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Sapp v. Sapp

Court of Chancery of Delaware, Kent County

May 12, 1953

SAPP et al.
v.
SAPP et al.

Suit was brought by executors seeking construction of certain wills. The Court of Chancery, in and for Kent County, Bramhall, Vice Chancellor, held that where will gave testator's widow remainder of testator's estate to possess, use, enjoy and occupy as her ‘ own’ and provided that if necessary for comfort she could convey by deed any or all realty devised, and that if anything remained after death of widow it should go to testator's brother, widow did not receive a fee simple estate, but was entitled to enjoy and use the estate as though owner, and portion of estate not consumed by her during her lifetime could not be disposed of by her will and should go to testator's brother absolutely.

Order in accordance with opinion.

Page 742

[33 Del.Ch. 526] Complaint for instructions by executors under the last will and testament of Elva S. Sapp, deceased, seeking construction of the last will and testament of Elva S. Sapp, deceased, and the last will and testament of Ora C. Sapp, deceased, first husband of Elva S. Sapp.

The case was before the court for final hearing upon complaint, answer, oral testimony, and exhibits.

William Watson Harrington and Max Terry, of Dover, for plaintiffs.

George M. Fisher, of Dover, and Wesley E. Thawley, of Denton, Md., for defendants.

BRAMHALL, Vice Chancellor.

Under the last will and testament of Ora C. Sapp, deceased, testator provided as follows:

‘ I Give, devise and bequeath unto my beloved wife Elva S. Sapp, all the rest and remainder of my estate whatsoever, and wheresoever the same be found, whether Real, Personal or mixed, to possess, use, enjoy, and occupy as her own, and if necessary for her comfort to convey by deed any or all my Real estate so devised to her in this my will, as though I myself was living and conveying the same; Should there however be anything remaining after the decease of the said Elva S. Sapp, then in that case I hereby give and devise the same to my Brother, Wilbert H. Sapp of the Town of Wyanett, in the State of Illinois.’

[33 Del.Ch. 527] Elva S. Sapp was designated as executrix and duly qualified. Her accounting shows that the assets of the estate were distributed to her as the sole devisee.

Wilbert H. Sapp, brother of Ora C. Sapp, to whom the testator Ora C. Sapp devised anything remaining in his estate after the death of his widow, survived testator, but died in 1938, testate, devising and bequeathing the remainder of his estate to his widow, Martha C. Sapp, absolutely. Martha C. Sapp, for consideration, assigned all her right, title and interest in the estate of Ora C. Sapp, to Robert Baynard Smith.

Page 743

Elva S. Sapp subsequently married Solomon L. Sapp. She died on August 3, 1951, leaving a last will and testament, the pertinent part of which is as follows:

‘ If now (sic) other will made by me I want my husband Solomon L. Sapp to have the income from all my investments except the ones I name here

R. Baynard Smith 1 Five thousand U.S. Bond

William F. Smith 1 Five thousand Registered Bond

Robert H. Smith 1 Five thousand Registered Bond

Katherine Smith 1 Five thousand Registered Bond

* * * The remainder or all the rest off the things & furniture is to stay in the house so long as my husband occupys it at his death or ceases to occupy same the House & lot and all in it will go to Baynard & Katherine Smith

Bank Stock 20 Shares to Wm. F. Smith

Bank Stock 20 Shares to Robert H. Smith

Bank Stock 20 Shares to ...


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