In re the Partition of the Intestate Estate of Reed

Citations

• 23 Del. 30

Syllabus

<p>Partition—Intestate Real Estate—Will—Devise—Fee Simple— Life Estate—Words of Limitation—Intention of Testator ■—Introductory Clause of Will—Words Showing Intention—Delaware Cases.</p> <p>1. While it may be true that in most cases where there is a general devise of land without words of limitation it was the intention of the testator that a fee simple estate should pass, it is equally true that such intention must be found in the language of the will and not in conjecture or speculation.</p> <p>2. The words “one half of the farm where I now reside,” are merely descriptive of the property devised, and in no sense determine the estate that should pass; nor does the word “descend,” indicate that the testator intended that a fee simple estate should pass.</p> <p>3. The testator devised to his daughter one-half of the farm upon which he resided “to her heirs if she should have any children; if she should have none it is to descend to the oldest son of J ohn W. Reed (George W. Reed), if he should have any lawfully begotten at her death if he should have no male heirs it is to descend to all her heirs alike, except to John W. Reed himself. But shall not prohibit his heirs from receiving his part.” Held, that George W. Reed took only a life estate in the land so devised.</p> <p>4. In holding that a fee simple estate passed when there was a devise without words of limitation, the Courts have been influenced both by the introductory clause of the will which showed .the intention of the testator, and by the fact that the testator had, in bequests to other heirs, shown that in no event did he intend that they should take any other part of his estate.</p> <p>5. The Delaware cases analyzed.</p> <p>6. In the construction of a will, the intention of the testator, as expressed in it, and collected from the whole of it, must prevail, provided it can be carried into effect consistently with the rules of law.</p>