94 N.J. Eq. 731 | N.J. | 1923
The opinion of the court was delivered by
The bill in this case was filed by the American Builders Corporation to compel the specific performance of a written agreement for the sale of certain lands located in the borough of West Caldwell, the complainant being the vendor and the defendants the vendees. The defendants admitted the making of the agreement and their refusal to accept a conveyance of the lands described therein, but contended that they were under no legal obligation to perform the contract by reason of the fact that the title of the complainant was not a marketable one.
The agreed-upon facts are as follows: In 1888, one Owen M. Beach died seized of the lands involved in the present litigation, leaving a will, by which he disposed of these lands under the residuary clause thereof. By that clause he gave and devised unto his brothers, Erastus, Cyrus and Joseph, and his sisters, Jennie and Ella, all his residuary real and personal estate during their natural lives as joint tenants and not tenants in common, and provided that as each one died his or her share should lapse and become part of the estate and be divided among the survivors. He then provided that after the decease of the last survivor of his brothers and sisters and his mother (who died in 1889) what remained of the residuary estate should go “to such persons as would by law inherit the same, to them and their heirs and assigns forever.” His heirs-at-law at the time of his death consisted of his brothers and sisters named in the residuary clause, and also the children of a deceased brother, Augustus.
At the last June term of this court (In the matter of the Buzby Estate), we were called upon to determine the construction of a residuary clause somewhat similar in its language to that contained in the will now before us. 118 Atl. Rep. 835; 94 N. J. Eq. 151. In that case the testator gave his residuary personal estate to his wife so long as she remained his widow, and then provided that after the death or remarriage that estate should pass “to such person or persons as would by law inherit the same.” The conclusion we then reached was that the effect of the words used in passing the estate in remainder was to vest that estate at the death
It is admitted that there is nothing outside of the residuary clause itself indicative of a purpose to create a contingent rather than a vested estate in remainder. This being so, does the fact that the life tenants are among the heirs-at-law of the testator indicate such a purpose—that is, that those of them who were nearest to him in blood should only take a life interest in his propertjr, and that after the death of the last survivor of them this property should go to those who at that time should be the testator’s heirs-at-law; in other words, to those of the children of the several life tenants who should be then living, and to those of the children of his deceased brother, Augustus, who should be living at that time ? To us such an intention seems an unnatural one, and it is not apparent from the language used. Nor, as we think, can it reasonably be inferred from the words of the devise. As we see it, the primary object of the testator was to insure to each of his brothers and sisters the user of that property so long as any of them might survive and desire to continue in the enjoyment thereof, and that such enjoyment should not be subject to interference by any one of them as against another. The language used by the testator is apt to express this pur
The decree under review will be reversed.
For affirmance—Hone.
For reversal—The Ci-iiee-Justice, Trek chard, Parker, Bergeh, Mihturh, Kalis ch, Black, Katzehbach, White, Heppefheimer, Ackersoh, Yah Buskirk—12.