Comegys v. Jones

Irving, J.,

delivered the opinion of the Court.

This was an action of ejectment brought by the appellant against the appellee, and the only question involved •depends upon the construction and effect of a clause in the will of Rachel Busick made in December, 1833, •and which became operative,.by the death of the testator and prohate of the will, in the same month and year of its execution. By the second clause thereof she devises as follows: “I give and bequeath unto Elijah Comegys, the oldest son of Samuel Comegys, my farm where Zachariah Rolph now lives, together with fifteen acres of woodland to be laid off on the north of the public road; if he dies without issue, then I give and bequeath the same to his. brother, Samuel Comegys.”

The appellee claims, by virtue of a series of alienations and conveyances, from Elijah Comegys. The appellant claims as an heir-at-law of Samuel Comegys, to whom the farm was given in the event of. Elijah Comegys dying without issue, which, it is admitted, is the fact.

This will took effect prior to the passage of the Act of 1862, ch. 161, and must therefore be construed with reference to the law as it existed token the will took effect. James vs. Rowland, 52 Md., 466 ; Estep & Shaw vs. Mackey, et al., 52 Md., 596 ; Woollen, Trustee vs. Frick & Golder, Ex’rs, 38 Md., 437 . Construing it without the -aid of that Act, the judgment of the Court below must be affirmed. The devise is to Elijah Comegys, and “if he dies without issue,” then over. In Woolen’s Case, above -cited, this Court says, “ these words, according to their settled legal construction, import a general or indefinite failure of issue, and whenever found in a will must be taken in their technical sense, unless there be something clearly demonstrating a different intention on the part of the testator, restricting them to a definite failure of issue, ■or failure of issue at the death of the first taker; ” and the learned Judge adds, that authorities need not be cited *321 for a rule of construction so familiar and well established as this/’ The same rule was followed in Dickson vs. Satterfield,, 53 Md., 320 ; and was approved quite as emphatically in Estep & Shaw vs. Mackey, et al., 52 Md., 600 . Applying that rule it is clear, that the first taker took the fee, and the devise over was void, because the contingency was too remote. We find nothing in the will outside of this clause to aid us in construing it, or which rescues it from the operation of the technical rule, which, in the absence of clearly expressed intention to the contrary, must control. Neither of the devisees mentioned in this clause are again mentioned in the will,- therefore we can gather nothing further respecting the intentions of the testator as to them, than is disclosed in this clause; and there is certainly nothing in it which can prevent the devise over from failing.

(Decided 27th May, 1886.)

Judgment affirmed.