James B. Councilman, of Baltimore County, on the first day of October, 1900, executed and delivered to Sadie C. Councilman, his wife, a mortgage of all his interest and estate in a tract of land called "Woodhome," situated in Baltimore County, to secure the payment of a promissory note for $72,500.
A default having been made in the payment of the mortgage debt, the mortgaged real estate was sold under a decree of the Circuit Court for Baltimore County and purchased by the appellant for $42,500. The sale was duly reported to the Court below for ratification.
To the report of sale, made by the trustees on the 29th of May, 1908, exceptions were filed by certain judgment creditors of Councilman, and also by the purchaser, the appellant.
There is no appeal from the order of ratification of sale on *Page 636 the part of the creditors, and their exceptions will not be considered.
The exceptions of the appellant raise three objections to the title to the property. First, it is contended that James B. Councilman only had a life estate in the property, and he only intended to charge the same, consequently the decree to sell and foreclose cannot vest in the purchaser anything more than an estate for his life. Second, that in a small part of the land sold, to wit, two acres thereof, there is an outstanding leasehold interest, under a lease dated December 28th, 1812; and third, that James B. Councilman did not have a fee simple title to "Woodhome," the property sold. And from an order of the Circuit Court for Baltimore County overruling the exceptions and ratifying the sale, the purchaser has appealed.
As to the first exception, we need only say it is clear from the language of the mortgage itself that its purpose and effect was to convey whatever estate the mortgagor had in the property. The mortgage was executed in pursuance of an agreement contained in a promissory note dated October 2, 1899, given by Councilman to his wife, to the following effect: "To transfer to Sadie C. Councilman, as security for the payment of said note all right and interest the said James B. Councilman should own or hold in and to any real or personal property, whenever the said Sadie C. Councilman should demand the same." It is also certain from the terms of the mortgage, dated Oct. 1, 1900, it was intended to embrace whatever interest the mortgagor had in the real estate.
The mortgagor conveyed "all and every part of the property, real and personal. * * * which he owns or has or holds any interest or right in or to of any nature, kind or description whatsoever and wherever the same may be, especially including all his right, title, interest, estate and claim in and to that tract of land known as `Woodhome Farm' situated in the Third Election District of Baltimore County." To have and to hold such of the aforesaid property or interest *Page 637 therein, as may be owned by the said James B. Councilman in fee, to the said Sadie C. Councilman, etc.
The second exception is also without merit. It appears from the evidence that the mortgagor and his predecessors in title had been in adverse and exclusive possession of all the land in question for more than forty-five years, and that the alleged leasehold interest is barred by limitations. A title by adversary possession is therefore clearly established in that part of the land in dispute. Allen v. Van Bibber, 89 Md. 436; Lurman v.Hubner, 75 Md. 268.
The third exception presents the important question in the case, and that is, whether James B. Councilman owned the property called Woodhome in fee simple, so that the appellant as purchaser under the mortgage acquired a valid title thereto. And this depends upon whether James B. Councilman under the will of his uncle, the elder Mr. Councilman, acquired a fee simple estate in the property here in controversy and known as "Woodhome."
The property was devised by the following clause of the elder Mr. Councilman's will: "I give, devise and bequeath to my nephew, James B. Councilman, Jr., the farm on which I now reside, known by the name of `Wood Home,' and containing about two hundred and twenty acres of land, more or less, for and during the term of his natural life, with full power and authority to him, my said nephew, to dispose absolutely of the same, by his last will and testament duly executed. If my said nephew shall depart this life without disposing of the said farm by his last will and testament, then from and after his death I give and devise the same to the child or children which he, my said nephew, may leave living at the time of his death, their heirs and assignsforever; the child or children or descendant or descendants of adeceased child or children of my said nephew to take the part towhich the parent would, if living, be entitled; but if my said nephew should depart this life without disposing of the said farm by his last will and testament and without leaving a child or children or descendant or descendants of a deceased child or *Page 638 children living at the time of his death, then from and after the death of my said nephew, I give and devise said farm to such person or persons as would, under the laws of the State of Maryland, inherit the same as the heirs of my said nephew if he had died intestate seized in fee thereof."
It is urged upon the part of the appellee that this devise operates under the Rule in Shelley's Case to vest a fee simple title to the property in the mortgagor or devisee. And the appellant contends that the interest the devisee acquired was a mere life estate with limited powers.
Now in the construction of this devise, so far as the question here involved is concerned, the power of testamentary disposition given to Mr. Councilman need not be considered, because as was said by JUDGE ALVEY in Brown v. Renshaw, 57 Md. 78, it is now well settled that the mere power of appointment is wholly ineffective until the power be executed; and in case of a limitation to one for life, with power of appointment, and, in default of appointment to his right heirs, the remainder limited to the right heirs will become an executed fee in the taker for life, under the Rule in Shelley's Case, subject to be divested by the exercise of the power. Cunningham v. Moody, 1 Ves. 174;Doe v. Martin, 4 Dunf. East. 64.
It was also held in Brown v. Renshaw, supra, that a conveyance of the property in fee simple effectually extinguished and destroyed the power. Webb v. Shaftesbury, 3 M. K. 599.
The devise in this case, then, is in effect to Councilman for life, and upon his death to his child or children, and their heirs, and in case of his death without leaving a child or children or descendants, then "to such person as would, under the laws of Maryland, inherit the same as the heirs of my said nephew, if he had died intestate seized in fee thereof."
The phrase in the will, "such persons as would inherit as heirs," has practically the same effect as if the limitation over had been merely to the "heirs of my said nephew." There can be no logical distinction between the heirs of Councilman *Page 639 and those persons who would inherit as his heirs if he had died intestate.
The land after the life estate is made to descend to precisely the same classes of persons as would take, if Councilman had been the owner in fee. The gift over is to his children or heirs as the line of succession.
In Ware v. Richardson, 3 Md. 544, this Court adopted the following definition of the Rule in Shelley's Case laid down inPreston on Estates, Vol. 1, p. 263, and approved by CHANCELLOR KENT: "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate."
While the Rule in Shelley's Case has been abrogated by statute in many of the States, it remains the law in this State and must be enforced. Waller v. Pollitt, 104 Md. 173; Thomas v.Higgins, 47 Md. 451.
It is a rule of law, and not of construction.
If it appears, upon the face of the will, that the limitation over after the life estate is to the heirs of the life tenant, and that they take as his heirs and not as purchasers, then, the rule applies as matter of law. In such case the particular intent that the first taker shall possess only a life estate might yield to the general intent that his heirs shall inherit from him.
Thus in Simpers, Lessee, v. Simpers, 15 Md. 187, it is said that there is no rule better established than that when there is a particular intent expressed in a will and a general intent inconsistent therewith expressed in the same will, the latter must prevail.
In Jones v. Morgan, 1 Brown's Ch. Rep. 206, LORD THURLOW said, that where the estate is so given that it is to go to every person who can claim as heirs to the first taker the word *Page 640 "heirs" must be a word of limitation, all heirs, taking as heirs, must take by descent.
The word "children" used as a description of the persons who are to take after the life estate, is often construed to be a word of purchase and not of limitation. Stump v. Jordan,54 Md. 628. But in the case of the devise now being considered the word "heirs" is used as well as the word "children," and that word is strictly one of limitation. The ultimate gift over to the heirs of Councilman in default of children indicates a general intent that the estate should descend to his heirs and operates to enlarge the effect of the word "children" antecedently used.
Th limitation over, therefore, is to the children or heirs of the life tenant. The general intention of the testator was, that his nephew should be the root of succession from which future takers should come and that they should take as his heirs.
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." Sheeley v.Neidhammer, 182 Pa. St. 163; Mason v. Ammon, 117 Pa. St. 127.
We have carefully examined the cases cited by the appellant's counsel in their very able brief, but find nothing in them in conflict with the conclusion we have reached, and that is, this case falls within the Rule in Shelley's Case, and that James B. Councilman acquired under the will a fee simple estate in the farm called "Woodhome," devised under the will.
The sale being in all other respects valid, the purchaser at *Page 641 this sale will acquire the fee simple title to the property sold thereunder. Finding no error in the order of the Circuit Court for Baltimore County, passed on the first day of September, 1908, overruling the exceptions and ratifying and confirming the sale, it will be affirmed.
Order affirmed with costs.