Garrison v. Hill

Constructíon of Will. W. devised property in trust for the separate use and benefit of E. during her life, with remainder over to her children should she have any; but if she should die without leaving a child, or children, or descendants of a child, living at the time of her decease, then to her brother, absolutely. The brother died before E. and she died without issue, having devised, after the payment of her debts and funeral expenses, all her property to her mother. Held : That the property passed to the hens of the brother alive at the happening of the contingency — the death of E. without issue— and did not descend to E. at his death, and pass by her will to her mother, in that, as the contingency did not occur until after the death of the brother, she could not be heir, or take or transmit any interest in the estate by will or otherwise.

Appeal from the Court of Common- Pleas. The case is stated in the opinion of the Court. Exception. — The testimony being closed on both sides, the plaintiffs offered the two following prayers: 1. It. being admitted in this case that William Worthington Johnson died in October, 1886, without leaving any descendants living at the time of his death, and without leaving any brother or sister or child or children of any pre-deceased brother or sister, then, after his death; by the true construction of the will of Maria E. Weise, read in evidence, the title to the real estate described in the declaration devolved upon his surviving sister, Emma M. O. Johnson, subject to be divested upon the contingency of the death of said Emma M. O. Johnson leaving a child or children or descendant of a child or children living at the time of her death; and if the jury shall find that the said Emma M. O. Johnson died without leaving any child or children or descendant of a child or children living at the time of her death, but leaving the last will and testament read in evidence; and if the jury shall further find that at the time of the execution of her said last will and testament, her mother, Maria M. Johnson, was alive, but that she died in the lifetime of said Emma M. iC. Johnson, then, by the true construction of said last will and testament, the said real estate devolved upon such person as by the law of Maryland was the heir at law of said Maria M. Johnson at the time of the death of said Emma M. O. Johnson. And if the jury shall further find that the plaintiff, Mary DeCharms Garrison, is the daughter of David L. Kreider, brother of said Maria M. Johnson, and his wife, Rebecca Graham Kreider, and that at the time of the death of said Emma M. C. Johnson there was living no other nephew or niece of said Maria M. Johnson, then the plaintiffs are entitled to recover possession of the real estate described in the declaration, together with all the rents and profits thereof which have been collected by. the defendant, Thomas Hill, since the death of said Emma M. C. Johnson, with interest, in the discretion of the jury, without any deduction whatever, except for such sum as the jury shall find the defendant paid for. taxes down to the time when demand was made upon him by the plaintiffs for possession of the property. 2. That by the true construction of the will of Maria E. Weise, read in evidence, the estate thereby devised to Thomas Hill in trust, was executed by the Statute of Uses, the life tenant, Emma M. O. Johnson, being an unmarried woman; that thereby the said Emma.M. O. Johnson became the owner of the legal life estate therein, and the fee was vested in the heir at law of said. Maria E. Weise. If the jury find that Maria M. Johnson .was an aunt of said Maria E. Weise, and that at the time of the death of said Maria E. Weise there was living no brother or sister of said Maria M. Johnson, the said Maria M. Johnson was then the heir at law of said Maria E. Weise, in whom, under the Statute of Uses, the said fee simple was so vested. And if the jury shall further find that said Maria M. Johnson died in 1889, leaving her daughter, Emma M. C. Johnson, her only child surviving her, then the fee held by said Maria M. Johnson devolved upon said Emma M. C. Johnson, and that by the true construction of the last will of Emma M. O. Johnson, the legal titje to said property passes to. such person, as by the law of Maryland was the heir at law of Maria M. Johnson at the time of the death of said Emma M. O. Johnson. The defendant offered the five following prayers: 1. That if the jury find from the evidence that Maria E. Weise died leaving a last will and testament, by which she devised all the rest, residue and remainder of her estate, inclusive'of the'property described in the declaration, and being her house and lot of ground on Lexington street, next to the corner of Liberty and Lexington streets, to Thomas Hill, in trust for Emma M. G. Johnson- for life, and in further trust, after the death of the said Emma, for any children' of the said Emma, but in case the said Emma should die without leaving a child or children or descendant of a child living at the time of her decease, then to William Worthington Johnson, absolutely; and shall further find, that the said Emma M.' O. Johnson did die without leaving a child or children or descendant of a child, living at the time of her death; and if they further find, that before the death of the said Emma M. C. Johnson the said William Worthington Johnson had died, then they must find that said property descended to those who were the heirs at law of the said William Worthington Johnson, immediately after the death of the said Emma M. O. Johnson, and that the said Emma M. O. Johnson was not the heir at law of the said William Worthington Johnson for the purpose of inheriting said property. 2. That if the jury shall find the facts mentioned in defendant’s first prayer, and shall further find that at and after the death of the said Emma M. C. Johnson there was living no brother or sister, or no descendant of a brother or sister, or no father or mother of the said William Worthington Johnson, then they must find that said property descended to the grandfather of the said William Worthington Johnson on the part of the father, and if no such grandfather, then to the descendants of such grandfather, if any. 3. That the plaintiff cannot recover in this case, unless she shall show that at the time of the death of the said Emma M. C. Johnson, there was living no descendant of the grandfather of the said William Worthington Johnson on the part of the father. 4. That if the jury shall find from the evidence, that at the time of the death of Emma M. C. Johnson there was living Eliza P. Johnson, the daughter of James Wallis Johnson, a deceased brother of William Johnson, the deceased father of William Worthington Johnson, and also Henry M. Johnson, the grandson of the said James Wallis Johnson, then the plaintiff cannot recover, and their verdict must be for the defendant. 5. That there is no legally sufficient evidence in this case to entitle the plaintiff to recover. The Court (Phelps, J.) rejected the plaintiffs’ prayers and granted the defendant’s prayers, and instructed the jury to render a verdict for the defendant, which the jury accordingly did, and judgment thereon was entered in favor of the defendant. To the granting of the defendant’s prayers, and to the rejection of the plaintiffs’ prayers, and to the instruction of the Court to the jury to render their verdict for the defendant, the plaintiffs excepted, and took this appeal.