Gray v. Corbit

Citations

• 4 Del. Ch. 357

Syllabus

<p>Ordinarily when a trust results to the heir at law, by reason of an ineffectual testamentary disposition, whoever would have taken by descent from the testator, had he died intestate, the land out of which the trust is raised, will be entitled to the resulting interest, and will take it with the like qualities of transmissibility from the heirs so taking, except only, that in its transmission from the heir upon his death, it will follow that course of succession uhich attaches to the nature of the interest whether as realty or personalty.</p> <p>Where a surplus of rents and profits of land is the subject of such a'trust, the fund results to the heir as the mere fruit or consequence of his title to the land, which is pro tanto treated precisely as if it were intestate; and, however contingent or uncertain the accruing of any surplus as a fact may be, yet, when it accrues, the course of succession is ascertained by going back directly to the death of the ancestor and tracing what v/ould then have been the descent of the real estate whence the fund accrued.</p> <p>The exact test of the transmissibility of a contingent interest may be taken to be the present capacity of some person, ascertainable, to take the interest in question should the contingency occur upon which it is to vest in possession.</p> <p>Whether the person to take the possible surplus of rents and profits be one named by the testator or entitled under the law, in the absence of a testamentary disposal, cannot affect the nature of the interest, as to whether it be one transmissible or not.</p> <p>The common law rule of descent, that if the heir, on whom the inheritance has been cast by descent,die before he has acquired actual seisin or what is equivalent in case of incorporeal hereditaments his ancestor and not himself becomes the person last seised of the inheritance and to whom the claimants must make themselves heirs, does not apply under our intestate law.</p> <p>The effect of the intestate law i