Conoway v. Piper

3 Del. 482

• Court: Superior Court of Delaware
• Decided: July 5, 1842
• Status: Published

Opinion

EJECTMENT. Case stated.

Edward Short being seized of the land in dispute in fee, made his will and devised as follows: — 1st. I give to my son Wingate Short "$24 of nay estate and no more." 2d. To Hannah Piper, my daughter, and Naomi West my negro Jinn, and no more of my estate. 3d. My will and desire is, that my son Isaac Short, should have my negro Frank, and "to him and his brother John Short should have four hundred acres and three to be equitably divided between them agreeably to men, only I wish my son John Short to have my house and orchard where I now live. 4th. To my son Leonard Short, all the lands bought of John Johnson, c., in Dagsborough hundred. 5th. My desire is, that after all the legacies are paid, that the remainder of my estate should be equally divided between Isaac and Leonard and John and Nancy, to them and their heirs."

The defendant claimed under Isaac Short, who conveyed to her all his interest in the land. She held adversely to the others.

The questions were — 1st. Whether the devise in the third and fourth clauses to Isaac and John Short, as tenants in common, is a devise in fee or only for life. 2d. What share, if any, is the plaintiff's lessor entitled to.

Ridgely, for plaintiffs contended — 1st. That the devise to Isaac, Leonard and John Short, was a devise to them for life only. (2 Blac. Rep. 1045, Roe vs. Bolton; 2 Vern. 388; 14 Ves. 364; Cro. Car. 368; 3 Bin. 476; Cro. Eliz. 330; Cowp. 235; 2 Wm. Blac. 1045; Cowp. 657; 6 Cruise 326-7.) 2d. The residuary devise carries the reversion in fee to Isaac, Leonard, John and Nancy Short as tenants in common. (Cowp. 299, 308,Hogan vs. Jackson; 3 Atk. 486; 1Lutw. 755; Talb. Ca. 157, 284; 3 P. Wms. 294; 2 ib. 523; 3 Mod. 137; 2 Vern. 161; 1Term Rep. 411, Holdfast vs. Martin; 2T. Rep. 656; 3 Yeates 187; 5 Burr. Rep. 2639; 2 Powell on Devises, pt. 2, p. 158, c., 414.)

Brinckloe, for defendant, cited 12 Mod. 596,Shaw vs. Bull; 4 Cruise's Dig. 244; 1 H. Blac. 1, Tinwell vs. Perkins; 2 Atk. 102.

The Court held that the first devise was a life estate in Isaac, John and Leonard Short; and that the residuary clause carried the reversion in fee to Isaac, Leonard, John and Nancy Short, as to the lands so devised to Isaac. John and Leonard: and the fee in any other land of the devisor.

Judgment for plaintiff for one-fourth part.