Dodd v. Doe D. Dodd

7 Del. 76

• Court: Supreme Court of Delaware
• Decided: June 5, 1859
• Status: Published

Opinion

Wootten, J.

announced the opinion of the court, affirming the right of the plaintiff below to recover in the action. The devise was of real estate without words of limitation, to be equally divided between Absalom and Azael Dodd, sons of the testator, and the general words in the introductory clause of the will, “ touching the worldly things which it had pleased God to bless him with,” &c., had been relied upon to enlarge the devise to a fee, and the case of Cordrey v. Adams and wife, 1 Harr. 439, had been cited in support of such a construction. But the present was distinguishable from that case, inasmuch as the will of Cordrey in the case referred to, contained bequests on devises to the other heirs., with the express direction that they were to have no more of his estate, and on which the court rested their decision mainly,, if not entirely; for they expressly recognized and affirmed the general principle contended for in this case by the counsel for the plaintiff below, that the introductory clause in a will, such as we have in the present instance, though important in the consideration of the whole will, is not of itself sufficient to enlarge a general devise, that is, a devise of land without words of limitation, to a fee; although they add in that particular case, that it might be taken in connection with the other parts of the will to show the meaning which the testator attached to his devise to William and the extent to which he designed him to be benefited by it, accompanied as it was with a preceding bequest to his daughter Unice, the wife of Adams, who were the plaintiffs in the action, with the express provision that she was to have “ no more ” of his estate. But Cordrey v. Adams and wife has never been considered an authority beyond the special circumstances and ruling of the court in that case.

G. S. Layton, for plaintiff in error.

W. Saulsbury, ¿or defendant in error.