Smyrna times., 1871-06-28

TIE CLAYTON LAND CAsE-The result of
the trial before the u. S. Circuit Court, in
Wilmington, last week, in the case of Wharton
by u.s. Bailey, Daniels and Gilmore, as to who
was the lawful owner of the lands upon which
Clayton is situated, terminated in a verdict for
the plaintiff, Whartonby. The charge of Judge
Strong, as we find it in the Wilmington papers,
was as follows:
" 1t IS only a question of law involved The re-
sponsibIlIty OF the decision rests upon If he IN
error there Is mode OF correcting my mistake. THIS
IS action of injunction. 1t is a tuit brought by
Jas. WharOnby against Mason Bailey and the Tenant
James Gilmore, to obtain possession of land in Duck
Creek Hundred, Kent County, State of Delaware
about 90 or GU acres Both Of these parties claim
title to the land under the same persOn-James
Ilbbet II is not necessary trace the title to the
land any further back than TO James Fitbltt Shortly
before his death he made his will disposing of his
property. lew leeaces were made This will was
duly proven 25h OF March, 1896, and letters granted
Richard Tbhett, of the tesiatOr who was execu.
tor. Out Of this will, the controversy in this case
arises
Ii Is necessary to carefully examine The provisions
of this will. What the intention of The tpsator
Alter having bcquealhed certain legaces the teslaOr
made the following disposition of the estate The
rest and residue of estate both real and persOna
0t tevef kind and nature sOever give 10 my son
Richard I1bbett during his natural life, and after his
death TO his Issue-tO children lawfully begOlen OF
ms such issue. their heirs and ASST gns for
ever In case my son Richard die without lawful
issue, then 10 my wife Elizabeth Tibbett nv sister
Sarah and sister Rehecca during he natural life of
each, and after thPT teaths TO James WhaTonby, son
oil Thomas harOnby, of the CITY of PhI!adel ohia
ms heirs and assigns forever Ii is proven that
Richard lied before the commencement of this sui,
mat he was never married and never had any lawful
issue 1t IS agreed that Elizabeih and his sisters
Sarah and ReDecca died heOre the commencement
OF this SUIT; also that James WhartOnbV Is the law
ul s'n OF Thomas w Iartonby of Philadelph the
Identical person named III this WILL What estate did
Richard Tbbetl take under the will OF his father }
AnexecutOry devise must take effect IN the endowment
OF the lite of the being when the devise is made or
Wi'hln twenty one years thereafter, and short lime
i1eqnlteu lor JnslalIon lie not only gave Richard
loDeu the residue OF his estate during natural life
but he gave the remainder TO the issue of his law
iully begOtten OF his body. The word issue" in a
VIII Is ordinarily word Of limitation and not word
OF " purchase that they shall take as heits of the
body, which includes all living descendants
1t IS rule OF law, that where either by will or
tieeu All estate or Ireehod Is limited 10 person and
the same deed or will contains a Limitation Ia his heirs
The heirs OF his bOdy-Ihe word hers IL n word of
limitation and not purchase. II s argued here ihot
the word issue means children; that il is Dgr.
chase and that the IestaiOr has so defined IT, The
words OF the will must be plainly shown orthev will
be taken IN their legal meaning The LEGAL Inference
must stand The Will contains only one eIpression IN
conflict with the legal meaning Of the WOrds In the
WI" we nave TWO express definitions of the testaIOrs
Intention mat the issue shall take as purchasers
Ihey overcome the legal of The words he re- of
lhe Dody or issue OF the hOdy." The iestator has
uehheu Individuals and those individuals are persons
oegOtIen by Richard TIbbett himself OF his own
body Therefore the testaiOr has given clue TO what
he means. lie has defined issue TO mean child or
chliFen lie devised lie estate TO persons in being
at tho lime Richard TIbbettI took life estate vrIh
the remainder in fee To his child or children
When Richard died, there was no interest that couId
De sold' aud the purchasers the defendants in this
case look nothing under that purchase james
Whartonbv had estbIe to take effect on the (anre
OF Richard Itbbett to have lawful lssue-that means
without lawful children The title to this land ~ 10
James Wharionby and therefore your verdict will be
for the plaintiff
The Jufv without retiring rendered verdict that
William Daniels, Mason Bailey and James Gilmore
are 'resPassers-a verdict in favor OF plantif
hon Keverdy johnson asked leave TO tender n n
exception, which was agreed TO.