Doe v. Roe

12 Del. 488 | Del. | 1887

Saulsbury, Chancellor :

Richard Cooper, at that time a prominent citizen of Kent county, in this State, duly made and published his last will and testament on January 23, 1816, and died without having revoked the same in 1818.

He left to survive him a widow and five children, viz. s Ezekiel, Sarah, Richard J., Ignatius T., and William H.

To each of his five children he devised in severalty, portions of his real estate, in similar terms, which terms may be sufficiently understood by reference to the different items of his will in which the several devises are contained.

The sixth item is as follows: " I give and devise to my son, William Hughlett Cooper, * * * * * for and during his natural life, and not to be taken nor construed to be any longer or greater estate. And from and after his death, I give and devise all the foregoing lands and premises unto the several children, respectively of my son William H. Cooper, both males and females, if he should leave any at the time of his death which are lawfully begotten of his body, unto them, his said children, and the heirs of their bodies respectively forever, I give and bequeath to my son, William H. Cooper, a legacy of three hundred dollars in order to make up the deficiency in the value of the real estate devised to him with that devised to my other children.

Similar devises of his real estate for their natural lives, and not to be taken nor construed to be any larger, or greater estate were made to his other children respectively, and from, and after their deaths, respectively, were made unto their several children respectively, of the portions of real estate devised by the testator to his children respectively.

It is this item of the testator’s will to which we are now to give a construction.

The seventh item of the will is as follows: “Provided, nevertheless, in case any one, or more of my said children shall happen to die without leaving child or children, lawfully begotten of their bodies that can take and hold my real estate, as my immediate devisees agreeable to the true intent and meaning of this my will, then in such case, I give and devise the lands and premises, above devised, to such child or children which may, or shall happen to die as aforesaid unto the survivor, or survivors, of my said children, during their natural life, and after their decease I give and devise the lands and premises aforesaid, to the child or children, both males and females respectively of such survivor, or survivors, lawfully begotten of their bodies forever of any of my children, which may be dead leaving such child, or children, such child, or children claiming such part, or share as the parent, or parents, of such child, or children would have claimed, if living to be equally divided between my surviving child, or children as aforesaid, and the child, or children lawfully begotten, of any that may be dead claiming the right of their parent, or parents as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs, as aforesaid, forever ; and it is further provided, and it is my will, and desire, and intention, that if the whole of my children should die without leaving lawful child or children, or legal descendants of such child, or children, so that the whole of the lawful issue of my own body should become extinct, then and in such case, I give and devise the remainder, and remainders, reversion and reversions of my whole estate in the manner and form following: (Here follow devises to divers persons in fee and in tail not being children or descendants of the testator.)

The eigthth item of the will is as follows: “ Be it known that it is my express intention in this my will to create and establish cross remainders on and in the aforesaid estates, lands and premises among my several and respective children and their children lawfully begotten, so that my children and their children as aforesaid shall inherit so long as any of them shall remain.”

In a codicil to his will dated July 27, 1816, the testator declared that it was bis intention and will that the whole of his estate both real and personal should go to, and be divided to, and amongst his children, and the lawful issue of their respective bodies so long as any of them should remain. And that no other person in remainder should take or inherit any part thereof so long as any of his children or their lawful issue should survive.

Ezekiel Cooper one of the children of the testator died in 1828, leaving to survive him four children, one of whom is Andrew B., the plaintiff.

The testator’s daughter Sarah, died in 1830, leaving to survive her three children, Richard I., another of children died in 1835'leav-ingtosurvivehimonechild. WilliamH. Cooper, another child of the testator, died in 1847 without issue. Ignatius T. Cooper, another child of the testator, and the surviving one" of the testator’s children, died in 1884 leaving to survive him five children, viz: Richard G., Ezekiel W., William H., Alexander B. and Ignatius T.

The question for us to decide is whether Andrew B. Cooper, the plaintiff in the Action of Ejectment in the Superior Court in and for Kent County, in the State of Delaware, a son of Ezekiel Cooper, a child of the testator who died in 1828 is entitled to any and if any, what estate in possession devised by the testator to his son William H. Cooper, for life, who died in 1847 without issue.

Jn deciding this question it is necessary to consider every provision of the testator’s will, having a relation thereto.

First, I remark that it is apparent from careful consideration of the proviso contained in the seventh item of the will, that to a clear and full understanding of that proviso, that the word “ And” should be read between the words “ forever ” and “ of ” in the thirteenth line of said proviso oh the plaintiff’s brief and in the twelfth line on the defendant’s brief.

The Court in construing that proviso is justified and has authority to consider that that word was intended or meant by the testator so to be introduced, and was omitted from accident or inadvertence, and its insertion in a proper consideration of this provision of the testator’s will whether absolutely necessary or not, would clearly elucidate his meaning and render clear that which otherwise might by others be considered doubtful or uncertain.

That it is perfectly competent for the Court to construe the will as though this word was inserted if they believed such an insertion would manifest more clearly the testator’s intention is too clear to need authorities and will not I presume be seriously questioned by any one familiar with the rules of correct interpretation.

Properly to interpret the will of the testator, and to give full effect to all of its provisions, we must bear in mind that he has declared therein, that it is his intention that the whole of his the estate, both real and personal, shall go to, and be divided to, and amongst all his children and the lawful issue of their respective bodies, so long as any of them shall remain, and that no other person in remainder shall take or inherit any part thereof so long as any of his children or their lawful issue shall survive. He also declared as his expressed intention in his will to create and establish cross remainders in the aforesaid estates, lands and premises among his several and respective children, and their children, lawfully begotten, so that his children and their children shall inherit so long as any of them shall remain.

It was manifestly the intention of the testator to preserve his estate to his children, and to their children, and to the issue of their children to the exclusion of all others not of his family, as long as any member of his family should exist, and although there was a devise over to persons not members of his family, he expressly provided that those named in such ulterior devise should take nothing under the same until his entire descendants should become extinct.

Equality of benefit among his children and their children, and the issue of his children is a marked characteristic of the testator’s will.

To give effect to the testator’s will in this respect it becomes necessary to ascertain the true meaning of the words “ survivor ” or “ survivors ” as used therein.

It must be observed, that the children of his children respectively, and the issue of such children were intended to be objects of the testator’s bounty, and of equality in the enjoyment of that bounty is as plainly evidenced as is this intention in respect to his immediate children.

How, can it be reasonably supposed that the equality of benefit in any portion of his estate to any of his children’s children or their issue should depend upon the uncertain event of the parent of such children or issue being the last survivor of all the children of the testator ?

Could the mere accident of survivorship, of any one of the children, of the testator destroy that equality of interest in all his •grand-children and their issue, which the testator clearly indicates and expresses throughout his whole will to be his intention ?

Is is possible that such an accident shall confer upon the children of Ignatius T. Cooper, one son of the testator, who in this case happened to be his surviving child, such absolute advantage of benefit, under his will, over the children of Ezekiel, Sarah and Richard; also standing in the same relation to the testator, and equally, objects of his bounty ?

Did the testator intend any such superiority of advantage to the issue of Ignatius T. over the issue of his other children, simply because the former happened to survive in point of time the latter ?

What then is the meaning of the word “ survivor or survivors,” as used by the testator in his will ?

The following principles have been decided and considered in well adjudged cases.

If there be an absolute gift to several persons with the gift to the survivors, if any die without issue “ survivors ” must be construed in its ordinary sense.

The defendants claimed the benefit of this principle or rule, because they are the children of Ignatius T. Cooper who was the surviving son of the testator, and contend that they, -by reason of the survivorship of their father, became under the will of their grandfather, entitled to that portion of his real estate devised to William H. Cooper their uncle, who died without issue.

It must, however, be observed that the gifts or devises to the five children of Richard Cooper the testator were not in themselves absolute, and this fact when taken in connection with other portions of the testator’s will, does not bring the contention of the defendants clearly within the principle above announced.

Another .principle of interpretation is, that where there is a gift over to take place only in the event on which the property is limited to the first legatees, among whom there is to be survivor-ship, happened in respect to all these legatees, survivor will be construed “ other ” so as not to cause an intestacy.

Now in the present case as there was a devise over to persons not members of the testator’s family, and as the testator declared in- his will, that such persons should not take any portions of his estate so long as any of his descendants should remain, it would follow if the contention of the defendants be correct that had Ignatius T. died without children or issue, there must have been an intestacy as to that portion of the testator’s real estate, devised to William, and this notwithstanding there might have been children or issue of Ezekiel, Sarah and Richard who'were descendants of the testator at the time of the death of Ignatius without children or issue.

Another principle of interpretation is, that where there is a devise to sons, and the heirs of their bodies-and if any die without issue to the survivors and the heirs of their bodies, and if all die without issue over, survivorship shall be referred to the stirpes and not to the first taker, and the share of a son dying without issue will go among the issue of a son previously deceased, and the surviving sons.

In such a case says Hr. Theobald, in his able and excellent treaties on wills, “ the testator has expressed his intention of benefiting the line of issue, and the survivorship contemplated is one between the respective stirpes, and not between the first takers merely,and this coupled with the gift over which can only take effeet if all the sons die without issue, is sufficient to enlarge the meaning of the word survivor.”

The same principle will be applied to the case where the will gives life estates with limitations expressly to issue,followed by a gift on failure of issue of any of the tenants for life to the surviving tenants for life for their lives, and then to their issue, and an ultimate gift over on failure of issue of all the tenants for life. “ There is here,” says the same distinguished author, “ the same evidence of intention to benefit the issue, and the gift over shows that survivorship is contemplated not merely between the first takers but between the respective stirpes.”

I have carefully examined the cases of Hurley v. Morgan, L. R., 3 Eq., 152; Badger v. Gregory, 8 Eq., 78; Waite v. Littlewood, 8 Ch., 70; In Re Palmer’s Trusts, 19. Eq., 320., and many other adjudged cases, and find this last principle fully supported by well adjudged cases.

The consideration of the question as to when the words “ survivor ” or “ survivors ” shall be construed “ other ” or “ others ” may be confirmed by reference to the case In re Keeps’ will, 32 Bevan., 122.

The master of rolls said in that case “ that there was no question but that the rule of law as laid down by modern authorities that the word survivors is to be confined to the literal signification of survivors at the period spoken of by the testator, in every case where it is possible to do so, without, violating the clear meaning of the rest of the will, and that the burden of proof lies on those who contend for a different construction to show from the words of the will taken together that the true meaning of the word as used by the testator is “ others,” and not “ survivors.”

This is a fair statement of the question of constuction.

The plaintiff in the action in the Superior Court by which the question to be decided has been reserved for our decision, must show that the true meaning of the words of the will of Richard Cooper, his grandfather, as used by the testator is “other” or “ others ” and not survivor or survivors in their restricted sense and that applying the words strictly would be violating the clear meaning of the rest of the will, and that the clear meaning of the rest of the will requires an enlarged meaning of the words “ survivor ” or “ survivors.”

The master of the rolls, however, In re Keep’s Will, while adhering rigidly to the rule that the word “ survivors ” is to be constoued strictly when it is possible to do so, was of opinion that the testator had plainly expressed his intention that the word survivors in the will he was considering meant the other nieces amongst whom he had divided the ten-elevenths of his residue, and made a declaration accordingly.

It may not be amiss to refer to the case of Smith v. Osborn, 6 House of Lord’s Cases, 374, where it was decided that in a will the gift to two designated devisees as tenants in common in tail, and that if either should die without issue, then to the surviving devisee, that word must be taken to mean “ other.”

Opposed to this rendering of the words “ survivor ” or “ survivors ” as being “ other ” or “ others,” the counsel for the defendants refers us to the case of Pomfort v. Graham, 19 Ch. Div., 186.

In this case Hall, Vice Chancellor, said in the conclusion of his opinion : “ I say now, looking at all the authorities and considering all the opinions expressed by the Judges, that when I have such a case as the present before me, I ought not to decide it upon the view that has been said by one Judge to be an absurdity, that the gift over to survivors for life -with remainder to children is alone enough to construe “ survivors ” as “ others.”

I am of opinion that I ought to hold where that is the sole eireumstanoe to be relied upon, the word must have given to it its natural and ordinary meaning, and that being so, hold that the words “ survivor ” or “ survivors ” must be so read in this case.

But is this an authority upon the question at issue ? In the will before Vice Chancellor Hall, there was no gift over. There was no express provision as in the will of Eichard Cooper, that it was the testator’s intention to create cross remainders between his devisees and their issue.

Surely, a gift over to survivor for life with remainder to children, which seems to have been the sole circumstance for consideration by Vice Chancellor Hall, is not the sole circumstance, or any material circumstance to be considered in the construction of the will of Richard Cooper.

In the case of Wylie v. Lockwood, N. Y. Rep., 291, to which we have been referred there was no intention to create cross remainders by the testator, between his devisees, and no devise, over after the death of all his children without issue, or after all his descendants should become extinct as was the case in the will of Richard Cooper.

These are material differences which distinguish that case from the case before us.

But it is unnecessary to refer further to adjudged cases.

In my opinion, the intention expressed by Richard Cooper in his will to create and establish cross remainders on and in the estates, lands and premises among his several and respective children and their children lawfully begotten. So that his children, and their children should inherit so long as any of them should remain, and the expression of his will, and desire, and intention, that if the whole of his children should die, without leaving lawful child, or children, or legal descendants of such child, or children, so that the whole of the lawful issue of his own body should become extinct, and the gift, and devise of the remainder and remainders, reversion, and reversions, of his whole estate to divers persons in fee and in tail not being children, or descendants of the testator entitles the plaintiff in the Action of Ejectment as a son of Ezekiel Cooper, one of the children of the testator, to an estate in possession of one-eighth part of the lands devised to William H. Cooper another child of the testator, who died in 1847, without issue.

Houston, J.

In the interpretation of a last will and testament the duty of the court is to ascertain as far as it can do so to its own satisfaction, the true meaning and intention of the testator from the words in which he has expressed it, and to give effect to that meaning and intention if practicable. And the more uncertain and obscure the meaning of it may be, the greater is the danger of resorting to mere speculation or conjecture for a correct solution of its construction. But notwithstanding the multiplicity of words and the uncertainty of meaning which characterizes the seventh item of the will in question, I can safely say that it is clear to my mind from the whole context of it, that the testator intended in the first place to devise to each of his five children, viz.: Ezekiel, Sarah, Richard J., Ignatius T. and William H., the several portions of his real estate mentioned respectively in the second, third, fourth, fifth and sixth items of it, in severalty for life, remainder to the law-, ful children of each of them in tail in the portion so devised; “but in case any one or more of my said children should happen to die without leaving child or children lawfully begotten of their bodies that can take and hold my real estate, as my immediate devisees, agreeable to the intent and meaning of this my will, then in such case I give and devise the lands and premises above devised to such children which may or shall happen to die as aforesaid, unto the survivor or survivors of my said children during their natural life; and after their decease I give and devise the lands and premises, as aforesaid, to the child and children, both males and females, respectively, of such survivor or survivors, lawfully begotten of their bodies forever, of any of my children which may be dead leaving such child or children, such child or children claiming such part or share as the parent or parents of such child or children would have claimed, if living, to be equally divided between my surviving child or children, as aforesaid, and the child or children lawfully begotten of any that may be dead claiming the right of their parent or parents as if living, share and share as tenants in common, and not as joint tenants, and to the respective heirs as aforesaid forever; and it is further provided, and it is my will and desire and intention that if the whole of my children should die without leaving lawful child or children, or legal descendants of such child or children, so that the:whole of the lawful issue of my own body should become extinct, then and in such case I give and devise the remainder and remainders, reversion and reversions of my whole estate in the manner and form following: ”

The testator then devises over the estate to others, and then adds as follows in the eighth item of the will:

“ Be it known that it is my express intention in this my. will to create and establish cross-remainder on and in the aforesaid estates, lands and premises among my several and respective children and their children, lawfully begotten, so that my children and their children, as aforesaid, shall inherit so long as any of them shall remain.”

And afterwards, on the 22d day of July, 1816 he executed and annexed a codicil to his will in which he subjoins the following declaration:

“ I do also declare that it is my intention and will that the whole of my estate, both real and personal, shall go to and be divided to and amongst my children, and the lawful children of their respective bodies, so long as any of them shall remain j and that no other person, in remainder, shall take or inherit any part thereof so long as any of my children or their lawful issue shall survive.”

I have said that upon the whole will the first intention of the testator was clear to give the lands devised in the sixth item of it in severalty and in equal portions so far as pertained to the value of them, to his five children named for the life of each of them respectively, with remainder after the death of each of them to the lawfully begotten children, of each of them in fee tail general. And the next intention of the testator was equally clear, I think, that if any one or more of his said children and devisees for life under the first devise, should die with out leaving child or children, lawfully begotten of their bodies, then and in such case he gave and devised the lands and premises so devised to such child or children which should happen to die as aforesaid, unto the survivor or survivors of his said children during their natural life,- and this shows that none of his said children were to take even in that event by survivorship more than an estate for his life or their lives in any part of the lands and premises originally devised severally to his said children for life respectively with remainder to their children respectively in fee tail, and also that none of his grandchildren should take any interest or estate in possession in any portion of the lands and premises devised to any one of his children who should die without leaving any lawful child or children, during the lifetime of any one or more of his said children, but that the survivor or survivors of them should take such portion of the lands and premises so devised during their natural life. These intentions are all indicated • and expressed with sufficient clearness and certainty in the terms of the will to be readily apprehended and undertood.

But the question is as to the next intention, and what is the meaning of the limitation and devise over which immediately follows this in the will ? It is as follows :

“ And after their decease, (that is to say, of the survivor or survivors of my said children who are to take it during their natural life,) I give and devise the lands and premises, as aforesaid, to the child or children, both males and females, respectively, of such survivor or survivors, lawfully begotten of their bodies, forever, of any of my children which may be dead, leaving such child or children, such child or children claiming such part or share as the parent or parents of such child or children would have claimed, if living, to be equally dividend between my surviving child or childing, as aforesaid, and the child or children, lawfully begotten, of any that may be dead, claiming the right of their parent or parents as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs, as aforesaid, forever,

I must say that I have found it impossible to give any sensible or reasonable interpretation to this devise in the will with the inherent errors apparent in the wording of it, one of which by the omission of the word and either destroys the grammatical structure of the sentence in which the omission occurs, or strips it of any intelligible meaning whatever, while the other omission of a few more words in another sentence of it, is so palpable as to make nothing less than nonsense of it as it now stands in the will. For I agree with the learned counsel for the plaintiff that we cannot give effect to, or in fact, any sense or meaning to the following words of the will, “ and after their decease, I give and devise the land and premises, as aforesaid, to the child or children, both males and females respectively, of such survivor or survivors, lawfully begotten of their bodies forever, of any of my children which may be dead, leaving such child or children claiming such part or share as the parent or parents of such child or children would have claimed if living,” without inserting the conjunction and between the word “ forever ” and the word “ of” which immediately follows it in the foregoing paragraph by reason of its omission, and which with the word and there inserted would read, “ and after their decease, I give and devise the lands and premises as aforesaid, to the child or children, both males and females respectively, of such survivor or survivors, lawfully begotten of their bodies forever, and of any of my children which may be dead leaving such child or children, such child or children claiming such part or share as the parent or parents of such child or children would claim if living,” or in other words intending to declare in case of a survivor-ship for life of any one or more of the portions among his children by death of any one or more of them without leaving a child, then on the death of such survivor or survivors of his said children, the child or children of such survivor or survivors of his said children and the child or children of any of his children which may then be dead leaving lawful child or children, should take the portion or portions so held for life by such survivor or survivors of his said children per stirpes, and not per capita, and in fee tail general.

There is also, as I have before remarked, evidently a similar error by the omission of intended words in the concluding part of the first and greater part of the devise which we have just before repeated, and which immediately follows it, and is separated from the preceding part of it simply by a comma, “ to be equally divided between my surviving child or children as aforesaid, and the child or children lawfully begotten of any that may then be dead, claiming the right of their parent or parents, as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs as aforesaid forever.”

This was evidently intended by the testator to be but one continuous devise over of any portion of the lands and premises which might happen to have been devised to any one or more of his said children who should happen to die without leaving child or children lawfully begotten of their bodies, and which in that case was or were given to the survivor or survivors of his said children during their natural life, after the decease of survivor or survivors of his said children, to such of his grand-children as he wished to share in such portions of his lands and premises as might thus survive to any survivor or survivors of his said children for life, after the death of such survivor or survivors, and when, of course, all of his said children would be deceased. This was the special contingency, in case it should occur, which he was evidently providing for in this devise of the will, for notwithstanding the length of it and the multitude oí: words employed in it, it is one single, continuous and contingent devise of that contingent estate devised to the survivor or survivors of his said children for life in the portion or portions devised to any one or more of them who should happen to die without leaving child or children lawfully begotten of their bodies; it was to provide for the limitation and devise over of these contingent estates for life in the survivors of his said children in case they should occur as apprehended and provided for, on the death of the last survivor of them; and to show that it was evidently intended by the testator to be one such single and continuous devise of such a life estate or life estates on the death of all his said children, it is nowhere divided by any other mark of punctuation than a comma from the commencement to the conclusion of it. But to make this part of the devisé consistent with all oi the preceding part of it, and even possible in the contingency contemplated by the testator, must we not also insert before the words “ my surviving child or children as aforesaid,” and after the word “ between ” in • the beginning of this part of the devise the words “ the child or children of? ” And may we not suppose that in writing the will, or perhaps, in preparing a fair copy from the original draft of it, these words were inadvertantly omitted from it. For as the words stand in the will “to be equally divided between my surviving child or children as aforesaid, and the child or children lawfully begotten of any that may be dead,” &c., it was a matter of absolute impossibility apparent upon the face of the devise itself that there could be any of his said children surviving when this devise by the very terms of it was to take effect, for it was not until “after the decease of the survivor or survivors of his said children ” that this devise over of the lands and premises to any of the children who should die without leaving a child or children, was to the survivor or survivors of them for life, and it was, of course, not until after the death of the last survivor of them, if there had been more than one survivor of them when his son, William H. Cooper, died without child or children, that any of the testator’s grandchildren was to share in the possession of any part of the lands and premises devised in the first place to him. It was therefore an impossible and absurd devise and wholly inconsistent with the manifest intention obvious upon the face of it, and must fail for that reason unless we give it a reasonable construction in accordance with that evident intention apparent upon the face of the devise, and consistent with all the preceding and succeeding parts of the will, by inserting the words I have suggested in the place and connection where they were manifestly omitted contrary to the meaning and intention of the testator. With those words inserted the subsequent and concluding part of the devise in question will read as follows, and render the whole devise intelligible and consistent from the beginning to the end of it: “ to be equally divided between the child or children of my surviving child or children as aforesaid, and the child or children lawfully begotten of any that may be dead, claiming the right of their parent or parents, as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs as aforesaid forever.” Without these presumptions to explain and rebut the obscurity and contradiction apparent on the face of devise itself as it stands, I have been wholly unable to say what meaning it possesses, or whether it in fact possesses any intelligible or practicable meaning whatever. And yet I have a strong conviction that the two corrections suggested, if made in the words of it, would make it what he intended it should be when he made the will.

His son Ignatius T. Cooper was the sole survivor of his said five children in the year 1847 when his son William H. Cooper died without issue, and this Court at the June Term, 1857, held that Ignatius T. Cooper, as such sole survivor, took under this devise on the death of his brother William H. without leaving child or children, an estate during his natural life in the portion of the lands and premises devised by the testator to his son William H., and which he held in pursuance of it, until his death in the year 1884, Doe et Cooper v. Townsend et al., 1 Houst., 365. Ignatius T., was of course, the last survivor of the testator’s said children, and on the death of William H. without leaving any child succeeded to the lands and premises devised to him, for the term of his life, as this Court unanimously ruled in that case; and if there be any intention to be deduced with more certainty than any other from the obscure and defective language and grammar in which the devise now before the Court is expressed, it certainly seems to me to be more in accordance with the general scope and design of the other parts of the will about which there is no dispute, to give to this devise the intention and construction which I have herein given to it.

As I have before observed, it clearly appears from the other parts of the will that it was the desire and intention of the testator in devising his real estate to his five children, was to divide it in value equally between them, giving to each an estate for life in his or her several portion, with remainder to the children of each in tail, with the special limitation or qualification, if any one or more of his said children should die without leaving a child or children, he gave the lands so devised to such child or children to the survivor or survivors of his said children during their natural life, and under which the land so devised to his son, William H, who was the only one of the five children who died without leaving any child, on his death passed to his son Ignatius T. for life, and who was then the only survivor of his said five children; but as this was the only exception which he made in his will to his scheme and purpose to devise and divide the lands equally between them all for life with remainder in tail to the children of each respectively, subject only to this special and limited impairment of the equality of the division among his children and their children after their death, during the life time of the survivor or survivors of his said children in case of the death of any one or more of them without leaving a child. And is there any thing in the will to warrant the opinion that he intended to depart any further than this from the equality of division which he first made between them and their children respectively in the main devise in the will, or that he intended in the event which has occurred that the lands and premises which were so devised to his son William H., should on his death without leaving a child, not only accrue by survivorship to Ignatious T., then his only surviving child, for the term of his natural life, but should also accrue on the death of the latter to the exclusive benefit of the children of the latter, if their should be any child or children or descendants of either of his other five children then living?

But that it was the intention of the testator that on the death of his last surviving child, Ignatius T., the lands which had survived to him for the term of his life on the death of his son William H. without leaving a child, should be equally divided between all the children of his said children then living, per stirpes, share and share alike, as tenants in common, and not as joint tenants, and their respective heirs forever, is rendered still more certain and conclusive by the declaration made by him in the eighth item of it, as follows: “ Be it known that it is my express intention in this my will to create and establish cross remainders on and in the aforesaid estates, lands and premises among my several and respective children, and their children lawfully begotten, so that my children and their children, as aforesaid, shall inherit so long as any of them shall remain.” And such was the importance which he attached to the express intention therein declared that he was not content with so expressing it once only, but afterwards substantially repeats it in equally explicit and positive terms in the codicil executed on the 22d day of July, 1816, and appended to the will, as follows: “ I do also declare that it is my intention and will that the whole of my estate, both real and personal, shall go to and be divided to and amongst my children and the lawful issue of their respective bodies, so long as any of them shall remain; and that no other person in remainder shall take or inherit any part thereof, so long as any of my children or their lawful issue shall survive.”

One might even suppose that the eighth item of the will in which the testator so particularly and forcibly declares his express intention to create and establish in his will cross-remainders in the aforesaid estates, lands and premises among his several and respective children, and their children lawfully begotten', so that his children and their children should succeed to the title and possession of them under the devises of the will so long as any of them should be in existence, was directly suggested by the ruling of the Court of King’s Bench in the case of Doe v. Wainwright, 5 T. R., 427, in a case of cross remainders somewhat similar to that in this case.

Case Details

Case Name: Doe v. Roe

Court Name: Supreme Court of Delaware

Date Published: Jun 27, 1887

Citation: 12 Del. 488

Court Abbreviation: Del.