Conner v. Waring

Alvey, J.,

delivered the opinion of the Court

The only question presented on this appeal is, what is the proper mode of distribution of a certain fund, now in the hands of trustees, raised from real estate devised by the wills of Charles Torrance, and Elizabeth Torrance, his widow, and which had been held in trust for Louisa Torrance, late deceased, one of the children and devisees of the said Charles and Elizabeth.

The wills of both the father and the mother were construed by the Court of Appeals, in the case-of Torrance vs. Torrance, et al., 4 Md., 11; and while it is contended on both sides that the decision in that case has settled the principle that must determine the question raised in this, it is not agreed as to the true interpretation of that decision ; and hence the controversy in this case.

In the case in 4 Md., 11 , the controversy was in regard to the distribution of the share or proportion of the estate held in trust for Dorcas, one of the daughters, for .life, who had died without child or children to take the remainder over; and here the controversy is in regard to the share of the estate held in trust for Louisa for life, who has also died without children to take the remainder under the devise.

*731 The three separate clauses in the mother’s will, in execution of the power contained in the will of the father, in respect to the three unmarried daughters, Dorcas, Mary and Louisa, are in exactly the same terms, and with exactly the same limitations, the one as the others ; and that in respect to Louisa is as follows: “ One other part or share thereof, I give and devise to my said sons, Charles Torrance and George Torrance, and the survivor of them, and the heirs, executors and administrators of such survivor, in trust; nevertheless, that they, or the survivor of them, or the heirs, executors or administrators of such survivor, do, and shall permit and suffer my daughter, Louisa Torrance, during her natural life, to have, hold, use, occupy, possess and enjoy the same, and the rents, issues, interest, dividends and income thereof, to take, receive and enjoy, without being subject to the control, power or disposal of any future husband she may have, or liable for his debts, contracts or engagements. And from and immediately after the decease of the said Louisa, then, in trust, that the said share shall become the estate of all, and every the child or children she may have, and be equally divided between them, their heirs, executors, administrators and assigns, forever, as tenants in common, share and share alike. And in case any of her children shall die under age and without lawful issue, the part or portion of him, her or them, so dying, shall descend to, and become the estate of the survivors or survivor of them, the said children.”

At the time of the decision of the former case, reported in 4 Md., 11 , of the eight children living at the death of the mother, in 1829, three only were living. Charles and Dorcas had died intestate and without issue; John, George and Mrs. Mitchell, had died leaving children; and Mrs. Clopper who was married and had children, and Mary and Louisa, who were unmarried, were the survivors. Siuce then Mrs. Clopper has died leaving children surviving *732 her; Mary has died childless, devising all her property and estate to Louisa, and the latter has recently died, devising all her right and estate to the children of her deceased brother, George.

The Court of Appeals in the former case having said, that inasmuch as Dorcas had died without issue, and the remainder over, in default of issue, in that share was void, and therefore such share or part of the estate fell back to the estate of her father, the original testator, and descended as undisposed of property to his heirs-at-law, the appellant in this case contends, that upon the same construction, the share limited to Louisa for life, upon her death without issue, fell back into the estate of the original testator, and descends to his heirs-at-law, in the same manner ; and as the share limited to Dorcas for life was distributed into six parts, so must be the share falling back and descending on the death of Louisa. On the other hand, the appellees contend, that the share in which Louisa had an equitable life estate, should be divided into four parts only; that is to say, one part to Charles Torrance, son of John ; another part to the heirs of George ; another to the heirs of Mrs. Mitchell, and another to the heirs of Mrs. Clopper; making the death of Louisa the point of time when to ascertain the heirs of the original testator who are entitled to take, upon default of issue to take the remainder over.

The devise by Charles Torrance, the elder, to his wife was for her life only; but by the power in his will he clothed this life tenant with authority to dispose of the remainder of the estate among all or such of his children, or their issue, in such manner and proportion, and for such term and estate, as she might think fit. Until this power was exercised, the reversion in the fee remained in the heirs-at-law of the testator. But when the power was executed, by the will of the wife, the estates created thereby, took effect in the same manner as if they had *733 been created by the will which raised the power. The party taking under and by execution of the power, took under the donor and in like manner as if the power, and the instrument executing it, had been incorporated in one instrument. Co. Litt., 113, a; Bradish vs. Gibbs, 3 John. Ch., 550; 4 Kent Com., 337. This being so, the estate created by the execution of the power, in trust, for the life of the daughter Louisa, with remainder in fee to her unborn children, would, but for the estate limited to the trustees, have left the reversion in the heirs-at-law of the donor of the power, dependent upon the event of Louisa having issue. This was a limitation of a contingent remainder to future children, and until the remainder became vested, if the fee had not been placed in trustees, it would have remained in the heirs-at-law of the original testator. In such case, on the facts disclosed, there would have been good ground for the contention on the part of the appellant. For while it is an old and well established principle of the common law, in nowise affected by our statute regulating the course of descents, that the heir on whom the reversion is cast, subject to the life estate, is not so seized as to constitute him the possessio fratris or stirps of descent, if he died during the existence of the life estate, and that the person claiming as heir must claim from a previous ancestor last actually seized of the inheritance (Co. Litt., 14 a; Ratcliff’s Case, 3 Co., 42; Kellow vs. Rowden, carth., 126; 2 Com. Dig., tit. 29, ch. 4, secs. 1, 2, 3 and 4; Jackson vs. Hilton, 16 John., 96 ; 4 Kent Com., 385, 6) ; yet, while the estate is thus in expectancy, the intermediate heir, in whom the reversion may vest, may do acts, which the law deems equivalent to an actual seisin, and which will change the course of the descent, and make a new root of inheritance. Thus, he may by exercising acts of ownership over it, as by granting it for life, or in tail; or by devising it, or changing it, appropriate it to himself, and by that means change the course of descent. *734 Co. Litt, 15 a; Stringer vs. New, 9 Mod., 363; 2 Com. Dig., tit. 29, ch. 4, secs. 7, 8 and 9; Cook vs. Hammond, 4 Mason, C. C. Rep., 485. Hence the devises of Mary and Louisa, embracing their interests in the reversion, as heirs of their father, would constitute them new stocks of inheritance in respect to such reversion; nor would it at all have varied the legal result as to the devise by Louisa, that she happened to be the devisee for life, upon the termination of whose particular estate the reversion fell into possession. See Barnitz vs. Casey, 7 Cr., 170.

But this legal result, and for which the appellant contends, has been altogether defeated by the interposition .of trustees to take the legal estate, instead of devolving it directly on the parties to take the beneficial estates under the power. As we have seen, the devise by the mother in execution of the power, was to two trustees and the survivor of them, and the heirs of the survivor, in trust, &c., to permit the daughter during her life, to have and to hold, &c., and to receive the rents and profits thereof, free from the control of her husband, &c.; and from and immediately after the decease of the daughter, “ then, in trust, that the said share shall become the estate” of all her children, to be equally divided amongst them. This devise, when taken in connection with other portions of the will as manifesting the intent, clearly vested the legal fee in the trustees and the heirs of the survivor; but it was a determinable fee, and, consequently, as soon as the death of the equitable life tenant occurred, without having had issue to take the remainder, that event defeated and determined the estate in law conferred upon the trustees, and it became thence vested, by way of reverter, in the heirs-at-law of the original donor of the power. Brownsword vs. Edwards, 2 Ves., 243; Horton vs. Horton, 7 D. & Hast, 652; Shelley vs. Edlin, 4 Ad. & El., 582, 589. This estate thus becoming vested by way of reverter, can only be claimed by those who could, at the time of such *735 reverter, show themselves to he heirs of the original donor of the power; the intermediate heirs' of such donor not having been so seised as to render them new stock of inheritance. 4 Kent Com., 387.

(Decided 28th January, 1880.)

In deciding the case reported in 4 Md., 11 , the question as to the effect of the legal fee being in the heir or heirs of the trustee last deceased was not adverted to, and in the then condition of the parties, and their relation to the subject of controversy, it was wholly unnecessary. The result would have been the same, as the casé then stood, whether considered in reference to the estate vested in the trustees or otherwise. Perhaps it was not exactly accurate to speak of the estate in which the daughter Dorcas had an interest, the remainder over in default of issue being void, as falling back to the estate of the original donor of the power, and descending as undisposed of property to his heirs-at-law. This, however, in no manner affected the result.

It follows that the fund in controversy in this case must be distributed into four parts, according to the contention of the appellees, and not into six, as contended by the appellant; and that the order appealed from must be affirmed.

Order affirmed, and cause remanded.

*736 L