The statute of descents in Maryland has not declared how an
intestate estate shall descend which was derived to the intestate
from his half-brother, or from his brother of the whole blood, or
from his son or daughter, or from his wife, but such estates are
left to descend as at common law.
A devise to A. in fee, and if he shall die under the age of
twenty-one years and without issue then to B. in fee, is a good
executory devise, and if B. die before the contingency happen, it
devolves upon his heir, and so from heir to heir until the
contingency happen, when it vests absolutely in him only who can
then make himself heir to B., the executory devisee. And although
A. be the heir at law of B., yet the executory devise thus
devolving on him is not merged in the precedent estate, but, on the
death of A., devolves to the next heir of B.
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 he chance to die before the contingency
happens. In such case, it does not, however, 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 of the first devisee, at the time when the contingency
happens, and the executory devisee falls into possession.
One tenant in common cannot maintain ejectment against his
co-tenant without actual ouster.
Error to the Circuit Court for the District of Maryland in an
ejectment brought by the lessee of Barnitz against Casey to try the
title of Barnitz to certain real estate in Baltimore.
The facts of the case were stated by STORY, J. in delivering the
opinion of the Court, as follows:
On or about 6 Feb., 1780, Daniel Barnitz died seized of the
premises in the declaration mentioned, having, by his will devised
the same to his wife, Catharine Barnitz, in fee, and leaving issue
by his said wife, an only child and heir, Elizabeth Barnitz, who
intermarried with one Charles McConnell, by whom she had an only
child, John McConnell, after whose birth, and sometime in 1781,
Charles McConnell died. Afterwards, his widow, Elizabeth,
intermarried with one John Hammond, by whom she had one child only,
John Barnitz Hammond, and died on 22 April, 1788. After her death,
John Hammond intermarried with Elizabeth Anderson and died on 7
April 1805, leaving issue by the last marriage, Jane B. Hammond and
Henry Hammond, his heirs at law, who are now alive, under whom the
defendant in ejectment claims. On 7 April, 1794, Catharine Barnitz
died seized of the premises,
Page 11 U. S. 457
having first duly made her last will and testament. By that will
she devised to the said John McConnell in fee, two certain parcels
of land. She then devised another parcel of land, including her
mansion house to the said John Barnitz Hammond to the intent and
uses following,
viz., subject (as to the rents thereof) to
certain trusts for the maintenance and education of the said John
Barnitz Hammond and for the payment of certain specific debts of
the testatrix,
"to the use of John Hammond, the father, for and during the
minority of the said John B. Hammond, if he shall so long live,
provided the said John Hammond shall maintain, clothe, and educate
the said John B. Hammond out of the rents thereof during his
minority, and from and immediately after the said John B. Hammond
shall arrive to the age of 21 years or the death of the said John
Hammond, his father, which shall first happen,"
then to the said John B. Hammond in fee. The testatrix then
provides,
"and if it should hereafter happen that the said John McConnell
should die before he shall arrive to the age of 21 years and
without issue, then I give, devise, and bequeath all the estate of
the said John McConnell which is hereby devised to him to go
immediately to the said John B. Hammond, his heirs and assigns
forever. And if it should hereafter happen that the said John B.
Hammond should die before he shall arrive to the age of 21 years
and without issue, then and in such case, after the payment of my
debts as above mentioned, I give, bequeath, and devise [the same
land and mansion house before devised to John B. Hammond] to the
said John Hammond, his heirs and assigns forever, and also all the
residue of estate hereinbefore or after devised to the said John B.
Hammond, and not hereby otherwise disposed of, I then and in such
case give and devise the same to the said John McConnell, to hold
to him, his heirs and assigns forever from and immediately after
the death of the said John B. Hammond as aforesaid, and in case of
the death of both of my grandsons under age and without issue as
aforesaid, then I give, devise, and bequeath all that part of my
estate which I have hereinbefore given to the said John McConnell
to Charles Barnitz, of . . . to hold to him, his heirs and assigns
forever. "
Page 11 U. S. 458
The testatrix then provides for the payment of her debts by a
sale, if necessary, of some of her lots of land, on or near church
hill in Baltimore, and then proceeds,
"And I give and devise all the rest and residue of the said lots
on or near church hill aforesaid, and all my estate therein
(subject nevertheless to the devises aforesaid) to my said
grandsons John McConnell and John B. Hammond, their heirs and
assigns forever, to be equally divided between them, share and
share alike, as tenants in common and not as joint tenants."
After some intermediate bequests, the testatrix devises
"all the rest, residue, and remainder of her estate, real and
personal, to the said John McConnell and John B. Hammond, their
heirs and assigns forever, to be equally divided between them,
share and share alike."
John McConnell attained his full age of 21 years, married, had
issue, and afterwards, on 7 April, 1802, died without leaving any
surviving issue. And John B. Hammond died on 12 February, 1808,
under the age of 21 years, and without issue.
The lessors of the plaintiff are the children and heirs at law
of Charles Barnitz, who was the only brother of Daniel Barnitz, the
testator. And upon the defect of lineal heirs, the said lessors
claim as next heirs, in blood, of John McConnell, on the part of
his mother Elizabeth Barnitz, the daughter of Daniel Barnitz. It is
admitted that the inheritable blood is extinct on the part of
Charles McConnell, the father of John McConnell.
At the death of John B. Hammond, the property consisted of four
descriptions, which it may be proper to enumerate.
1. The land specifically devised to John McConnell, with a
limitation over to John B. Hammond.
2. The land specifically devised to John B. Hammond, with a
limitation over in fee to his father.
3. The moiety of the church hill lots, and the residuary estate
devised to John McConnell, in fee.
Page 11 U. S. 459
4. The moiety of the church hill lots, and the residuary estate
devised to John B. Hammond in fee, with a limitation over to John
McConnell.
At the time of the death of Catharine Barnitz (as she survived
her daughter), her two grandsons, McConnell and Hammond, were her
heirs at law.
Page 11 U. S. 464
MR. CHIEF JUSTICE MARSHALL, WASHINGTON, DUVALL and STORY, J.
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 Roll.Abr. 626; 30 Hob. 30; 1 Salk. 242; 1 Bl. 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 the 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
McConnell, 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 McConnell at the time when the contingency
happened, although not heirs at the time of his death.
Page 11 U. S. 465
The decision of these points depends upon the true construction
of the Statute of Descents of Maryland and the application thereto
of the principles of the common law.
This Statute of Descents, 1786, ch. 45, after reciting that the
law of descents which originated with the feudal system and
military tenures, is contrary to justice, and ought to be
abolished, enacts
"That if any person seized of an estate . . . shall die
intestate thereof, such lands . . . shall descend to the kindred,
male and female, of such person in the following order, to-wit,
first, to the child or children, and their descendants, if any,
equally, and if no child or descendant, and 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 father of such grandfather in equal degree, and so on, passing
to the next lineal male paternal ancestor, and if none such, to his
descendants in 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. And 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 no such
descendant
Page 11 U. S. 466
of such grandfather then to the father of such grandfather, and
if none such living, then to his descendants in equal degree, and
so on, passing to the next male maternal ancestor, and if none such
living, to his descendants in equal degree, and if no such maternal
ancestor, or descendant from 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 paternal ancestors and
their descendants, in the same manner as is above directed as to
the maternal ancestors."
"And if the estate is or shall be vested in the intestate by
purchase, and 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 and 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 descendant from
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, then to the father, and 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 the descendants of such grandfather in equal degree
equally, and if no such grandfather or any descendant from him,
then to the grandfather on the part of the mother, and if no such
grandfather, then to his descendants in equal degree equally, and
so on without end, alternating the next male paternal ancestor and
his descendants, and the next male maternal ancestor and 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 take the estate, then the same shall go
to the husband or wife, as the case may be; and if the husband or
wife be dead, then to his or her kindred in the like course as if
such husband or wife had survived the intestate, and then had died
entitled to the estate by purchase; and if the intestate has had
more husbands or wives than one, and all shall die before such
intestate, then the estate shall be equally divided among the
kindred of the several husbands or wives in equal degree equally.
"
Page 11 U. S. 467
Three classes of cases are here in terms provided for.
1. "Estates descended to the intestate on the part of the
father."
2. "Estates descended to the intestate on the part of the
mother."
3. "Estates vested in the intestate by purchase and not derived
from or through either 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 not 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, but they apply it in a very
different manner. 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
connection from and through whom the consanguinity was to be
sought; that therefore the descent in such case is
ex parte
paterna or
materna, as the father or mother happens
to be the
commune vinculum. And the plaintiffs rely on the
words "and not derived from or through either of his ancestors," in
the clause embracing the third class, as distinctly showing that
the legislature deemed every case of descents to be completely
within the preceding classes. On the other hand, the defendants
contend that whatever might be the legislative supposition, it is
impossible to support the position that a descent from brother to
brother or from child to parent is a descent
ex parte
paterna or
materna.
Page 11 U. S. 468
It is therefore either a
casus omissus or the words
"and not derived from or through either of his ancestors" are to be
considered not as qualifying and limiting 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
paternal or maternal descents.
There are certainly intrinsic difficulties in admitting either
of these constructions. If the legislature has proceeded on a
mistake, it would be dangerous to declare that a court of law was
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 has expressed an
intention to form a scheme of descents, the court was 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 either
party.
It is not a descent from 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 uses the words "descent" and
"purchase" in their 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 child 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 law. It is therefore, in our judgment, perfectly clear 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 apply this to the present case. By the arrival of John
McConnell at the age of 21 years, all the estates
Page 11 U. S. 469
devised to him immediately became absolute estates in fee
simple. On his 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 thereto.
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 McConnell 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 is not too
remote if the contingency may happen within a life or lives in
being or 24 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 his 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. 1 Wils. 140, 270; 2 Burr 873; 1 Saund. 174; 5 Bos.
& 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 transmissibility 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 he chance to die before the
contingency happens. Pollexfen 54; 1 99; Cas.Temp.Talb. 117. 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
Page 11 U. S. 470
the time when the contingency happens and the executory devise
fails into possession.
This rule is adopted in analogy to that rule of descent which
requires that a person who claims a fee simple by descent from one
who was first purchaser of the reversion or remainder expectant on
a freehold estate must make himself heir of such purchaser at the
time when that reversion or remainder falls into possession.
Co.Lit. 11. (b) 14, (a) 3 42. Nor does it vary the 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 it 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
Wils. 29, is decisive on this point, and indeed runs on all fours
with the present.
But it is contended that the Statute of Descents of Maryland has
changed the 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 are in 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 intestate's death, but any child or
descendant of the intestate, born after the death of the intestate,
shall have the same right of inheritance 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 take, 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, and not to make persons heirs, 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
Page 11 U. S. 471
posthumous children, and cases where a descent to an heir had
been defeated by the subsequent birth of a nearer heir. The
argument of the defendants on this point ought not, therefore, to
prevail. No question has been made as to the land specifiedly
devised to John B. Hammond in fee with a limitation over to his
father 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 McConnell, at the
happening of the contingency, on the death of John B. Hammond,
under age and without issue, to one moiety of the Church hill
lands, and the 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 an
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, in the
opinion of a majority of the court, must be
Affirmed with costs.
