of the receiver, and that there is nothing to cause him to suspect an error. If there be anything in the message, or in the attendant circumstances, or in the prior dealings of the parties, or in anything else indicating a probable error in the transmission, good faith on the part of the receiver may require him to investigate before acting. Neither does the rule include forged messages, for in such case the supposed sender did not make any use of the telegraph.

The authorities are few and somewhat conflicting, but there are several in harmony with our conclusion upon this point. In Durkee v. Vermont C. R. R. Co., 29 Vt. 137, it was held that where the sender himself elected to communicate by telegraph, the message received by the other party is the original evidence of any contract. In Saveland v. Green, 40 Wis. 431, the message received from the telegraph company was admitted as the original and best evidence of a contract binding on the sender. In Morgan v. People, 59 Ill. 58, it was said that the telegram received was the original, and it was held that the sheriff receiving such a telegram from the judgment creditor was bound to follow it as it read. There are dicta to the same effect in Wilson v. M. & N. R'y Co., 31 Minn. 481, and Howley v. Whipple, 48 N. H. 488.

Telegraph Company v. Schotter, 71 Ga. 760, is almost a parallel case. The sender wrote his message: "Can deliver hundred turpentine at sixty-four." As received from the telegraph company it read: "Can deliver hundred turpentine at sixty," the word "four" being omitted. The receiver immediately telegraphed an acceptance. The sender shipped the turpentine, and drew for the price at sixty-four. The receiver refused to pay more than sixty. The sender accepted the sixty, and sued the telegraph company for the difference between sixty and the market. It was urged, as here, that the sender was not bound to accept the sixty, as that was not his offer. The court held, however, that there was a completed contract at sixty, that the sender must fulfill it, and could recover his consequent loss of the telegraph company.

It follows that the plaintiff in this case is entitled to recover the difference between the two dollars and the market, as to laths. The evidence shows that the difference was ten cents per M.

Judgment for plaintiff for eighty dollars, with interest from the date of the writ.

MISTAKE IN TRANSMISSION OF TELEGRAM is prima facie evidence of negli gence on the part of the company, and the burden of proof rests upon it to show itself free from fault: Western Union Tel. Co. v. Tyler, 24 Am. Rep. 279, and note 283; Telegraph Co. v. Griswold, 41 Id. 500; and see New York etc. Tel. Co. v. Dryburg, 78 Am. Dec. 338.

CONDITION IN TELEGRAPH BLANK EXEMPTING COMPANY from liability for errors, legality of, and liability under: Western Union Tel. Co. v. Tyler, 24 Am. Rep. 279, and note 283; Becker v. Western Union Tel. Co., 38 Id. 356; Womack v. Western Union Tel. Co., 44 Id. 614; Western Union Tel. Co. v. Blanchard, 45 Id. 480; Hart v. Western Union Tel. Co., 56 Id. 119; Aiken v. Western Union Tel. Co., 58 Id. 210; Wann v. Western Union Tel. Co., 90 Am. Dec. 395, and note 399; United States Tel. Co. v. Gildersleve, 96 Id. 519, note 528.

CASES

IN THE

COURT OF APPEALS

OF

MARYLAND.

COMBS V. COMBS.

[67 MARYLAND, 11.]

WORDS "DIE WITHOUT ISSUE OF HIS BODY LAWFULLY BEGOTTEN," IN WILL, must be construed to mean a definite failure of issue, and will support a limitation over, if other words in the will do not prevent this result.

DEVISE TO PERSON AND HEIRS OF HIS BODY LAWFULLY BEGOTTEN, WITH FULL POWER and authority to sell and convey the estate devised in his lifetime, or to dispose of it by last will and testament, gives to the devisee an absolute and unqualified fee which is not determinable on any event whatsoever, and a limitation over in such case is void, because it is inconsistent with the absolute property given to the devisee first named. EXECUTORY DEVISE MAY BE LIMITED AFTER FEE-SIMPLE; but in such case,

the fee must be made determinable on some contingent event. It must be provided that the fee is to cease, and the executory devise to vest, on a contingency that must happen, if at all, within a life or lives in being, and twenty-one years and a fraction thereafter.

EJECTMENT, brought by the plaintiffs below as heirs at law of George H. Combs, the son and devisee of Alexander Combs, deceased, against James N. Combs, to recover a tract of land claimed and held by the latter under a devise contained in the will of the said Alexander Combs, which devise is quoted in the opinion of the court. The jury found for the plaintiffs, and the defendant appealed.

Daniel R. Magruder, for the appellant.

Robert C. Combs and Joseph F. Morgan, for the appellees.

By Court, BRYAN, J. The will of Alexander Combs contained the following clause: "I give and devise all my estate, real and personal, to my son, George H. Combs, to him and the heirs of his body lawfully begotten, with full power and authority to him, the said George H. Combs, to sell and convey the same in his lifetime, or to dispose of the same by last will and testament; but should he, the said George H. Combs, die without issue of his body lawfully begotten, and without having disposed of the same by sale, or by last will and testament, either in whole or in part, then I give and devise my said estate, both real and personal, or the part remaining as above undisposed of, to my cousins, James Nathaniel Combs and Thomas B. Price, in equal portions, share and share alike, to them and their heirs."

We are to decide whether the limitation to James N. Combs and Thomas B. Price is valid. By virtue of the act of 1862, chapter 161, the words of the will, "die without issue of his body lawfully begotten," must be construed to mean a definite failure of issue, and will support the limitation over, if other words in the will do not prevent this result. The testator gives his estate to his son George, and the heirs of his body lawfully begotten, with full power and authority to sell and convey it in his life-time, or to dispose of it by last will and testament. It is difficult to see how the devisee could have more absolute control and dominion over the property. Even if there had been no words of inheritance, and the estate had merely been devised to George generally and indefinitely, the absolute power of disposition would have carried the fee: Benesch v. Clark, 49 Md. 497. An executory devise may be limited after a fee-simple; but in such case, the fee must be made determinable on some contingent event. It must be provided that the fee is to cease, and the executory devise to vest, on a contingency, which must happen, if at all, within a life or lives in being, and twenty-one years and a fraction thereafter. In the case before us, the fee given to George is absolute and unqualified, and is not determinable on any event whatsoever. In Ide v. Ide, 5 Mass. 500, Chief Justice Parsons, in speaking of a similar case, said: "Whenever it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void, because it is inconsistent with the absolute property supposed in the first devisee. And a right in the first devisee to dispose of the estate devised at his pleasure, and not a mere power of

specifying who may take, amounts to an unqualified gift." And Chancellor Kent, in delivering the unanimous opinion of the court of errors in Jackson v. Robins, 16 Johns. 537, said: "We are obliged to say that an absolute ownership or capacity to sell in the first taker, and a vested right by way of executory devise in another, which cannot be affected by such alienation, are perfectly incompatible estates, and repugnant to each other, and the latter is to be rejected as void." Both of these great jurists cited and relied upon Attorney-General v. Hall, Fitzg. 314, decided by Lord Chancellor King, assisted by the master of the rolls and Chief Baron Reynolds, and quoted with approval by Lord Hardwicke in Flanders v. Clark, 1 Ves. 9. These assuredly are authorities of great weight. We think that they ought to be considered as settling the law; although contrary opinions have been declared by some very learned courts.

We agree with the circuit court in holding that the executory devise is void, and that on the death of George Combs intestate, the land descended to his heirs at law.

Judgment affirmed.

CONSTRUCTION OF WORDS "DIE WITHOUT ISSUE": See In Matter of New York etc. R'y Co., 59 Am. Rep. 478; Quackenbos v. Kingsland, 55 Id. 771, note 774, where this subject is discussed; Hill v. Hill, 15 Id. 545; Allender's Lessee v. Sussan, 3 Id. 171; Presley v. Davis, 62 Am. Dec. 396; Lewis v. Claiborne, 26 Id. 270.

WHEN DEVISEE TAKES FEE, REMAINDER OVER BEING VOID FOR REPUGNANCY: See White v. Crenshaw, 60 Am. Rep. 370; Stowell v. Hastings, 59 Id. 748; Mitchell v. Morse, 52 Id. 781; Canedy v. Jones, 45 Id. 777; Henderson v. Blackburn, 44 Id. 780, note 783; Moore v. Sanders, 40 Id. 703; Bona v. Meier, 29 Id. 493; Jones v. Bacon, 28 Id. 1, note 4; McKenzie's Appeal, 19 Id. 525. But see Jones v. Jones, 57 Id. 266; Stuart v. Walker, 39 Id. 311, note 318; Reinders v. Koppelmann, 30 Id. 802; Burleigh v. Clough, 13 Id. 23. An estate vests absolutely in the first taker, when the gift is to him and his issue, or to him and the heirs of his body, and the limitation over is upon an indefinite failure of issue: Cleveland v. Havens, 78 Am. Dec. 90; or where the limitation over is too remote: Brattle Square Church v. Grant, 63 Id. 725, note 741, where other cases in that series are collected. A devise to one "in fee-simple for life" passes an estate in fee: McAllister v. Tate, 73 Id. 119, note 121. In Texas, where an estate in lands is created by will, it will be deemed an estate in fee-simple, if a less estate is not limited by express words: Bell County v. Alexander, 73 Id. 268, note 276, collecting other cases.

EXECUTORY DEVISE LIMITED AFTER FEE, WHEN VOID: See Van Horne v. Campbell, 53 Am. Rep. 166; Slaughter v. Slaughter, 79 Am. Dec. 111, note 113, where other cases in that series are collected. A limitation by way of executory devise, which may not take effect within a term of a life or lives in being at the testator's death, and twenty-one years and nine months thereafter, is void for remoteness: Brattle Square Church v. Grant, 63 Id. 725, note 740, where other cases are collected.