DANIEL V. WHARTENBY, 84 U. S. 639 (1873)

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U.S. Supreme Court

Daniel v. Whartenby, 84 U.S. 17 Wall. 639 639 (1873)

Daniel v. Whartenby

84 U.S. (17 Wall.) 639


A testator gave his estate, both real and personal, to his son, R. T., "during his natural life, and after his death to his issue, by him lawfully begotten of his body, to such issue, their heirs and assigns forever." In case R. T. should die without lawful issue, then, in that case, he devised the estate to his own widow and two sisters, "during the natural life o� each of them, at-.d to the survivor of them," and after the death of all of them to J. W., his heirs and assigns forever; with some provisions in case of the death of J W. during the life of the widow and sisters.

Held that the rule in Shelly's Case did not apply, and that the estate in R. T., the first taker, was not a fee tail, but was an estate for life, with remainder in fee to the issue of his body, contingent upon the birth of such issue, and in default of such issue remainder for life to his widow and two sisters, with remainder over in fee, after their death, to J. W.

James Whartenby brought ejectment in the court below

Page 84 U. S. 640

against William Daniel and others for certain premises in the State of Delaware.

Under the instructions given to the jury, a verdict was rendered in favor of the plaintiff and judgment was entered accordingly. The defendants, having excepted to the instructions, sued out this writ of error and brought the case here for review.

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