95 N.J.L. 85 | N.J. | 1910
This is an action upon contract. By it the plaintiff seeks to recover from the defendant damages for breach of a covenant of seizin contained in a deed of ■conveyance made by her to him. The premises embraced in the deed were owned by the husband of the defendant at the time of his death. By his will, after directing the payment of his debts and funeral expenses and bequeathing to the plaintiff the sum of $200, he disposes of the remainder of his estate as follows: “I give and bequeath to my beloved wife all my real estate, also all my personal property of every description, also all moneys due me at my decease, to her own private use forever, and after her decease to the relatives of myself, as well as her, the balance in equal parts of shares.” The sole question which the case presents is whether or not by force of this residuary provision in her husband’s will the defendant became seized of an estate in fee-simple in the lands conveyed by her to the plaintiff.
In the case of Downey v. Borden, 36 N. J. L. 460, this, court, speaking through Mr. Justice Depue, declared that “the principle is entirely settled that where lands are devised in the first instance in language indeterminate as to the quantity of the estate, from which an estate for life would result by implication, and words adapted to the creation of a power of disposal without restriction as to the mode of execution are added, the construction, will be that an estate in fee is given.” Since the' promulgation of that decision the principle there declared has been steadfastly adhered to by this court. The cases are collated by Mr. Justice Pitney in Tuerk v. Schuler, 71 Id. 331, our latest decision in which it was involved.
The devise now under consideration is clearly within the class designated in the citation from Downey v. Borden. The determination of the case, therefore, turns upon whether there is to be found in the terms of the devise words adapted to the creation of an unlimited power of disposal in the widow. No such power is conferred by express words. Does it arise by necessary implication ?
The effect given to this provision, in Annin v. VanDoren, was commented upon, approved and followed by us in the late case of McCloskey v. Thorpe, 74 N. J. Eq. 413. There the testator by his will directed that the proceeds of the sale of his saw-mill be paid over to his wife, to whom he also bequeathed all of the personal property of which he was possessed, and then provided that “if there should be anything left after her death” it should be divided among specified beneficiaries. We held that the effect of the words quoted, unlimited as they
It is true that in these two cases the testamentary disposition was of personal property, not of real estate. But, as is pointed out by Chancellor Green, in Annin v. VanDoren, the authorities upon the point (and many of them are cited by him) sustain the principle 'in regard to devises of real estate as well as legacies.
In the case of Tooker v. Tooker, 71 N. J. Eq. 513, and in the authorities referred to in support of the conclusion reached in that case, the court was able to find from a consideration of the whole will, an indication that words somewhat similar to those which we have been discussing either did not indicate an intention to confer upon the beneficiary the power to dispose of the corpus of the gift or conferred only the power to dispose of so much thereof as might be necessary for his or her support and maintenance. Looking at the will now before us, the contents of which have already been stated, nothing appears which indicates any intention on the part of the testator to put any limit upon his wife’s power of disposal outside of the mere words of the gift over, and that they do not operate as a limitation upon that power is, of course, inferentially decided by Annin v. VanDoren and McCloskey v. Thorpe.
We reach the conclusion, therefore, that the rule of construction declared in Downey v. Borden is applicable to the will now under consideration, and that the defendant by force of the residuary clause therein had an absolute estate in fee-simple in the lands which were convered by her to the plaintiff.
The judgment under review will be affirmed.