## Facts

- Benjamin F. Potter died leaving a will devising certain real estate to his wife for life.
- The will then devised the same real estate to his granddaughter, Anna Naomi Coverdale (later Anna Naomi Caccamo), “in fee simple and absolutely forever.”
- The will added a limitation and gift over: if Anna Naomi Coverdale “should die without leaving lawful issue of her body begotten,” then the property would pass “unto the children of William B. Potter in fee simple.”
- By codicil, Potter added an additional person to the class of takers under the gift over.
- After Potter’s widow (the life tenant) died, Anna Naomi Caccamo took possession under the will and purported to bar any estate tail under Delaware law (Section 3698, R.C. 1935) by executing a deed that purported to convey a fee simple absolute.
- On April 29, 1950, Caccamo sold the land at public auction to Delema W. Banning for $2,025; Banning paid $405 and agreed to pay the $1,620 balance on June 3, 1950 upon receipt of a deed conveying good and sufficient (marketable) title.
- On June 3, 1950, Caccamo tendered a duly executed deed purporting to convey a fee simple title; Banning refused to accept the deed or pay the balance, claiming Caccamo could not convey a good fee simple and marketable title because of the will’s limitation.
- The matter was submitted as a case stated: if Caccamo held a fee simple under the will, or held an estate tail that had been barred, judgment would enter for Caccamo for $1,620; otherwise, judgment would enter for Banning for return of the $405 deposit.

## Issues

1. Did Potter’s devise to Caccamo—stated to be “in fee simple,” but followed by a gift over if she died “without leaving lawful issue of her body begotten”—create an estate tail or a fee simple defeasible upon failure of issue?
2. If the will created an estate tail, did Caccamo’s deed under Section 3698, R.C. 1935 effectively bar the entail so she could convey marketable fee simple title to Banning?

## Decision

- The court held that the will’s language created an estate tail in Caccamo, rather than a fee simple subject to being defeated upon her death without issue.
- The court held that, under Section 3698, R.C. 1935, Caccamo’s deed purporting to convey a fee simple absolute barred the estate tail and enlarged her interest into a fee simple absolute.
- Because Caccamo could tender good and marketable fee simple title, Banning was required to perform the contract.
- Judgment was entered for Caccamo for $1,620 (the unpaid balance), plus costs, under the parties’ stipulation.

## Legal Principles

- A will that uses words of fee simple may still be construed to create a fee tail when other language shows an intent to confine inheritance to the devisee’s lineal descendants.
- Language providing that the first taker receives the property but that, if the first taker dies “without leaving lawful issue of her body begotten,” the property passes over to others is classic language of an estate tail.
- Under Delaware’s statute (Section 3698, R.C. 1935), a deed executed by a tenant in tail that purports to convey a fee simple absolute has the same effect as a common recovery for barring estates tail.
- Once the entail is barred by the statutory method, the former tenant in tail holds a fee simple absolute and can convey marketable title; a purchaser cannot refuse to close on the ground that the will language left outstanding interests that have been cut off by a valid statutory bar.

## Conclusion

Caccamo v. Banning held that Potter’s will created an estate tail in Anna Naomi Caccamo because it gave her the property but provided a gift over if she died without “lawful issue of her body.” Delaware’s estate-tail statute allowed Caccamo to bar the entail by deed, converting her interest into a fee simple absolute. As a result, she tendered marketable title, and the auction purchaser was obligated to accept the deed and pay the remaining $1,620.


Caccamo v. Banning, 75 A.2d 222 (1950)