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In making the devise, the testator uses the words, "I give the whole of my property." Immediately afterwards, he describes the person who 18 to perform the conditions on which the property is given, as “ the one that may have the right;" and, after directing the change of name, adds, "together with his taking an oath, before he has possession, before a magistrate of St. Mary's county," &c.

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The person who "has the right," is to take the oath "before he has possession." Title then is distinguished from possession. The most attentive perusal of the will furnishes no reason for the opinion that the testator has confounded possession with title. All those parts of the will which respect change of name, dispose of the whole property, and dispose of it in such terms as to show, we think, a clear intention that the right should vest in the devisee on the death of J. T. M., to be defeated on the non-performance of the condition annexed to the estate. The change of language, and the adoption of the word "possession," indicate very strongly that the word was used in its popular sense, to denote the taking, actual and corporal possession of an estate. The testator was contemplating the event of an infant becoming entitled to his property, and providing for that event. Such infant was, within twelve months after attaining his age of twenty-one years, "if in that time it could be done," to obtain an act of the Legislature for the change of his name; and moreover to take the oath prescribed, " before he has possession;" alluding, we think, clearly, to that possession which an infant devisee takes of

1824.

Taylor

V.

Mason.

Taylor
Mason.

V.

1824. his estate, when he attains his majority.. A different construction would make this devise repugnant to itself. It would make the devise to depend on two conditions, to be performed at the same time, and yet the one to precede the vesting of the estate, and the other to be capable of being performed more than twenty years after it had vested. The word possession cannot be construed as equivalent to right, for the purpose of producing such consequences as these.

After disposing of his estate in fee tail, the testator proceeds to carve out a particular estate for his favourite nephew, J. T. M.; and it is not entirely unworthy of notice, that he continues the use of the wori" possession," with the obvious intent to affix to it the meaning of simple occupancy. It is impossible to read these wills, without perceiving a continuing and uninterrupted desire to bestow his whole estate on J. T. M. and his family. The first will gives him the estate absolutely. His desire to preserve it in mass, and to connect it with his name, increased with his age; and his second will gives his estate to J. T. M. for life, remainder to his eldest son in tail male, remainder to the heirs of J. T. M., the oldest to take all, on condition of their changing their surname to that of Barnes. The last will contains intrinsic evidence that, preserving the same intention with respect to his estate, he had been alarmed by the suggestion that the remainder in tail to the heirs of J. T. M. might coalesce with his life estate, and, vesting in him, might enable him to break the entail and divide the estate. To re

concile his kindness to J. T. M. with his pride, he endeavours to give his nephew the advantages of an estate for life, in such form as to leave him no power over the fee. It is not unworthy of remark, that in endeavouring to accomplish this object, he continues the use of the word "possession." My will is, he says, "that he (J. T. M.) shall keep the whole of my property in his possession during his life, with full power," &c. Whether the legal effect of this clause be the same with an express devise to J. T. M. fcr life, remainder to his heirs in tail, is unimportant with respect to the present inquiry. It shows the intention of the testator, and the sense in which he used the word. It shows that he distinguished between possession and title.

The Court is of opinion, that were the paper which is supposed to have been executed in 1803 to be considered as constituting singly the will of Richard Barnes, and were it to be admitted, that an estate tail did not vest in J. T. M., still the conditions annexed to the estate devised to his oldest heir male are subsequent, and not precedent; and, consequently, the contingency, on which the devise is to take effect is not too remote. This opinion renders it unnecessary to decide the questions, so elaborately discussed at the bar, whether the last will revoked those which preceded it, and whether an estate tail is vested in J. T. M. It would be improper to decide those questions at this time, because persons may be interested in them who are not now before the Court

VEL. IX.

15

Decree affirmed.

1824.

Taylor

V.

Mason.

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The statute of 11 and 1. Wni. III. c. 6., vhich is in force in Maryland, removes the common law disability of claiming title through an alien ancestor, but does not apply to a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural born subject or citizen. Thus, where A. died seised of lands in Maryland, leaving no heirs, except B., a brother, who was an alien, and had never been naturalized as a citizen of the United States, and three nieces, the daughters of the said B., who were native citizens of the United States: it was held, that they could rot claim title by inheritance, through B., their father, he being an alien, and still living.

ERROR to the Circuit Court of Maryland.

The case agreed, stated, that William M'Creery was seised and possessed of a tract of land in Baltimore county, in the State of Maryland, called Clover Hill, and died possessed thereof about the 1st of March, 1814. He had previously executed an instrument of writing, purporting to be his last will and testament, by which he devised the above tract of land to those under whom the defendant, Somerville, claimed; but it was witnessed by two persons only, and was, therefore, inoperative to pass lands in Maryland, the laws of which require. three witnesses to a will for that purpose. W. McCreery left at his death no children, but a brother, Ralph M'Creery, a native of Ireland, who is still living, and who has not been naturalized, and three nieces, Letitia Barwell, Jane M'Creery, and Isabella M'Creery, the latter being the lessor of the plaintiff, who are the daughters of the said Ralph, and native born citizens of the United States.

The devisees under the will applied by petition to the Legislature of Maryland to confirm the will, and the Legislature, accordingly, without the knowledge or consent of the lessor of the plaintiff, passed an act for that purpose; saving, nevertheless, the rights or all persons claiming title to the lands devised, by conveyance from any of the heirs of W. M'Creery. The action was brought to recover an undivided third part of Clover Hill.

Upon this case, judgment was rendered by the Court below for the defendant, and the cause was brought by writ of error to this Court.

1824.

M'Creery

Somerville.

1825.

The cause was argued by Mr. Winder, for the March 14th, plaintiff in error, and by Mr. D. B. Ogden, for the defendant, and continued to the present term for advisement.

Mr. Justice STORY delivered the opinion of the Feb. Sd, 1824, Court.

The title of the lessor of the plaintiff to recover in this case, depends upon the question, whether she can claim as one of the coheirs of her deceased uncle, her father being an alien, and alive at the commencement of the present suit. It is perfectly clear that, at common law, her title is invalid, for no person can claim lands by descent through an alien, since he has no inheritable blood. But the statute of 11 and 12 Wm. III. ch. 6. is ad

a He cited Co. Litt. 3 b. 1 Sidif. 193. 2 Bl. Com. 226. 249, 250.257. Bac. Abr. Alien, C. 132. 4 Wheat. Rep. 453. 2 Mass. Rep. 179.

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