Caccamo v. Banning
75 A.2d 222, 45 Del. 394, 6 Terry 394 (1950)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A devise of land to a person "in fee simple" but then over to another party if the first person should "die without leaving lawful issue of her body begotten" creates a fee tail estate, not a defeasible fee simple, unless other language in the will clearly indicates the testator intended a definite failure of issue.
Facts:
- Benjamin F. Potter's will devised real estate to his wife for life.
- Upon his wife's death, the will devised the property to his granddaughter, Anna Naomi Coverdale, 'in fee simple and absolutely forever.'
- The will stipulated that if Anna 'should die without leaving lawful issue of her body begotten,' the property would then pass to the children of William B. Potter.
- Benjamin Potter's wife died, and Anna Naomi Coverdale (now Caccamo) took possession of the property.
- Anna Naomi Caccamo entered into a contract to sell the land at public auction to Delema W. Banning for $2,025.
- Banning paid a deposit of $405 but later refused to pay the balance and accept the deed for the property.
- Banning's refusal was based on the contention that Caccamo could not convey a good, marketable fee simple title because of the conditional language in the will.
Procedural Posture:
- Anna Naomi Caccamo, as plaintiff, and Delema W. Banning, as defendant, submitted an agreed-upon set of facts to the Superior Court of Delaware in a 'case stated' for a legal ruling.
- The parties stipulated that if the court found Caccamo could convey good title, judgment would be entered for her for the remaining purchase price of $1,620.
- The parties further stipulated that if the court found Caccamo could not convey good title, judgment would be entered for Banning for the return of her $405 deposit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a devise of land 'in fee simple' but 'in case the said [devisee] should die without leaving lawful issue of her body begotten then...over unto' others, create a fee tail estate that can be barred and converted into a fee simple?
Opinions:
Majority - Wolcott, J.
Yes, this language creates a fee tail estate which, having been properly barred, allows the plaintiff to convey a fee simple title. The court's reasoning relies on a long-standing common law rule that a gift to a person, which is then devised over to another if the first person dies 'without issue' or 'without heirs of the body,' creates a fee tail. This construction presumes an 'indefinite failure of issue,' meaning the condition is met if the person's entire bloodline eventually dies out, which is the hallmark of a fee tail. The court found no language in the will to suggest the testator intended a 'definite failure of issue,' which would have tied the condition specifically to the moment of Anna's death. Citing Re Reeves, the court held that the word 'leaving' was insufficient on its own to convert the indefinite failure of issue to a definite one. Therefore, Anna took a fee tail, which she statutorily converted ('barred') into a fee simple, enabling her to convey good title.
Analysis:
This decision illustrates the persistence of archaic common law property rules, specifically the preference for interpreting ambiguous testamentary language as creating a fee tail rather than a defeasible fee. By classifying the interest as a fee tail, the court enables the current holder of the property to use statutory mechanisms to convert it into a marketable fee simple absolute, promoting the free alienation of land. The case serves as a critical example for students on how specific phrases like 'die without leaving lawful issue' are terms of art with deep historical meaning that can override an initial grant 'in fee simple.' This ruling reinforces the importance of precise drafting in wills to avoid unintended, centuries-old legal interpretations.
