The testator devised to his wife one-third of his personal
estate forever for her own proper use and benefit, and also
one-third of all his real estate during her lifetime, and in the
event of her death, all the right in real property bequeathed to
her should be, and by the will is, declared to be vested in his
infant son. The testator then proceeded to devise sundry lots and
houses to his mother, his sisters, his brothers separately, and his
son. These are given to their respective devisees "as their
property forever." He then devised the balance of his real estate
to his infant son "forever," believed to be certain lots specified
in the will.
Held that the wife took under the will
one-third of all the real estate of the testator during her life,
and that his son took a fee simple in one-third of the property
given to the brothers and sisters of the testator, subject to the
devise to his mother, and a fee simple in all the real estate
specifically devised to him, subject to the devise of one-third to
his mother during her life.
The devisee of one of the lots devised to him forever, which the
court held was subject to the right to one-third in the wife of the
devisor and one-third after her decease in fee to the son of the
devisor, cannot, by a proceeding in chancery, compel a sale of the
property devised, or a partition, without the court is satisfied it
would be for the benefit of the infant son to make such sale, and
without the consent of all the other parties interested in the
property.
The appellant, John Walker, filed a bill in the Circuit Court of
the County of Washington stating that James Walker, late of
Washington, by his last will and testament, had bequeathed to him
and to his then wife, Ann Sophia Walker, since intermarried with
George Parker, one-third of his real estate during her life, and in
the event of her death, all the right bequeathed to her is declared
to be vested in his infant son, James Walker. James Walker, the
son, claims the right in fee simple, after her death, of the
portion of the estate devised by the testator to his wife. The
testator in a subsequent part of his will, bequeathed other parts
of his estate in fee to other persons, and among them to his said
infant son, James Walker. The bill then states the particular
estates devised by the will to the complainant himself and the
others of the family of the testator, and alleges the same to have
been devised to them in fee simple, free and clear of any right of
the widow of the testator or of his son.
Ann Sophia Parker, who was the wife of the testator, James
Walker, and her present husband, George Parker, the bill states,
insist upon the right of the said Ann to one-third of the lots and
houses bequeathed by the will, and refuse to permit the complainant
to dispose of the same, and claim a right to exact one-third of the
rents thereof and to have a right to rent the same as they
please.
The bill proceeds to state that the complainant is advised that
Ann Sophia Parker and her husband have no right in the lots held by
him under the will of James Walker, nor has any other person a
right to them to his prejudice, but should the court think
differently,
Page 38 U. S. 167
the bill states that the property cannot be divided without
great injury and that the complainant is desirous to sell the lots
and property devised to him and those under whom he holds. The
complainant states that he is desirous to have the exclusive
control of his own property, and that if the said Ann Sophia has a
right of dower in the property, he asks that the same be assigned
to her and that the rights of the minor be assigned, and if this
cannot be done that the property be sold and out of the proceeds of
the sale an equivalent be allowed for their interest therein.
The bill asks that Ann Sophia Parker and the infant son of the
testator and his testamentary guardian be enjoined from setting up
any claim to the property held by him or to which he is entitled
under the will of James Walker, and that he may be quieted in his
possession and enjoyment of the premises. The bill also asks for
further and general relief.
The will of James Walker was made on 17 September, 1832, and
admitted to probate on 25 September in the same year.
The material parts of the will are the following:
"I bequeath and give to my dearly beloved wife, Ann Sophia
Walker, one-third of the whole of my personal estate, forever, for
her own proper use and benefit, and also one-third of all my real
estate during her lifetime, and in the event of her death, all the
right in real property hereby bequeathed to her shall be and is
hereby declared to be vested in my dear and infant son, James
Walker."
"I bequeath and give to my dearly beloved brother, John Walker,
forever, all of lot numbered six in square one hundred and six,
with the two-story brick house, back building, and all
appurtenances thereto belonging."
"I bequeath and give to my dearly beloved brother, Lewis Walker,
forever, lots twenty-three, twenty-four, and twenty-five in square
numbered one hundred and six, together with a two-story brick
building, with a basement story, back building, and all
appurtenances thereto belonging, and erected on one or more of said
lots."
"I bequeath and give to my dearly beloved brother, Henry Walker,
forever, lot numbered six, in square four hundred and three,
together with the improvements thereon erected, and appurtenances
thereto belonging."
"I bequeath and give to my dearly beloved sister, Margaret Peck,
lots numbered twenty-one, twenty-two, twenty-six, and twenty-seven
in square numbered one hundred and six, together with a two-story
frame house erected on lot number twenty-seven as her property
forever."
"I bequeath and give to my dearly beloved sister, Louisa
Ballard, forever, lot numbered four, in square numbered four
hundred and thirty-two, together with the three-story brick house
erected thereon, and all the appurtenances thereto belonging. "
Page 38 U. S. 168
"I bequeath and give to my dearly beloved sister, Sarah
McCallion, part of lot numbered eight, in square numbered
seventy-four, together with the frame house erected thereon, as her
property forever."
"I bequeath and give to my dear and infant son, James Walker,
lot numbered twenty-two, in square numbered three hundred and
fifty-two, together with two two-story brick houses, and other
buildings thereto belonging, as his property forever. I also
bequeath and give to my infant son, James Walker, forever, the
balance of my real estate, believed to be and to consist in lots
numbered six, eight, and nine, with a house, part brick and part
frame, erected on one of said lots, in square one hundred and
sixteen; lots thirty-one, thirty-two, and thirty-three, in square
numbered one hundred and forty, and a slaughterhouse erected on one
of said lots; lots numbered eight and eleven, in square numbered
two hundred and fifty; and lot numbered twenty-eight, in square
numbered one hundred and seven. And further, I bequeath and give to
my infant son, James Walker, one thousand dollars, to be paid out
of my personal estate to, and applied, at the discretion of his
guardian, hereinafter appointed, for the education of my son, James
Walker. The balance of my personal estate, whatever it may be, I
desire shall be equally divided between my mother, Dorcas Walker,
my sister, Sarah McCallion, and my brothers, John, Lewis, and Henry
Walker."
The defendants all answered (including the minor James Walker,
whose answer is put in by George Cover under a special appointment
or him by the court to answer for said infant), and substantially
admit the facts stated in said bill, but they all, with the
exception of Peck and wife, aver that the property cannot be
divided without prejudice, and refuse to agree to a sale.
The case being submitted on bill, answers, and exhibits, the
court dismissed the bill: from which dismissal this appeal was
taken by the complainant.
Page 38 U. S. 171
MR. JUSTICE McLEAN delivered the opinion of the Court.
Page 38 U. S. 172
The complainant filed his bill stating that, as devisee of James
Walker, he claims the fee in lot numbered six in square one hundred
and six, with all the improvements thereon, in the City of
Washington, and also under a deed from Margaret and James Peck lots
numbered twenty-one and twenty-two in the same square, which lots
were devised to the said Margaret in the same will. And that the
wife of the devisor, since intermarried with George Parker, claims
under the will one-third of the above property during her life, and
that at her death it shall go to the son of the deceased named in
the will.
And the complainant insists that he is entitled to the whole of
the property, free from the claims of the wife of the devisor or
her son, and he prays that the court may so decree. But if the
court should think that he is only entitled to two-thirds of the
property, then he asks a division of it or that it may be sold, as
shall be deemed proper.
The wife of the devisor and her present husband and the infant
son, by guardian, assert their interest in one-third of the
premises in their answers, and are opposed to a sale or division of
the premises because, among other reasons, it would be prejudicial
to the interest of the infant son and devisee of the deceased.
Almost every part of the will has some bearing on the question
raised by the complainant.
In his first devise, the testator says
"I bequeath and give to my dearly beloved wife, Ann Sophia
Walker, one-third of the whole of my personal estate forever for
her own proper use and benefit, and also one-third of my real
estate during her lifetime, and in the event of her death, all the
right in real property hereby bequeathed to her shall be and is
hereby declared to be vested in my dear and infant son, James
Walker."
He then gives to his mother "forever" a certain lot with its
improvements. And then follows the devise to the complainant in
these words: "I bequeath and give to my dearly beloved brother,
John Walker, forever, all of lot numbered six," &c. The devise
of the two lots to Margaret Peck is that they shall be "her
property forever."
Several other devises of real property are made in the same form
to his brothers and sisters, and then he says, "I bequeath and give
to my dear infant son, James Walker, lot numbered twenty-two, in
square numbered three hundred and fifty-two," &c.
"I also bequeath to him forever, the balance of my real estate,
believed to be and to consist in lots numbered six, eight and nine,
in square one hundred and sixteen, lots thirty-one, thirty-two and
thirty-three, in square numbered one hundred and forty; lots
numbered eight and eleven in square numbered two hundred and fifty,
and lot numbered twenty-eight in square numbered one hundred and
seven."
It is contended by the counsel for the complainants that the
specific devises to the brothers and sisters of the deceased show
his intention
Page 38 U. S. 173
to give to them the property devised, clear of all encumbrance,
and that the devise of the real estate to the widow must be
satisfied out of the residuary devise to the infant son of the
deceased.
The devises are inconsistent with each other, but they are not
entirely so. The whole of any specific property is not devised to
each of two devisees. The devise of one-third of his real estate to
his wife, and at her death to his son, is to this extent
inconsistent with the specific devises which follow and which
dispose of all his real estate.
The devise of the "balance" of his real estate to his infant son
goes on to describe particularly the property.
From his first devise to his wife, there can be no doubt that
the testator intended to give her what the law allowed her to take.
And it cannot be supposed that by the subsequent specific devises
he designed to defeat this arrangement. It is equally clear that he
intended, on the death of his wife, that the property devised to
her should go to his son.
The construction urged that "all the right in real property
hereby bequeathed to her" shall go to his son means a life estate
only in one-third of the real property to the son cannot be
sustained. The words, "all the right," fairly import the entire or
perfect right "in the real property given to his wife." This
reference to the devise to the wife is descriptive of the extent of
the property to be vested in fee in the son. The right of his wife
was to terminate at her death, and it would be inconsistent to
suppose that the testator would dispose of the same right, and no
more, to his son.
This devise to his wife and son is a leading devise in the will.
It was first in the mind of the testator, and must limit and
control the other devises. The devises to the son are as specific
as those to other persons, and there would seem to be little or no
ground for the construction that the devise to the wife must be
satisfied out of the devises to the son. One-third of the entire
real estate is given to the wife, and on her death this third goes
to the son, and in the conclusion of the will certain lots are also
specifically devised to the son. The son, in common with the other
devisees, takes the lots specifically devised to him, subject to
the devise of one-third to his mother, and at her death he takes
this third of these lots, and one-third of each specific devise in
the will.
This construction gives effect to the different devises of the
will, and it would seem to be the only mode by which the intention
of the testator can be effectuated. And it is in accordance with
that well settled rule in the construction of wills which regards
the interest of the heir at law.
With the exception of the devises to the wife and son, all the
devises are collateral, and take the property from the line of
descent established by law.
Page 38 U. S. 174
If the complainant can hold the lots claimed by him free from
the devise to the wife of the testator, by the same rule every
other devisee in the will must hold in the same manner. And this
would defeat the leading devise, for the entire real estate is
specifically disposed of in the will.
If the devise to the wife be thrown upon the specific devises to
the son, it not only violates the rule which it is claimed exempts
the specific devises from this devise to the wife, but supposes
that the testator first devises to his wife and son one-third of
his real estate, and then at the conclusion of his will gives
specific devises to his son, which are intended wholly as to him to
annul the first devise.
This construction would do injustice to the language of the
testator and defeat his intention.
Had the widow taken a life estate under the law, her interest of
one-third would have extended to every part of the real property of
her deceased husband. And as the devise is made in as general terms
as the statute which gives dower, it must have the same effect.
This construction of the will defeats the main object of the
complainant's bill. But his counsel insists that the part devised
to the wife should be set off or the sale of the property
ordered.
The bill does not seem to have been framed with a view to a
partition or sale of the estate. Several of the devisees, all of
whom are interested in such a proceeding, are not made parties. And
a partition or sale is opposed by the infant son and his mother as
injurious to his interest. And the rights of the mother and son are
so intimately blended that any proceeding which shall affect the
life estate must affect the inheritance.
A partition or sale of this estate is regulated by the statutes
of Maryland.
The 12th section of the act of 1785, chapter 72, provides that
where an infant has an interest in lands, and it shall appear to
the chancellor, upon application of any of the parties concerned
and upon the appearance of the infant that it shall be to the
interest and advantage of the infant to have the land sold, he may
order a sale.
And in the 8th section of the act of 1794, ch. 60, it is
provided, on a similar application and appearance of the infant as
stated in the above statute, for a partition if the chancellor,
"upon hearing and examining all the circumstances, shall think that
it will be for the interest and advantage of all parties
concerned," he may order a partition.
In this case, there is no evidence which will enable the court
to judge whether a sale or partition of the property would be to
the advantage of the infant and the other parties. And it should
hardly be expected that this Court, in the absence of all evidence,
should decree either of these alternatives against the answer.
Page 38 U. S. 175
The complainant may be subjected to some inconvenience by
holding the property as tenant in common with the devisee of the
testator, but it was a condition imposed by the terms of the will.
And this Court, acting under the law of Maryland, cannot remedy
this inconvenience unless the complainant shall bring himself
clearly within the provisions and policy of that law.
The decree of the circuit court dismissing the bill is
Affirmed with costs.
