17 Del. Ch. 425 | Orphan's Court of Delaware | 1930
The will of Mrs. Johnson carved a life estate out of the real estate in question and made no further provision with respect to it after the termination of the life interest, unless 'the general residuary clause is to be taken as embracing in its disposition the remainder after the life estate. If the general residuary clause includes the remainder after the life estate, there was no intestacy; if it does not include the remainder after the life estate, there was an intestacy and, the life tenant now being dead, the petitioner as a grandchild has a clear interest which entitles her to maintain her petition for partition.
We find the law to be that where the language of a residuary clause disposes of “all the rest, residue and remainder of my estate,” as here, such language will be taken to embrace all the reversionary interest which the testator had, after a life estate created by the will, unless it is otherwise disposed of or the will in its entire context shows the intent to have been otherwise. Yeomans, et al., v. Stevens, 2 Allen (Mass.) 349; Hooper, Ex’r., v. Hooper, 9 Cush. (Mass.) 122. Many other cases may be found to the same effect. The rule is a derivative from the general
We conclude then that there was no intestacy as to the property which is sought to be partitioned.
The next question we have to consider is whether or not, under the will of Mrs. Johnson, the petitioner has any share or interest in the property which entitles her to a partition thereof. The petitioner is a granddaughter of the testatrix. She is the daughter of a son of the testatrix who predeceased his mother..
In our opinion the petitioner has no interest whatever in the property which per petition seeks to divide. This is for the reason that the residuary clause gives “the same to my children then living or the survivors of them in equal shares,” and the petitioner is not a child, nor was her father a child “then living.” Whether the word “then” be taken to refer to the time of the life tenant’s death or to the time of the death of the testatrix is immaterial, for in neither case could the petitioner qualify either in her own right as a residuary devisee or in her right as heir to her father. The word “children” will not in the absence of a context indicating an interest to the contrary, embrace a grandchild. 40 Cyc. p. 1448. Not only does the context fail to indicate such intent to
Our opinion is that in no view of the case can the petitioner be said to possess any interest in the property she seeks to have partitioned. Having reached this conclusion it is unnecessary for us to proceed further to determine who are the owners of it and in what shares.
The petition will be dismissed with costs on the petitioner.