Cordry v. Adams Wife

1 Del. 439

• Court: Superior Court of Delaware
• Decided: July 5, 1834
• Status: Published

Opinion

Mr. Justice Harrington

delivered the following as the opinion of the court; though Judge Black inclined the other way.

The devise to William Cordry being general and without any words of limitation, carries but a life estate unless a manifest intent is apparent from the other parts of the will, to give him a larger estate. The introductory clause, though important in a consideration of the whole will, is not of itself sufficient to enlarge the general devise, but may be taken in connexion with the other parts to show the meaning which the testator attached to his devise to William, and the extent to which he designed him. to be benefitted by that devise. Independently of the introductory clause, it does appear from the will that the testator designed to part with his whole estate, and not to die intestate as to any part thereof; for he notices all his children even those to whom, having probably been already advanced by him to the extent of their equal share, he bequeathed a shilling and no more; recognizes certain conveyances by deed which he had already made of a part of his property—and, after some devises of land, he gives to William one half part of the residue of his lands, and to James one half part of the residue of all his lands which he had not already disposed of by will or deed. His personal property he in like manner parcels out; and in a very comprehensive residuary bequest, disposes of “all the residue of his personal property which is not before named or given in that his last will” to his four youngest children. It is impossible to suppose, from this view of the will, that the testator did not design to dispose of all his property, and he expressly declares his intention to do so in the introductory clause—“as it respects what God has been pleased to bless me with in this life, I give, devise and dispose of,” &c.

It is not less apparant that the testator intended that his daughter Unice Adams, the present petitioner, should in no event have any thing more than the shilling he bequeathed her. It was said, however, in the argument that this was to be confined to the personal property; conceding that the testator had cut her off from any further participation in that. But if the bequest to Unice Adams could be thus restricted, which we think it cannot, the several bequests to Spenser and Isaac clearly cannot, for the expression there is that they shall have no more of his estate, which cannot by any stress be confined to the personality. And if it is manifest that the testator designed that Spenser and Isaac should in no event have any more of his estate, it is equally fatal to the ground taken by the petitioner’s counsel, for it requires a fee in William to execute that intention. As in the case of Bates and wife vs. Clayton, et al. 8 East 141 where the testator bequeathed toN. Bates a shilling and that he should not come upon his premises or hereditaments on any account whatsoever; the court construed a subsequent general devise of land to Wright Thomas Bates to be a fee, because otherwise N. Bates might, on the determination of his life estate have a right to. come upon the premises against the manifest intention of the testator. So in this case, if the general devise to William Cordry be not construed to carry the fee, Spenser and Isaac Cordry, and also Hilly and Unice Adams, would, on the expiration of his life estate be entitled to equal shares with the other children of the land so devised to William, against the manifest intent of the testator. We think it clearly appears from this will that the testator’s design and object were to dispose of his whole property; to give his son William a fee in one half the residue of his lands not before disposed of; and to cut off his sons Spencer and Isaac, and his daughters Hilly and Unice, with a shilling. The decision of the Orphans’ court was, therefore, erroneous, and ought to be reversed; and the return made and proceedings had in the said court for a partition of the said land among the heirs at law of John Cordry ought to be set aside.”

Wootten, for appellant. Layton, for respondent.

Decree reversed.