
    Smith, et al. vs. Smith, et al.
    
    T his will cated in .1795, devi* < sed his lands to be eqiaily-áivWed between his -two. ne7>hews, W C. .and V Si to them .and their heirs forever; and in ease WC>di ,cd without lawful issue, theh he devised one half of the lands to hi? nephew GS, to him and his heirs iorever. Held, as to a moiety of the lartds devised to WC, that on his death without lawful issue, the estate tail became extinct —and the limitation Over to GS took effect, and one moi« ety of the lands vested in him in fee simple.
    The act of 17S6, oh 45, to direct descents, as to estates tall general» and for transmitting* the tenancy in tail to the issue of the tenant; is altered or ’changed, only, bj making the land descendible to all the children of the tenant m tail and then* respective is° sue indefinitely* : i [ ’
    i i < Appeal frotó 'the Court of Chancery. The bill filed bjf , the appellants stated that William Crandell, being seized in fee of a tract or tracts óf Iaild situate in Anne-Amndél county, did, by his will dáted in 1795, devise the same in fee tail general to William Crandell, oí Adam, and to William Smith; and in case the said William Crandell should die without lawful issue, then he devised one half of the tand to his fiephew Gilbert Smith; The devisé is as follows*. ‘‘I dévise and bequeath unto my dear wife Emclia, during her widowhdod, all my tract of land known by the name of Grammars Parrot, and at the day of her death or tóarriage, I leave the above mentioned tract of land tb be equally divided between my two nephews; William Crandell, son of Adam, and William Sñiilh, tef them and their heirs for ever; and in casé the above natoed William Crandell dies without lawful issúe, then I give one half of ■'the above mentioned'tract of land to my nephew Gilbert : Smith, to him and his heirá for ever.” The testator died 'shortly after the date of the will, without changing or revoking it; aiid a few years thereafter, both the devisees i died .minors, and without issue. The testator had no issue, [ but had one brother and sister of the whole blood, and one ’ brother of the half blood. The brother of the whole blood Was üamed Adam Crandell, who died before the testator; leaving two children William, the devisee, ánd Sarah', the last of whoto died a minor, and without issue. Sarah, the sister of the testator of the whole blood, married one Nathan Smith, by whom she had five children, vii. the complainants, Elizabeth and Sarah, and Gilbert Smith, the per1son named in the will, and Hannah and Sophia Smith, (miiiors,) (lie defendants. The compkináiits stated in their bill, that they were advised, that on the above facts, the disposition ovér to Gilbert Smith was Void, and that all the property devised td the two devisees, had descended to or devolved on them by virtue of the act of descents;, but that on account of the minority of two of the heirs, a sale or division could only be effected in this court. They also stated, that William Crandell, the devisee, was seized in fee of oilier land, which, on tile above facts, descended as-before stated; and that the land could only be sold of divided by this court. Prayer for a sale of the lands, or 
      '¡¡l partition thereof, as on a consideration of all circumstances should seem most advisable, &c. Upon the coming in of the answers of the defendants, which admitted the facts as to the descent, the defendant, Gilbert, submitted the legal construction and operation of the will to the chancellor, and he, in pursuance of the act of 1806, eh. 55, requested the opinion of the honourable Jeretniah Townlnf Chase, Chief Judge of the third judicial district, on the question, “Whether the disposition over to Gilbert Smith was void, so as to leave the land to descend to the live lieirs oí Sarah Smith, as alleged in the bill; or whether,1 by the death of William Crandall, of Adam, without lawful issue, the devise of half the land to Gilbert Smith was effectual to give him a title thereto, or, (according to the question raised by the counsel for the complainants,) whether the devise took effect immediately on the death of William Crandall, or whether the land descended to the whole of the heirs of William CranddWn
    
    Upon this submission and request, the question was argued before Judge Chase,
    
    
      Johnson, (Attorney General,)
    for the complainants,1 The only question in this case is, whether an estate tail general, created since the year 1788, when the act to direct descents, (1786, ch. 45,) took effect- — -remainder in. tail, will, on the death of the first tenant in tail, descend, to his collateral heirs, or whether, on the death of the te^ nant without issue, and without docking the entail, the right of the remainder-man will take effect in possession? The case is this- — land is devised to William Orandell, and in case he dies without issue, then, to Gilbert Smith. Crandall died without issue, but leaving other heirs besides Gilbert Smith, capable of inheriting under the act to direct descents, if he had had the fee simple. Rut he only held an óslale tail — Are then those heirs, who could have inherited if he had died seized in fee, entitled to any part of the estate tail, or will the property go over to the remainder-man, Gilbert Smith? Previous lo the act to direct descents, it is clear none hut the issue of the tenant in tail could inherit; if there were no issue, the remainder would take effect. It is plain and evident the will gave an estate tail general to William Crandall; for in ail-cases inhere the issue generally, that is male or female, can in;* Kerit the estate tail, there it is an estate tail general,, whether there is a limitation over or not. To prove this authorities are not necessary. T£ then William Crundelt■ had an estate tail general, on his death who were entitled?. By the act to direct descents, it is. expressly enacted, if any person seized ip fee or of a fee tail general, shall die, intestate, the land shall descend as in the act prescribed. The subsequent clauses, in the act declare, that what i$ previously enacted with respect to the land in tail, shall not extend to any estate tail, made, created, and in being, before the passage of the act. The reverse of the proper sition is equally true, that the provisions respecting, the estates tail made, created and m being, after (he, passage of the act, shall be affected by its provisions. But Ifilliam Crandell obtained an estate in,tail general after the act, and therefore that estate is affected by the. act; and if this be true, which appears self-evident, then it. follows, on his death intestate, the right he had in the land descended to those persons made capable of inheriting by the act, and in the proportions there provided; for. Previous to this act. none but the issue qoqltj inherit, an-estate tail. As then the issue alone inherited by the, provisions of pre-existing laws, and as the legislature in 1786, when the act to direct descents passed, were equally competent to make other persons besides the issue capable of inheriting, and as by that law they have done so tp affect cases commencing after its operation, it surely follows, that those made capable of so inheriting are entitled to the' respective portions of the land. If additional reasoning, was deemed necessary to support the above principles, and-’ if any other, part of the act need be resorted to in proof of • the construction contended for, the sixth section will make it clear. That section declares, that that law shall not. extend to affect any grant or devise of land to '■'■special on, particular heirsthat is, to affect any estate tail special, But the exception of the epate, tail spedialpeoyes the estate, tail general to be included; for the exception provea the general rule. It may be suppose^ that estates tail general are embraced by' it, so far; as to let in all the issue of the tenant in' tail, but not to affect collaterals. This interpretation is hiadipissible. For surely, if the law was competent to bring in with the eldest the youngest son of the tenant jn tail, it was equally competent 
      in introduce the collateral heirs, as persons capable of inheriting the estate. The question then is, lias not the act done so? It provides that “If any person seized of an Éstate in any lands, &c. in fee simple, or fee simple conditional, heretofore or hereafter acquired, or of an estafa in fee tail to the heirs of the body generally, created and acquired after the commencement of the act, shall die intestate, such lands, &c. shall descend to the kindred, male and female, in the following order, fo wit: First to the-child or children, and their descendants, if any, equally* and if no child or descendant, then to the father, and if no father living, then to the brothers and sisters of the intestate,’-5- &c. It is certain that this act was not prepared with due reflection; for we find in the clause above in part recited, a distinction made between estates in fee simple coudilional, and estates in tail general, the former, although, created before the act, are operated on by i t, the latter not; and yet it is clear, at the time the law passed, there could be no such thing as an estate in fee simple conditional. All such estates were by the statute of Westminster, converted into estates tail either general or special. Again, in the same clause we find a provision made that lands, which have descended from the father to the son, shall, on the death of the son without issue, go to. the father; but it is certain land could not descend to the son until the father died, and if so., none but the maker of the law «jan tell how they could ever go back again to him. Co. Litt. 19. Rut let the act be ever so inaccurately drawn, yet when file language is plain, its provisions, however absurd, must tie carried into effect. Nothing then is more plain than its language, which says, it the tenant in tail general shall die intestate, without leaving issue, or father, the land shall go to the brothers and sisters, and their descendants. The course of descent pointed out by the act extends to all the previous estates mentioned-) — fee simple, fee simple, conditional, and fee tail general. From what part of the act can it be inferred, when in this part it is said they shall descend in, one general uniform manner without respect to the previous estate, that the rules of descent prescribed are confined h) their full extent to one species of estate, the fee simple? It docs not declare where an estate, tail general is created after the act, if the tenant in tail ¡thall fail tp leave isa-.e, that then the estate shall go to % remainder-man ©r reversioner. On the contrary it says»’ the previous estate shall not cease while persons exist made capable of inheriting. Is it not certain the whole comprehends all its parts? And as there are three kinds of' estates, fee simple, fee simple conditional, and fee tail general, they are the respective parts of that whole on, which the law operates, and operates by declaring in certain events the brothers and sisters may inherit. In the, base under consideration, these events did. take place. Before the passage of this law, the tenant in tail could totally defeat the remainder over. A deed executed by him, would have that effect. The deed obtains that effect by a. previous law. The act to direct descents only places his interest in the power of more persons, by making more persons capable of inheriting. If the legislature had the. fight to do the one, they could do the other. They have most clearly done the first, and it is equally evident they, have done the last.
    
      Ridgely, for the Defendants,
   Chase, Ch. J.

certified the following, opinion to the Chancellor: On the question of law, submitted to my decision by the honourable the chancellor, arising in this case under the will of William Crandall, and the act to direct descents, (1786, ch. 46,) it appears to me that the. true construction of that act, as to estates tail general, created and acquired after the commencement of it, is, that the course or manner of transmitting the tenancy in tail to the issue of the tenant, is altered or changed only by making the land descendible to all the children of the tenant in tail, and their respective issue, indefinitely, and not the eldest son, in the first instance, in exclusion of the other children. It could not be the intention of the legislature to abolish estates tail general, or remainders limited thereon, and to convert them into fee simple estates by giving them the same properties.

The words of the act must receive such an exposition as they are capable of, and must be so construed as to carry into effect the evident intention of. the legislature. That part of the act which relates to the collateral relations of the intestate, cannot apply to a tenancy in tail, becausq such estate cannot descend to collaterals. As soon as th®, ■tenant ill tail dies without issue, his estate and interest in the laud ceases, and in the same instant the limitation over, on the extinction of the estate tail, vests in the resiainder-man, and no estate remains in the tenant ill tail, which is transmissible to his collateral relations.

According to mv judgment, it was not in the contemplation of the general assembly to alter or change the nature of an estate tail in any other respect than by making it descendible to all the children, and this is plain from the sixth section of the act. It certainly could not be contemplated by the legislature to give the estate tail an existence after the failure of the issue of the tenant in tail, contrary to the nature of the estate, and the words of the grant, and in violation of the rights of the remainder-man.

The words of the Jaw must be expounded according to the subject matter, and that part which relates to collateral relations must cx necessitate rei, be confined to estates in fee simple, and cannot comprehend estates which have too existence at the time of the decease of the intestate.

I am of opinion, in this case, as to a moiety of the land devised by William Crandell, that on the death of William Cranddl, of Adam, one of the devisees, without lawful issue, the estate tail became extinct, and the limitation over to Gilbert Smith took effect, and one moiety of tire laud vested in him in fee simple.

Kilty, Chancellor,, thereupon passed the following decree: The object of the bill in this cause is to obtain a decree for the sale or partition of certain l^nds therein mentioned, which are alleged to have descended to, or devolved on, the complainants and defendants, as the children of Ad-rah Smith, who was the surviving sister of William Cram-dell, but which lands could not be sold or divided on Ac ■ eount of the minority of two oí the said heirs. (The chansellor here stated the facts of the case and then proceeded.)

After hearing the arguments of the counsel on the trial, the chancellor considered it the most proper course to re. quest the opinion of the chief judge of the third judicial district, as he is empowered by law to do. And on this request, and the answer thereto, which are among the proceedings, the opinion of the chief judge was declared as fallows: “As to a moiety of the land devised by William Crandell, that oh the deafli of William Crandell, son of Addin, one of the devisées, without lawful issue, the estate tail became éxtinct; and tlie limitation over to Gilbert smith took effect, and one mbiety of the land vested in him in fee simple.’.’ •

In conformity tb the opinion thus expressed — Decreed by tiie chancellor, that -the complainants are not entitled to h Sale Or pariition of that part of the land of William Crandell which by tlie will was devised to Gilbert Smithy ih case William Crandell therein mentioned should die without lawful issue, arid that á decree for such sale or partition ought not tb be made;

The decree goes onto direct a sale of the other land;

The complainants appealed to this court. But the casó having been compromised; it was át the present term,

DISMISSED',.  