Fredrick Mcleod & Amos L. Dell vs. Philip Dell & W.M. Dell

Fredrick Mcleod & Amos L. Dell vs. Philip Dell & W.M. Dell

Lower Court

  • Alachua County

Date

  • 1861

Box

  • 473

Folder

  • 853

Transcript

7

Such indefinite failure of issue is void, because it might tie up property for generations.

[4[th] Kent's Com., 268.

The intention generally is to give the property over to third parties only in the event of son dying without family.

[16[th] John's, 401.

Lord Chancellor Cowper, in Targett vs. Grant, Gilbert's Eq. Rep., 149 said: "Dying without issue, had a two-fold meaning; one dying without issue whenever such issue fails, the other dying without issue at the date of death.

[16 John's, 401.

Lord Thurlow thought, "dying without issue" meant for the remainder to pass whenever there was a failure of issue of the first taker.

There is not to be found in the books, and there are 57 cases, where dying without issue alone was held to be a definite failure.

[Hardwicke and Mansfield so held,

[Anderson vs. Jackson, 16[th] John's Rep. and Authorities, 409.

In Massachusetts, Connecticut, Pennsylvania, Virginia and North Carolina, acts have been passed making a dying without issue, or failure of issue, children or descendants, to import a dying without children, issue, &c., at time of death. If needed there, it is needed here.

RULES OF CONSTRUCTION.

The will is to be constructed as a whole, and reconciled where reconcileable. The old rule is exploded, that the first clause in a deed, and the last in a will, prevail. The general intent shall prevail over special.

[2d Jarman on Wills, 425 and Note.

Here the general intent is provision for children, balance of real estate to be sold and paid over at 21 years. Amos L. Dell was 21.

When personalty once vests nothing divests.