On December 10th, 1909, the appellant entered into a contract with the appellees to purchase certain property in the City of Baltimore. This property is particularly described in the contract of purchase, wherein it is declared that all its terms and provisions shall be null and void, unless the vendors had a good and merchantable title to the property. The appellant refused to complete the purchase upon the ground that the appellees could not convey a good title. They thereupon instituted a suit for the specific performance of the contract, and from the decree of the lower Court which required her to complete the purchase, the appellant has brought this appeal.
The facts are undisputed, and those that need be stated are: That on the 10th day of August, 1868, Philip Weitzler of Baltimore City, executed his last will and testament by
which he disposed of his estate as follows: "I give to my wife Caroline Weitzler all the property of which I may be possessed at the time of my death, whether real, personal or mixed, with power to dispose of and have absolute control of the same during the term of her natural life, and at her death to be disposed of as follows: Five hundred dollars and my piano to my daughter Mena Weitzler; five hundred dollars to my daughter Henrietta Weitzler, the balance of my estate to be equally divided among my five children or their heirs, share and share alike, with this proviso: That the portion to which my daughter Sarah Gradwohl may be entitled shall be invested in some safe stocks or other securities, the said Sarah Gradwohl to receive the income from the same during the term of her natural life, and at her death to be equally divided among her children or legal heirs."
After the death of the testator, this will was proven, and admitted to probate by the Orphans' Court for Baltimore City. By the final account of Samuel J. Harman, the administrator d.b.n. of Philip Weitzler, the sum of one thousand and sixty-one dollars and seventy-seven cents was distributed to Sarah Gradwohl, and this sum was deposited by Mr. Harman, under an order of the Orphans' Court for Baltimore City, in the Central Savings Bank, the interest to be subject to the order of Sarah Gradwohl for life, and the principal subject to the further order of the Court. On the 14th day of November, 1884, upon the petition of Sarah Gradwohl, the Orphans' Court ordered that she withdraw this money, and authorized her to invest it in the purchase of two ground rents issuing out of two contiguous lots of ground in the City of Baltimore on the southwest side of Chew and Chappel streets. The order provided that the "investment shall not be deemed made as herein directed until there be executed, acknowledged and delivered in due form of law a good and sufficient deed conveying and assuring to Sarah Gradwohl tenant for life with a remainder
over to her children or legal heirs the fee simple property hereinbefore mentioned."
By the authority of this order, Sarah Gradwohl purchased from Riley E. Wright and wife on November 17th, 1884, the two ground rents or reversions in fee mentioned in her petition and involved in this suit. The deed recited that the property is granted and conveyed under the order of the Orphans' Court of Baltimore City, dated November 14th, 1884, "unto Sarah Gradwohl for and during the term of her natural life, and at her death to be equally divided among her children or legal heirs." Caroline Weitzler, the widow, is dead.
The single question involved in this appeal is, what interest, or estate passed to Sarah Gradwohl under the will of her father, Philip Weitzler? If she took an absolute interest in the property devised or bequeathed to her by the will, it is conceded that the decree must be affirmed; if, however. she took a life estate only, the decree must be reversed, because in that event she cannot convey a good and merchantable title to the vendee. The position of Sarah Gradwohl is that under the rule in Shelley'scase she took an absolute interest in all the property which passed to her under her father's will. JUDGE McSHERRY inTravers v. Wallace, 93 Md. 512, said that "it is a settled and inflexible rule of property, so firmly imbedded in our jurisprudence as to be beyond modification or repeal except by legislative enactment, that when a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs, entitles the ancestor to the whole estate. 1 Preston onEstates, 263. This doctrine is called the Rule in Shelley'scase, 1 Co. 104. It has nothing to do with the testator's intention.
It is a rule of property and overrides the intention. In fact wherever applicable, it may be said that it disregards the intention altogether; for whilst the intention may confessedly have been to give but a life estate the rule converts that life estate into a fee by treating the terms of the gift over to the heirs as a limitation of the estate and not as words of purchase."
But this rule has some well recognized exceptions, and is never to be applied in total disregard of the sense in which the testator has used technical words of inheritance. Mr. Hargrave in his Observations concerning the rule in Shelley's case, 1 Hargr. Law Tracts, 575-577, states, that when it is once settled that the donor or testator has used words of inheritance according to their legal import; has applied them intentionally to comprise the whole line of heirs to the tenant for life; and has really made him the terminus or ancestor, by reference to whom the succession is to be regulated, then it will appear, that being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator meant to avoid the rule or not, and that to apply it, and to declare the words of inheritance to be words of limitation, vesting the inheritance in the tenant for life as the ancestor and terminus to the heirs, is a matter of course. But on the other hand, if it be decided, that the testator or donor did not mean by the words of inheritance after the estate for life, to use such words in their full and proper sense, nor to involve the whole line of heirs to the tenant for life, and include the whole of his inheritable blood, and make him the ancestor or terminus for the heirs; but intended to use the word heirs in a limited, restrictive and untechnical sense, and to point at such individual person, as should be heir, of a tenant for life at his decease, and to give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs, and constitute him or her the ancestor terminus and stock for the succession to take its course from,
in every one of these cases the premises are wanted, upon which only the rule in Shelley's case interposes its authority, and that rule becomes quite extraneous matter. 2 Coke Littleton,
150 (note).
In Clarke v. Smith, 49 Md. 116, it is said to be "a well settled rule of construction, that technical words of limitation used in a devise, such as heirs generally, or heirs of thebody, shall be allowed their legal effect, unless from subsequent inconsistent
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On December 10th, 1909, the appellant entered into a contract with the appellees to purchase certain property in the City of Baltimore. This property is particularly described in the contract of purchase, wherein it is declared that all its terms and provisions shall be null and void, unless the vendors had a good and merchantable title to the property. The appellant refused to complete the purchase upon the ground that the appellees could not convey a good title. They thereupon instituted a suit for the specific performance of the contract, and from the decree of the lower Court which required her to complete the purchase, the appellant has brought this appeal.
The facts are undisputed, and those that need be stated are: That on the 10th day of August, 1868, Philip Weitzler of Baltimore City, executed his last will and testament by
which he disposed of his estate as follows: "I give to my wife Caroline Weitzler all the property of which I may be possessed at the time of my death, whether real, personal or mixed, with power to dispose of and have absolute control of the same during the term of her natural life, and at her death to be disposed of as follows: Five hundred dollars and my piano to my daughter Mena Weitzler; five hundred dollars to my daughter Henrietta Weitzler, the balance of my estate to be equally divided among my five children or their heirs, share and share alike, with this proviso: That the portion to which my daughter Sarah Gradwohl may be entitled shall be invested in some safe stocks or other securities, the said Sarah Gradwohl to receive the income from the same during the term of her natural life, and at her death to be equally divided among her children or legal heirs."
After the death of the testator, this will was proven, and admitted to probate by the Orphans' Court for Baltimore City. By the final account of Samuel J. Harman, the administrator d.b.n. of Philip Weitzler, the sum of one thousand and sixty-one dollars and seventy-seven cents was distributed to Sarah Gradwohl, and this sum was deposited by Mr. Harman, under an order of the Orphans' Court for Baltimore City, in the Central Savings Bank, the interest to be subject to the order of Sarah Gradwohl for life, and the principal subject to the further order of the Court. On the 14th day of November, 1884, upon the petition of Sarah Gradwohl, the Orphans' Court ordered that she withdraw this money, and authorized her to invest it in the purchase of two ground rents issuing out of two contiguous lots of ground in the City of Baltimore on the southwest side of Chew and Chappel streets. The order provided that the "investment shall not be deemed made as herein directed until there be executed, acknowledged and delivered in due form of law a good and sufficient deed conveying and assuring to Sarah Gradwohl tenant for life with a remainder
over to her children or legal heirs the fee simple property hereinbefore mentioned."
By the authority of this order, Sarah Gradwohl purchased from Riley E. Wright and wife on November 17th, 1884, the two ground rents or reversions in fee mentioned in her petition and involved in this suit. The deed recited that the property is granted and conveyed under the order of the Orphans' Court of Baltimore City, dated November 14th, 1884, "unto Sarah Gradwohl for and during the term of her natural life, and at her death to be equally divided among her children or legal heirs." Caroline Weitzler, the widow, is dead.
The single question involved in this appeal is, what interest, or estate passed to Sarah Gradwohl under the will of her father, Philip Weitzler? If she took an absolute interest in the property devised or bequeathed to her by the will, it is conceded that the decree must be affirmed; if, however. she took a life estate only, the decree must be reversed, because in that event she cannot convey a good and merchantable title to the vendee. The position of Sarah Gradwohl is that under the rule in Shelley'scase she took an absolute interest in all the property which passed to her under her father's will. JUDGE McSHERRY inTravers v. Wallace, 93 Md. 512, said that "it is a settled and inflexible rule of property, so firmly imbedded in our jurisprudence as to be beyond modification or repeal except by legislative enactment, that when a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs, entitles the ancestor to the whole estate. 1 Preston onEstates, 263. This doctrine is called the Rule in Shelley'scase, 1 Co. 104. It has nothing to do with the testator's intention.
It is a rule of property and overrides the intention. In fact wherever applicable, it may be said that it disregards the intention altogether; for whilst the intention may confessedly have been to give but a life estate the rule converts that life estate into a fee by treating the terms of the gift over to the heirs as a limitation of the estate and not as words of purchase."
But this rule has some well recognized exceptions, and is never to be applied in total disregard of the sense in which the testator has used technical words of inheritance. Mr. Hargrave in his Observations concerning the rule in Shelley's case, 1 Hargr. Law Tracts, 575-577, states, that when it is once settled that the donor or testator has used words of inheritance according to their legal import; has applied them intentionally to comprise the whole line of heirs to the tenant for life; and has really made him the terminus or ancestor, by reference to whom the succession is to be regulated, then it will appear, that being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator meant to avoid the rule or not, and that to apply it, and to declare the words of inheritance to be words of limitation, vesting the inheritance in the tenant for life as the ancestor and terminus to the heirs, is a matter of course. But on the other hand, if it be decided, that the testator or donor did not mean by the words of inheritance after the estate for life, to use such words in their full and proper sense, nor to involve the whole line of heirs to the tenant for life, and include the whole of his inheritable blood, and make him the ancestor or terminus for the heirs; but intended to use the word heirs in a limited, restrictive and untechnical sense, and to point at such individual person, as should be heir, of a tenant for life at his decease, and to give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs, and constitute him or her the ancestor terminus and stock for the succession to take its course from,
in every one of these cases the premises are wanted, upon which only the rule in Shelley's case interposes its authority, and that rule becomes quite extraneous matter. 2 Coke Littleton,
150 (note).
In Clarke v. Smith, 49 Md. 116, it is said to be "a well settled rule of construction, that technical words of limitation used in a devise, such as heirs generally, or heirs of thebody, shall be allowed their legal effect, unless from subsequent inconsistent words it is made perfectly plain that the testator meant otherwise. Or, to use the language of LORD ELDON, in Wright v. Jesson, 2 Bligh, 1, the words heirs ofthe body will indeed yield to a particular intent that the estate shall be only for life, and that may be from the effect of superadded words, or any expression showing the particular intent of the testator, but that must be clearly intelligible andunequivocal."
And in Fulton v. Harman, 44 Md. 264, it is said that "where the limitation of a remainder is to the issue or heirs of him to whom the preceding estate for life is limited, if the termissue or heirs is clearly intended as descriptive merely of the persons to take in succession, and thus become the root of a new inheritance, the individuals embraced by such descriptive term, take as purchasers, and do not, therefore, come within the rule in Shelley's case. When the word heirs is taken as a word of limitation, it is collective, and signifies all the descendants in all generations; but when it is taken as a word of purchase, it may denote particular persons answering the description at a particular time, and in a special sense, according to circumstances."
In the recent case of Reilley v. Bristow, 105 Md. 332, where all the cases relied upon by the appellees on this record are considered, JUDGE PEARCE said: "There is no more doubt under the Maryland than under the Pennsylvania cases that where there is no expression to rescue the case from the application of the rule, it does not matter that the testator's intention may be defeated, as is clearly shown in Smith v. Clarke, 49 Md. 106-120, but the Courts of this State have always struggled against the application of the rule and have searched the will or deed for some inconsistent provision or word which would exclude its application." He further said that this rule is not one "of universal or imperative application, and depends upon whether it will support or defeat the intention of the testator as deduced from the whole will."
Applying these principles to the will before us, it is manifest that the application of the rule in Shelley's case to the bequest to Sarah Gradwohl would wholly defeat the expressed will of the testator. If that rule be applicable to the bequest to her, the words "children or legal heirs" must be treated as words of limitation, that is to say, words marking out the extent and duration of her interest. By that construction her "children or legal heirs" would take nothing under the will, and the whole portion which the testator intended his daughter to take for life would be taken by her absolutely. Such a construction, which has neither reason, policy, justice, nor equity to support it, can only be sustained by giving to the words "legal heirs," which are superadded to the word children, the arbitrary meaning placed upon them "by an artificial rule of law."
We think it plain from the language and dispositions of the will that the testator did not intend to use the words "legal heirs" in their full technical sense, and that the language and provisions of the will plainly manifest a particular intent to use those words, in the bequest to his daughter Sarah, as meredescriptio personarum, or a particular designation of individuals who were to take as purchasers at her death. Such being the testator's particular intent in the use of the words "legal heirs" immediately succeeding the word children in the bequest to her, that intent will limit the strict, technical import of the words, and will also limit Sarah to a life estate in the portion bequeathed to her. As appears from the will, which we have quoted, the testator
first gave a life estate to his wife in his whole estate, he then made certain bequests to two of his daughters; he then directed that the balance of his estate should be equally divided among his five children or their heirs, share and share alike. Sarah Gradwohl was one of the testator's five children, and if he had concluded his will at this point, a different situation would have been presented. But he modified the preceding provision of his will, so far as it related to his daughter Sarah, by adding a proviso that her portion should be "invested in some safe stocks or securities, the said Sarah Gradwohl to receive the income form the same during the term of her natural life, and at her death to be equally divided among her children or legal heirs." His intention, therefore, to make a special provision as to Sarah's portion is plain.
The rule in Shelley's case is not a favored rule in the law of Maryland, although the Court will never refuse to apply it in a proper case. But where, as here, the particular intent of the testator not to use the words of inheritance in their full legal sense, those words, in the connection in which they are used in the will of Philip Weitzler, should yield to that intent, thereby withdrawing the case from the application of the rule. We decide that by the true construction of the will Sarah Gradwohl took only a life estate in the property thereby bequeathed or devised to her. It therefore follows that the appellees cannot convey to the appellant a good and merchantable title to the property mentioned in the contract of December 10th, 1909.
The decree appealed from will be reversed and the bill dismissed.
Decree reversed with costs to the appellant above and belowand bill dismissed.
A motion for a re-argument was subsequently made and in disposing of the same.