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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 258   View pdf image (33K)
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258 HIGH COURT OF CHANCERY.
above bequest to descend to and become the estate of the sur-
vivor or survivors."
Upon the death of the devisee, Mary Dashiel, a bill was
filed by Richard Henry Jackson, one of the devisees in re-
mainder, against Benjamin Douglass Dashiel and James H.
Colston, the heir-at-law of George Minor Colston, another of
the devisees in remainder, who had likewise died, for a sale of
the property for the purpose of partition; and the same having
been sold, the proceeds are now to be distributed; and the
question submitted is, whether the limitation over to the sur-
vivors, Richard Henry Jackson and Benjamin Douglass Dashiel,
is good, and can take effect as an executory devise, George
Minor Colston, having died without issue, leaving a brother of
the whole blood, his heir-at-law.
In my opinion, this can scarcely be considered an open
question, since the decision of the Court of Appeals in the case
of Newton vs. Griffith, 1 H. & G., 111. It was there held
upon great consideration, that the words " without issue" in a
will, when applied to dispositions of real estate, ex vi termini,
mean an indefinite failure of issue, if there is nothing in the
will restraining the operation of the words; and that the cir-
cumstance that the limitation over is to a survivor either in
fee or for life, will not have the effect to restrain the esta-
blished legal meaning of the words. It follows, therefore, that
the limitation over to the devisees, Jackson and Dashiel, in
this case, is too remote, being after an indefinite failure of
issue, and that the share of Colston, the deceased devisee,
Upon his death descended upon and vested in his heir-at-law,
the defendant, James H. Colston, to whom his share of the
proceeds of the property must be awarded.
B. D. JACKSON, for Complainant.
S. D. LECOMPTE, for Colston.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 258   View pdf image (33K)
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