GOLDBERGER et al.
GOLDBERGER et al.
Complaint for instructions by executors under last will and testament of deceased. The Court of Chancery, New Castle County, Bramhall, Vice Chancellor, held that testator's children, having both survived testator, took absolute fee simple estate under will provision devising property to children absolutely and in fee simple and further providing that should either of children die leaving issue, share of such child was to go to his or her issue, and should either of children die without issue, then share of child so dying should go to survivor.
Order in accordance with opinion.
[34 Del.Ch. 239] 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 [34 Del.Ch. 240] 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 ...