Brown v. Hodgson , 1 Del. Cas. 380 ( 1795 )

This cause had been argued at a former term, but there being but two judges on the bench and they differing in opinion no judgment could be then given. Upon the present argument the Court consisted of Read, C. J. and Clayton and Robinson, JJ. The Chief Justice delivered the opinion of Robinson, J., and himself.

Chief Justice.

Wills are to be so construed that effect shall be given to every word. Roll. R. 319, Plow. Comm. 540, Vent. 30, 9 Mod. 154. An estate by implication shall not be raised against what is expressed. Salk. 226, Talb. 9. As to general words, they are to be taken in the sense most likely to carry the intent into effect. We conceive in the present case the testator has so far expressed his intent as to leave nothing for implication. In the. first part of the devise, the testator makes provision for his wife by a gift of one third part of his real and personal estate. This was in nature of a jointure or dower. Then the whole is limited over to Joseph. Taking all the words together, it must be inferred that the general limitation over regarded only the one-third before expressly given to the wife for life, especially taking into view the direction that Joseph’s part should be laid off when he attained 21 years of age. This construction is supported by the case of Simpson and Hornby, Prec.Ch. 439, [452,] reported also in Gilbert and stated in Viner.

The case before the Court is stronger than that of Simpson and Hornby. In that case the limitation over was postponed till after the death of the wife. The devise here is that Joseph should take all upon the death of the wife. Had the testator gone no further,, the case would have been the same with Simpson and Hornby,. but he proceeds to direct that the two-thirds of Joseph should be laid off upon his arriving at age. This directly negatives the implication relied on, because the implication goes to an estate for life, and here the express direction shows that such an implication is against the intent. The common implication from a provision such as is contained in the first part of the devise, being repelled by an intent expressly appearing, leaves the case more open to the rule of construction in Simpson and Hornby which required that the words of the general devise should be construed distributively and those of postponement be confined to the one-third only expressly given. There is no doubt but an estate may be taken by necessary implication, but we conceive that in this case no such implication exists, and that it is not necessary to imply a gift to the wife of the two-thirds in order to satisfy the words of the will.

Clayton, J.,

said he differed from his brethren and, notwithstanding the high respect he entertained for the opinion of the Chief Justice, he could not concur in that which had been just expressed by the Court. He should not go into the detail of the argument but briefly notice the leading points of it. That as to the case of Simpson and Hornby, so much relied on, it appeared in Prec.Ch. 452 that there were strong words of exclusion debarring the wife from any claim by implication. He did not consider that case in any degree as governing the present. This case fell within the general principle of a necessary implication. And if the testator had not introduced the provision for laying off the two-thirds when Joseph arrived at 21, the wife would have clearly taken an estate for life; that provision must have its operation, and thereby the estate for life which the former words gave is reduced to a term till Joseph attain 21 years. The son was, equally with the daughters, provided for out of the personal estate, and it was extremely likely that the testator designed that the wife should have all the lands during the minority of Joseph for the support of the children. This effect was produced by the construction he put on the will.

Decree of the Orphans’ Court affirmed.