US SUPREME COURT DECISIONS

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, chanrobles.com-redchanrobles.com-red

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. chanrobles.com-redchanrobles.com-red

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. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 464

MR. CHIEF JUSTICE MARSHALL, WASHINGTON, DUVALL and STORY, J.

The Court having taken time since last term to advise,