The Court of Appeals approved of the rule set forth in § 303 of the Restatement of Property, and noted that comment (h) to § 303 states “that conveyances frequently contain language or have circumstances tending to corroborate the conclusions that the term ‘issue’ or ‘descendants’ has been used as substantially the equivalent of ‘heirs of the bod/ and hence that distribution should be made in accordance with the law of intestate succession.” (some internal quotation marks omitted)
How later courts described this case
- The Court of Appeals approved of the rule set forth in § 303 of the Restatement of Property, and noted that comment (h) to § 303 states “that conveyances frequently contain language or have circumstances tending to corroborate the conclusions that the term ‘issue’ or ‘descendants’ has been used as substantially the equivalent of ‘heirs of the bod/ and hence that distribution should be made in accordance with the law of intestate succession.” (some internal quotation marks omitted)
Written by the judges who cited it.
The opinion
Prescott, J.,
filed the following dissenting opinion, in which Horney, J., concurred.
Many members of the bench and bar, who have had occasion to examine carefully the question here involved, will *167 unquestionably receive the majority opinion herein with somewhat of a shock, 1 as it completely overrules a long line of previous decisions of this Court and adopts the rule stated in Restatement, Property, 303 (1), which is diametrically opposed to the Maryland rule established in something over one hundred years.
The question involved is a narrow one. A testator died leaving an equitable life estate to his son, and upon the death of the son, “then to his (the son’s) issue, absolutely.” The parties agree that the word issue is a word of purchase, i.e., it names the person or class in whom a new estate of inheritance is created; 2 and that there is nothing additional in the will nor in the evidence to indicate the testator’s intent as to the actual mode of distribution. A previous appeal in this case determined that the word “issue” was not the equivalent of “children,” an interpretation which, however, has been frequently accorded it. Miller, op. cit., Section 90. And the majority, properly, accept the contention of the appellant that the word “issue” was used to mean “descendants.” 3
*168 The question, then, to be determined, succinctly stated, is this: When a will creates a class gift by a limitation in favor of a group described as the “descendants of B” and there is nothing found from additional language in the will or circumstances to indicate the intention of the testator, what, under the Maryland law, is the proper distribution to be made, when the living descendants of B, at the time of his death, are two sons and one grandson—the grandson being the son of one of the living sons?
The majority state they find no binding decision in Maryland upon the subject. 4 If this be so, many great judges of this Court and learned text-writers upon the subject have completely misconstrued the decisions of this Court, as will be clearly shown below.
Before citing the Maryland cases, it may not be inappropriate to note that at a very early date there grew up two opposing rules upon the question here involved. Maryland adopted and has adhered to what is termed the “general” or *169 “basic” rule, while Massachusetts adopted and adhered to a minority rule. 5 Thus, we find in 2 A.L.R. 963 , the following statement:
“It is very generally held, except in Massachusetts, that under a gift to ‘issue,’ where the word is used without any terms in the context to qualify its meaning, the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of deceased children, take in equal shares per capita, and not per stirpes, as primary objects of the disposition. See McPherson v. Snow-den (1862) 19 Md. 197 ; [and citations from other states] * * *
“In Massachusetts, however, the courts have adopted the converse rule that the word ‘issue,’ where its meaning is unrestricted by the context, will be construed as importing representation.”
I turn now to the Maryland decisions and authorities, and I shall cite one English case cited with approval by this Court.
In Miller, Construction of Wills, Section 96, we find the following:
“in bequests to ‘descendants equally,’ or to ‘all the descendants’ of any person, or the ‘descendants’ simply (without the word ‘equally’ or ‘all’), [in other words, when used as words of purchase] the rule is that all take per capita unless a contrary intention appears. Moreover in such a gift each individual of the stock takes an equal share concurrently with, not in place of, his or her parent; but where the distribution is to be per stirpes [when ‘descendants’ is used as a word of limitation] the principle of representation will be applied through all degrees, * v * ” (Emphasis supplied.) See also Section 91.
*170 In this statement, Mr. Miller is supported by a long line of Maryland and English decisions. The early case of Davenport v. Hanbury (1796), 3 Ves. 257, seems to be the leading English case involving the construction of the word “issue,” without qualifying words, and the proper mode of distribution under a will where the term “issue” is so used. The Court carefully considered other cases where, because of other words in the wills, it was held that “issue” should take per stirpes, then stated, “[t]his case depends entirely upon the construction of these words, ‘to Mary Davenport or her issue’ ”; and held that “issue,” as there used, was a word of purchase, and when so used it had “always been considered as synonymous to and the same as ‘descendants’; and whoever can make himself out a descendant of the person, to whose issue the bequest is made, had a right to be considered persona designata in that bequest,” and that the distribution should be per capita (in this instance the descendants were one child and two grandchildren). This case was followed in later English decisions, which it will be unnecessary to discuss.
In McPherson v. Snowden, 19 Md. 197 , the Court considered a trust made by deed which provided for the payment of income to four daughters of D, “and from and after the death of all of the aforesaid daughters * * *, then for the use and behoof of all of the issue of all of the daughters of * * * [D] and their heirs, in fee-simple.” The parties agreed that the word “issue” as there used was the equivalent of children, and the question arose as to whether there should be a per stirpes or per capita distribution among the children of the daughters. The Court pointed out the well-recognized principle that in a deed, at common law, the word “issue” was a word of purchase, and said, “[i]f, therefore, the issue of the daughters take in their own right [because the word “issue” was a word of purchase as in the instant case], and not by representation, they take per capita. See Davenport v. Hanbury, 3 Vesey, 260.”
In Allender v. Keplinger, 62 Md. 7 , the same principle was applied. There, however, the will directed that the property be “equally” divided among the “lawful issue” of testator’s *171 three children. Distribution was made per capita among the children and grandchildren of the testator’s children.
In Levering v. Orrick, 97 Md. 139 , a per capita division among descendants of two deceased persons was ordered by the will, with a direction that the descendants were to be considered as purchasers. In holding that all of the children and grandchildren of the two deceased persons took equally, the Court said:
“In bequests to descendants equally, or to all the descendants of any person, or to the descendants simply, the rule is all take per capita unless a contrary intention appears. 6 2 Redfield on Wills, 36 and and 74; 1 Roper on Legacies, 126. The following are instances of the application of the rule. ‘¿4,000 to the descendants of Frances Ince.’ Held, that great grandchildren were entitled to share with grandchildren. Crossley v. Clare, Ambler, 397. ‘Legacy to the descendants of A and B equally.’ Children and grandchildren take per capita. Butler v. Stratton, 3 Brown’s Ch. 367. ‘Under the provisions of a will that the residue of an estate is to be equally divided between my brothers Edwin and Charles’ children,’ the distribution is to be made per capita. McIntire v. McIntire, 14 App. D. C. 339.
“In the present case Mrs. Thomas being the last of the sisters, her share cannot pass to her surviving sisters, and can only pass to their descendants, in which case the rule of law is that the distribution must be per capita, unless a contrary intention appears; and here a per capita distribution is expressly ordered, * * (Emphasis partly supplied.) It will be noticed the principle by this time had become *172 so firmly established, the Court refers to it as a rule of law.
Requardt v. Safe Deposit and Trust Co., 143 Md. 431 , was a case where the income was devised to testator’s brothers and sisters with a provision that on the death of any of the brothers or sisters their respective shares in the income should be paid to their issue until the last of the brothers and sisters died, when “said trust shall cease and the corpus divided equally among their surviving children.” The Court held that there was a clear direction to distribute the corpus per capita, though there was a per stirpes division of the income, reaffirmed McPherson v. Snowden, supra, and repeated the rule that we have just quoted from Levering v. Orrick, supra, and Miller, op. cit., Section 96. 7
Judik v. Travers, 184 Md. 215 , is another case that forcefully states the Maryland rule that we now have under consideration. There, a per stirpes distribution was directed. In giving effect to the specific language used by the testator, the Court said:
“The rule is that all take per capita, unless a contrary intention appears, in cases of bequests to descendants equally, or to all the descendants of any person, or to descendants simply. Levering v. Orrick, 97 Md. 139, 145, 54 A. 620 ; Requardt v. Safe Deposit & Trust Co., 143 Md. 431, 435 , 122 A. 526 . See also In re Stone v. Baker, supra. The testator in the instant case obviously wanted to make clear that his intention was contrary to the rule on this point and that is precisely the effect of the language used to do so.” (Emphasis supplied.) 8
*173 The same statement was repeated in Patchell v. Groom, 185 Md. 10, 14 , 43 A. 2d 32 ; and in Singley, Patchell and Groom, Revisited, 15 Md. L. Rev. 1 , we find the learned author stating:
“It should be emphasized that these cases were not concerned with a gift to ‘my descendants equally’; a gift to ‘the descendants of A’; or a gift to ‘my descendants’, without a direction or an implication that a stipital distribution was intended. In these examples, the rule is that all take per capita, in the absence of contrary intention.”
The latest expression upon the subject is found in Robinson v. Mercantile-Safe Deposit & Trust Co., 214 Md. 30, 34 , (1956), 132 A. 2d 841 , cited in the majority opinion. 9 There we quoted from Lycett v. Thomas, 153 Md. as follows: “ ‘We do not understand that there is any dispute about the general rule, that where there is a gift to a class [a fact conceded in the instant case], members of the class take per capita [which is not permitted by the majority opinion herein], unless the contrary intention clearly appears [that no contrary intention appears is another concessum in the case].’ ” As a matter of fact the Court continued ( 153 Md. 446 ) that the rule “has been so generally accepted that the citation of authorities seems almost superfluous. In Maryland, 10 certainly, the decisions have been uniform from at least as far back as Benson v. Wright, 4 Md. Ch. 278, down to Stahl v. Emery, 147 Md. 123 .”
I am unable to reconcile these repeated statements of the rule of law in Maryland made and concurred in by so many of the judges, past and present, of this Court with the majority ruling in the present case. The majority, however, *174 base their conclusion upon the fact that (quoting from their opinion) “it would seem that approval of the Restatement rule [Section 303 (1)] has been indicated by this Court, at least implicitly, three times * * (Italics added.) This is the first appellate decision that has come to my attention that is based upon “implicit indications,” when there were previous decisions explicitly to the contrary.
The majority opinion refers to the Mazziotte [ 180 Md. 48 ] Patchell, supra, and Ballenger [ 205 Md. 94 ] cases. It concedes that a statement made by Judge Bond in Mazziotte [which was clearly a reference to the word “issue” when used as a word of limitation, which is plainly shown by reference to the authorities cited by him immediately following the statement] “was not necessary to the decision,” and that “the statement in the concurring opinion in Patchell 11 * * * that the view of the Restatement [Section 303 (1)] had been adopted as Maryland law in Mazziotte may have read more into Judge Bond’s language than this Court intended,” but holds there was an implicit indication of approval of the Restatement [Section 303 (1)] in the three cases. Instead of reading “more into Judge Bond’s language than this Court intended,” the statement quoted in footnote 11 simply cannot be justified. There was no question of Section 303 (1) of Restatement involved in Mazziotte.
In that case a testator had devised equitable life estates in realty to four daughters, with the provision that upon the death of all the daughters, “then the trust hereby created shall cease and * * * the trust property shall be paid * * * to the issue of my said four daughters living at the termination of the trust per capita.” At the termination of the trust, the daughters left surviving them children and grandchildren, and the question arose as to the proper distribution of the trust fund. The Court stated that the word “issue,” as used in the will, was clearly one of purchase; that “standing alone, the meaning of it has been a subject of difference of opinion”; but the word did not stand alone, the “takers are to be the issue per *175 capita, and the qualification seems to dispose of the question of interpretation.” The Court continued by pointing out that where the distribution is to be “among issue per capita remoter descendants will share with their parents.” In doing so, it referred to several out-of-state authorities and one of them was a part of comment (i) of Restatement, Property, Section 303, viz., “when the issue take per capita and not per stirpes, a remoter descendant of B can share even though his parent is alive and shares.” This Comment (i) of Restatement is entirely consistent with the Maryland rule that has been repeated so many times. The Court then held, as we should have here, that the grandchildren and great-grandchildren should share equally in the distribution. The case was another illustration of what was said in Judik v. Travers, supra, only this time the testator “wanted to make clear that his intention was [not] contrary to the [Maryland] rule on this point.”
It should be noted that nowhere in the opinion in Massiotte is any reference made to Restatement, Property, Section 303, except the small portion of Comment (i) previously quoted, and we do not find the Restatement cited in support of the position of any of the parties in any of the briefs filed. Moreover, the case was not a proper one for the invocation of said Section 303 (1), as there was present in the will involved “a contrary intent of the conveyor * * * found from additional language or circumstances,” the absence of which is an explicit prerequisite to bringing Section 303 (1) into play. In fact, there was a specific holding in the case that the testator in ordering a distribution per capita had manifested an intention that his property be divided as the Court ordered, which, of course, was not in accordance with the Maryland law of intestate succession, but was in complete accord with the previous Maryland decisions.
There is no need to discuss in any detail the Ballenger and Robinson cases cited. In neither of these cases was any question of Section 303 (1) of Restatement involved. In each, there was a specific direction that the property be distributed per stirpes and not per capita, which, of course, made the section inapplicable.
*176 In concluding, I wish to make it clear that I have not attempted to present the relative merits of the Massachusetts rule as adopted by Restatement in Section 303 (1), and the Maryland rule. There has been a trend toward the Massachusetts rule, and it may well be that it is the better one. If it be desirable for Maryland to reverse its time-honored and oft-repeated rule, I simply, but emphatically, suggest that it should be done by the Legislature and not by the Courts. In this manner, there would be an orderly and prospective integration of the new rule. As it is now, we do not know how many more wills there are in existence that will be affected by this complete change, nor how many beneficiaries there are who would have inherited except for the majority decision herein.
On the Maryland authorities, cited above, I think the distribution should be in thirds—one each to the sons of the deceased life tenant and the other to his grandchild.
Judge Homey has authorized me to say that he concurs in this dissent.
. For examples, former Chief Judge Marbury, one of the ablest and most highly esteemed jurists this State has produced, who wrote the opinion in Patchell v. Groom, infra, and Frederick J. Singley, Jr., Esquire, whose splendid Md. L. Rev. article will be referred to later.
. Words of limitation, of course, designate or limit the estate in the first taker. It is important in the case at bar to know the real distinction between words of purchase and words of limitation. When words of purchase are used, they designate the person or class to take, who take in their own right and not by representation, i.e., because they are heirs or distributees of an ancestor. Miller, Construction of Wills, Section 77. The statement in this note must be qualified by saying this was the Maryland rule before the filing of the majority opinion herein, as will be demonstrated in the remainder of this opinion.
. This acceptance was due primarily to the decision in the previous appeal, In Re Clarke’s Will, 198 Md. 266 , where it was held the word “issue” did not mean “children” but “descendants.” While not of controlling force, it is interesting to note that the majority make no mention or explanation of this significant language used in the opinion at page 271: “In the instant case there are several reasons why we think the word [issue] should be given the broader meaning [descendants instead of children], * * * The *168 testator could have had no particular persons in mind, since his son did not marry until three years after the testator’s death. There is nothing to indicate that the testator intended to prefer his putative grandchildren over his putative great grandchildren.” It is obvious that the present holding of the majority does prefer the grandchildren even to the exclusion of the great-grandchild. [Italics added in the quotation.]
. In support of this statement, they adopt the rather unusual practice of citing an opinion of the late Judge Lawrence, at nisi prius, to the effect that the interpretation of the word “issue,” simpliciter, was a novel one in Maryland. The learned judge would have had to have gone no further than to turn to the early case of Goldsborough v. Martin, 41 Md. 488 (1875), wherein it was said, “[t]he term ‘issue’ is here used without restriction, and embraces all lineal descendants of the daughter,” to see that this statement is not accurate. If this quotation, alone, be not sufficient to show the statement inaccurate, see the interpretation placed upon the opinion in 2 A. L. R. 931. See also Timanus v. Dugan, 46 Md. 402 , where the devise was to “issue in fee.”
The holding of Judge Lawrence was simply that the word “issue” as used in the will before him meant “children,” an interpretation frequently accorded the same. Shreve v. Shreve, 43 Md. 382, 401 ; Miller, op. cit., Section 90.
. This Massachusetts or minority rule was adopted in Restatement, Section 303 (1), in about 1941, and is now adopted in Maryland, for the first time, in the majority opinion.
. This seems to be practically the same as the quotation from Miller, op. cit., Sec. 96, which I set out above. It seems to be fully supported by the authorities cited and the previous Maryland cases, and is repeated in subsequent Maryland decisions as late as 1956. The principle is, of course, in direct conflict with Restatement, Property, Section 303 (1), adopted in the majority opinion.
. The membership of this Court at the time of this decision had completely changed since the decision in McPherson . It was composed of C. J. Boyd and Judges Briscoe, Thomas, Pattison, Urner and Offutt. I mention the membership merely to show the great number of judges of this Court who repeatedly stated the principle as the settled law of this State.
. At the time of this emphatic statement of the rule, the membership of the Court had again undergone a complete change. The *173 members were C. J. M'arbury and Judges Delaplaine, Collins, Grason, Melvin, Bailey, Capper and Henderson.
. Here, again, the membership of the Court had undergone a substantial change. It consisted of C. J. Bruñe and Judges Collins, Hammond, Prescott and Kintner, specially assigned.
. When this opinion and many of the others cited were written, the Massachusetts rule had been adopted there for many years.
. This statement is [ 185 Md. 29 ]: “The rule of Restatement [Section 303 (1)], was, however, adopted by this Court in Mazziotte v. Safe Deposit & Trust Co., supra.”