| Volume 194, Page 123 View pdf image (33K) |
 |
|
|
 |
|
|
13 E. 1, STAT. 1, CAP. 1, DE DONIS. 123 not to the eldest son in the first instance exclusively of the other children— that it could not have been the intention of the legislature to abolish estates tail general, or remainders limited upon them, and to convert them into fee simple estates, by giving them the same properties, and that part of the Act relating to the collateral relations of the intestate could not apply to a tenancy in tail, because such an estate can not descend to collaterals. This case was, however, compromised before it was decided by the Court of Ap- peals, and in Newton v. Griffith, 1 H. & G. Ill, the opinions expressed therein were overruled. There, subsequently to the Act of 1786, the testator devised lands to his son J. and his heirs, and other lands to his son G. and his heirs, and in case of the death of either without lawful issue or heirs of his body the survivor to have his deceased brother's part, to him and his heirs, and in case of the death of both without lawful heirs of their bodies, then all the lands to the testator's three daughters equally. G. died first, intestate and without issue, and afterwards J. died intestate and without issue, and without leaving suf- ficient personalty to pay his debts, and a bill was filed against the three sur- viving daughters to sell all J.'s real estate for the payment of his debts. The Court held that, as the law stood before the Act of 1786, ch, 45, the brothers would have taken estates tail general in the lands devised to them respectively, with cross-remainders in tail general, remainder to the three daughters for life. The question then was, what was the effect of the Act upon these estates tail? And it was determined that the course of descent of estates tail within the Act and acquired after its commencement was en- tirely broken, the interest of the* reversioner or remainderman de- 93 stroyed, and the land made to pass by descent from the tenant in tail pre- cisely and in the very same course as if he was tenant in fee simple, and it was also determined that such estates were devisable. The result therefore was that J. took one-fourth of G.'s estate. The authority of this case has always been recognized, and in several cases, as in Hill v. Hill, 5 G. & J. 95; Tongue v. Nutwell, 13 Md. 424, it has been said that estates in fee-tail general amount to estates in fee simple.7 The latest case on the subject is Posey v. Budd, 21 Md. 477, where Newton v. Griffith was also approved, though with some reluctance by the Court, and it was held that a devise of an estate tail general to the heir at law did not break the descent, but he took by descent as heir at law, and on his death without lineal heirs, the estate would descend to the heir on the part of the ancestor from whom it was derived. The Code, Art. 24, sec. 24,8 which is a codification of the Act of Nov. 1782, ch. 23, provides that any person seised of an ("any" in the original Act) estate tail in possession, reversion, or remainder, in any lands, &c., may grant, (bargain) sell, and convey the same in the same manner and by the same form of conveyance, as if he were seised of an estate in fee simple, and such conveyance shall be good and available to all intents and purposes 7 Mason v. Johnson, 47 Md. 347, 356; B. & O. R. R. Co. v. Patterson, 68 Md. 606; Wickes v. Wickes, 98 Md. 307. 8 Code 1911, Art. 21, sec. 24. |
| |||
|
| ||||
|
| ||||
Please view image to verify text. To report an error, please contact us.
Alexander's British statutes in force in Maryland. 2d ed., 1912
| Volume 194, Page 123 View pdf image (33K) |
|
Tell Us What You Think About the Maryland State Archives Website!
|
An Archives of Maryland electronic publication.
For information contact
mdlegal@mdarchives.state.md.us.
Maryland State Archives