Bowly's Lessee v. Lammot

3 H. & J. 4

• Court: Court of Appeals of Maryland
• Decided: June 15, 1810
• Status: Published

Opinion

Chase, Ch. j.

delivered the opinion of the court. The following principles prevail in the construction of wills. The intention of the testator is to he collected from the words of the will, and the whole of the will is to be con* sidered and compared together. Such construction mast be made as will gratify every part of the will, if it can be done consistent with the general intent.

The question is, whether the testator intended an immediate devise of the Rope- Walk to his nephew Daniel Bowly, or intended it to be a contingent executory devise in Bowly, depending on the executory devise to Ann Lux, vesting in her, on the death of George Lux under age, and without issue?

The Rope-Walk, and the five acres, must be considered as the same. The five acres, as described in the will, is a particular and precise designation, by metes and bounds, of the land comprehended under the general terms, The llopeWalL.

It is plain the testator did not intend to die intestate of any part of his estate, and particularly of his land called Chatsioorlh. it is also plain he intended the Rope-Walk i'or Bowly. If he intended a contingent devise to Bowly, there was no necessity for excepting the Rope- Walk in the devise to his wife for life, because Bowly was not to have it until Chalsworth vested absolutely in her on the death of George Lux under age, and without issue, and she might have enjoyed the whole of Chatsworth without interfering with such intention. But if he intended an immediate devise to Bowly, it was necessary to insert in the devise to his wife, for life, the exception of the Rope-Walk,

Is there any thing in this will to prevent it being expounded in such manner-as will effectuate that Intention?

The ninth clause is that pact of the will on which the question^prinoipally depends. If in reading this clause wé stop at the words, iibut incase,” the consequence "Would lie, that a fee simple would vest in George Lux absolutely. The testator did not intend to give a fee- simple to his son, but to modify it in such manner as to create an executory devise to his wife, on the happening of two contingencies; and to effect that intention, it is necessary to read on and complete the sentence, which is riot complete Until you come to the saving clausé which excepts the Rope-W alk. The whole clause is one entire sentence, comprehending two dispositions connected with each other, and one arising out of the other; and the intention of the testator, as to the two objects of his bounty, his son and wife» cannot be ascertained until the sentence is finished. The exception or restriction is as operative at the end of the sentence as it would have been at the commencement, and the saving pervades the whole disposition, and extends to the first as well as the latter part of the clause» The saving does not relate to the estate created, but to the thing devised.

This construction is enforced by an expression in a subsequent part of his will» where the testator uses the term his estate, (evidently meaning Chatsworth) vesting in his son upon the death of his wife; importing thereby it could not vest in him during her life; and if it did not, the devise to Bowly must have been intended by the testator an Immediate, and nota contingent devise of the Rope-Walk to Bowly, otherwise it would have vested in his son during the life of the wife.

There is no complete disposition in the clause, until the creation of the estate limited to the wife by way of executory devise. The insertion of the saving manifests plainly what the devise is to operate on, by excepting a particular part, the Rope-Walk, which the generality of the words would have included, and if it had been the intention of the testator to apply the contingency to Bowly, it is natural to suppose that he would have repeated the words, making the estate contingent immediately after tlíe devise to him, which* of itself vests an absolute fee.

Buchanan, J, dissented.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED

(a.)

) See the case of Lammot's Heirs & Devisees vs. Bowly's, Heirs, on appeal from chancery, 6 Harr. & Johns. 500.