This Court looks to the law of the state in which land is
situated for the rules which govern its descent, alienation, and
transfer, and for the effect and construction of wills and other
conveyances, and in the District of Columbia those rules are the
rules which governed in Maryland at the time when the District was
separated from it.
Under a will devising real estate in the District of Columbia to
M. A. M. during her natural life, and after her death to be equally
divided among the heirs of her body begotten, share and share
alike, and to their heirs and assigns forever, M. A. M. takes a
life estate only, and her children take an estate in fee.
Samuel De Vaughn, a resident of the District of Columbia, died
on the 5th day of July, 1867, leaving a last will and
Page 165 U. S. 567
testament dated April 20, 1861. This will was admitted to
probate September 1, 1867, and was, as to those of its provisions
which are involved in the present litigation, as follows:
"I give and bequeath unto my sister Susan Brayfield all my
personal property of whatever description."
"Item. I give and devise unto my sister Susan Brayfield the
whole square four hundred and eighty-three and improvements, also
lots twenty, twenty-one, and part of lot twenty-two in square three
hundred and seventy-eight, situated in the City of Washington,
during her natural life, and at her death to her daughters Mary
Rebecca Brayfield, Catharine Sophia Harrison, and Martha Ann
Mitchell, to be divided in the following manner, that is to say:
Martha Ann shall have one-half of lot twenty, as subdivided, being
seventy-three feet deep, having on the same two houses; to
Catharine Sophia, the other half (being the east half) of said lot
twenty, having also on the same two houses, and Mary Rebecca shall
have the corner store situated on lot twenty-one. Catharine Sophia
shall have the two houses next south of said corner store on said
lot twenty-one, and Martha Ann shall have the next two houses south
of the two to Catharine Sophia, and adjoining the same on said lot
twenty-one, and Mary Rebecca shall have the whole of that part of
lot twenty-two, as subdivided from lot twenty and improvements,
during their natural lives, and after their death to their heirs
begotten of their bodies, and to their heirs and assigns,
forever."
"I also desire that square four hundred and eighty-three shall
be subdivided at the death of my sister Susan Brayfield, and
distributed as follows: Mary Rebecca Brayfield shall have the whole
front on K Street, ninety feet deep to a ten-foot alley, which
comprises lots one and two, with all improvements on the same;
Martha Ann Mitchell shall have ninety feet on Sixth Street, running
that breadth through the square to Fifth Street, and Catharine
Sophia Harrison shall have the remainder north portion of said
square four hundred and eighty-three, during their natural lives,
and at their death to be equally divided among the heirs of their
bodies begotten, share and share alike, and to their heirs and
assigns forever. "
Page 165 U. S. 568
"Item. I give and devise to Mary Rebecca Brayfield the east part
of lot nineteen in square three hundred and seventy-eight, and all
improvements on said lot, front and rear, during her natural life,
and after her death to her heirs and assigns, forever."
"Item. I give and devise to Catharine Sophia Harrison the east
part of lot seventeen in square three hundred and seventy-eight,
including all improvements, and also that part as subdivided in the
rear in said square, during her natural life, and after her death
to the heirs of her body begotten, and to their heirs and assigns,
forever."
"Item. I given and devise to Martha Ann Mitchell, daughter of
Susan Brayfield, the west part of lot eighteen in square three
hundred and seventy-eight, and all improvements, including that
part as subdivided in the rear on said square, and to her heirs and
assigns, forever."
"I give and bequeath to my mother during her natural life, out
of the rents of lots No. twenty, twenty-one, and part of twenty-two
in square three hundred and seventy-eight, and also the whole of
square four hundred and eighty-three, devised to my sister Susan
Brayfield, the sum of twenty-five dollars per month, or, if
properly provided for by my said sister, then only five dollars per
month for her own use as she may think proper."
"Item. I give and devise to my brother John De Vaughn, in square
four hundred and eight, lot D, and parts of lots five in square
four hundred and give, and lot two in square four hundred and
eighty-seven, and all improvements, also lot eleven in square five
hundred and seventeen, lots four and five
in square four and
five in square seven hundred and eighty-five, and to his heirs
and assigns, forever, all of which property is situated in the City
of Washington, District of Columbia."
"Item. I give and devise to my brother William De Vaughn, of the
City of Alexandria, State of Virginia, lot three in square one
thousand and ninety-five, lot one in square six hundred and
seventy-seven, lot four in square forty-four, lot two in square one
hundred and twenty-nine, also lots B, C, D, F, and G in square
forty-three, all lying and being in the City
Page 165 U. S. 569
of Washington and District of Columbia, also the house and lot
on Henry Street in the City of Alexandria, State of Virginia, and
to his heirs and assigns, forever."
Martha Ann Mitchell, one of the devisees named in the will, died
in the year 1866, before the death of the testator, Samuel De
Vaughn, leaving, as her only children and heirs at law Benjamin D.
Mitchell, Richard R. Mitchell, and Sarah W. Hutchinson. Mrs. Susan
Brayfield, the tenant for life, died in December, 1891.
In May, 1892, James H. De Vaughn, Emily De Vaughn, and Rebecca
J. Kirk, as heirs at law of Samuel De Vaughn, brought in the
Supreme Court of the District of Columbia a bill in equity against
William H. De Vaughn and others, also heirs at law of Samuel De
Vaughn. The purpose of the bill was to have a declaration that, by
reason of the decease of Martha Ann Mitchell during the lifetime of
the testator, the devise to her lapsed and became void, and that
thereupon, upon the death of the testator and of Susan Brayfield,
the real estate described in said devises became vested in the
heirs at law of the said testator, as if the said testator had died
intestate as to said real estate; and, upon such declaration, that
the said real estate should be sold, and the proceeds of such sale
should be distributed among the parties lawfully entitled thereto
as heirs at law of the said Samuel De Vaughn.
To this bill appeared Benjamin D. v. Mitchell and others, the
children of the said Martha Ann Mitchell, who were living at the
death of the said testator, and who filed a demurrer to said bill.
Upon argument in the Supreme Court of the District of Columbia, the
demurrer was sustained, and, the complainants electing to stand on
their said bill, a final decree was entered, dismissing the bill,
and awarding an account of rents and profits.
From this decree an appeal was taken to the general term, but
the cause was thereafter transferred to and heard in the Court of
Appeals of the District of Columbia, and on April 2, 1894, the
decree of the Supreme Court was affirmed. From the decree of the
Court of Appeals an appeal was duly prayed and allowed to this
Court.
Page 165 U. S. 570
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is a principle firmly established that to the law of the
state in which the land is situated we must look for the rules
which govern its descent, alienation, and transfer, and for the
effect and construction of wills and other conveyances.
United States v.
Crosby, 7 Cranch 115;
Clark v.
Graham, 6 Wheat. 577;
McGoon v.
Scales, 9 Wall. 23;
Brine v. Insurance
Co., 96 U. S. 627.
Accordingly, in the present case we are relieved from a
consideration of the innumerable cases in which the courts in
England and in the several states of this Union have dealt with the
origin and application of the rule in
Shelley's Case. We
have only to do with that famous rule as expounded and applied by
the courts of Maryland while the land in question formed part of
the territory of that state, and to further inquire whether, since
the cession of the lands forming the District of Columbia, there
has been any change in the law by legislation of Congress.
We learn from the reported cases that the rule, as established
in the jurisprudence of England before the American Revolution, was
introduced into Maryland as part of the common law, and has been
constantly recognized and enforced by the courts of that state.
Horne v. Lyeth, 4 Har. & Johns. 435;
Ware v.
Richardson, 3 Md. 505;
Shreve v. Shreve, 43 Md. 382;
Dickson v. Satterfield, 53 Md. 317;
Holstead v.
Hall, 60 Md. 209.
But we also learn from those cases and other Maryland cases that
might be cited that, though the rule is recognized as one of
property, yet if there are explanatory and qualifying expressions
from which it appears that the import
Page 165 U. S. 571
of the technical language is contrary to the clear and plain
intent of the testator, the former must yield and the latter will
prevail.
Thus, in the case of
Shreve v. Shreve, 43 Md. 382,
where there was a devise to named children of the testator for and
during their natural lives, and on the death of said children or
either of them to his or her issue lawfully begotten and their
heirs or assigns, forever, it was held that the word "issue," used
in the clause cited, was a word of purchase, and in the opinion it
was said:
"Again, there are words of limitation superadded to the gift to
the issue; it is to them and
their heirs forever. Now in
the well known case of
Luddington v. Kime, 1 Ld.Raym. 203,
the devise was in very nearly the same terms,
viz., to A.
for life without impeachment of waste and, in case he should leave
any
issue male, then to such
issue male and
his heirs forever, with a limitation over in default of
such issue, and the court held the testator intended the word
issue should be
designatio personae, and not a
word of limitation, '
because he added a further limitation to
the issue, viz., and to the heirs of such issue forever.' The
principle deduced from this case is thus stated in 6 Cruise's
Digest, vol. 6 (3d Am. ed.), page 259:"
"Where an estate is devised to a person for life, with remainder
to his issue, with words of limitation added, the word 'issue' will
in that case be construed to be a word of purchase."
The court in
Shreve v. Shreve took notice of the fact
that the case of
Luddington v. Kime has been doubted,
particularly by Powell in his learned work on Devises, but the
Maryland court adds:
"But these views [of Powell] do not appear to have been adopted
by the most recent English decisions, for in
Golder v.
Cropp, 5 Jurist, N.S. 562, where a testator devised property
to his daughter for life, and after her death to the issue of her
body lawfully begotten, to hold to them and their heirs forever as
tenants in common and, in default of such issue, then over, it was
held that the daughter took but a life estate. That case was
decided by Sir J. Romilly, M.R., and his opinion is thus briefly
and emphatically expressed:"
"I have always considered that where an estate is given to
Page 165 U. S. 572
the ancestor, and there is a direction that it is afterwards to
go to the issue of his body, and the mode in which the issue are to
take is specified, with words added giving them the absolute
interest, there the ancestor takes an estate for life, and not an
estate tail, although there is a devise over in the event of the
ancestor not having any issue. No one can doubt that the word
issue is here used as equivalent to
children. I
am of opinion the daughter takes an estate for life, and that her
issue take as purchasers an estate in fee simple, as tenants in
common."
"So, in the still more recent case of
Bradley v.
Cortwright, L.R. 2 C.P. 511, it was held that where an state
is given for life, and the remainder to the issue is accompanied by
words of distribution, and by words which would convey an estate in
fee or in tail to the issue, the estate of the first taker is
limited to an estate for life, and that whether the estate is given
in fee to the issue by the usual technical words 'heirs of the
body' or by implication."
"It may be, as stated by Mr. Powell, that subsequent decisions
in England have in effect overruled
Luddington v. Kime,
and that at the present time the will before us would receive a
different construction in the English courts, but we have been
referred to no decision in this country, nor are we aware of any,
in which that case has been overruled or its authority questioned.
It is, with others, cited by Chancellor Kent as authority for the
position that where the testator superadds words of explanation or
fresh words of limitation, and a new inheritance is grafted upon
the heirs to whom he gives the estate, the case will be withdrawn
from the operation of the rule. 4 Kent's Com. 221. It meets an
approving reference in the very able opinion of Yeates, J., in
Findlay v. Riddle, 3 Binney 156, where there was a devise
to A for life and, if he died leaving lawful issue, to his heirs as
tenants in common and their respective heirs and assigns, and the
court held that A took only an estate for life with a contingent
remainder to his heirs."
"But that is more important to the decision of this case is the
fact that the doctrine of
Luddington v. Kime and other
Page 165 U. S. 573
similar cases has been repeatedly recognized and approved by the
courts of this state. Thus, in
Horne v. Lyeth, 4 H. &
J. 435, a case which Chancellor Kent cites as containing a learned
and accurate exposition of the rule under all its modifications and
exceptions, we find an exception to its operation thus stated:"
"So where the persons to take cannot take as heirs by the
description by reason of a distributive direction incompatible with
a course of descent, as where gavelkind lands were devised to A and
the heirs of her body, lawfully to be begotten, as well males and
females, and to their
heirs and assigns forever, to be
equally divided between them, share and share alike, as tenants in
common and not as joint tenants; in this case it was held that the
words 'heirs of the body' did not operate as words of limitation,
because they were corrected or explained by the words which
followed, and were irreconcilable with the notion of descent, and
also because there were words of fee engrafted on the words of
limitation, which showed that the estates given to the
children, and not the estate of A, were to be the groundwork of
succession of heirs, or, in other words, that the children of A
were to be the
termini for the succession to take its
course from."
"Again, in
Lyles v. Diggs, 6 H. & J. 373, we find
approval of
Backhouse v. Wells, (another case that Mr.
Powell insists has been overruled in England), in reference to
which the court say:"
"The devise was to one for life, and after his decease to the
issue male of his body, and to the heirs male of the bodies of such
issue, and the first taker was held to have only an estate for
life, the word
issue not being
ex vi termini a
word on limitation, and the words of limitation grafted upon it, as
in this case, showing that it was used as a word of purchase, and
as descriptive of the person who was to take the estate tail."
"In
Chilton v. Henderson, 9 Gill 432, the testator
devised land to his son for life, and if he should have lawful
issue of his body, then such issue, after the son's death, to have
the land in fee tail, and if the son died without such issue, then
over, and it was held that the son took but a life estate. In the
opinion prepared by Judge Magruder in that case, which
Page 165 U. S. 574
is reported in a note to
Simpers v. Simpers, 15 Md.
191, he says:"
"In the case now to be decided, there are words superadded to
the word 'issue' quite sufficient to give them the inheritance, and
the law is that where an estate is devised to a person for life,
with remainder to his issue, with words of limitation superadded,
the word 'issue' will in that case be construed to be a word of
purchase, which is the doctrine of
Luddington v. Kime,
cited from Cruise's Digest. . . ."
"After this repeated and recent recognition by our predecessors
of this rule of construction derived from
Luddington v.
Kime and other like cases in the earlier English reports, we
are constrained to hold that it applies to and governs that part of
that clause of this will which we have thus far considered, even
though we may be of opinion a different construction would be given
to it by the courts of England. Having thus determined the word
'issue' is here used as a word of purchase, it is clear it must
bear the same construction when used in the immediately following
sentence,"
"and, if any of said children shall die without issue lawfully
begotten, I give, devise, and bequeath his or her portion to the
surviving child or children and their issue, and to the heirs of
said issue, forever."
"In other words, the portion given to each child for life goes,
in case he dies without leaving children, in the same way as the
original share -- that is, to the surviving children for life, and
upon their death to their issue in fee."
We have extracted such large portions of the opinion in this
case of
Shreve v. Shreve because it plainly shows that the
will before us in the present case would have been construed by the
Supreme Court of the State of Maryland as creating a life estate
only in Martha Ann Mitchell, and an estate in fee in the heirs of
her body begotten. It is true that the words in
Shreve v.
Shreve were
issue lawfully begotten, but the case of
Horne v. Lythe, 4 H. & J. 435, is approved, where the
words "the heirs of her body lawfully to be begotten" were
similarly construed.
In
Clark v. Smith, 49 Md. 117, the court, by Alvey, J.,
stated the rule as follows:
"It is a well settled rule of construction that technical
Page 165 U. S. 575
words of limitation used in a devise, such as 'heirs' generally,
or 'heirs of the body,' 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 of the
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 they must be clearly intelligible and
unequivocal."
Though these decisions were made since the lands in question in
this case became part of the District of Columbia, yet their
reasoning is based upon the history of the law in Maryland ever
since that state became independent, and we are therefore warranted
in the conclusion that the law as laid down in the cited cases was
the law when the State of Maryland ceded to the United States the
territory now embraced in the City of Washington and District of
Columbia.
It is not claimed that there has been any legislation by the
Congress of the United States which has modified or changed the law
in this particular as it was when the lands in question were
subject to the law of Maryland.
Nor do we find that there has been any attempt by the courts of
the District to lay down a different rule. What is the law of those
courts we learn from the opinion of the Court of Appeals filed in
this case, reported in 3 D.C.App. 50, where the doctrine was thus
stated:
"It is certainly a well settled principle in the law of real
property, indeed as well settled as the rule in
Shelley's
Case itself, that where an estate is expressly devised to a
person for life, with remainder to the
heirs of his body,
and there are words of explanation annexed to such word
heirs from whence it may be collected that the testator
meant to qualify the meaning of the words
heirs, and not
to use it in a technical sense, but as descriptive of the person or
persons to whom he intended to give his estate after the death of
the first devisee, the word
heirs will in such case
operate as word of purchase. "
Page 165 U. S. 576
As this opinion was delivered by a judge who was but recently
the Chief Justice of the Court of Appeals of Maryland, it may not
be out of place to quote what he says respecting the law of that
state:
"In the courts of Maryland, where the law of real property is
supposed to be the same as that which prevails in this District
except as it may have been changed by positive legislation since
the cession by that state, the same principle of construction has
been fully recognized and applied in numerous cases. This will
clearly appear upon examination of the cases of
Horne v.
Lyeth, 4 H. & J. 435;
Chelton v. Henderson, 9
Gill. 432;
Shreve v. Shreve, 43 Md. 382;
Fallon v.
Harman, 44 Md. 263, and
Clark v. Smith, 49 Md.
117."
The case of
Daniel v.
Whartenby, 17 Wall. 639, was cited by the court
below, and is discussed in the briefs of the respective counsel.
The syllabus of the case is as follows:
"A testator gave his estate, both real and personal, to his son
R. T. 'during his natural life, and after his death to his issue,
by him lawfully begotten of his body, to such issue, their heirs
and assigns, forever.' In case R. T. should die without lawful
issue, then, in that case, he devised the estate to his own widow
and two sisters 'during the natural life of each of them, and to
the survivor of them,' and, after the death of all of them, to
I.W., his heirs and assigns, forever, with some provisions in case
of the death of I. W. during the lifetime of the widow and sisters.
Held that the rule in
Shelley's Case did not
apply, and that the estate in R. T., the first taker, was not a fee
tail, but was an estate for life, with remainder in fee to the
issue of his body, contingent upon the birth of such issue, and, in
default of such issue, remainder for life to his widow and sisters,
with remainder over in fee, after their death, to I. W."
This case came up on a writ of error to the Circuit Court of the
United States for the District of Delaware, and it is noticeable
that the reasoning of this Court did not proceed upon the law as
expounded by the courts of that state, but rather upon a general
view of the English and American cases. Still, as the judgment of
the circuit court was
Page 165 U. S. 577
affirmed, we may well suppose that the conclusion reached in
this Court was in conformity with the law as applied in the State
of Delaware.
The rule extracted from the cases was thus stated by Mr. Justice
Swayne:
"In considering the rule in
Shelley's Case with
reference to the present case, a few cardinal principles, as well
settled as the rule itself, must be kept in view. In construing
wills, where the question of its application arises, the intention
of the testator must be fully carried out so far as it can be done
consistently with the rules of law, but no further. The meaning of
this is that if the testator has used technical language which
brings the case within the rule, a declaration, however positive,
that the rule shall not apply, or that the estate of the ancestor
shall not continue beyond the primary express limitation, or that
his heirs shall take by purchase, and not by descent, will be
unavailing to exclude the rule, and cannot affect the result. But
if there are explanatory and qualifying expressions from which it
appears that the import of the technical language is contrary to
the clear and plain intent of the testator, the former must yield,
and the latter will prevail."
And, after examining the language used, the conclusion was thus
expressed:
"We entertain no doubt that the testator intended to give a life
estate only to Richard and a fee simple to his issue, and that they
should be the springhead of a new and independent stream of
descent. We find nothing in the law of the case which prevents our
giving effect to that intent."
We agree with the court below that the reasoning of the case of
Daniel v. Whartenby, if applicable to the present case,
would sustain the construction put upon the will of Samuel De
Vaughn by the Supreme Court of the District.
But even if that case be regarded as declaratory only of the law
of Delaware, its principles were followed and applied in the
subsequent case of
Green v.
Green, 23 Wall. 486, involving the construction of
a conveyance of lands situated in the District of Columbia, and
where the cases of
Daniel v. Whartenby, supra,
Page 165 U. S. 578
and
Ware v. Richardson, 3 Md. 505, were both
approved.
We therefore think it clear that, under the law as declared in
the courts of Maryland and of the District of Columbia, Martha Ann
Mitchell took a life estate only, and that her children took an
estate in fee.
In the view that we have taken of the case, we are not called
upon to reinforce the reasoning of the cases cited, but we shall
add a single observation, in application of Chancellor Kent's
statement of an exception to the rule. 4 Kent's Com. (6th ed.) 221.
The word "heirs," in order to be a word of limitation, must include
all the persons in all generations belonging to the class
designated by the law as "heirs." But the devise here was to Martha
Ann for life, and at her decease to her heirs begotten of her body,
and to
their heirs and assigns -- a restricted class of
heirs -- and this limitation shows that it was the intention of the
testator that Martha Ann's children should become the root of a new
succession, and take as purchasers, and not as heirs.
The decree of the court below is
Affirmed.
