Babb v. Babb

Supreme Court of Delaware

Babb v. Babb

2 Del. Cas. 165, 1802 Del. LEXIS 3

DecidedMay 26, 1802

StatusPublished

This text of 2 Del. Cas. 165 (Babb v. Babb) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Babb v. Babb, 2 Del. Cas. 165, 1802 Del. LEXIS 3 (Del. 1802).

Pincite

Opinion

The Court.

First, this [is] an action of dower, to support which the marriage, seisin, and death of the husband must be proved. Seisin [in] law, seisin in deed. Secondly, that as all objection to the form of pleading is waived, if in this case from the evidence given it appears to your satisfaction that it was either from the intention of the testator, Peter Babb, to exclude his wife from dower in this land (note no evidence of the will of Peter Babb), or that the widow after the death of Peter Babb, received from his son, the bargainee, or he offered compensation for any right of dower in the land conveyed to him by his father it will bar her, provided that compensation issues out of, or is made a lien on land. Third, it is certainly the law that you cannot go into paroi evidence of any sort, to show the intention of testator was by devise to bar his wife of dower, but the intention must appear from the writings themselves. Fourth, it is also certain that in this case, there arises a strong presumption from the delay of prosecuting the claim, together with the provision made in Thomas Babb’s, the younger’s, will, that agreement had taken place to accept of the £5 per year willed as a compensation. Fifth, if from the evidence you should be of opinion the plaintiff ought to recover, how are you to estimate damages. I answer no damages to be given in this case, but from time of demand; if no demand made, no damages. But if a demand was proved in this case, no doubt the damages given by you, ought in point of law to be agreeably to the value of the land when conveyed to the son, and not the improved value. Sixth, with respect to the twenty acres of marsh purchased by Thomas, the bargainee or lessee of his father, of William Bedford, if from the evidence you should be in favor of the plaintiff’s claim, and should be of opinion that Peter Babb, the [168]*168father, had no title to the same but that title was in Bedford, the plaintiff cannot recover anything respecting it.

Wednesday, May 26, 1802. A new trial granted in May last, and this day the cause being called, the plaintiff’s attorney discontinued it

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The Court.

First, this [is] an action of dower, to support which the marriage, seisin, and death of the husband must be proved. Seisin [in] law, seisin in deed. Secondly, that as all objection to the form of pleading is waived, if in this case from the evidence given it appears to your satisfaction that it was either from the intention of the testator, Peter Babb, to exclude his wife from dower in this land (note no evidence of the will of Peter Babb), or that the widow after the death of Peter Babb, received from his son, the bargainee, or he offered compensation for any right of dower in the land conveyed to him by his father it will bar her, provided that compensation issues out of, or is made a lien on land. Third, it is certainly the law that you cannot go into paroi evidence of any sort, to show the intention of testator was by devise to bar his wife of dower, but the intention must appear from the writings themselves. Fourth, it is also certain that in this case, there arises a strong presumption from the delay of prosecuting the claim, together with the provision made in Thomas Babb’s, the younger’s, will, that agreement had taken place to accept of the £5 per year willed as a compensation. Fifth, if from the evidence you should be of opinion the plaintiff ought to recover, how are you to estimate damages. I answer no damages to be given in this case, but from time of demand; if no demand made, no damages. But if a demand was proved in this case, no doubt the damages given by you, ought in point of law to be agreeably to the value of the land when conveyed to the son, and not the improved value. Sixth, with respect to the twenty acres of marsh purchased by Thomas, the bargainee or lessee of his father, of William Bedford, if from the evidence you should be in favor of the plaintiff’s claim, and should be of opinion that Peter Babb, the [168]*168father, had no title to the same but that title was in Bedford, the plaintiff cannot recover anything respecting it.

Wednesday, May 26, 1802. A new trial granted in May last, and this day the cause being called, the plaintiff’s attorney discontinued it

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Bluebook (online)

2 Del. Cas. 165, 1802 Del. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babb-v-babb-del-1802.