Goldberger v. Goldberger

• Decision Date: 15 January 1954
• Citation: 102 A.2d 338,34 Del.Ch. 237
• Parties: GOLDBERGER et al. v. GOLDBERGER et al.
• Court: Court of Chancery of Delaware

Page 338

102 A.2d 338

34 Del.Ch. 237

GOLDBERGER et al. v. GOLDBERGER et al.

Court of Chancery of Delaware, New Castle County.

Jan. 15, 1954.

W. Bayard Allmond, Wilmington, for plaintiffs.

W. Thomas Knowles, Wilmington, for defendants Saul Harold Goldberger and Frances Estelle Shore.

S. Lester Levy, Wilmington, for defendants Joseph Theodore Shore and Saul Samuel Shore.

Frank J. Miller, Wilmington, guardian ad litem for defendants Michele Lois Shore, Lenora J. Goldberger and Joanne D. Goldberger, minors.

BRAMHALL, Vice Chancellor.

Testator under Item Second of his last will and testament provided as follows:

'Second: I give, devise and bequeath all my property and estate of whatsoever nature whether real, personal or mixed and wheresoever situate, unto my two beloved children, Saul Harold Goldberger, and Frances Estelle Shore, absolutely and in fee simple, share and share alike; should either of my said children die leaving issue, then the share of such child so dying shall go to his or her issue; should either my my said children die without issue, then the share of the child so dying shall go to the survivor.'

Saul Harold Goldberger and Frances Estelle Shore are children of testator. Michele Lois Shore, Joseph Theodore Shore, and Saul Samuel Shore are children of Frances Estelle Shore. Joanne D. Goldberger and Lenora J. Goldberger are children of Saul Harold Goldberger. Michele Lois Shore, Lenora J. Goldberger and Joanne D. Goldberger are minors and are represented by their guardian ad litem.

It will be noted that testator under Item Second of his will gave his estate to his two children Saul Harold Goldberger and Frances Estelle Shore 'absolutely and in fee simple, share and share alike'. In the same item he further provided that should either of said children die 'leaving issue', then the share of that child should go to his or her issue. Testator also provided that should either of his children die 'without issue' the share of such child should go to the survivor of his two children.

It will be conceded that, standing alone, testator in his gift to his children created, in terms, an absolute fee simple estate. The question is: Is the estate to the two children affected, and, if so, in what manner, by the subsequent clauses in which testator provided for contingencies relating to the death of any child leaving issue and the death of any child without issue.

The cardinal rule in construing a will is to ascertain from its language the intention of the testator. That intention, when found, must prevail unless it runs counter to some positive rule of law. Farrell v. Faries, 25 Del.Ch. 404, 22 A.2d 380; Carrow v. Thropp, 29 Del.Ch. 201, 48 A.2d 379. Here testator has used the words 'absolutely and in fee simple'. They are technical words, having a definite technical meaning, and in the absence of anything in the will indicating a contrary intention, they will be given their technical meaning. I find in the will no explanatory or qualifying expressions indicating that these words were not used with technical accuracy or that their import is plainly contrary to testator's intention.

In this state, following the common law, a gift to A and her heirs forever, 'except she should die without heirs born of her body' with a remainder over in that event to B, creates an estate tail in A with a vested remainder in B. Caccamo v. Banning, 6 Terry 394, 75 A.2d 222; Caulk's Lessee v. Caulk, 3 Pa. 528, 52 A. 340; Roach v. Martin's Lessee, 1 Harr. 548, 28 Am.Dec. 746. It has also been held in this state that a devise to A and her heirs, but should she die leaving no issue surviving her, then to B and his heirs, created a fee simple defeasible estate. Mock v. Goldstein, 18 Del.Ch. 71, 156 A. 221; Delaware Trust Co. v. Elliott, 17 Del.Ch. 14, 147 A. 244. The decision in the Caccamo case as well as other cases cited therein was predicated upon the presumption of an indefinite failure of issue construction. Apparently the decisions in the Mock and Elliott cases were based upon a definite failure of issue construction.

An indefinite failure of issue means a general failure of issue, that is, a failure of issue whenever it shall happen, even in the remotest generation without any fixed or certain time within which or at the end of which it must happen. Farrell v. Faries, supra. I do not have to deal here with any possible presumption that testator intended that an indefinite failure of issue construction should be given to his will because the language of the will clearly shows testator's intention that a definite failure of issue construction should be applied. Even at common law a devise over on the failure of issue may be shown by the context to refer to a definite failure of issue, and in such case the estate created...