Caccamo v. Banning

6 Terry 394, 75 A.2d 222 (1950)

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Nature of the Case

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Facts

In his will, Testator granted a remainder interest in certain land to his granddaughter (P). The conveyance was in fee simple, 'but in case [she] should die without leaving lawful issue of her body begotten then and in that case, I give, devise and bequeath all the same over unto' the children of William B. Potter in fee simple. P was married at the time she acquired possession of the land. P sold the land to D at auction. When P tendered the deed, D refused to accept it and refused to pay the balance of the purchase price, arguing that P was unable to convey fee simple title. P sued to have the state of her title construed. The parties agree that if P does have a fee simple or an estate tail, D is bound to accept the title and pay the balance of the purchase price, but if not, P is required to return D's deposit on the land. P argues that the will conveyed a fee tail, and that, by marrying, she effectively barred the fee tail and is able to convey a fee simple. D argues that the will created a fee simple interest, which was subject to being defeated by P's failure to have children.