The Court having taken time since last term to advise,
Story,
J.
(after stating the facts of the case,) delivered the opinion of the Court as follows :
It is true, that the general rule is, that an heir shall not take by
devise,
when he may take the same estate in the land by
descent.
1
BoU,. Mr. 626.1. SO. Hob.
30. 1
Salk.
242. 1
Bl. Rej).
22.
But it is not denied that all the estates which each of the grandsons derived under the will, were estates by purchase. Admitting the executory devises over to be good, there could be no doubt as to any part of the estates | for the estates are of a quality different, from what' Jie parties would have taken in the course of descent.
It has been argued by the Plaintiff’s counsel, upon the foregoing facts, that as to the whole estate immediately devised to John M‘ConnelI, the lessors of the Plaintiff are entitled to recover, in the events which have happened, as his heirs
ex parte materna ;
and that as to the estate devised to him upon the contingency of the death of John. B. Hammond under age and
without
issue, the lessors of the Plaintiff are entitled to recover as the heirs at law of John M‘Connell, at the time when the contingency happened, although not heirs at the time of his death.
The decision of these points depends upon the true construction of the statute of descents of Maryland, and the application thereto of the principlesvof thfc common law. '
This statute of descents, (1786, cb. 45,) after reciting that tue 1. w of descents which originated with the feudal system and'military tenures, is contrary to justice, ana ought to be abolished, enacts, “That if any person seized of an esí.at-V’ &c. “ shall die intestate thereof, s.ucii lands,” &c. “ shall descend to the kindred, male and female, of such person, in the following order, to wit: Firsi, to-the" child or children, and their descendants, if any, equally, and if'no child or descendant,
arid the estate descended to the intestate on the part of the
father, then to the father, and if no father living, then to the brothers and sisters of the intestate of the blood of the father, and their descendants equally, and if no brother or sister as aforesaid, or descendant from such brother or sister, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather and their descendants, in equal degree equally, and if no descendant of such grandfather, then to the father of such grandfather, and if none such living, then to the descendants of the fathep of such grandfather in equal degree, and so on, passing to the next lineal male paternal ancestor, and if none such, to his descendants jn equal degree, without end : And if no paternal ancestor, or descendant from such ancestor, then to the mother of the intestate, and if no mother living, to her descendants in equal degree equally, and if no mother living, or descendants from such mother, then to the maternal ancestors and their descendants in the same manner as is above directed as, to the paternal ancestors and their descendants.
J3nd if the estate descended to the intestate on the part of the mother,
and the intestate shall die without any child or descendant as aforesaid, then the estate shall go to the mother, and if no mother living, then to the brothers -and sisters of the intestate of the blood of the mother, and their descendants in equal degree equally, and if no such brother or sister;, or descendant of such brother or sister, then to the grandfather on the part of the mother, and if no such grandfather living, then to his descendants in equal degree equally, and if mo such de
sceridant of such-grandfather, then to the father of such grandfather, and if none such living, then to his descendants iii equal degree, and so on, passing to the next mail maternal ancestor, and if nonesuch living, to liis descendants in equal degree, and if no such maternal ancestor, of descendantfróm any maternal ancestor, then to the-father of the intestate, and if no father living, to his descendants in equal degree equally, and if no father living, or descendant from the. father, then to the pateriial ancestors and their descendants, in tlie same manner as is above directed as to the- maternal ancestors.”
“'And if the estate is or shall be vested in the intestate hit purchaseand not derived
from.
or through either, of his
:ancestors, and there be no child or descendant of such - intestate, then the estate shall descend to the brothers arid sisters, of such intestate of the whole blood, and their descendants in equal degree equally, and if no brother or sister of the whole blood, or descendantfróm such brother or sister, then to the brothers and sisters of the half blood and their descendants, in equal degree equally, and if no'brother or sister of the whole or half blood, or any descendant from such brother or sister, thei" to the father, arid if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to tiie descendants of such grandfather, in equal degree equal - ly, and if no such grandfather, or any descendant from him, then to the grandfather on the part of the mothers and if no such grandfather, then to his descendants in equal degree equally, and so on without end,'alternating1 the next male paternal ancestor and his descendants, and the next male maternal ancestor arid his descendants ; and giving preference to the paternal ancestor and his descendants ; and if there be no descendants or kindred of the intestate as aforesaid to lake the estate, then the same shall go to the husband or wife, as the case may be; and if.the husband or wife he dead, then to his or lief kindred in the like course as if such husband or wife had Survived the intestatc, and then had died entitled to the estate by purchase; and if the intestate has liad more husbands or wives than one, and all shall die before such intestate, then tlie estate shall be equally divided among the kindred of the several husbandi or Wives in equal degree equally.”
Three classes of cases arc here in teriris provided for.
1.
«■Estates descended to. the intestate oh the part of « the father.”
2. « Estates descended to the intestate on the part of st the mother.”
3. “ Estates vested in the intestate by purchase and “ not derived from or through cither of. his ancestors.’*
The descent of an estate of purchase, from brother to brother, and from a son to a parent, where the brother or the. parent is the
propositus,
is not directly within the language of the statute. For, by the common law, a descent from brother to brother is,held to be an immediate descent, and riot
from
or
through
the parents; and the express provision of the statute of ¡Maryland as to estates of purchase, necessarily involves the same conclusion ; and the same may be declared of a descent from a child to a parent under the same statute.
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The Court having taken time since last term to advise,
Story,
J.
(after stating the facts of the case,) delivered the opinion of the Court as follows :
It is true, that the general rule is, that an heir shall not take by
devise,
when he may take the same estate in the land by
descent.
1
BoU,. Mr. 626.1. SO. Hob.
30. 1
Salk.
242. 1
Bl. Rej).
22.
But it is not denied that all the estates which each of the grandsons derived under the will, were estates by purchase. Admitting the executory devises over to be good, there could be no doubt as to any part of the estates | for the estates are of a quality different, from what' Jie parties would have taken in the course of descent.
It has been argued by the Plaintiff’s counsel, upon the foregoing facts, that as to the whole estate immediately devised to John M‘ConnelI, the lessors of the Plaintiff are entitled to recover, in the events which have happened, as his heirs
ex parte materna ;
and that as to the estate devised to him upon the contingency of the death of John. B. Hammond under age and
without
issue, the lessors of the Plaintiff are entitled to recover as the heirs at law of John M‘Connell, at the time when the contingency happened, although not heirs at the time of his death.
The decision of these points depends upon the true construction of the statute of descents of Maryland, and the application thereto of the principlesvof thfc common law. '
This statute of descents, (1786, cb. 45,) after reciting that tue 1. w of descents which originated with the feudal system and'military tenures, is contrary to justice, ana ought to be abolished, enacts, “That if any person seized of an esí.at-V’ &c. “ shall die intestate thereof, s.ucii lands,” &c. “ shall descend to the kindred, male and female, of such person, in the following order, to wit: Firsi, to-the" child or children, and their descendants, if any, equally, and if'no child or descendant,
arid the estate descended to the intestate on the part of the
father, then to the father, and if no father living, then to the brothers and sisters of the intestate of the blood of the father, and their descendants equally, and if no brother or sister as aforesaid, or descendant from such brother or sister, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather and their descendants, in equal degree equally, and if no descendant of such grandfather, then to the father of such grandfather, and if none such living, then to the descendants of the fathep of such grandfather in equal degree, and so on, passing to the next lineal male paternal ancestor, and if none such, to his descendants jn equal degree, without end : And if no paternal ancestor, or descendant from such ancestor, then to the mother of the intestate, and if no mother living, to her descendants in equal degree equally, and if no mother living, or descendants from such mother, then to the maternal ancestors and their descendants in the same manner as is above directed as, to the paternal ancestors and their descendants.
J3nd if the estate descended to the intestate on the part of the mother,
and the intestate shall die without any child or descendant as aforesaid, then the estate shall go to the mother, and if no mother living, then to the brothers -and sisters of the intestate of the blood of the mother, and their descendants in equal degree equally, and if no such brother or sister;, or descendant of such brother or sister, then to the grandfather on the part of the mother, and if no such grandfather living, then to his descendants in equal degree equally, and if mo such de
sceridant of such-grandfather, then to the father of such grandfather, and if none such living, then to his descendants iii equal degree, and so on, passing to the next mail maternal ancestor, and if nonesuch living, to liis descendants in equal degree, and if no such maternal ancestor, of descendantfróm any maternal ancestor, then to the-father of the intestate, and if no father living, to his descendants in equal degree equally, and if no father living, or descendant from the. father, then to the pateriial ancestors and their descendants, in tlie same manner as is above directed as to the- maternal ancestors.”
“'And if the estate is or shall be vested in the intestate hit purchaseand not derived
from.
or through either, of his
:ancestors, and there be no child or descendant of such - intestate, then the estate shall descend to the brothers arid sisters, of such intestate of the whole blood, and their descendants in equal degree equally, and if no brother or sister of the whole blood, or descendantfróm such brother or sister, then to the brothers and sisters of the half blood and their descendants, in equal degree equally, and if no'brother or sister of the whole or half blood, or any descendant from such brother or sister, thei" to the father, arid if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to tiie descendants of such grandfather, in equal degree equal - ly, and if no such grandfather, or any descendant from him, then to the grandfather on the part of the mothers and if no such grandfather, then to his descendants in equal degree equally, and so on without end,'alternating1 the next male paternal ancestor and his descendants, and the next male maternal ancestor arid his descendants ; and giving preference to the paternal ancestor and his descendants ; and if there be no descendants or kindred of the intestate as aforesaid to lake the estate, then the same shall go to the husband or wife, as the case may be; and if.the husband or wife he dead, then to his or lief kindred in the like course as if such husband or wife had Survived the intestatc, and then had died entitled to the estate by purchase; and if the intestate has liad more husbands or wives than one, and all shall die before such intestate, then tlie estate shall be equally divided among the kindred of the several husbandi or Wives in equal degree equally.”
Three classes of cases arc here in teriris provided for.
1.
«■Estates descended to. the intestate oh the part of « the father.”
2. « Estates descended to the intestate on the part of st the mother.”
3. “ Estates vested in the intestate by purchase and “ not derived from or through cither of. his ancestors.’*
The descent of an estate of purchase, from brother to brother, and from a son to a parent, where the brother or the. parent is the
propositus,
is not directly within the language of the statute. For, by the common law, a descent from brother to brother is,held to be an immediate descent, and riot
from
or
through
the parents; and the express provision of the statute of ¡Maryland as to estates of purchase, necessarily involves the same conclusion ; and the same may be declared of a descent from a child to a parent under the same statute.
'' It has been argued that the legislature intended to form a complete scheme of descents: and that the Court ought not to construe any case to be a
casus omissus,
if by any reasonable construction the words can be extended to embrace it. Both.; parties accede to this argument, hut they apply it in a very different mariner. The Plaintiffs contend that the descent from brother to brother was meant to be included in the first and second classes of descents, as the parents were the common link of connexion' from and through'whom the consanguinity was to be sought; that therefore the descent, in such case, is
ex-parte paterná,
or
materna,
as the father in- mother happens to be the
commune vinculum.
And the Plaintiffs rely on the words' “
and not derived from ov through Jcither of his ancestors,”
in the clause embracing the third class, as distinctly showing that the legislature deemed every case of
descents
to Incompletely within the preceding classes. On the other hand, the Defendants contend that whatever might be the legislative supposition, it is impossible to support thg position, that a descent from brother to brother, or from child to parent, is-a descent
ex-parte 'paterna
or materna.
It is therefore, either a
casus'omissus,
or the words
“
and not derived
from
or
tkroiigh
either of his aneestors” are to be. considered not as qualifying and lnniting the preceding words, but as either constituting a fourth class of cases, embracing all such as are
not
included in the three preceding classes; or as explaining estates by purchase to include all cases which are not patei nal or maternal descents.
There are certainly intrinsic difficulties in admitting either of these constructions. If the legislature have proceeded on a mistake, it would be dangerous to declare that a Court of law were bound to enlarge the natural import of words in order to supply deficiencies occasioned by that mistake. It would be still more dangerous to admit that because the legislature have'expressed an intention to, form a scheme, of descents, the Court were bound to bring every 'case within the specified classes. In the present case, equal violence would be done to the ordinary use of the terms employed by adopting the construction contended for by cither party.
.
It is
not a descent
f? jm
or
through
the paternal or maternal line', in the sense of the common law. Nor is it a
purchase. ■
The words
“ and not derived from or through either of his ancestors’'’
are manifestly used,as explanatory of the legal import of purchase. They are the exact words which the common law selects to distinguish the estate of a purchaser from-.the estate of an heir.
•It is obvious that the legislature use the words
descent
and
purchase
in t! eir technical and legal sense. They have also expressly provided for the case of a descent from brother to brother, passing by the parents; and of a parent, from a/c.h'l.d, when there are no brothers or sisters. These descents must therefore be direct and immediate; and the former case is
so
deemed also at the common Jaw. It is therefore in our judgment per- ‘ fectly of/ar, that, a descent from brother to brother is not within.the. statute, and'of course is a
casus omissus,
to be. regulated by the common law.
To apnly this to the present cage. By the arrival of John McConnell at the age of
%1
years, all the estates
devised to him
immediately
became absolute estates in ft e simple. On ids death they passed to his half brother, John B. Hammond; and upon his death they passed to the heirs at law of the latter. The lessors of the Plaintiff have therefore made no sufficient title
Let us now consider the second question: whether the lessors of the Plaintiff have any title to the estates which were devised over to John M*Connell upon the contingency of John B. Hammond’s dying under age and without issue.
It has been argued by the Defendant’s counsel that this executory devise is void because the contingency is too remote.
It is the acknowledged rule, that an executory devise ns not too remote if the contingency may happen within a life or lives in being, or 21 years and a few months after.
In the present case the contingency must have happened within 21 years at all events. For if John B. Hammond attained bis full age the estate vested absolutely. To have defeated the estate over, it was sufficient either that he attained his full age, or died under age leaving issue. The authorities are conclusive on this point. 4
Wills.
440, 270. 2
Burr
873. 1
Sound,
174.
5 Bos. and Pul.
38. 12
East.
288, 2
Str.
1175. There is no validity therefore in this objection.
In the next place it will be necessary to consider what is the nature of an executory devise as to its transmissibiiity to heirs, where the devisee dies before the happening of the contingency.
And it seems very clear that at common law, contingent remainders and executory devises , are transmissible to the heirs of the party to whom they are limited, if lie chance to die befire the contingency happens.
Pollexjen
54; 4
Bep.
99.
Cas. Temp. Tato.
417. In such case, however, it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not. heir at law. of the first devisee, but it devolves from heir to heir, and vests absolutely in him only who can make himself heir to the first devisee at
the time \shen the contingency happens, and the cxecutory devise fails into possession.
-Idis fu!e is adopted in analogy to that rule of dewhich requires that a person who claims a fee simple by descent from one who was first purchaser of the reversion dr remainder expectant on a freehold estate, must make himself heir of such purchaser at the time when that reversion or remainder falls into possession.
Cq. Lit.
14.
(b.J
14,
(a.J 3 Rep.
42. Nor does it vary llic legal result that the person to whom the preceding estate is devised, happens to be the heir of the executory devisee, for though on the death of the latter the executory devise devolves upon him, yet if is not merged in the preceding estate, but expects the regular happening of the contingency and then vests absolutely in the then heir of, the executory devisee. The case of
Goodright v. Searle,
2
Wits.
29, is decisive on ttiis point and indeed runs on all fours with
the
present.
But it is contended that the statute of desceñís of Maryland has changed (he rule of the common law in this respect: and has made the death of the intestate the point, of time from which the descent and heirship arc iii every case to be traced. The third section, which is relied on for this purpose, enacts as follows: « 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 law to take as' heir at the time of the l« intestate’s death ; but any child or descendant of the «‘•intestate, born after the death of the intestate, shall ♦«'have the same right of inheriiance as if born before ««the death of the intestate.”
In our judgment; the conclusion drawn from this clause is not correct.. The object of’ the section is to limit the natural
capacity
to lake, as heirs, to persons in being at, the time; of the death of the intestate, where, the estate is then capable of vesting in possession; aiid not to make persons heir’s, who, if in being at the time, .■would not, by the’common law, answer the description of absolute heirs, or to give a vested absolute interest, where the common law had given only a possible contingent interest. The legislature had in view cases of
posthumous children, and cases where a descent to licir had been' defeated by the subsequent birth of a nearer heir. • The argument of the Defend ants, (in this point, ought not, therefore-, to prevail. No question has been made as to the land specifiediy devised (to B; Hammond in fee with a limitation over to his lather in fee. As that limitation over was a good executory devise, and, in the events which happened, took effect, it. is. very clear that the lessors of the Plaintiff cannot claim title thereto. This is indeed conceded on all sides.
The result of this opinion accordingly is, that the lessors of the Plaintiff are entitled.; as heirs of John M‘Gonnell, at the happening of the contingency, on the death of John B. Hammond, under ag(v and without issue, to one moiety of the Church-hill lands, and th© residuary estates as tenants in common with the heirs of John
B,Hammond;
but they are not entitled to any portion of the lands of which John McConnell had an absolute vested fee at the time of his decease.
As, however, a tenant in common cannot in general maintain art action of ejectment against his co-tenant', and there,are no facts found in this case to prove an actual ouster and to take it out of the general rule, the consequence is that the-judgment; iu the opinion of a majority of the Court, must be affirmed with costs.