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aforesaid estate or property to be divided equally between my aforesaid son or daughter that remains alive and my daughter Helen Julia Griffin Reilly, then whenever either of my last two children die then in that case all the said dividends, interest, rents, and net income derived from my aforesaid estate or property to go to the last of my aforesaid children that remains alive as long as my said child lives then after all my aforesaid children die then in that case all my aforesaid estate or property and dividends, interest, rents and net income derived therefrom to go to and be divided between the children the lawful heirs of my aforesaid children the lawful heirs of my aforesaid to receive and be allowed and paid what would have been their parents share of my aforesaid estate or property, dividends, interest, rents and net income derived therefrom." Frederic Hintze Griffin died January 1, 1905, unmarried and without issue, leaving a last will and testament by which he made certain bequests and devises, and made Wm. H. Bristow, one of the appellees, his executor. Annie Hintze Griffin died March 1, 1905, unmarried and without issue, but leaving a last will and testament by which she devised and bequeathed all of her property to said Helen Julia Griffin Reilly. Mrs. Reilly and her husband are both still living. Mrs. Reilly has had three children. The eldest, Henry Hintze Reilly, died intestate and without issue on June, 23, 1892, in the lifetime of the testator, John A. Griffin. Wm. Griffin Reilly and Frederick Hamilton Reilly, the two other children of Mrs. Reilly, both survived the testator, John A. Griffin, but have both since died intestate and without issue, the former on January 21, 1904, and the latter on January 11, 1904. The property in dispute in this case consists exclusively of the proceeds of a policy of fire insurance upon a house in Baltimore destroyed by fire on February 7, 1904, which house had been the property of the wife of John A. Griffin and was devised by her to him. The policy of insurance was originally issued to Mrs. Griffin, was renewed from time to time in her life, and after her death, in 1900, was renewed "for acct. of estate of Henrietta H. Griffin for three years to May 6th, 1906," and so stood at the time of the fire. The insurance company recognized its liability for the loss, and filed a bill of interpleader against the claimants for its protection. Under this bill a decree was passed directing payment into court of the proceeds of the policy, less the costs paid by the insurance company and a fee allowed its solicitor, and the claimants were required to interplead. Upon this decree the usual proceedings were had; it being conceded by all concerned that the renewal of the policy in the terms stated simply indicated that the loss was payable to those who were entitled to the property assured. Upon hearing, the circuit court No. 2 passed a decree appointing the Baltimore Trust &

Guarantee Company trustee to receive the fund in question, and to hold the same in trust for Mrs. Reilly during her life, and upon her death, leaving no child or children surviving her, to distribute one-third thereof under the will of Frederic H. Griffin, one-third under the will of Annie H. Griffin, and onethird under the will of Mrs. Reilly, or, if she leaves no will, then this one-third to the heirs at law of Mrs. Reilly, and, if Mrs. Reilly dies leaving a child or children surviving her, then to distribute one-third to such child or children, and to distribute the remaining two-thirds as follows, viz.: Onethird under the will of Frederic H. Griffin, one-third under the will of Annie H. Griffin, and one-third under the will of Mrs. Reilly, or, if she leaves no will, then this one-third to her heirs at law-and from that decree Mrs. Reilly and her husband have both appealed.

This decree proceeds upon the theory that Mrs. Reilly is entitled as sole surviving life tenant to a life interest in the fund, which represents real estate, and that the remainder therein is a contingent remainder, which can never become vested unless there are living at Mrs. Reilly's death children of the testator's three children heretofore named; that, if Mrs. Reilly dies without leaving a child or children surviving her (the other two children of the testator being now dead without issue), there will be an intestacy as to said remainder, which will then vest in the heirs at law of John A. Griffin who were living at his death, and in that event will pass one-third under the will of Frederic H. Griffin, one-third under the will of Annie H. Griffin, and one-third under the will of Mrs. Reilly, or, if she leaves no will, then to her heirs at law; and, further, that if Mrs. Reilly dies leaving a child or children surviving her, then a one-third interest in said remainder will vest in such child or children, but there will be an intestacy as to the remaining two-thirds of said remainder, which will then vest in the heirs of the testator who were living at his death, and will in that event pass one-third under the will of Frederic H. Griffin, one-third under the will of Annie H. Griffin, and one-third under the will of Mrs. Reilly, or, if she leaves no will, then to her heirs at law. The contention of the appellants is that the testator's two grandchildren living at his death took vested estates in the remainder of the testator's estate subject to the life estates given to his own children, and subject to the letting in of any after-born children of the testator, and that upon their death intestate the remainder under the statute of descents then vested in their father, Gen. Reilly, as their heir at law.

The appellees, on the other hand, contend that under the rule in Shelley's Case each of the testator's three children took a life estate in possession, and an inheritance in re

mainder, which latter, upon the termination of the last life estate, passes, under the wills of Frederic, Annie, and Mrs. Reilly, one-third under each. The argument of appellees' counsel upon this contention was able, and we have given it careful consideration. It rests for its authority mainly upon three cases from the Supreme Court of Pennslyvania, viz., Mason v. Ammon, 117 Pa. St. 127, 11 Atl. 449; Sheeley v. Neidhammer, 182 Pa. St. 163, 37 Atl. 939; Shapley v. Diehl, 203 Pa. St. 566, 53 Atl. 374, and it must be conceded they afford proper ground for argument by counsel. In Mason v. Ammon the devise was to "said sister, and at her death to her child, children, or other lineal descendants"; and the court said: "It is admitted that whilst 'child' or 'children' will not, per se, be construed to be a word of limitation, yet when coupled with some other expression of testator showing that they were used as a nomen collectivum, signifying 'heirs of the body,' the rule in Shelley's Case has been applied." And the court in that case laid hold of the words, "or other lineal descendants," as indicating the nature of the estate intended to be given to the successors of said sister as one he meant they should take by descent from her. An illustration of the same process of reasoning is found in our own decisions in B. & O. R. R. v. Patterson, 68 Md. 606, 13 Atl. 369, in which this court, speaking through Judge Miller, said: "Counsel have argued as if the words, 'heirs of the body of the father' mean the same thing as 'heirs of the blood of the father' [the language of the devise in that case], but to this we cannot agree. The former include only heirs in the descending line, while the latter include heirs both in the ascending and descending line, and in our opinion mean the same thing as 'heirs on the part of the father.' In Sheeley v. Neidhammer, the devise was to one for life, and then "to his children or legal heirs." This was held to vest in the first taker an estate in tail, converted by the statute into an estate in fee simple. The court said: "The words 'legal heirs' are in this connection equivalent to 'descendants.' It does not matter that this may defeat the testator's intention. Such is the common result of the application of the rule in Shelley's Case." In Shapley v. Deihl there was a grant to a son for life, then "to his children or heirs," and it was held to vest a fee in the son. The court said: "Suppose he had omitted 'children' and said 'heirs' only. The precise case for the rule would have been presented. Yet the meaning would have been exactly the same, and the children would have come in as first in the line of inheritance." In all three of these cases it may be observed that the word "or" was employed, "children,' or other lineal descendants," "children, or legal heirs," "children, or heirs," indicating alternate devises, to children if any, and, if none, then "to other lineal descendants," "to all

legal heirs, to all heirs." But in the case before us the alternative word, "or," is absent. There is no more doubt under the Maryland than under the Pennsylvania cases that, where there is no expression to rescue the case from the application of the rule, it does not matter that the testator's intention may be defeated, as is clearly shown in Clark v. Smith, 49 Md. 106, 120, but the courts of this state have always struggled against the application of the rule, and have searched the will or deed for some inconsistent provision or word which would exclude the applica tion. The case of Fulton v. Harman, 44 Md. 251, presents perhaps the strongest example of this effort. There the devise was of all the residue of testator's estate "to his son George, during his natural life, and after his death, the proceeds thereof to be equally divided between all his George's lawful heirs"; there being a subsequent provision in the will directing the executors to sell all his remaining real and personal property. The court, Chief Judge Alvey delivering the opinion, held the rule in Shelley's Case did not apply, and said: "As the words 'lawful heirs' are followed by words of partition and distribution, inconsistent with the devolution of the estate by inheritance, the estate cannot be enlarged to a fee simple by force of the term 'lawful heirs'; but, the gift being of the proceeds to be divided in a manner specially prescribed, the terms of the gift must be construed as clearly indicative of an intent to give a life estate only to the son George, with a gift over to those who may be embraced within the term 'lawful heirs' as purchasers."

In the case now before us the words are "to go and be divided between the children the lawful heirs of my aforesaid children." The argument of appellees' counsel is that the addition of the words "lawful heirs" explains and enlarges the preceding word "children." This argument is legitimate and persuasive on first presentation, but does not reach the plane of conviction. It may be argued as plausibly, and with as much reason, that the word "children" restricts the meaning of the words "lawful heirs." "Children" are embraced within the term "lawful heirs." In the language of Shapley v. Diehl, supra, they come in "as first in the line of inheritance," but the word is not per se descriptive of the whole line of lawful heirs. There is no magic in the mere collocation of words, and the construction of this clause cannot be controlled by the order in which these words are coupled. If the language had been "the lawful heirs, the children of my said children," the same argument now made by the counsel for the appellees would support the contention that the rule does ncapply, upon the ground that the latter wozie restrict the former, and that it is always inlatter words which qualify the for my whether enlarging or restricting them.

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this is not a rule of universal or imperative application, and depends upon whether it will support or defeat the intention of the testator as deduced from the whole will. Where, as here, there are two possible constructions, one of which would enlarge and

at which the corpus of the estate should descend to and become the property of her children." In Cherbonnier v. Goodwin, 79 Md. 57, 28 Atl. 894, the devise was in trust "for Edward Goodwin during his life, and from and after his death to be equally divided among all his children"; and the ques

the other would restrict the meaning of the ion was whether a son of Edward who died

word "children," we think the spirit of our decision requires us to adopt the restrictive construction which will give effect to the natural and primary meaning of the word, rather than to the arbitrary meaning placed upon it by an artificial rule of law.

The remaining question is whether the remainders to the children of the testator's children are vested or contingent. It is unnecessary to refer to the numerous authorities in Maryland that remainders will be held to vest at the death of the testator whenever it can be fairly done without doing violence to the language of the will, and that to make them contingent there must be plain expressions to that effect, or such intent must be plainly inferable from the terms used. All of these cases, however, distinctly recognize that whether the remainder is vested or contingent depends entirely upon the testator's intention, and that where he has indicated with reasonable certainty his intention that it shall not vest until a particular time, it will not vest until that time arrives, and then only in those who are in esse, and capable of taking at that time. Bailey v. Love, 67 Md. 603, 11 Atl. 280, in which the remainder was held vested, and Straus v. Rost, 67 Md. 465, 10 Atl. 74, in which it was held contingent, will suffice as examples of its recognition. In the will before us there is no immediate girt to the children of the testator's children, after providing minutely for the disposition of his property during the lives of all his children, down to the last survivor of them, his children's children are for the first time mentioned, as follows: "Then, after all my aforesaid children die, then, in that case, all my aforesaid estate to go to and be divided between the children the lawful heirs of my aforesaid children the lawful heirs of my aforesaid children to receive, and be allowed and paid what would have been their parents share of my aforesaid estate." The use and repetition of the word "then," in reference to the children's children, is conspicuous and significant. In Larmour v. Rich, 71 Md. 369, 18 Atl. 702, the deed of trust under consideration reserved the life estate to the grantor, and provided that upon the termination of tuat estate the rents and profits should go to his daughter Mrs. Miller for her life, "and from and immediately after her decease" that the property itself should "then descend to and become the property of her children, the issue of any deceased child to take and have the part to which the parent if living, would be entitled." The court emphasised the words italicized, and said: "Mrs. Miller's death was fixed by him as the point of time

in his life had any interest in the fund to be divided on Edward's death. It was held he had not, and the words "from and after the death of Edward," in connection with a limitation over upon Edward's death without child or children, clearly indicated it was the intention of the testatrix to postpone the vesting until after Edward's death.

While it is unnecessary to go beyond our own cases, appropriate reference may be made to the following, because of the close similarity of the facts: In Hale v. Hobson, 167 Mass 397, 45 N. E. 913, the residue of the estate was devised in trust to pay certain annuities until the decease of the last survivor of the annuitants, the residue then to be equally divided among the testator's grandchildren per stirpes. The testator had grandchildren living at his death, some of whom died during the life of the annuitants, and others survived all the annuitants. The grandchildren were held to take only contingent interests. The court said: "The scheme of the will indicates a contingent interest. It is more reasonable to suppose the grandchildren living at the time of distribution were intended than those living at testator's death. Again, there are no words of present gift." In Clark v. Cammann, 160 N. Y. 315, 54 N. E. 709, there was a devise of income in trust for the wife for life, and after her death to a niece, Mary Ann, for her life, and upon her death the principal sum to be equally divided among all her children and to their lawful representatives forever as tenants in common per capita, the issue of any child who may then be dead to take his or her deceased parent's share. The widow died in 1872. Mary Ann had two sons living at the testator's death. One died in 1870, and one in 1873, both without issue and intestate, the latter leaving his father as next of kin. The remainders were held contingent; the court saying: "If futurity is annexed to the substance of a gift, the vesting is suspended. The remainders were contingent and not vested for the reason that the persons to whom, or the event upon which the estate was limited to take effect, remained uncertain until the termination of the life estate, and it follows that, as there are no persons to take in remainder under the will, the testator died intestate." This last point directly sustains the ultimate effect of the ruling of the court below in this case. In the Matter of Crane, 164 N. Y. 71, 58 N. E. 47, the court said: "Where the only gift is in the direction to pay, the bequest or devise is not to be rank ed with those in which the payment or distribution only is deferred, but is one in which

time is of the essence of the gift." We discover no error in the decree of the learned court, and it will therefore be affirmed.

Decree affirmed, with costs to the appellees above and below.

(105 Md. 442)

WESTERN UNION TELEGRAPH CO. v. N. LEHMAN & BRO.

(Court of Appeals of Maryland. April 2, 1907.) 1. TELEGRAPHS NEGLIGENCE FAILURE TO DELIVER MESSAGE-DAMAGES.

Plaintiffs had been buying and shipping cattle from a small station for many years, and had received as many as 2,500 or 3,000 telegrams from their agent at the station in the course of a year, which fact was known to defendant telegraph company's office at the station. Instructions had been given defendant to deliver all messages received at night at the residence of plaintiffs; those received in business hours to be delivered at their office. Plaintiffs had purchased a large number of cattle for export on a steamer, instructing their agent to wire them when the cattle were shipped. A telegram sent by the agent and addressed to plaintiffs at their residence, reading, "Shipped cattle to-day," was received by defendant at 9:30 p. m. at its office, two blocks distant from plaintiffs' residence, but was not delivered until 3 p. m. of the next day, when it was sent to plaintiffs' office. Held, that plaintiffs' damages were such as arose naturally from the breach of a contract, and were presumed to have been in the contemplation of the parties, and they were not limited to nominal damages.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 64-68, 72.]

2. SAME-INSTRUCTIONS.

In an action against a telegraph company for damages alleged to have been caused by negligent delay in the delivery of a telegram sent to plaintiffs, an instruction that there was no evidence in the case legally sufficient to show a breach of its contract by defendant was properly refused; it being immaterial whether the form of the action was ex delicto or ex contractu. 3. SAME QUESTIONS FOR JURY.

In an action against a telegraph company to recover damages for negligent delay in the delivery of a telegram sent to plaintiffs, a copy of which as delivered was addressed to plaintiffs' residence, the questions whether a paper shown a witness and alleged to be the original message, purporting to be addressed to plaintiffs' business address, was the original message, and how the same was addressed, were for the jury. 4. APPEAL-INSTRUCTIONS-HARMLESS ERROR.

In an action against a telegraph company for damages resulting from negligent delay in the delivery of a telegram sent to plaintiffs, notifying them of a shipment of cattle, an instruction that plaintiffs were entitled to recover to such an extent as the jury should believe from the evidence they sustained loss, while erroneous as leaving the question of damages at large, was harmless; the jury finding the precise sum testified to as the actual loss sustained.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4225-4230.]

Appeal from Superior Court of Baltimore City; Ch. E. Phelps, Judge.

Action by N. Lehman & Bro. against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ.

Frederick C. Colston and W. Irvine Cross, for appellant. Wm. Pinkney Whyte and Louis B. Bernel, for appellees.

PEARCE, J. This action was brought by the appellees against the appellant for the recovery of damages alleged to have been caused by negligent delay in the delivery of a telegram sent to them. The appellees are exporters of cattle, and have been engaged in the business many years in the city of Baltimore, shipping large numbers to Liverpool, London, Glasgow, and other ports in Europe, chiefly by the Johnston Line steamers sailing from Baltimore. These cattle are purchased through agents in various states, largely in Virginia, Kentucky, and Ohio, and are shipped as required from the place of purchase, so as to arrive one day before the day fixed for loading the steamer. Under the arrangement with the steamer line, the appellees contract for space according to the capacity of the steamer, and this space must be paid for whether it is all used or not, and the steamer line gives notice usually a week ahead of the sailing day, and again notifies the shippers a day or two before sailing when to have the stock alongside of the vessel. Under this arrangement, the appellees in November, 1903, had contracted for space for 505 cattle on the steamer Ulstermore, and on November 7th were notified by the steamer's agents to have the stock ready for Saturday November 14th, and on November 13th were notified to have the stock alongside the ship at 7 o'clock next morning. In order to make up this shipment, the appellees had purchased, through their agents in Tazewell, Va., Messrs. Brown & Crockett, 331 head of cattle, which the appellees directed to be shipped on November 11, 1903, for the Ulstermore, and also directed Brown & Crockett to telegraph them when the shipment was made. The cattle were shipped accordingly on November 11th, and immediately thereafter, on the afternoon of the same day, Brown & Crockett sent the appellees the following telegram: "Tazewell, Va. Nov. 11th, 1903 To N. Lehman & Bro. 1819 Eutaw Place Shipped cattle to-day Brown & Crockett." Instruction had been given the defendant company to deliver all messages received at night at 1819 Eutaw Place, the residence of the appellees, and to deliver those received in business hours at the office, 16 South Paca street. This telegram was received by the defendant company at 9:30 p. m. on the 11th instant, at its office, No. 321 Wilson street, two blocks distant from 1819 Eutaw Place, but was not delivered until 3 o'clock in the afternoon of the 12th instant, when it was sent to the office at 16 South Paca street. Not receiving any notice of the shipment of these cattle during the night of the 11th, or the morning of the 12th, the appellees, in order to insure as far

as possible the loading of the Ulstermore, were obliged to telegraph during the morning of the 12th to points in Farquier and Rappahannock counties, Va., where they had other cattle intended for shipment by a later steamer, and did order from these points 171 cattle, which arrived in time for the purpose. On Friday, the 13th, the 331 head shipped by Brown & Crockett arrived in Baltimore; the result being that the appellees had on their hands in Baltimore 164 head of cattle for which there was no space on the Ulstermore. This was on Friday. The next market day in Baltimore was on Monday, and there was no opportunity to dispose of these cattle in Baltimore before Monday. In Philadelphia there was a market on Saturday, and the appellees immediately shipped them over to Philadelphia, and there sold them on Saturday; one of the appellees going with them and personally attending to the sale. The result was a loss of $4.43 a head on the 164 cattle, aggregating $726.52, payment of which was demanded of the company, and was refused, and, upon the trial in the lower court, the jury rendered a verdict for the amount claimed; the evidence being that this was the difference between what these cattle cost the appellees, and what they sold for in Philadelphia.

The only exception was to the ruling of the court upon the prayers. The plaintiffs offered the following prayer, which was granted. "Plaintiff's Prayer. The jury are instructed that, if they find that the defendant, in the usual course of its business, for compensation, received and accepted from the plaintiffs' agents the telegram mentioned in evidence, for transmission and delivery to the plaintiff in Baltimore City, and if they shall further find that said telegram was received by said defendant's agents at the office of the defendant No. 321 Wilson street in said city of Baltimore at 9:30 p. m. on November 11, 1903, and if they shall further find that said telegram was addressed to said plaintiffs at their residence No. 1819 Eutaw Place in said Baltimore City, and that such residence was within two blocks from said defendant's office, and if they shall further find that said telegram was not delivered to said plaintiffs until 3 p. m. of November 12, 1903, and then delivered at 16 South Paca street, and if they shall further find that the defendant did not use such ordinary care and diligence in delivering said telegram as is usually used and adopted by prudent business men in like business, and if they shall further find that, by reason of such neglect, the loss in question arose, then the plaintiffs are entitled to recover to such an extent as the jury shall believe from the evidence they sustained loss. (Granted.)" And the defendant offered the following three prayers, which were refused: "(1) The court instructs the jury that, should they find for the plaintiff in this case, their verdict must be limited to nominal damages. (2) The court instructs

the jury that there can be no damages given in this case for loss incurred by the plaintiff by the sale of cattle in Philadelphia at a less price than that paid for the same, or for the expense incurred in sending the said cattle to Philadelphia; but their verdict, if they should find for the plaintiff, must be limited to the amount paid by the plaintiff to the defendant for the sending of the telegram testified to by the witness. (3) The court instructs the jury that there has been no evidence offered in this case legally sufficient to show a breach of its contract by said defendant, and their verdict must therefore be for the defendant." The defendant specially excepted to the granting of plaintiffs' prayer, because there was no evidence offered legally sufficient to prove that the original telegram mentioned therein was addressed to the plaintiffs at their residence, 1819 Eutaw street, in Baltimore, and this motion was overruled.

The defendant's first and second prayers, which seek to limit its liability either to nominal damages, or to the amount paid for the transmission of the telegram, are based upon the rule as to the measure of damages which was applied in Hadley v. Baxendale, 9 Exchequer, 341, and which was adopted and applied by this court in United States Tel. Co. v. Gildersleve, 29 Md. 251, 96 Am. Dec. 519. The case of Hadley v. Baxendale was reviewed in Wilson v. Newport Dock Co., 1 L. R. Exch. 184, and Baron Martin, though he had concurred in that judgment, in a dissenting opinion in Wilson v. Newport Dock Co., while sustaining the correctness of the rule as applied to the facts in Hadley v. Baxendale, declared that it was "not of universal application." That case, however, remains the law of England, and has been generally approved in this country, and has been too often recognized in this state to be departed from, even if we were so disposed. We agree with the language of Judge Alvey, in 29 Md., 96 Am. Dec., supra, where he said: "We believe it to be obviously just and reasonable, and we take it to be the true rule upon the subject." In that case, the dispatch was, "Sell fifty gold," and damages were claimed for loss caused by delay in delivering the dispatch. It was proved that this would be understood among brokers to mean $50,000 of gold, but it was not shown, nor was it put to the jury to find, that the defendant's agents so understood it, or that they understood it at all. The court said this was as likely to be taken to mean $50, as $50,000, by the uninitiated, and it was held that the meaning and importance of the dispatch should have been communicated to the agent when it was offered for transmission, and, as that was not done, the damages claimed were not recoverable. In Webster v. Woolford, 81 Md. 331, 32 Atl. 319, where Hadley v. Baxendale was again cited and approved, Judge Robinson directs attention to the division of the rule into two parts, and uses the following language, indicating quite clear

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