APPEAL from chancery. Before all the law judges.
This was an appeal from the decree of the chancellor in Sussex, in a case of partition under the will of John C. Burton, which after several bequests of personal property to his wife, Elizabeth Burton, devised as follows: — "Item, my will and desire is, that the residue of my estate both real and personal, shall be divided between my said wife Elizabeth, and my two half sisters, viz: Ruth Burton and Mary Short, as the law directs; giving my said wife her lawful part of the said residue." And he made his wife sole executrix.
The testator died seized in fee of several tracts of land in Sussex county. John R. Burton and wife, who was the widow of John C. Burton, filed their petition in chancery for partition of the lands, c. of which John C. Burton died seized, claiming one half in feesimple for the widow.
The chancellor decreed partition and assignment in three equalparts, and that one part should be assigned in severalty and infee to the petitioners in right of the widow; and one third to each of the half sisters in fee. From this decree both parties appealed. The appeal of the respondents came up first for hearing. The error assigned was, that the chancellor decreed a partition of the lands in thirds and in fee; whereas he should have decreed to the petitioners
only an estate for life, in right of the wife, in one third of the real estate.
Houston, for J. S. Burton and wife and Mary Short, contended, that the widow was entitled to only one third of the land for life, as she would have been entitled to the same as dower; with remainder to the heirs at law. She could not be entitled to a half, for this is not a case of intestacy, and the act of assembly gives the widow (without children) one half only in case of an intestacy. The testator could not then have referred to the intestate law when he devised to his widow her lawful part, but must have referred to the dower law, the act of 1816, which gives the widow only a third.
If this be not clear, the devise is void for uncertainty. What is the lawful part? What law is referred to; the common law, the act of 1816, or the intestate law? By the common law the land would descend to the half sisters in severalty, in fee and in equal shares, per capita, and not per stirpes; the devisees being named, with a direction to divide equally. (2 Harr. Rep. 103; Doe ex dem. Kean vs.Hoffecker.) Under the intestate law the wife would take one half; and under the act of 1816 one third, for her life. Now, if it be not clear which of these rules the testator referred to, as that which the law would apply to the subject of his devise, the devise is void. (21Law Lib. 206, 351; 8 Ibid 142, 262; Bac. Ab. tit.devise; 3 Barn. Cress. 825, Thomas vs. Thomas.)
Ridgely, for John R. Burton and wife, thought that the devise had a clear reference to the act of 1827, the intestate law. The testator had no children; and, had he died intestate, his wife would have been entitled to one half of the land for life. With this view of the law, he divided his land into two parts; to his wife one part, and his two half sisters the other part, and refers to the law to show that these parts should be equal. Then as to the interest which his widow was to take in this share he used words which carry not merely a life estate but the fee. The word "estate "passes not merely the land, but all the interest of the testator in the land. (22Law Lib. 220, 412.)
If this be not the construction as to the widow, the half sisters take but a life estate, for the words are the same. Yet this cannot be, for the testator evidently intended to dispose of all his estate real and personal.
Houston, in reply: — Had the petitioners claimed under the act of
1827, the intestate law, and asked for a half of the land for life it would not have been resisted; but when they claim under that act in reference to the share, and abandon it, claiming under the common law, as to the interest in that share, thus claiming a half in fee simple, we were compelled to resist this claim. And now we come to ask what is the true effect and operation of this devise.
The argument on the other side proceeds on the technical meaning of the word "estate," as if that could not be controlled by the intention of the testator. Whenever it appears that the testator uses the word estate as referring to the corpus of the land and not to the title or interest therein, it has no effect to enlarge the devise. (22Law Lib. 221, 223.)
The fact that the testator had no children at his death, cannot be considered by the court in the construction of his will.
And if the court can resort to inferences, they will presume that the testator referred to the act of 1816, which is the general law of dower, rather than to the intestate law of 1827; when the fact was that he was not about to die intestate as to any of his property.
The chancellor stated the grounds of his decree.
He regarded 1st, the general intention of the testator to dispose of all his estate. 2d. That in the distribution it was to be equal; and 3d. That as he named the parties who were to take, they took per capita, and not per stirpes. He thought the word "estate" as used by the testator, was to be taken in its proper sense, and carried the fee simple in the land, and that there was nothing to show a contrary intention; and that the will had reference to cases of testacy, and not of intestacy, for the law of distribution. The testator could not be considered as having reference to the intestate law as applicable to the land which he was by the act of making a will, taking out of the operation of that law.
By the Court
By the record in this case, it appears that John C. Burton, the testator, being seized in fee and possessed of certain real and personal estate, and having a wife named Elizabeth, now the wife of John R. Burton, and two half sisters, Ruth Burton and Mary Short, but no child, children or issue, made his last will and testament, bearing date the 9th of January, A. D. 1840. The testator soon afterwards died without issue, leaving to survive him the said Elizabeth, his wife, and his two half sisters before named, who are his heirs at law. His will was proved in due form. His wife, Elizabeth, seems to have been the peculiar object of his bounty
in the disposition of his personal estate; for he gives to her the greater part of it absolutely and forever, to wit: — all his household and kitchen furniture, his slaves, his two best horses, his gig and harness, all his stock of cattle, ten head of hogs and twenty head of sheep of the first choice, his cart, ox-wagons, all his farming utensils and five hundred dollars in cash. But in the disposition of his real estate, his two half sisters are objects of his benevolence, as well as his wife; and therefore he devises it, and the residue of his personal estate to all three of them, in the next item of his will, in these words: "my will and desire is, that the residue of my estate, both real and personal, shall be divided between my said wife Elizabeth, and my two half sisters, viz: — Ruth Burton and Mary Short, as the law directs, giving my said wife her lawful part of the said residue." The question raised in the argument is this: what are the respective shares of the wife, and of the two half-sisters in the real property devised to them; and what quantity of estate or interest does each take in her share?
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APPEAL from chancery. Before all the law judges.
This was an appeal from the decree of the chancellor in Sussex, in a case of partition under the will of John C. Burton, which after several bequests of personal property to his wife, Elizabeth Burton, devised as follows: — "Item, my will and desire is, that the residue of my estate both real and personal, shall be divided between my said wife Elizabeth, and my two half sisters, viz: Ruth Burton and Mary Short, as the law directs; giving my said wife her lawful part of the said residue." And he made his wife sole executrix.
The testator died seized in fee of several tracts of land in Sussex county. John R. Burton and wife, who was the widow of John C. Burton, filed their petition in chancery for partition of the lands, c. of which John C. Burton died seized, claiming one half in feesimple for the widow.
The chancellor decreed partition and assignment in three equalparts, and that one part should be assigned in severalty and infee to the petitioners in right of the widow; and one third to each of the half sisters in fee. From this decree both parties appealed. The appeal of the respondents came up first for hearing. The error assigned was, that the chancellor decreed a partition of the lands in thirds and in fee; whereas he should have decreed to the petitioners
only an estate for life, in right of the wife, in one third of the real estate.
Houston, for J. S. Burton and wife and Mary Short, contended, that the widow was entitled to only one third of the land for life, as she would have been entitled to the same as dower; with remainder to the heirs at law. She could not be entitled to a half, for this is not a case of intestacy, and the act of assembly gives the widow (without children) one half only in case of an intestacy. The testator could not then have referred to the intestate law when he devised to his widow her lawful part, but must have referred to the dower law, the act of 1816, which gives the widow only a third.
If this be not clear, the devise is void for uncertainty. What is the lawful part? What law is referred to; the common law, the act of 1816, or the intestate law? By the common law the land would descend to the half sisters in severalty, in fee and in equal shares, per capita, and not per stirpes; the devisees being named, with a direction to divide equally. (2 Harr. Rep. 103; Doe ex dem. Kean vs.Hoffecker.) Under the intestate law the wife would take one half; and under the act of 1816 one third, for her life. Now, if it be not clear which of these rules the testator referred to, as that which the law would apply to the subject of his devise, the devise is void. (21Law Lib. 206, 351; 8 Ibid 142, 262; Bac. Ab. tit.devise; 3 Barn. Cress. 825, Thomas vs. Thomas.)
Ridgely, for John R. Burton and wife, thought that the devise had a clear reference to the act of 1827, the intestate law. The testator had no children; and, had he died intestate, his wife would have been entitled to one half of the land for life. With this view of the law, he divided his land into two parts; to his wife one part, and his two half sisters the other part, and refers to the law to show that these parts should be equal. Then as to the interest which his widow was to take in this share he used words which carry not merely a life estate but the fee. The word "estate "passes not merely the land, but all the interest of the testator in the land. (22Law Lib. 220, 412.)
If this be not the construction as to the widow, the half sisters take but a life estate, for the words are the same. Yet this cannot be, for the testator evidently intended to dispose of all his estate real and personal.
Houston, in reply: — Had the petitioners claimed under the act of
1827, the intestate law, and asked for a half of the land for life it would not have been resisted; but when they claim under that act in reference to the share, and abandon it, claiming under the common law, as to the interest in that share, thus claiming a half in fee simple, we were compelled to resist this claim. And now we come to ask what is the true effect and operation of this devise.
The argument on the other side proceeds on the technical meaning of the word "estate," as if that could not be controlled by the intention of the testator. Whenever it appears that the testator uses the word estate as referring to the corpus of the land and not to the title or interest therein, it has no effect to enlarge the devise. (22Law Lib. 221, 223.)
The fact that the testator had no children at his death, cannot be considered by the court in the construction of his will.
And if the court can resort to inferences, they will presume that the testator referred to the act of 1816, which is the general law of dower, rather than to the intestate law of 1827; when the fact was that he was not about to die intestate as to any of his property.
The chancellor stated the grounds of his decree.
He regarded 1st, the general intention of the testator to dispose of all his estate. 2d. That in the distribution it was to be equal; and 3d. That as he named the parties who were to take, they took per capita, and not per stirpes. He thought the word "estate" as used by the testator, was to be taken in its proper sense, and carried the fee simple in the land, and that there was nothing to show a contrary intention; and that the will had reference to cases of testacy, and not of intestacy, for the law of distribution. The testator could not be considered as having reference to the intestate law as applicable to the land which he was by the act of making a will, taking out of the operation of that law.
By the Court
By the record in this case, it appears that John C. Burton, the testator, being seized in fee and possessed of certain real and personal estate, and having a wife named Elizabeth, now the wife of John R. Burton, and two half sisters, Ruth Burton and Mary Short, but no child, children or issue, made his last will and testament, bearing date the 9th of January, A. D. 1840. The testator soon afterwards died without issue, leaving to survive him the said Elizabeth, his wife, and his two half sisters before named, who are his heirs at law. His will was proved in due form. His wife, Elizabeth, seems to have been the peculiar object of his bounty
in the disposition of his personal estate; for he gives to her the greater part of it absolutely and forever, to wit: — all his household and kitchen furniture, his slaves, his two best horses, his gig and harness, all his stock of cattle, ten head of hogs and twenty head of sheep of the first choice, his cart, ox-wagons, all his farming utensils and five hundred dollars in cash. But in the disposition of his real estate, his two half sisters are objects of his benevolence, as well as his wife; and therefore he devises it, and the residue of his personal estate to all three of them, in the next item of his will, in these words: "my will and desire is, that the residue of my estate, both real and personal, shall be divided between my said wife Elizabeth, and my two half sisters, viz: — Ruth Burton and Mary Short, as the law directs, giving my said wife her lawful part of the said residue." The question raised in the argument is this: what are the respective shares of the wife, and of the two half-sisters in the real property devised to them; and what quantity of estate or interest does each take in her share?
The doubt or difficulty, if there be any, arises from the misapplication of principles of law brought into the case, which have no bearing on the question; and from abandoning the obvious and common sense view of the devise, which the very words of it present. The testator says, that the residue of his estate, both real and personal, shall be divided between his wife and his two half sisters, — not equally, or he would have said so, but as the law directs; that is, into such parts or shares as are prescribed in such case, by some law of the state. It is his will, that the residue of his real and personal estate shall be so divided. To what law can it be rationally supposed he referred, for the purpose of designating a division? Surely to no other law than such as directs the distribution of personal, and the division of real estate, in a case where the owner dies without issue, leaving a widow and two half-sisters to take his property. No other law could possibly effectuate his intention; and therefore to suppose that he referred to any other, is contrary to reason. What law then of the State of Delaware directs the division of a man's real and personal estate in the condition in which this testator was placed, without child, children or issue, and leaving a wife, and two half-sisters, the latter being his heirs at law? None other than the law relating to the estates of intestates; and the testator, therefore, must have intended that law, and no other. But it is said, the intestate law cannot be applied to the real estate under this devise, because this case is not one of intestacy. The answer is
plain. The directions of the intestate law are applied to the present case, because such is the testator's will. His referring to that law and ordering the residue of his estate to be divided as the law directs, makes it part of his will, as much so as if he had inserted in the will the very directions of the intestate law in the case of a man dying without issue, leaving a wife, and two half-sisters. The second item of the will stands then precisely as if the testator had said "the residue of my estate both real and personal, shall be divided between my said wife Elizabeth, and my two half sisters, viz: — Ruth Burton and Mary Short, as the law relating to intestates' estates directs, in a case of intestacy as to said residue; giving my wife her lawful share; namely, such share as she would take under the intestate law."
The intestate law being plainly the law referred to by the testator, the directions of that law under the devise in this case must be pursued in the division of the testator's real estate, not only to designate the shares into which it is to be divided, but the quantity of interest which passes to each party; the word "estate" used by the testator, passing not only the lands, but all his title in fee simple. The widow therefore, takes an estate for her life in one moiety; and subject to such life estate, the two half sisters take an estate in fee simple in the whole. My opinion is, that the decree of the chancellor be reversed, and that partition be made among the parties according to their respective shares aforesaid: that for this purpose, the premises be divided into four equal parts; that two of those parts being, the one moiety of the whole premises, be allotted to John R. Burton and Elizabeth his wife, in her right, to hold the same in severalty, during the term of her natural life; with remainder in fee simple, to Ruth Burton and Mary Short, to be equally divided between them: that one other of said fourth parts be allotted to Joshua S. Burton and Ruth his wife, in right of the said Ruth, to hold the same in severalty, to them, and to the heirs and assigns of the said Ruth: and that the remaining one of the said fourth parts be allotted to the said Mary Short, to hold the same in severalty, to her, the said Mary Short, and to her heirs and assigns.