Lessee of Dooling v. Hobbs

5 Del. 405

• Court: Supreme Court of Delaware
• Decided: June 5, 1853
• Status: Published

Opinion

Judge Wootten delivered the opinion of the court.

Wootten, Justice.

Thomas Ludenham, by his last will and testament, bearing date the 27th of March, A. D.1807, and proved on the 29th of March, A. D., 1808, devised as follows, to wit:—“ I do give and bequeath to my eight grand-sons, namely, the sons of Zadock and Eben Ludenham, deceased, namely, William, Silas, John, Hulet, Thomas, Joseph, Eobert and Zadock; I do leave to my eight grandsons all my land, to be equally divided between them; and if either of them should decease leaving no issue, for it to descend to the surviving ones.”

Silas died leaving issue, Hetty, the wife of John Dooling, the lessee of the plaintiff; afterwards Eobert died without issue, and Joseph also subsequently died without issue; Eobert leaving six of the said grandsons to survive him, and Joseph leaving five of said grandsons to survive him.

The question presented is, whether Hetty, as the daughter and heir-at-law of Silas, is entitled to any part of the share or proportion of Eobert and Joseph,' each of whom died without issue.

This proposition necessarily involves the question as to what estate the grandsons of the testator took in the devised premises under the will, and also what interest or estate passed to the surviving ones, and who were meant by the. testator as the surviving ones.

As to the first of these questions, the court are of opinion that the grandsons of the testator took an estate tail, as tenants in common, with a remainder over to the surviving grandsons; and for the purposes of this Case, it is immaterial whether the devise over is a fee tail or fee simple. The important question, _and the one which must govern this case, is to whom does “ the words surviving ones” refer? is it the surviving grandsons, or does it refer to the surviving grandsons, and the issue of the deceased ones ? The case of Watts Sp Wainwright, in 5 Term Rep., 427, is relied upon as an authority establishing the devise over to the surviving grandsons and the issue of the deceased ones; but the principle of this case is distinguished from the present ease, from the fact that the limitation over is to the children, and that the ultimate limitation is only to take effect upon the death of all the children without issue, which the court held to include the issue of children under the terms of the settlement. In this case the limitation is to the surviving ones, referring doubtless to the surviving grandsons, and such of them as may survive any one or more of those who may die without issue.

Layton, for plaintiff in error. Cullen, for defendants in error.

In this view of the case, on the death of Robert, without issue, leaving six others of said grandsons to survive him, they became entitled to his share by virtue of the limitation over in the event of any one of them dying without issue; and on the death of Joseph, another one of said grandsons, without issue, leaving to survive him five others of said grandsons, they in like manner became entitled to his share. Therefore, John Dooling and Hetty, his wife, who was the daughter and heir-at-law of Silas, the grandson who first died leaving issue, are not entitled to any part of the share or portion of the said Robert and Joseph. The judgment of the court below is affirmed.