Lessee of Caulk v. Caulk

Citations

• 19 Del. 528
• 3 Penne. 528
• 52 A. 340
• 1902 Del. LEXIS 13

Syllabus

<p>Case Stated—Devise—Will—Issue—Children—Words of Limitation—Of Purchase—Real Estate—Personal Property— Survivors—Estate Tail—Limitation Over—Intention of Testator—Rule of Construction—Case of Jamison vs. McWhorter, 7 Roust., 2J¡S¡, incorrectly Reported.</p> <p>1. A. devised real estate to each of [his three sons, their heirs and assigns forever ; and provided by a subsequent item of his will that, if either of his “ sons should die leaving no child or children, then and in that case the survivors or survivor should inherit the deceased one’s portion and portions, to them or either of them, their heirs and assigns forever.” Held, that each of the sons took an estate tail in the real estate so devised.</p> <p>2. The words “child or children” are ordinarily construed to be words of purchase and not of limitation; but there are many cases in which such words have been held to be words of limitation and synonymous with issue. They are often given such meaning in order to carry out the manifest intention of the testator as gathered from the entire will. Such words, unaided by the context and unaffected by other language in the will showing an intention to use them in a more comprehensive sense, would ordinarily restrict the failure of issue to the death of the first taker. But the courts will seize upon any other words employed by the testator which show that his desire and intention was that the failure of issue was to be a general and indefinite one; and that not only children, but grandchildren, and even remoter issue, should be the beneficiaries of his bounty.</p> <p>3. The case of Jamison vs. Me Whorter, J Houst., 242, is incorrectly reported. The opinion delivered by Judge Houston, and reported as the dissenting opinion, was in fact the opinion of the majority of the Court. The decree is in conformity with that opinion.</p> <p>4. The word “ survivor or survivors ” in the limitation over will not restrict the word “ children” to a failure of issue at the death, esp