
    Craycroft vs. Craycroft.
    Appeal from a decree of- Prince-George's county cour.f4 sitting as a court of equity. The appellants filed their bill against the appellees, claiming the entire' interest in two parcels of land in P lince-George's county, of which Bladen Craycroft, the ancestor of- both the appellants and the appellees, died seized, and asking qf the court to make, á partition of these lands between the appellants. The facts set forth in the bill, and- which are admitted by the answers are, that Bladen Craycroft, who was the fa-J ther of the appellants, and-grandfather of the appellees^ being seized of- the lands in question, by his will, dated the 16th of December 1813, devised them to the appellants, and to his son J. P. Craycroft, the father of the appellees, and brother of tiie appellants, in joint tenancy. After the date of the will, and before the testator’s death, J. P. Craycroft,'the father of-the appellees, died intestate, leaving the appellees his heirs at law. And the question was, whether they have any and- what interest in the land so devised? The county court £Johnson, Ch. J, and Key, A. J.] in the reasons given for their decree, stated that by the fourth section of the act of 1810, ch. 34, it is express-; , ly enacted, that “no devise, legacy or bequest, shall lapse or fail of taking effect by reason of the death of any devisee or legatee, but every such devise, legacy or bequest, shall have the same effect and operation in law to transfer the right, estate and interest* in the property mentioned in such devise or bequest, as if such legatee had survived the testator,” language more strong, can be hardly conceived, that would more effectually have secured the interest of the defendants,-- decreed, that the complainants are each entitled to one equal third part of the land devised, and that the defendants* the heirs of the devisee, are entitled equally to the remaining third, pari; but inasmuch as it doth not appear to the court whether the interest of the parties will be advanced by a partition or sale, it is adjudged thatT.T. S, &c. be appointed commissioners, &c. From this decree the complainants appealed to this court.
    
      
      J, by bis will, ¿Revised his lands-to his three ions' C and D, iff ¿oínt-tenaney, in fee B died in the lifetime of the tos-’ tator — f/e/rf, that the devise did'not lapse, bur on the death of the testator, C ami D took the whole interest by survivorship; and not being; a , lapsed devise, is yiot within the provisions of the Set of 1$ 10, ch» 34
    
      The cause was argued before Chase, Ch. J. Buchanan,Earle, Martin, and Dorsey, J. by
    
      R. Johnson, for the appellants,
    who referred to the act of 1810, ch. 34, s. 4. 2 Fonbl. 306; and 2 Blk. Com. 313.
    No counsel appeared for the appellees.
   Thé opinion of the court was delivered by

Buchanan, J.

The will of Bladen Craycroft, under which the appellants claim, was made on the sixteenth day of December in the year 1813, and what interest they took on the death of the testator, in the lands devised, depends I upon the construction to be given to the fourth section of Ihe act of 1810, ch. 34, which is in these words, “no demise, legacy or bequest, shall lapse or fail of taking effect by reason of the death of any devisee or Iegalee named in any last will or tcslament, but any such devise, legacy or bequest, shall have the same effect and operation in law, to transfer the right, estate and interest, in the property mentioned in such devise or bequest, as if such devisee or legatee had survived the testator,” and means no more than what is clearly expressed, and is only a provision for the case of a lapsed legacy or devise, which certainly is not this case. Bladen Craycroft devised the lands in controversy to his three sons, John I‘, Craycroft, and (¿cmenf and George Craycroft, the. appellants, in joint tenancy in fee, and Jó fin P.. Craycroft died in the life-time of the testator. In law, the devise was not thereby extinguished; it did hot lapse, but on the death of the testator, the appellants took the whole interest by survivorship. It is not then Within the provision of the act of assembly, riot being iii law a lapsed devise; and it would be straining overmuch to constiú'e that to be a lkpsed devisé; which, the law holds to be otherwise; for the purpose.of bringing it within the act. The legislature only intended to make provision for á case» Which before was not provided for by law; by giving life an,d effect íó á devise br bequest which otherwise would be inoperative; aiid not to giyé tb an bpérátive devise or bequest an effect different fróni that which the law before gave; and thus to change the legal, course Of the property, and td give tí) it a neW direction, by changing the character of the estáte created by the will; as to turn an estate in joint terianby into an estate in common] which would be the effect of so' construing the act of assembly, as in the event bf the death cf oné of two joint devisees or legatees in the life-timfe of the ‘testatbr, to destroy the right of survivorship, arid to give to the heirs’ or representatives of the deceased devisee or legatee; one' half bf the estate, as is contended for in this' cases. But that would be to strain thé act rather too fai;, iii otder tb apply it to á casé not within thé riiiseliief intended to bé remedied, riot tb preserve, and givé life arid éffect to a devisé of bequest, that would otherwise be extinguished, but tb divest á subsisting and operative devise or bequest of its legal character and effect; which was not the object of the law. It was only intended to prevent the extinguishment of á devise or be^ quest, by reason bf the death of the devisee or légatée ill the life-time of the testator, when; in the event of Suclq death; the-devise or bequest would; Without the aid of the legislature, have lapsed; of failed to take effect, and the deceased have died intestate in relation to the prbpe'rty therein mentioned, and to give to- such devise or bequest the legal effect and operation to pass the property, in the same manner as if the devisee or legatee liad survived the testator, in- order merely to prevent the intestacy of the deceased. Therefore, where the devise or bequest would not have lapsed or failed to' take effect by reason of the death of a. devisee or legated in the lifetime of the testator, as in this case, it is not within the mischief intended', or required to Be remedied, and the act of assembly does hot apply, hut such devise or bequest is left to its own operation in law. But suppose that in this case, without the aid of th,e act of assembly, the devise would have lapsed or failed tó take effect, inconsequence of the death (sí John P„ Craycroft in the life-time of lire testator, what would be the effect of the act? Why, not íó alter the nature of the estate, and turn it inió a tenancy id common, as between the appellants and the heirs at law of John P. Craycroft, but to resuscitate the devise, and give to it the effect and operation to pass the estate in the same likiiner as if he had survived the testator; and if he had súridvéd the testator, but died afterwards, leaving the appellants his survivors-, they would havé taken the whole by survivorship^ therefore', the operation of the act being to pass the estate, as if he liad survived the testator, the right of survivorship would not be taken away from the appellants, but the property would pass to them just as if he had died after the death of the testator. In any view, then, that we are able to take of the subject-, the entire interest in the estate, devised by Bladen Craycroft to John P. Craycroft and the appellants, survived to the appellants, to the exclusion of the heirs at law of John P. Craycroft.

DECREE REVERSED

And decreedj that the county court of Prince- George’s county proceed on the bill of complaint in the proceedings mentioned, and cause partition of the lands, in the bill mentioned, to be made between C. fy G. Craycroft, the Appellants, according to the prayer of their bill.  