State ex rel. Edward Street v. Lyons

5 Del. 196

• Court: Supreme Court of Delaware
• Decided: June 15, 1849
• Status: Published

Opinion

Judge Milligan delivered the opinion of the court.

Milligan, Judge:

The single question is, what estate did these plaintiffs take under the will ? This is answered by determining another question, viz: did they take by descent, or did they táke by purchase ?

The word heirs, is sometimes a word of limitation, and at others only a word of description.

Wherever it is employed to define the character of the estate, or to limit its operation, it is then a word of limitation.

In the present case, it is only used as a word of description, referring merely to the persons who were to enjoy the estate of the testator, upon the death of his widow.

Helen Sloane, the mother of plaintiffs, died in the life time of the testator, and as to her, the devise was absolutely void. Her children, therefore, could not claim through her, but they take directly from the testator himself; in other words, they take by purchase, and were entitled to an estate in fee. Had their mother, Helen Stone, lived until the decease of Hugh Smith, she would have taken only an estate tail; the estate in fee first given to her, having been reduced by the subsequent words of limitation. But she dying before the will went into operation, it was as to her an invalid devise, and her children took in equal moities and in fee, hot through her by descent, but directly from Hugh Smith, the testator, by virtue of the devise.

Raybold and Comegys, for plaintiffs. Layton, for defendant.

It is the judgment of this court, therefore, that the plaintiffs are entitled, each in fee, to an undivided moiety of that part of the estate which was devised to Helen Sloane; and they direct a judgment to be entered accordingly.