Benson v. Linthicum

delivered the opinion of the Court.

This is an appeal from a proforma decree of the Circuit Court of Baltimore City, rendered on a special case stated, under Equity Bules Eos. 47, 48 and 49. The sole question arises under the following clause of the will of Wm. A. Linthicum:

“I give and bequeath to my son, William Amasa, all my property, both real1 and personal, and, in case-he should die without heir, then, and in that case, it is my will and desire that it should be equally divided between my brothers and sisters.” (naming them).

*144The son thus named was the testator’s only child. He took possession of the property thus devised, and occupied it till his death in 1875, leaving a will hy which he devised all of his property of every kind to his mother, the appellee. The question is, what estate did the son, William Amasa, take under the will of his father ? Under the Act of 1825, ch. 119, now sec. 314 of Art. 93 of the Code, the devisee of real property without words of ■perpetuity, takes an absolute estate “ unless it shall appear hy devise over, or hy words of limitation, or otherwise, that the testator intended to devise a less estate.” Here the devise over, upon the death of the son, “tuithout heir,” to the brothers and sisters of the testator, shows that the word “heir” was not used in the sense of heirs generally — that is to say, an indefinite failure of heirs — the limitation over being to persons capable of taking as heirs to the first devisee. By the term “heir” as thus used, it is clear the testator meant, and such is the legal construction, heirs of the body of his son, his lineal descendants. And it is well settled — too well settled to require reference to the decided cases, that where real estate is devised with a limitation over upon dying luithout heirs of the body of the first taker, the devisee takes an estate tail, even though such limitation may be to one capable of being an heir to the devisee.

Construing then the word “heir” used in this will, as meaning heirs of his body — for so it must be construed— we are of opinion that the son took an estate tail under the will of his father. And being an estate tail which by the Code becomes a fee-simple, he took an absolute estate in the property devised to him.

The will in this case was made before the Act of 1862, ch. 161, Art. 93, sec. 311, of the Code, was passed, and is to be'construed, therefore, witho'ut reference to its provisions, and without reference too to the case of Gambrill vs. Forest Grove Lodge No. 4, &c., 66 Md., 17, the *145decision in which, was based upon the construction of that Apt.

Decree affirmed.