Doe D. Scott Wife v. Alexander

7 Del. 234

• Court: Superior Court of Delaware
• Decided: July 5, 1860
• Status: Published

Opinion

The Court,

Gilpin Ch. J„,

charged the jury, that the heirs at law in this ease could only be disinherited, or deprived of their legal right of succeeding to the inheritance in fee simple of the land in question, by descent and operation of law, by express terms, or words contained in the will, or by a plain and unequivocal intention appearing upon the face of the instrument when carefully and attentively considered, or by necessary implication of law, giving an estate in fee in the land devised to the devisee. There were no such express words in this will, and the court could not discover any such intention sufficiently apparent and certain in the whole body of it, when taken together, to control the legal signification and construction of the immediate item in question, and which must prevail in the absence of any words of inheritance, or limitation, or other technical and legal expressions necessary to create and confer a title by devise in fee simple.

As to the implication of law so much and strongly-pressed by the counsel for the defendant in the concluding portion of his argument, it was well settled, and had been so recognized in a still more interesting and intricate case lately very ably and elaborately argued in the Court of Errors and Appeals in the case of Graham’s Will, Doe d. Harrington v. Hill, 1 Houst. 410. On that point the general principle of law, is that where there is a devise of lands without any words of inheritance or limitation, accompanied with a direction in the will, or with a charge on the devisee of the land personally, to pay a sum of money as a debt, or a legacy for instance, to another, the law by implication enlarges the estate in that case devised, and which would otherwise be but a life estate, to an estate and devise in fee simple. But where the legacy, or debt is not so charged, but is charged on the land itself so devised, or upon the estate of the testator generally, or upon his personal estate in particular, the implication does not arise, and the devise is not enlarged from an estate for life of the devisee to an estate in fee. By the terms of the will, however, in this case, each of the legacies bequeathed in it to the other heirs at law of the testator, is directed by him in the respective items in which they are given, to be paid, not by the devisee, as devisee of the land, or by him personally or individually, but out of his estate by his executor therein after mentioned, and then in the concluding clause of the will, he afterwards bequeaths the remainder or residue of his personal estate to the devisee of the land in question, after his just debts and the foregoing legacies are paid out of it. There was therefore no implication of law on the principle just stated, in this case, to enlarge the devise to a fee; and we have no hesitation in saying to the jury, as it is purely a question of legal and judicial construction of a will, that Constantine T. Morris, the devisee, took but an estate for the term of his life in the lands in question under this devise, and as it was the only question in the case, the verdict should be in favor of the plaintiffs.