GOLDBERGER, ET. AL. v. GOLDBERGER, ET. AL, Del. Ch., Judgment, Law, casemine.com

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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.

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Smart Summary

Factual and Procedural Background

This case concerns the interpretation of Item Second of the last will and testament of David Goldberger. The testator bequeathed his entire estate to his two children, Saul Harold Goldberger and Frances Estelle Shore, "absolutely and in fee simple, share and share alike," with provisions for the distribution of a child's share upon that child's death either leaving issue or dying without issue. The parties include the two children named as devisees and their respective issue, some of whom are minors represented by a guardian ad litem. The Court of Chancery of Delaware was tasked with determining the nature of the estate created by the testator's will, specifically whether the estate to the two children was affected by the subsequent contingent provisions.

Legal Issues Presented

Does the testator’s use of the words "absolutely and in fee simple" create an absolute fee simple estate to his two children, or is that estate affected by subsequent clauses providing for gifts over upon the death of a child leaving issue or dying without issue?
If affected, what is the nature of the estate created—does the will create a fee simple, a fee tail, or a fee simple defeasible estate?
Should the will be construed under the doctrine of indefinite failure of issue or definite failure of issue?
How should conflicts between the absolute fee simple language and the contingent gifts over be reconciled?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Farrell v. Faries, 25 Del. Ch. 404, 22 A.2d 380	The cardinal rule of will construction is to ascertain the testator's intention and give effect to it unless contrary to law; also discusses indefinite vs. definite failure of issue construction.	Used to emphasize the primacy of testator's intent and to reject an indefinite failure of issue construction in favor of a definite failure of issue construction.
Carrow v. Thropp, 29 Del. Ch. 201, 48 A.2d 379	Supports the principle that technical words in a will are given their legal meaning absent contrary indication.	Supported the interpretation that "absolutely and in fee simple" should be given its technical meaning.
Caccamo v. Banning, 6 Terry 394, 75 A.2d 222	At common law, a gift with a remainder over on death without issue creates an estate tail with vested remainder.	Discussed as background on estate tail and remainder interests but distinguished because testator's will indicated a definite failure of issue construction.
Mock v. Goldstein, 18 Del. Ch. 71, 156 A. 221	Devise to A and heirs but with gift over on death without issue creates a fee simple defeasible estate.	Not controlling here because testator's language and intent favored definite failure of issue construction, not indefinite.
Delaware Trust Co. v. Elliott, 17 Del. Ch. 14, 147 A. 244	Similar to Mock v. Goldstein regarding defeasible estates.	Distinguished on similar grounds as Mock v. Goldstein.
James, Administrator v. James, 16 Del. Ch. 34, 139 A. 787	Provisions changing an expressly granted fee simple estate must be as clear as the grant creating it.	Supported the requirement that any limitation on the fee simple estate must be clearly expressed.
Craven v. Wilmington Teachers Association, 29 Del. Ch. 180, 47 A.2d 580	Same principle as James v. James regarding clarity of limitations on fee simple estates.	Supported the court’s interpretation favoring the absolute fee simple estate.
Equitable Trust Co. v. Johnson, 28 Del. Ch. 45, 36 A.2d 257	Words used in one clause of a will should be given the same meaning when used in another clause absent indication otherwise.	Used to interpret "issue" consistently throughout the will as referring to immediate issue of testator's children.
Rickards v. Gray, 6 Houst. 232	Where a gift is absolute but followed by gifts over on death with or without issue, the gifts over are alternative or substitutional, not limiting the absolute estate.	Controlling precedent for resolving the conflict between the absolute fee simple gift and the contingent gifts over by treating gifts over as substitutional.
Restatement of Property, Vol. 3, Sec. 267, Comments "G" and "K"	Supports definite failure of issue construction and the treatment of gifts over as substitutional alternatives.	Supported the court’s reasoning in preferring definite failure of issue construction and in interpreting gifts over as alternative.
Page on Wills, Vol. 3, Sec. 1113, p. 363	Supports the principle that gifts over following an absolute estate are alternative or substitutional.	Reinforced the court’s adoption of the Rickards v. Gray approach.

Court's Reasoning and Analysis

The court began by examining the language of the will, focusing on the phrase "absolutely and in fee simple," which are technical terms creating an absolute fee simple estate unless clearly negated. The court found no clear indication in the will to override this technical meaning. It then considered the subsequent clauses providing for the distribution of a child's share upon death leaving issue or dying without issue.

The court distinguished between indefinite and definite failure of issue constructions, concluding that the testator intended a definite failure of issue construction, meaning the failure of issue is measured at the death of the first taker, not at some indefinite future time. This conclusion was supported by the context of the will, including the gift over to the surviving child and the testator's use of "issue" referring to immediate descendants.

Because the absolute fee simple estate and the contingent gifts over were inconsistent if taken literally, the court applied the principle from Rickards v. Gray that such gifts over are alternative or substitutional rather than limiting the absolute estate. This interpretation reconciles the will’s language with the testator's dominant intention to give his children an absolute fee simple estate.

Accordingly, the court held that the two children took an absolute fee simple estate, and the gifts over would only operate if a child died during the testator's lifetime without issue.

Holding and Implications

The court's final decision is that Saul Harold Goldberger and Frances Estelle Shore take an absolute fee simple estate under Item Second of the testator's will.

The direct effect of this decision is that the two children hold the estate outright and free of any defeasance or limitation implied by the contingent gifts over. The gifts over are interpreted as alternative provisions that would only operate if a child died without issue during the testator’s lifetime. The opinion does not establish new precedent but applies existing Delaware law and principles of will construction to resolve the apparent conflict in the will’s provisions.

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SAUL HAROLD GOLDBERGER and FRANCES ESTELLE SHORE, Executors under the last will and testament of Da v. d Goldberger,

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 of 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, Penna. 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 will be a fee simple or a life estate according to the form of the limitation of the devise, without reference to the devise over. Farrell v. Faries, supra. The tendency of the courts today is to adopt upon slight indication of intention a construction which refers to words importing a failure of issue to the death of the first taker. Farrell v. Faries, supra.

Several provisions of testator's will show a preference for a definite rather than an indefinite failure of issue construction. Any provision of testator's will changing the expressly granted fee simple estate in the first taker to a lesser estate would have to be at least as clear as the provision creating the fee simple estate. James, Administrator v. James, 16 Del. Ch. 34, 36, 139 A. 787, 788; Craven v. Wilmington Teachers Association, 29 Del. Ch. 180, 47 A.2d 580; Carrow v. Thropp, supra.

The fact that the gift over upon failure of issue is to the survivor of living persons, also indicates testator's preference for a definite failure of issue construction. Restatement of Property, Vol. 3, Sec. 267, Comment "K". Testator's provision for the issue of his children, in the event that they should die leaving issue, clearly relates to the then known issue of testator's children. If testator used the word "issue" in one instance as referring to the immediate issue of his children, in the absence of any indication in the will to the contrary, the same word used in another clause of the same item of the will would be given the same construction. Equitable Trust Co. v. Johnson, 28 Del. Ch. 45, 36 A.2d 257. The gift over is inconsistent with the estate "absolutely and in fee simple" given to the two children of testator. Whatever interpretation may be given to such inconsistency, it certainly does not indicate a preference for the indefinite failure of issue construction.

I conclude that testator sufficiently indicated his preference for the definite failure of issue construction to overrule any presumptive preference which might have existed for an indefinite failure of issue construction.

Having rejected the indefinite failure of issue in favor of the definite failure of issue construction, the case of Rickards v. Gray, 6 Houst. 232, becomes controlling. The Rickards case is authority for the proposition that where a limitation gives in terms an absolute interest with gifts over to the issue on the death with issue of the first taker and to another person on the death without issue of the first taker, the inconsistency between the absoluteness of the gift to the first taker and the all-inclusiveness of the gifts over is resolved by regarding the gift to the first taker and the gifts over as alternative or substitutional. The conclusion reached by the Court of Errors and Appeals in the Rickards case is supported by Restatement of Property, Vol. 3, Sec. 267, Comment "G", and Page on Wills, Vol. 3, Sec. 1113, p. 363. The children of testator, having both survived testator, took an absolute fee simple estate under Item Second of testator's will.

This construction is in accord with testator's intention as I understand it. The dominant purpose of testator was to give to his two children a fee simple estate. His attempt to provide a gift over was subordinate to the main purpose and was to take effect only in the event of the death of the first takers during the lifetime of testator. The only way in which, having accepted the definite failure of issue construction, the will of testator can be given effect as written is by interpreting the gifts over as alternative or substitutional; otherwise, the gifts over conflict with the absolute fee simple estate provided by testator for his two children.

I conclude that the children of testator, Saul Harold Goldberger and Frances Estelle Shore, take an absolute fee simple estate under the provisions of Item Second of testator's will.

An order will be entered in accordance with this opinion upon notice.

GOLDBERGER, ET. AL. v. GOLDBERGER, ET. AL