These proceedings were commenced in Circuit Court No. 2 of Baltimore City by trustees under the will of the late George Brown. Upon the death of Mrs. Grace Ann Greenway, a daughter of the testator, the trustees who held for her life the fund which will be hereinafter more particularly mentioned, being in doubt as to the true construction of her will, which purported to execute a power of appointment over that fund, filed a bill in equity which is now before us, and brought into Court all the parties beneficially interested under the will of George Brown, the will of Mrs. Greenway and under an earlier will of Mrs. Grace Brown, the mother of Mrs. Greenway. The defendants were all summoned, testimony was taken to prove the pedigree and relationship of the parties, and the questions which we shall presently state and consider, were passed on by the Circuit Court. From the decree there entered, the import of which will appear later on, the pending appeal has been taken.
On the 15th day of January, in the year 1859, George Brown, the elder, executed his last will and testament. He died on the 26th day of August, in the same year. His will, which is very voluminous, covering over twenty-one pages of the printed record, disposed of a large and valuable estate. By the sixth article of that will, after having made elaborate provisions for the payment of the income of two-fourteenths of his residuary estate to his daughter, Mrs. Grace Ann Greenway during her life, and after having provided for the contingency of her having issue living at her death, the testator proceeded to deal with the alternative contingency of her dying without leaving issue. That is the contingency which actually happened and the following clause is the one which relates thereto. "Secondly, in case my said daughter, Grace Ann, shall not leave living at her death, any child, nor any descendant of any child of hers, then and in that case the said trustees
and their successors shall continue to hold the said last mentioned two-fourteenths parts or shares, of said rest, residue and remainder of my estate, as aforesaid, and shall also have and hold all the rents, income and profits, thereafter arising, or to arise in any manner from the same, and from any, and every investment of the same, or any part thereof, made, or to be made in trust, for the following uses and purposes, that is to say, to, and for such of my other children, or their descendants or descendant, and in such proportions, and for such estate and estates therein, either in fee, or for a less estate, and with such limitations and conditions, as my said daughter Grace Ann may by her last will and testament, or by any instrument of writing, in the nature of a last will and testament (notwithstanding any coverture she may be under) executed in the presence of three or more witnesses, name, limit and appoint, to take the same; and thirdly, in case of my daughter Grace Ann, shall die without having executed, under and in pursuance of the power above given to her, any such will, or instrument in writing in the nature of a will, limiting and appointing the said two-fourteenths parts or shares, in manner aforesaid, then in default of such limitation and appointment, by my said daughter, Grace Ann, and in the event also of her dying without leaving any child or any descendant of any child of hers, living at the time of her death as aforesaid, it is my will and I so declare and direct, that from and immediately after the decease of my said daughter, Grace Ann, the said trustees and their successors shall have and hold the said last mentioned two-fourteenths parts or shares of said rest, residue and remainder of my estate as aforesaid, devised as aforesaid in trust in the first instance for the use of my said daughter, Grace Ann, during her life, as aforesaid, to and for all of my other children then living, and all the descendants or descendant then living, of such of them, as is now dead, or may be then dead, their heirs, executors, administrators and assigns, if but one, to take all, and if more than one, to be equally divided between them, per stirpes and not per capita, and my meaning is, in this devise or limitation over as aforesaid,
to my other children and their descendants as aforesaid, to include all the descendants of my deceased daughter, Isabella. The descendant or descendants of my children, Alexander D., George S., and Isabella, to take also, per stirpes and not percapita, and in equal degree, to take equally."
Mrs. Grace Ann Greenway died on the ninth of September, 1903, without having had any child or children, and her husband pre-deceased her. By her last will and testament dated the 29th of April, 1899, and duly admitted to probate in the Orphans' Court of Baltimore City, amongst others, the dispositions which will be presently mentioned were made. She divided her will into two parts. Under the first sub-division, she undertook to execute the above power of appointment contained in the will of her father. Under the second sub-division, she disposed of what she denominated her individual property. The execution of the power of appointment above alluded to is as follows: First, so much of the two-fourteenths part of the rest and residue of the estate of her father, over which she was given the power of appointment, as amounted to the cash sum of one hundred thousand dollars she allotted to her niece, Elizabeth Whitridge, absolutely. She declared that if Mrs. Whitridge should be dead at the time of the decease of the testatrix, the above mentioned sum of one hundred thousand dollars should go to the descendant or descendants of Mrs. Whitridge in equal parts in fee; but should Mrs. Whitridge be dead and not leave any descendant or descendants living at the time of Mrs. Greenway's death then the said sum of one hundred thousand dollars was to be considered a part of the rest and residue of the said two-fourteenths and was to be disposed of as later on provided. Mrs. Greenway's will next declared, that so much of the aforementioned two-fourteenths as should amount to the cash sum of forty-two thousand dollars she allotted to her grand niece, Isabella Brown Graham, daughter of the testatrix's deceased nephew, George Brown Graham, "the income therefrom onlyto be paid to her during her natural life" with remainder over to her descendant or descendants in equal parts, in fee. The next
clause of Mrs. Greenway's will provided that so much of the aforementioned two-fourteenths as should amount to the sum of twenty thousand dollars she allotted to her grandnieces, Harriet S. Brown and Elizabeth Brown, daughters of her nephew, Alexander Brown, in equal parts in fee if both were living at the time of the testatrix's death, or the whole to the survivor, if only one was then living. If both should be dead at the time of the testatrix's death, the twenty thousand dollars so allotted to the above named grandnieces, she allotted to their father, Alexander Brown, if he then were living, in fee; otherwise it was to be considered part of the rest and residue of the said two-fourteenths and was disposed of as later on indicated. Then came a provision for the benefit of the testatrix's nephew, George Brown, son of Alexander D. Brown, who was the brother of the testatrix, but as George Brown died in the lifetime of the testatrix, this provision did not take effect because it was expressly declared that the said sum of twenty thousand dollars should in that event form part of the rest and residue of the two-fourteenths. Then followed the fifth clause, which, as it, together with the second clause, forms the main ground of contention in the present controversy, will now be transcribed in full.
"Fifth. As to the rest and residue of that portion of the estate so as aforesaid specified in my father's said will, not hereinbefore disposed of by me, together with any addition thereto that may accrue by the happening of any of the contingencies heretofore specified, I direct that the same be divided into eight equal parts, and that one-eighth part beallotted to each of the following named children of my said nephew, George Brown, viz.: Colegate Smith, Isabella Merryman, Fannie W. Keith, Sarah Brown, Grace Greenway Brown, Carroll Brown, George Brown and Irwin Brown; the income only therefromto be paid respectively to each said child during her or hisnatural life, with remainder over to her or his descendant ifonly one, or descendants if more than one, in equal parts, infee. Should any of the aforesaid children of my nephew, George Brown, have died before me, leaving a descendant or descendants living
at the time of my death, I desire such descendant or descendants to have the one-eighth part that its or their parent would have taken if then living, if only one descendant, the whole, or if more than one, equal portions, in fee, otherwise I direct that such one-eighth portion be equally divided and added, subject to the same estate therein, to the remaining respective shares of the other then surviving said children of George Brown and the descendant or descendants of any then deceased such child, such last named descendant taking the whole or such last named descendants taking in equal parts the share its or their parent would have taken, if then living."
There are no italics in the will; we have used them merely for emphasis. Under this fifth clause the sum of three hundred and thirty-eight thousand dollars was disposed of. All of the beneficiaries of this settled estate who are designated in the will of Mrs. Greenway, are related in the following manner to George Brown, the elder, who was the donor of the power of appointment; Harriet S. and Bessie M. Brown, the daughters of Alexander Brown, are the great granddaughters of the donor of the power and were not in esse at the time of his decease. Colegate N. Smith and the seven other children of George Brown, the younger, are the great grandchildren of the donor of the power and were not in esse at the time of his decease as is shown by the fact, stated in the record, that their father was not married until the year 1866. Isabella B. Graham is also a great granddaughter of the donor of the power and being an infant under twenty-one years of age was not in esse at the time of his decease. Elizabeth Whitridge, to whom the one hundred thousand dollars of the settled property was allotted by the will of Mrs. Greenway, is a granddaughter of the donor of the power.
The question which this state of facts presents and which we are therefore called on to decide is this, namely: Is the will of Mrs. Greenway a valid execution of the power of appointment contained in the will of her father, George Brown? The solution of that question involves the propounding of, and the answer to, three other inquiries and the final disposition of
the controversy depends upon these three inquiries and a fourth which will be stated later on. In addition to these there is a fifth subject which will be dealt with last. These three inquiries are: First, are the limitations over to the descendants of Isabella Brown Graham, a great granddaughter of the donor of the power, as made in the second clause of Mrs. Greenway's will; and are the limitations over to the descendants of Colegate N. Smith and the seven other great grandchildren of the donor of the power, as made in the fifth clause of Mrs. Greenway's will, void for remoteness under the rule against perpetuities? Second, if these ultimate remainders are void for remoteness, are the intervening life estates created by the second and fifth clauses of Mrs. Greenway's will in the settled property, valid? Third, if the limitations over beyond the life estates in these two clauses are void for remoteness where and in what proportions do the badly appointed remainders go, and by virtue of what instrument do they pass to the persons who will finally receive them?
What is an estate in perpetuity? Considerable confusion in adjudged cases has doubtless arisen from an inability to define with precision what a perpetuity is. Perhaps a strictly accurate definition has never been given. In an early case, Scatterwood
v. Edge, 1 Salk. 229, it was defined to be an estate inalienable, though all mankind join in the conveyance; but this is obviously not correct. It was said by CHIEF JUSTICE GIBSON inHillyard v. Miller, 10 Pa. St. 334, that a perfect definition of a perpetuity has not been given and the nearest approach to it is found in Lewis on Perpetuities. The definition there given is in these words: "A future limitation whether executory or by way of remainder and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests, and which is not destructible by the person for the time being entitled to the property subject to the future limitation except with the concurrence of the individual interested under that limitation." The perion fixed and prescribed by
law for the future vesting of an estate or interest, is a life or lives in being at the time of its commencement and twenty-one years and a fraction of a year beyond to cover the period of gestation; and where property is rendered inalienable or its vesting is deferred for a longer period, the law denounces the devise, the bequest or the grant as a perpetuity and declares it void. Albert v. Albert, 68 Md. 372; Goldsborough v.Martin, 41 Md. 501; Barnum v. Barnum, 26 Md. 171. This rule against perpetuities is a rule of law and not one of interpretation. In determining the validity of testamentary dispositions the objects of the testator's bounty are first to be ascertained without reference to the rule. The instrument is to be interpreted in precisely the same manner as if there was no rule against perpetuities and as if the intention expressed by the words may lawfully be carried out. Having thus, apart from any consideration of the validity of this intention, arrived at the true construction of the will, the rule against perpetuities should then be applied to the objects so ascertained. Peaks v.Moxeley, 5 App. Ca. 714; In re Mervin (1901), 3 Ch. 200. The rule against perpetuities is the same at law as in equity.
To test the validity of the appointments made by Mrs. Greenway under the power contained in the will of George Brown, it is necessary to read the gifts made by her will, as if they had been written into and formed part of the will of George Brown, in the place of the power itself therein contained. Albert v.Albert, 68 Md. 372. If the contingency upon the happening of which the remainders over to the descendants of Isabella B. Graham, Colegate N. Smith and the seven other great grandchildren of George Brown are to vest, is one that might or might not
happen during a life or lives in being at the time of the death of George Brown and twenty-one years and a fraction of a year in addition, then the contingency is too remote and the remainders fail to take effect. In determining this question of remoteness, it is an invariable principle that regard is to be had topossible and not merely to actual events. It is not determined by looking back on events which have occurred and seeing whether the estate has extended
beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether, according to its terms, there was then a possibility that it might so extend. 22Am. Eng. Ency., 2 ed. 707. The event upon the happening of which the remainder is to vest must be one that is certain to happen within the prescribed period or the limitation will be bad. This is true of contingent remainders, precisely as it is of executory devises; and as respects executory devises the doctrine has been clearly stated by this Court in Biscoe v. Biscoe, 6 G. J. 235.
Tested by these principles, there is no difficulty in determining that the remainders to the descendants of Isabella B. Graham, under the second clause of Mrs. Greenway's will and to the descendants of Colegate N. Smith and the other seven children of George Brown, the second, under the fifth clause of Mrs. Greenway's will, are void. As none of those nine great grandchildren was in being when George Brown, the elder, died and as it is possible that more than twenty-one years and the fraction of a year allowed for the period of gestation, may expire since the death of Mrs. Greenway before the termination of the life estates given to those great grandchildren in the second and fifth clauses of the will of Mrs. Greenway, and, therefore before the remainders created by those clauses could vest in the descendants of the great grandchildren therein named, that bare possibility, of itself, defeats the remainders over and renders them void as being in conflict with the rule against perpetuities; unless the doctrines and distinction which will be later on considered, and which were contended for with so much zeal by the counsel for the appellants, can prevail.
This brings us to the proposition that the allotments made in the second and fifth clauses of Mrs. Greenway's will were not allotments of life estates with remainders over, but were allotments of absolute estates; and are to be treated as the latter because the limitations in remainder being void are to be dealt with as if there had been no attempt to create them at all. It is true that where an absolute estate has been clearly
given and subsequent repugnant limitations cutting it down to a life estate have been added and where the super-added limitations are void for remoteness, the ultimate limitations will be disregarded and the absolute estate will be upheld. This doctrine is concisely stated in 1 Jarman on Wills, 295, in the following words: "But though the Courts will not violate the established rules of construction for the sake of bringing a gift within legal limits yet an anxiety to prevent the testator's disposition scheme from proving abortive on account of its remoteness is plainly discoverable throughout the cases. To this anxiety we may ascribe the rule which recent cases seem to establish, that where a testator has by his will made an absolute bequest in favor of unborn persons, and has afterwards by a codicil revoked such bequest, and in lieu thereof given to the same legatees, life interests only, with remainder to their children (which subsequent bequest of course would be void as to the children) the codicil may be rejected, and the legatees take the interest originally given them by the will. And this rejection of disqualifying clauses, ineffectually attempted to be engrafted on a previous absolute gift, equally obtains where the whole is contained in the same testamentary paper, and in spite, too, of the principle hereafter discussed, which prefers the posterior of two inconsistent clauses; it being considered (for this is the ground upon which alone the construction can be defended), that the testator intends the prior absolute gift to prevail, except so far only as it is effectually superseded by the subsequent qualified one." This rule is recognized in the case of Dulany
v. Middleton, 72 Md. 67, where the passage we have just quoted from Jarman is referred to. There are numerous other cases which support this proposition and its correctness cannot be questioned. But the difficulty encountered in its application to the case before us lies in this, that the will of Mrs. Greenway does not create in the first instance an absolute estate in these great grandchildren, but in terms gives them merely a life estate. If the estate given them in the first instance had been an absolute one, the subsequent engrafting
upon it of a limitation which is repugnant to the rule against perpetuities would not cut that absolute estate down, because the engrafting limitation would be rejected as abortive and the absolute estate would remain. The will allots to each of the children of George Brown, who was Mrs. Greenway's nephew, and to Isabella Brown Graham, merely life estates; for in each instance both the second and fifth clauses specifically declare that the income only arising from the appointed shares shall be paid to the named legatee during his or her natural life and the same sentence concludes with these words, namely, "with remainder over to her or his descendant if only one, or descendants, if more than one, in equal parts, in fee." To raise these thus plainly created life estates to absolute estates, all of the words vesting, or rather, attempting to vest the remainders in fee in the descendants, must be rejected; and rejecting those words would contravene the settled principle that the will must be construed regardless of the rule against perpetuities to ascertain the intention of the testator and then, when that intention has been ascertained, the rule must be applied. The rule against perpetuities like the rule in Shelley's case
always defeats the testamentary intention. When it is obvious on the face of the will that the intention was to give but a life estate, Courts cannot, by rejecting the subsequent invalid limitations, change that life estate, into an absolute estate; but they may, as we have already said, where the first gift is of an absolute estate, strike down subsequent repugnant limitations that are void because contrary to the rule against perpetuities. Inasmuch, then, as it is clear on the face of Mrs. Greenway's will that she gave, and intended to give, under the second and fifth clauses, to the great grandchildren of the donor of the power merely a life estate in the allotted portions by those clauses disposed of, it will be impossible to apply the rule to which Jarman alludes and which was adverted to in Dulany v.Middleton, and, therefore, impossible to convert the distinct life estates into absolute estates.
This case is clearly distinguishable from Myers v. The Safe Deposit Co., 73 Md. 413. Upon the assumption that the limitations in remainder under the second and fifth clauses of Mrs. Greenway's will, are void for remoteness, it is contended that there has been a partial failure to execute the power of appointment with which she was clothed by her father's will; and that, as it was the evident design of the donor that the whole of the two-fourteenths subjected to the power, should be appointed by Mrs. Greenway, the failure on her part to make a complete and effective appointment of the whole of the settled property, must be treated as a failure to make any appointment at all; and therefore, that the appointments which confessedly are well made must be stricken down and the entire two-fourteenths must pass under the limitations contained in the will of George Brown, the donor of the power, just as if no appointment of any kind had been made by Mrs. Greenway. In support of this contention the case of Myers v. The Safe Deposit Co., is relied on. But that case and this are governed by different principles. In the Myerscase, the testator, after giving his wife the residuum of his estate for life, provided that "immediately from and after the death of my wife then my will is and I so order and direct that the residuum of my estate and property * * * * shall pass to and become the estate and property of such of my children and grandchildren or either as she by her last will and testament, which she is declared competent and is hereby authorized and empowered to make and execute, whether she be sole or covert, shall have named and appointed to take and have the same, and in default of such nomination and appointment by my wife, then my will is that the same shall pass to my children and descendants in the same manner as if I had died intestate." In execution of that restricted, qualified power of appointment, Mrs. Myers, after blending her own with her husband's estates divided the whole into three equal parts; two of which she subsequently sub-divided, each into three equal parts. One-third of the whole blended estate she gave absolutely to one of her sons. One-third of one of the other three equal parts, or one-ninth of the whole,
she gave absolutely to a grandson. The remaining one-third and two-thirds of one-third, being five-ninths, she gave to the Safe Deposit and Trust Company in trust for certain beneficiaries for life with remainders over. And this was decided not to be warranted by the power of appointment which she possessed. The question was whether the remainders which were badly appointed because made in excess of the power, would vitiate the appointments which were well made, and it was held that the testator designed that whoever of his children or grandchildren the wife nominated to take, was entitled, under the terms of the power, to take an absolute estate in the personalty and a fee in the realty and not a mere life estate in the one and a limited interest in the other. "He gives the wife, the simple power to name who shall take the estate," said this Court, "and she is given no power by implication to create a trust and name a stranger to take the title and hold in trust for the beneficiary she shall name. The whole estate on the determination of the life estate vested by the will of Charles Myers in his children and grandchildren as remaindermen subject only to the power of distribution or nomination by the wife or designation by her of the persons of that class who should have the estate. The wife therefore only had a special power. If she failed to exercise it the estate was to pass absolutely in fee to the testator's descendants, which reflects additional light as to the kind of estate which the power was to operate upon in the way of designating the taker thereof. Wickersham v. Savage, 58 Pa. St. 365. Mrs. Myers took a particular power under her husband's will, limited in character and not a general power." In the course of the opinion the rule was recognized as laid down inSugden on Powers, vol. 2, p. 102, to the effect that the well appointed portions will stand and the appointees of such well appointed portions will not be excluded from shares of the unappointed part if they belong to the class which takes; but it was observed that a careful examination of the cases on which Mr. Sugden rests this statement of the law did not conclusively settle a case like that of Myers v. The Safe Deposit Co. Mrs. Myers had merely the power to designate the persons to take; she had no power to determine what quality of estates they should take. The power was a power to appoint the whole estate and to appoint an absolute estate. In a word, the power was single and indivisible and incapable of partial performance. The failure to appoint the whole estate was a failure to execute the power and the invalidity of the appointments was due to an omission on the part of the donee to follow and obey the terms of the power vested in her; and this omission was treated as a violation of the intentions of the donor of the power with respect to the subject-matter of the power. As a consequence the entire attempted execution of the power was stricken down. In the case at bar, however, Mrs. Greenway, the donee of the power, acted literally within the terms of the power, but violated the rule of law prohibiting the creation of a perpetuity. There is a distinction between the repudiation of a power as in the Myerscase, and the exercise of it, as in this case, though in the exercise of it the limit as respects remoteness in vesting is inadvertently overstepped.
Secondly, the limitations in remainder attempted to be created by the second and fifth clauses of Mrs. Greenway's will being void for remoteness, are the intervening life estates given by those same two clauses valid? Where an interest or estate is given by deed or will with a limitation over on a specified contingency, such limitation, if it violates the rule against perpetuities, is for the purpose of determining the effect on the prior disposition of the property, to be considered as stricken out, leaving the prior disposition to operate as if a limitation over had never been made. Goodier v. Johnson, 18 Ch. D. 441;Coutier v. Oram, 21 Beav. 91; Taylor v. Forbisher, 5 DeG. and Sm. 191; Goldsboro v. Martin, 41 Md. 48; Heald v.Heald, 56 Md. 300; Lawrence's Appeal, 136 Pa. St. 354;DeFord's case, 36 Md. 168. Each of the life tenants named in the second and fifth clauses of Mrs. Greenway's will was a person in being at the time of Mrs. Greenway's death, and Mrs. Greenway herself being a life in being at the time of her
father's death, the life estates were bound to vest within the period of a life in being and twenty-one years beyond. If we read into the will of George Brown, the donor, the dispositions made in the second and fifth clauses of Mrs. Greenway's will, it is perceived at once that though the beneficiaries of the life estates were not in esse at the time of the donor's decease, the life estates created for them by Mrs. Greenway are precisely such as would have been created had the donor, instead of giving Mrs. Greenway the power of appointment, inserted in its place a bequest of life estates to his great grandchildren without naming them but describing them as the grandchildren of his son, Alexander D. Brown, and his daughter, Isabella Graham, living at the time of the death of the donee of the power. Read in that way there can be no question that the life estates do not violate the rule against perpetuities, because instantly upon the death of Mrs. Greenway they vested in these great grandchildren who were then all in being. These life estates are not estates given to a class some of whom may take and some of whom may not. They are given to persons capable of taking, and having vested within the time allowed by the rule against perpetuities, they cannot be divested by abortive efforts to engraft upon them, limitation over, which by reason of the rule against perpetuities must fail to take effect. We therefore hold that the life estates given in the second and fifth clauses of Mrs. Greenway's will are valid.
Thirdly, what disposition must be made of the void estates in remainder which the second and fifth clauses attempted but failed to create? The clause we have quoted from the will of George Brown, the elder, answers that inquiry, for it declares that in the event of the death of his daughter, Mrs. Greenway, without executing the power of appointment and without leaving children, the settled property should pass to all the children of the testator then living and all the decendants or decendant then living of such of them as might be then dead, and he added, "my meaning is in this devise or limitation over as aforesaid to my other children and their descendants as aforesaid, to
include all the descendants of my deceased daughter, Isabella. The descendant or descendants of my children Alexander D., George S., and Isabella to take also per stirpes and not per capita
and in equal degree to take equally." The unappointed portion, therefore, of the two-fourteenths subject to the said power of appointment, must be disposed of as directed in the clause just indicated, and unless there is some other circumstance intervening to produce a different result the whole unappointed portion of the settled property would vest per stirpes in the descendants of George S. Brown, deceased, Alexander D. Brown, deceased, and Isabella Graham, deceased. As a consequence one-third of the badly appointed property, subject to the life estates which we have held to be valid, vests in Alexander Brown, the son of George S. Brown, and grandson of the donor of the power; one-third, subject to the life estates, vests in the grandchildren of Alexander D. Brown; one-sixth, subject to the life estates, vests in Mrs. Whitridge, the daughter, and one-sixth, subject to the life estates, vests in Isabella B. Graham, the granddaughter of Isabella Graham. With respect to Mrs. Whitridge it is insisted that she is not entitled to any portion of the unappointed estates unless she elects to surrender an equal amount of what has been absolutely allotted to her out of the settled property.
And this brings us to the fourth question in the case and that is this: In the doctrine of equitable election applicable to the situation presented by this record? The precise question is, shall Mrs. Whitridge receive the one hundred thousand dollars allotted to her by the will of Mrs. Greenway and one-sixth of the unappointed settled property covered by the second and fifth clauses of the will; or shall she be required to elect between these two claims? The doctrine of equitable election is thus defined in Story's Equity Jurisprudence, sec. 1075. "The obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election therefore presupposes the plurality of gifts or rights
with an intention expressed or implied of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice but he cannot enjoy the benefits of both." It is similar to the doctrine of the Scotch law by which an individual is not allowed to approbate and reprobate. Cordington v. Cordington, L.R. 7 H.L. 854; In reChesham, 31 Ch. Div. 466. The leading case in this State on this subject is McElfresh v. Schley, 2 Gill, 101. It was followed and approved in Barbour v. Mitchell, 40 Md. 163; Albert v.Albert, 68 Md. 372; Hyatt v. Vanneck, 82 Md. 476, and in other later cases. In the case of McElfresh v. Schley, the testator devised to one of his three sisters, certain real estate of which he was possessed and by the residuary clause he gave her money, choses in action and whatever real estate he might be possessed of at the time of his death. Future acquired lands, at the period at which that case was heard and determined, were as absolutely beyond the testamentary power of a testator as were lands which were not and might never be his; yet the clear intention of the testator in that case to dispose of the real estate he might acquire, even though it was legally impossible for him to make such disposition before acquiring it, was held to constrain his other devises to abide by that devise or to renounce pro tanto the devises in their favor. The parties in interest there were three sisters of the testator. If he had been declared to have died intestate as to the future acquired land it would have descended to his three sisters as his heirs at law equally, share and share alike. The heir and devisee to whom one-third of the after acquired land descended was required to elect either to take the devises and bequests given to her by the will and to relinquish her right, as heir at law, in the after acquired land, or else if she claimed a third interest in the after acquired land, as heir at law, to relinquish the benefit given to her by the will. In the course of its judgment this Court said: "From the earliest case on the subject the rule is that a man shall not take a benefit under a will and at the same time defeat the provisions of the instrument. If he claims an interest under
an instrument he must give full effect to it as far as he is able to do so. He cannot take what is devised to him and at the same time what is devised to another although but for the will it would be his, hence he is driven to his election to say what he will take." In Albert v. Albert, 68 Md. 352, the donee of the power mingled his own property with that over which he had a power of appointment and the blended estate was then divided by him amongst his children and grandchildren in certain designated proportions. Some of the appointments were held to be bad so far as respected the settled property, because they violated the rule against perpetuities. The appointees whose shares were thus involved claimed the right to take their portions of the settled property against the provisions of the will, whilst at the same time they claimed to take their portions of the donee's individual property under and in pursuance of the provisions of the will. They were thus claiming both against and under the will, and the Court compelled them to elect whether they would stand upon the will in its entirety. The case at bar differs from any of those which have been heretofore decided in this State. In each and every instance, as far as we have been able to discover, there was either a blending of the individual property of the testator with property over which he had the power of appointment, or else, as in the McElfresh v. Schley case, it was only the individual property of the testator that was disposed of. Here, however, Mrs. Greenway's will was carefully divided into two distinct portions. The one was devoted exclusively to the settled property, the other exclusively to her individual property; and we must treat these separate dispositions precisely as though there were two separate wills. And that brings us to the inquiry as to whether the doctrine of election is applicable when nothing is disposed of by the donee of a power except the settled property. It was insisted that the doctrine of election was not applicable to the case before us because the limitations under the second and fifth clauses failed to take effect by reason of their being in violation of a rule of law. And the case of Tongue v. Nutwell, 17 Md. 212; Barbour
v. Mitchell, 40 Md. 151; Wollaston v. King, L.R. 8 Eq. 165, were relied on to support this contention. Tongue v. Nutwell, was an action of ejectment; and at law there is no direct remedy to compel an election. Story's Eq., 1077; Barbour v. Mitchell,40 Md. 167, where the principle just quoted from Story's Equity was recognized and repeated. In Barbour v. Mitchell, supra, it was said, "to give effect by election, to a will whose provisions contravene the policy of the law, would be preferring private interests to the public good; but where no principle of public policy is violated, the doctrine of election conduces to equality and justice." This sentence was entirely aside from the point before the Court for decision. In that case Robert D. Sewall by his last will and testament gave to his two nieces as tenants in common all the property "which I may hereafter acquire by devise or bequest from my friend, Brinham, by whose last will and testament as now executed, I am sole legatee and devisee, to be equally divided between them." By the same will he gave to his nephew, Mitchell, valuable real estate and personal property and made him and his said two nieces his residuary legatees and devisees in equal proportions; the three being also his only heirs at law and next of kin. When Sewall died they entered upon and took possession of the real and personal estate devised and bequeathed to them respectively and of which Sewall then had seisin and possession. Brinham did not die until after the death of Sewall. He did not change his will by which his whole estate was given to Sewall. After Brinham's death, Mitchell, claiming that Sewall had died intestate as to the property left to the latter by Brinham, because Sewall had predeceased Brinham, filed a bill in equity against the nieces to whom Sewall had devised and bequeathed the property he expected to get under Brinham's will, praying for a partition between himself and them as heirs of Sewall of the land devised by Brinham to Sewall, and also sued them at law as sureties on the administration bond of their deceased father who had administered on the personal estate of Brinham, to recover his, Mitchell's, distributive share of the personal estate of Brinham, which he claimed did not pass under Sewall's
will, but to which Sewall if living would have been entitled. On a cross-bill filed by the defendants in that case, namely, the two nieces, asking that Mitchell might be enjoined from further prosecuting his action at law on the administration bond and that he might be required to convey to them his supposed interest in the real estate which Brinham, had devised to Sewall, but which Sewall died before acquiring; it was held that the fact that Sewall had no devisable interest in the property of Brinham at the time of making the will or at his, Sewall's decease, would not conflict with the doctrine of election and that that doctrine was applicable to the case; that Mitchell having taken possession of the real and personal property which Sewall had owned and which Sewall devised and bequeathed to him, should be enjoined from further maintaining his bill in equity for a partition of the real estate which had belonged to Brinham and which Sewall prior to Brinham's death had devised to the nieces, and from prosecuting his suit at law against them as sureties on the administration bond. No question, therefore, arose as to whether the doctrine of election was applicable to a case where a limitation over was void for remoteness and the dictum that we have quoted from 40 Md...... was not necessery to the decision of the case then before the Court. Wollaston v. King, L.R. 8 Eq. 165, has been recently overruled in Bradshaw v. Bradshaw
(1902), 1 Chan. 436, in so far as concerns the dictum to the effect that the doctrine of election does not apply where there has been an attempt to execute a power in violation of the rules of law against a perpetuity.
Coming back to the inquiry as to whether this doctrine of election is applicable to a case where no other property is disposed of by the donee of the power than that over which he has the power of appointment, the precise question seems to have been settled in Bristow v. Ward, 2 Ves. Jr. 350. LORD LOUGHBOROUGH in disposing of that case where there was a defective appointment as to part of the settled property said: "The consequence is the remainder must be divided as in default of appointment unless it will hold as argued, and I do
not know how to state it as to this case, that the person to whom a specific share is appointed shall be excluded from taking any of the unappointed share because it is clear the father meant he should have no more than what was particularly given. The doctrine of election cannot apply where there is no other subject but that to be appointed. It ean never be applied but where if an election is made contrary to the will the interest that would pass by the will can be laid hold of to compensate for what is taken away, therefore in all cases there must be some free disposable property given to the person which can be made a compensation for what the testator takes away. That cannot be applied to this case where no part of his property is comprised in the will, but that which he had the power to distribute." Inre Fowler's Trust, 27 Beav. 362; In re Brooksbank, 34 Ch. D. 163; 11 Ency. of Law, 66. As there is no "free disposable property" of Mrs. Greenway given under that portion of her will which relates exclusively to the settled property the case at bar would seem to fall exactly within the doctrine announced inBristow v. Ward, and is, for that reason, clearly distinguishable from Albert v. Albert, 68 Md. 372. Broad and comprehensive as the doctrine of election is, we are not prepared to hold that it is applicable to this case; and in so far as the Court below determined that Mrs. Whitridge is not to be put to her election, the decree is correct. We now come to the last question presented on this record.
Under the will of Mrs. Grace Brown, executed on the 24th day of August, 1837, sundry trusts were created and amongst them was one in favor of her daughter, Mrs. Greenway. With respect to that trust the will of Mrs. Grace Brown declared that the trustees should hold the principal in trust for Mrs. Greenway during the term of her natural life, paying her semi-annually the interest thereon to her sole and separate use free and clear from any and all control or interference on the part of any husband that she might then or thereafter have, and after Mrs. Greenway's death the said principal should be divided amongst her children, should she have any, or if she
should not have any children, amongst her brothers and sisters living at the time of her death, and if she should die without children or brothers and sisters, then, amongst "her next ofkindred" free and clear from the operation of the trust previously declared. Mrs. Greenway, as we have stated, died without ever having had any child or children. Her brothers, George S., Alexander D., and her sister, Isabella Graham, all predeceased her. Her deceased brother, George S., left surviving a son Alexander, who is now living. Her sister left surviving a son and a daughter. The son is now dead leaving one child, Isabella B. Graham, who has been heretofore mentioned. Isabella Graham, the sister of Mrs. Greenway, also left surviving a daughter, Mrs. Elizabeth Whitridge. Alexander Brown, is therefore, a nephew and Mrs. Whitridge, a niece, of Mrs. Greenway. The children of George Brown, the second, and the child of George B. Graham are grandnephews and grandnieces of Mrs. Greenway. The question is, who take under the will of Mrs. Grace Brown as the "next of kindred" of Mrs. Greenway, the trust estate held for the benefit of Mrs. Greenway during her natural life under the will of her mother Grace Brown? The term "next of kin" is used to signify the relatives of a person, sometimes in the sense of nearest blood relatives, and at other times, in the sense of relations entitled to take under the Statute of Distributions. 21 Am. Eng. Ency. 537. If the phrase, "next of kindred" is to be interpreted in the sense of nearest blood relations, then Alexander Brown and Mrs. Whitridge, being nearest of kin to Mrs. Greenway, are entitled under the limitation over in the will of Mrs. Grace Brown, to the trust fund held by the trustees under that will. If on the other hand, the term "next of kindred" is to be taken in the sense of relations who come in under the Statute of Distribution, then again the same parties, Alexander Brown and Mrs. Whitridge, are entitled. McComas etal. v. Amos et al., 29 Md. 120; Robins et al. v. TheState, 1 H. G. 476; Duvall v. Harwood, 1 H. G. 474. The children of George Brown, the second, and the child of George B. Graham, being grandnephews
and grandnieces of Mrs. Greenway, are excluded from participation in this trust fund. Such is the conclusion reached by the Court below and with that conclusion we concur.
It follows from the views we have herein expressed that so much of the decree of Circuit Court No. 2 as holds that the limitations over in remainder under clauses two and five of Mrs. Greenway's will are void for remoteness, is correct; that so much of the same decree as upholds the allotment of one hundred thousand dollars to Mrs. Whitridge and the allotment of ten thousand dollars to Harriet S. Brown and Bessie M. Brown each, is accurate; that so much of said decree as distributes to Alexander Brown and Mrs. Whitridge the entire trust fund created by the will of Mrs. Grace Brown in favor of Mrs. Greenway for life with remainder over to Mrs. Greenway's "next of kindred" is free from error; and that so much of the decree as declares that the doctrine of election is not applicable, is also accurate; but that that portion of the decree which strikes down the life estates created under the second and fifth clauses of the will of Mrs. Greenway is erroneous and must be reversed.
The costs in this Court as well as in the Court below will be decreed to be paid out of the settled property.
Decree reversed in part and affirmed in part, and causeremanded, that a new decree may be passed conforming to thisopinion; the costs to be paid out of the trust estate whichpasses under the will of George Brown, the elder.
(Decided March 23rd, 1904.)
Upon a subsequent petition by the trustees under the will of George Brown for further instructions,