US SUPREME COURT DECISIONS

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, chanrobles.com-red

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. chanrobles.com-red

Page 38 U. S. 171

MR. JUSTICE McLEAN delivered the opinion of the Court. chanrobles.com-red

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 chanrobles.com-red

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. chanrobles.com-red

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. chanrobles.com-red

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.