an estate in fee simple, but every such conveyance shall be construed to pass a fee simple estate, unless a contrary intention shall appear by express terms or be necessarily implied therein. The same provision in effect had been long before made with respect to devises of real estate by will. Act o/1825, ch. 119. It is true the general rule is that in deeds the conveyance must be to the grantee, “ and his heirs,” in order to pass the fee, and probably but few deeds were ever drawn in this State prior to the Act of 1856, where the design was to convey an absolute estate, in which these-words were omitted. But to this general rule there are some exceptions. Thus in a conveyance to a trustee for the benefit of creditors, with power of sale, a fee will pass without these words, because a sale of *351 the fee is necessary in order to execute the trust. Spessard vs. Rohrer, 9 Gill, 261 . In that case the Court adopted a citation from 4 Kent’s Com., 304, where it is said, “ an assignment or conveyance of an interest in trust will carry a fee without words of limitation, when the intent is manifest.” The rule is not so universal and imperious as to require the Courts in every case where the instrument is a deed and not. a will, to hold that these words must be used in order to pass a fee. If in a particular case it plainly appears from the terms and provisions of the deed itself, the purposes it was designed to subserve, and the circumstances under which it was executed, that the intention was to convey an absolute estate, such an estate, in our opinion, will pass without such words of limitation.

Now, in this case the grantor in consideration of the sum of $806, conveys the land to Hanson P. Rutter, his heirs, and assigns, habendum to the said Hanson P. Rutter, his heirs and assigns, “in trust, however, for the sole and separate use and benefit of Eliza Disney, wife of Snowden Disney, who is now in possession thereof, for and during her life, and from and after her death for the use and benefit of her children,” with power to the trustee, upon the written assent of the said Eliza, “ to sell all or any part of said lot of ground and to invest the proceeds as she may direct: the said purchase money being part of a legacy of $1200, given to the said Eliza by the will of Mary Rutter, the deceased mother of said Hanson and Eliza, charged on her moiety of a part of a tract of land called ‘Parish’s Range,’ devised to said Hanson by said will, and which has been invested in the ground hereby conveyed at her request, as is evidenced by her signature heretoand the instrument is signed and sealed not only by the grantor Sidney Hall, but also by Hanson P. Rutter, the trustee, and by Eliza Disney. By the will of Mrs. Rutter here referred to, executed on the 29th'of October, 1850, and admitted *352 to probate in January, 1851, the testatrix recites that she is empowered by a deed of trust between her husband and herself of the one part, and their son, Hanson P. Rutter, of the other part, dated the 26th of October, 1850, to devise a moiety of the farm or country seat which her husband and herself have occupied for many years, and the whole of her undivided interest in certain real estate which fell to her as one of the heirs-at-law of her deceased brother and sister, and in execution of this power she devises her moiety of “Parish’s Range” to her son Hanson P. Rutter, his heirs, and assigns, upon the express condition that he shall pay to her daughter Eliza Disney, “for her sole and separate use for life, and of her children after her death, the sum of twelve hundred dollars,” and also a like sum to the children of her deceased daughter Sarah. She then devises all her undivided interest in certain lots near the City of Baltimore, which she acquired as one of the heirs of her deceased brother and sister, to her said son Hanson and his heirs in trust, to sell the same and divide the proceeds, “ one-half to my daughter Eliza, for and during her life for her sole and separate use and benefit, and from and after her death for her children,” and “with power to invest half of said proceeds in whole or in part in any other real estate which he may deem advantageous for said daughter and. her children;” the other half to divide “among the children of my said deceased daughter Sarah.”

Reading the deed in connection with this will the intention of the parties who signed it is too manifest to be mistaken. The land was purchased by the trustee with the assent of Mrs. Disney the mother, with part of the legacy given by the will, and it seems to us clear that the purpose was to convey to her and to her children respectively the same interest and estate in the land which the will gave them in the legacy. In fact, the deed in terms follows and copies the language of the will in giving a life estate *353 to the mother, and then upon her death giving the property to her children. To give to the words of the deed a different construction and effect from that which must be placed upon the same words in the will to which the deed expressly refers, would, we think, work a total subversion of the intention of the parties, and make the instrument a very different thing from what it was designed to he. We therefore hold that the grant in favor of the children has the same effect as if it had in terms said for them, ifand their heirs.” Thus construed it is very similar to the deed in Ware vs. Richardson, 3 Md., 554 , which was held to pass an equitable life estate to Mrs. Richardson, a married woman, and to execute the legal estate in fee in her heirs. So in the deed before us, Mrs. Disney took an equitable life estate, and upon her death her children took a legal estate in fee.

(Decided 26th March, 1878.)

Decree affirmed, and cause remanded.