This is a proceeding to enforce the specific performance of a contract whereby the appellee agreed to sell to the appellant a certain house and lot in the city of Baltimore. The appellant refuses to perform, alleging as a cause therefor that the appellee "has not and cannot convey a fee-simple title to the property."
The controversy involves the construction of the first article of the last will of the late Orville Horwitz, which is in the words following, viz.:
"Art. 1. I give, devise and bequeath to my wife Maria, my dwelling-house, at the northwest corner of Charles and Centre streets, in the city of Baltimore, and all my household furniture and plate therein contained. Also, all my carriages and horses, to her, her heirs, executors, administrators and assigns forever; but upon these conditions, first, that she continues to reside in the said city of Baltimore; and secondly, that she does not marry again before the 10th day of April, 1885; and the provision in this article, contained for my said wife, I make and give in addition to and over and above her thirds in my personal estate and her dower in my real estate." Mrs. Horwitz, not having remarried, the second of these provisions is no longer operative, and we have now to deal only with the first.
It is clear that by the terms of this devise an estate in fee vested immediately in the devisee, liable, however, to be *Page 40 divested upon the non-performance of the conditions if operative. The language of the testator is very explicit; he devises to his wife, "her heirs, executors, administrators and assigns forever." The conditions also are such as may or must be performed after the vesting of the estate, and are therefore conditions subsequent. Finley v. King's Lessee, 3 Peters, 346; In reStickney's Will, 85 Md. 103. Moreover, there is no devise over in case of a forfeiture, and nothing in the will to indicate that the testator intended that in such an event it should pass to the residuary legatees. The entire will shows that the testator, having divided his estate among the several objects of his bounty, did not contemplate that any of the dispositions he made would fail, or that in case of failure he desired that the parts of his estate so affected should fall into the residuum of his estate and pass to the residuary devisees. There is not "the slightest ground for any reasonable implication, having respect to the real intention of the testator, as gathered from the face of the will, that the real estate in question was in fact intended to pass under the residuary clause." Rizer v. Perry,58 Md. 122 and 138. The effect of this clause, therefore, was to vest in Mrs. Horwitz a fee liable to be defeated by the non-performance of the conditions, if operative; and there being no devise over, in case of a forfeiture, the estate would pass to the heirs at law of the testator and not to the residuary devisees under the will. Gray v. Blanchard, 8 Pick. 284;Jackson v. Tapping, 1 Wend. 388; Dolan v. M. C.C. ofBalto., 4 Gill, 394.
In arriving at the testator's meaning of the condition, with which we are to deal, we have had some difficulty. It is certainly impossible, without the most cogent reasons therefor, to suppose that the testator intended by the conditions to compel his widow to abide, under all circumstances, in the city of Baltimore, during the entire period of her life, or otherwise forfeit her estate. And yet if the condition respecting her residence be regarded as unaffected by the limitation of time mentioned later on in the article such might be the result. The words "continue to reside" are of large import. It would *Page 41 not be impossible to hold, if unexplained or unqualified by other terms, that they set up requirements far more comprehensive than those which would define a residence for voting purposes, or that which would indicate the jurisdiction in which a person could be sued. Nor is there anything in the terms of the condition or in the will to justify the contention that the purpose was to impose upon Mrs. Horwitz the same conditions as to residence "as that on which the State allows one to become a candidate for any office within the gift of the people," as was contended by the counsel for the appellant. When the entire instrument is examined we think it will clearly appear that the testator did not intend to place such restrictions upon his widow. The devise is made in terms that cannot be misunderstood. They grant to Mrs. Horwitz a present vested estate in fee. In the same article the testator employs words that may be taken to express, in some measure at least, the reasons that were then in his mind. He says, "the provision in this article contained for my said wife, I make and give in addition to and over and above her thirds in my personal estate and her dower in my real estate." It is clear, therefore, that he desired to make a liberal provision for her; and it was because of that, lest her thirds in his property to which the law would entitle her would not be adequate to furnish her with such appliances of comfort and of luxury as he was solicitous she should have at her command, that he devised in addition to what she would receive under the law, the mansion-house, together with all its contents and his carriages and horses. Why, under these circumstances, should he require as a condition upon which she should enjoy his bounty that she should reside, not in the house devised, but in the city of Baltimore? We have been pointed to no motive that would account for a purpose so peculiar on his part; there is none shown in the will, and we are unable to conceive of any ourselves.
In the light of these considerations, we are of the opinion that a careful consideration of the condition when read in connection with the context in which it is found, and with other *Page 42 provisions of the instrument, will enable us to arrive at a conclusion more in harmony with the probable intentions of the testator, who was well known in his day as an experienced and most skillful lawyer.
The will was made, as its date shows, on the 28th day of May, 1877. The conditions contained in the first article are, "first, that she continues to reside in the city of Baltimore, and secondly, that she does not marry again before the 10th day of April, 1885." Did the testator intend that this date should be applicable to both conditions, or only to the first? Why should he intend it to apply only to the second? If his widow married again before April, 1885, why should he be concerned where she resided after that date. It cannot be presumed that in case of her remarriage he should then be solicitous that she (and presumably) her husband should reside in Baltimore. The only reasons we can find therefore, for the use of the time limitation would seem to apply as well to the one condition as to the other. Why shall it not be so applied? The phraseology makes it entirely reasonable to do so; and by so construing the conditions, we avoid many of the insuperable difficulties we have pointed out in some measure, in what we have already said. If the limitation as to time be applied distributively, as we think it must be, the first condition would import no more than that she must continue to reside in the city of Baltimore up to April, 1885, a date at which the testator was still living.
That this is a proper construction of the meaning of this condition, not only accords with the probabilities as to the testator's intention, but we are of opinion affirmatively appears from a fact found in another part of the will. By the ninth article the testator devised his country seat, Woodmont, to his daughter Louisa. In this article no mention is made of his wife; indeed, except that she is appointed one of the executors, her name is not mentioned in the will after the first article. Subsequently, having sold Woodmont, he made a codicil by which he devised to Louisa, in lieu of Woodmont, his country seat, called Cloud Capp'd, "lately purchased of *Page 43 Robert Taylor, Jr., trustee, c." That codicil, as appears from its date, was made on the 22nd day of December, 1886, or more than a year after the expiration of the time mentioned in the first article. Therein the testator used these words, of course in connection with the devise of Cloud Capp'd, a place located not in Baltimore city, but on the Frederick road, in Baltimore County, viz.: "I request that my said daughter Louisa, will allow her mother to have a home on said place whenever she may so desire." These words demonstrate that at the time of the making the codicil, or more than a year after the expiration of the date mentioned in the first article, the testator did not regard the condition as to residence operative so as to require his widow to reside in the city of Baltimore. This is clear, because in this codicil the testator contemplates that she might, if she chose, reside elsewhere, and requests that if, in the exercise of her preferences, she should desire to "have a home" in Baltimore County, at Cloud Capp'd, his daughter "will always allow" it. In the will, by the ninth clause, which contained the devise of Woodmont, there was no request that the widow should have a home there. It is significant that he should have inserted it in the codicil, one year after the time-limit of the first article had expired. It indicates that the testator at the time of the making of the codicil regarded the conditions which he imposed upon the devise to his widow as no longer in force, the period having expired during which they were to be effective.
We are of opinion, therefore, that by a proper construction of the first article of this will, the estate of the appellee has become absolute, and she may now alien the same free of any conditions.
The decree of the Court must therefore be affirmed.
Decree affirmed.
(Decided November 22, 1900.) *Page 44