James Glenn and others' Lessee, vs. Caleb W. Spry, 5 Md. 110

Tuck, J., delivered the opinion of this court. It is clear, upon the adjudged cases in England and in this country, that Charles Milward, under his father’s will, took an estate in fee, by reason of the sums directed to be paid to his brother James. This doctrine is fully recognised in Beall vs. Holmes, 6 H. & J., 208, and is conceded by the counsel for the appellants. The question for our determination is, whether James Milward took an estate for life or in fee, after the death of his brother Charles, without having paid these legacies.

The land devised was charged with an annuity, and a sum in gross in favor of James. When, by the death of Charles, the land vested in James, these charges became extinct by the union of the title and the lien in him. Mitchell vs. Mitchell, 2 Gill, 236.

It is contended on the part of the appellee, that as the legacies failed of effect by the death of the first devisee, James took an estate of inheritance, by implication, in satisfaction of the legacies; but the counsel for the appellants insist upon the application of the general rule of law, “that express words, or words tantamount, are necessary in a devise to pass an estate of inheritance,” for which they rely upon Beall vs. Holmes, as conclusive of the present appeal.

That case, while the general rule is stated as decisive of the point then before the court, also shows, that a fee may pass by implication, upon the principle of giving effect to the intention of the testator, and that the general rule does not prevail in a devise without words of limitation, if words be added, from which an intention to give the fee can be clearly collected. Several expressions are mentioned as examples, and the case of a charge upon the land, or against the devisee personally, and a devise to one generally, with a limitation over, upon a contingency, are stated as further exceptions.

We do not suppose, as suggested in argument, that the court are to be understood as having stated these as the only qualifications, but merely as furnishing so many illustrations of the doctrine advanced, predicated upon the presumed intent of the testator. There are other instances given in 2 Powell on Devises, ch. 19, 20, and 2 Preston on Estates, 151, et seq., which, under the appellants’ view of Beall vs. Holmes, would virtually cease to be exceptions at all.

If we apply to the case before us the reasoning of the law on which a general devise of land is enlarged to a fee, where the land or the devisee is made answerable for a legacy to another, it is difficult to perceive how the same result can be avoided, when the title to the land and the charge become united in the person entitled to the sum to be paid.

The ground of the rule is this: Every devise is intended for the benefit of the devisee, and when a devise is thus encumbered, unless the devisee were to take the fee, he might, by dying before he had reimbursed himself the amount charged out of the land, be a loser by the devise, and what was intended as a benefit become an injury; and the rule applies to every ease where a loss is possible. Cro. Eliz., 204, 379. Cro. Jac., 599. Willes, 138. Cowp., 356. 3 Term Rep., 356. 5 East, 87. 2 Powell, ch. 19. Collier's case, 6 Rep., 16, a. 2 Mod., 26. 2 Preston, 207, 230. 20 Wendell, 580.

If the land, on the death of Charles, had been given to another person than James, but still charged as it was in the hands of Charles, the second devisee would have taken the fee, for the same reason that Charles had taken that estate, and the intended benefit to James would not have failed.

The same presumption must be made in aid of James as was raised in behalf of Charles, and of the second devisee in the case last put, in order to pass the fee, viz., that the legacy to James was intended for his benefit; and if it appears, from the will, that he might lose his legacy by the death of Charles, unless his devise was also enlarged to a fee, it must be inferred that the testator intended that his will should receive that construction.

If Charles had died soon after his father, the land would still have remained liable for the benefit of James; but, as the result of the appellants’ argument, if James had died immediately after Charles, the legacies being then unpaid, he could have derived no benefit under his father’s will, because the charge, having merged in the estate, ceased to be a claim against the land, and James’ interest having terminated by his death, before he had enjoyed the land long enough to raise thereout the sums bequeathed to him, the land would have passed to the heirs of Charles, discharged of the incumbrance.

Thus what was designed as a benefit to James might have proved of no value whatever, and he alone, of all his father’s children, would have been virtually disinherited, except as to the small interest he might take as one of the heirs of his brother Charles.

As to Charles the fee is created, by implication, to prevent a possible injury to him, if he should happen to die before raising the charge in favor of James out of the profits of the estate; and as to James, the same implication is made, on the death of Charles, without paying the legacies as a satisfaction therefor, and which, possibly, he might not otherwise enjoy. It makes no difference if the sum be less than the value of the land devised. No regard is paid to the disparity, however great. 2 Mod., 26. The cases are collected in 2 Preston, and the reason of this doctrine fully stated.

The only decided case involving the very question now propounded as to the estate of James in this land, is that of Moone vs. Heaseman, Willes, 138. That was a devise to one for life, and at her death, to S., paying to each of her sisters, E. and M., five hundred pounds; and if either of them died, the survivor to have the legacy; and if S. died, the farm to be divided between the survivors, and in case all three, S., E-. and M., died before their mother, then over in-fee. There were no words of limitation as to S., E. or M. By the strict terms of the devises to them each took only an estate for life.

It was held that S. took a fee-simple estate, because of the sums directed to be paid by her to E. and M., and as to E. and M. the court said: “The next question, is what estate they took on the death of S., without paying their legacies? And if the words of the will had gone no farther than, that in that case the farm should be divided between them, yet wc should have thought that they would have taken a fee.

For it is plain that the testatrix intended that they should hare' the same interest in it as S., and it is given' to them in lieu of their legacies', which they might have disposed of as they pleased, and therefore it is highly reasonable that they should-have the same power over the estate.” They then proceed to show that this construction was correct, from other portions of the will. The counsel for the appellants suggest that this decision has been called in question by Mr.

Powell, (2 Vol., 399, 404,) but we think that the remarks of that writer do not apply to the point of the case now relied upon, but to' the devise' over to the right heirs of the mother, in the event of all the daughters dying, in h-er lifetime. He introduces his objections to- this decision under the third division of

chapter 19, which- treats of the question, whether a fee is raised by an alternative devise in fee, and not under the second division, which relates■ to- estates- enlarged by implication, by a charge-imposed on the devisee.- Besides,-this judgment was affirmed-on appeal to the King’s Bench, (note (a,) page 144,) and is referred to by Preston, and by Powell himself, page 380, as' authority for the doctrine of estates of inheritance, by implication, where the devisee, or the land in his hands, is charged with- the payment of a sum to another, without questioning the correctness of the- decision as to the title of E. and M., merely upon the death of their sister without having- paid their legacies.- But, on the contrary, he'says that the rule'“applies in every case in which loss is possible.” If, therefore, we have shown- that there was a possibility of loss to James of the benefit intended for him by his father’s will, (and no purpose could be more meritorious than providing for his education- and commencement in life,) we may claim this author as sustaining-the view we have taken of the present case.

The objection that this is the only case in support of the appellee’s title cannot avail. It is to be observed that there is none to the .contrary, and being, as we think, in accordance with the principle of numerous adjudications on an analogous question, we may safely rely upon it in affirmance of the judgment below. Judgment affirmed=