The appellees have filed a motion for a re-argument of this case, and have assigned three grounds why the motion should be granted: 1. Because the decision impliedly but not distinctly overruled the case of Cook v. Councilman, 109 Md. 622. 2. Because while so apparently overruling that case it failed to refer to it, and, therefore, leaves counsel in doubt whether or not the Councilman case is to be considered as overruled. 3. Because this case is identical in language with the deed in the case of Shapley v. Diehl, 203 Pa. St. 568, which case was quoted with approval by this Court in case of Cook v.Councilman, supra.
It is stated in the motion "that the failure of the Court in this case to notice the decision of Cook v. Councilman above quoted, has resulted in two cases, one decided not to be within the rule in Shelley's case, and one decided not to be within that rule, when the two cases were identical. If it be intended by the Court to overrule the decision of Cook v. Councilman, of course, this motion will be denied; but if it is not the intention of the Court to overrule that case the appellees respectfully submit that the two cases cannot be reconciled and that this motion should therefore be granted. The prolongation of this brief could simply amplify but add nothing to the decision of this Court already made in the Cook and Councilman case, and counsel therefore considers that it is simply a question as to whether that case will be overruled or sustained, and as that is a matter that is not opened for argument, will not prolong the brief further."
It would be most unfortunate, indeed, if there were anything in the record to justify this criticism. This Court is not in the habit of overruling cases without stating that it intends to do so, and it is hardly conceivable that it would, *Page 302 without mentioning the fact, overrule so recent and important a case as Cook v. Councilman, supra. The writer decided that case in the lower Court; but the language of the will of James B. Councilman, the elder, was so unlike the will in this case that it is difficult to conceive how anyone could imagine that the decision in that case had been overruled, or was intended to be overruled by anything that was said in the opinion in this case. That case was not overlooked, but was not discussed in the opinion, because the language employed in the two wills was so widely dissimilar that the case afforded very little, if any, aid in the decision of the question before us. This will be apparent to anyone who will read the clause of Mr. Councilman's will with which the Court was dealing, and which will be found on page 637 of 109 Md. We will merely say that the two cases were not identical, as asserted by the appellees; that the case of Cook v. Councilman, supra, was not overruled, nor was it intended to be overruled, and that nothing has been said in the opinion in this case in conflict with the familiar rule announced in that case.
JUDGE BRISCOE, in the Councilman case, said: "In Shapley v.Diehl, 203 Pa. St. 568, land was conveyed `to Shapley for the term of his natural life and at his death to his children or heirs.' The Court in that case held that the phrase `children or heirs' means `heirs of the grantee of the life estate,' the word `heirs' being used as a synonym to enlarge and explain the preceding word, which might otherwise fail of its real intendment. The words, therefore, naturally and properly seem to express the intent that the donees in remainder should take not from the donor directly as purchasers, but in succession by inheritance from the grantee of the life estate."
It is stated in the motion that "this language would seem to be so clear that there could be no doubt as to its meaning, *Page 303 and it was upon the authority of this paragraph that the counsel for the appellees advised them to bring this suit. The Court in its opinion in this case has neither affirmed nor overruled this language and counsel will be more in doubt therefore in the future as to which of these cases is to be the controlling one. Since this language was completely ignored by the Court in its opinion, counsel for the appellees take the liberty to assume that in someway it was overlooked, and especially since the deed in the Shapley case and the deed in this case are almost identical."
The question before the Court in this case was the construction of the last will and testament of Philip Weitzler, and not the construction of the deed from Riley E. Wright and wife to Sarah Gradwohl. The rents conveyed by that deed were simply taken as an investment under the order of the Orphans' Court of Baltimore City to be held according to the provisions of the will of Philip Weitzler, and, therefore, it would appear to be rather a misuse of the Shapley case to apply it to that deed. We venture to think that a comparison of the language used in the Shapley grant with that employed in the will of Philip Weitzler will show that the cases are not "almost identical." *Page 304
SHAPLEY GRANT. THE WEITZLER WILL.
"For value received, I hereby by At the death of his wife, the
convey and transfer all my right, testator disposed of his estate as
title and interest to the property follows: "Five hundred dollars and my
within mentioned to Joseph S. piano to my daughter Mina Weitzler;
Shapley for the term of his natural five hundred dollars to my daughter
life and at his death to his Henrietta Weitzler; the balance of my
children or heirs." estate to be equally divided among my
five children or their heirs share and
share alike, with this proviso: That
the portion to which my daughter Sarah
Gradwohl may be entitled shall be
invested in some safe stocks or other
securities, the said Sarah Gradwohl to
receive the income from the same
during the term of her natural life,
and at her death to be equally divided
among her children or legal heirs."
It was because of this special provision as to the share of Sarah Gradwohl that we held, upon the authority of the cases cited in the opinion, that the testator did not use the words "legal heirs" immediately succeeding the word "children" in the bequest to his daughter in their full technical sense; but that the language and provisions of the will manifest a particular intent on his part to use those words as mere descriptiopersonarum or particular designation of individuals who were to take as purchasers at his death. In such a case, under all the authorities, the rule in Shelley's case does not apply.
It is true the Shapley case was not expressly mentioned, but the opinion shows that it was not "completely ignored," *Page 305 or "overlooked," as it states that all the cases relied upon by the appellees (among which was the Shapley case) were considered by JUDGE PEARCE, in Reilley v. Bristow,105 Md. 332. Whether that case has been adopted as the law in this State or not, it is obvious from the language employed in the Weitzler will that it is not a controlling authority in this case, because the facts of the two cases are widely different.
Motion overruled.