141 N.J. Eq. 122 | N.J. Ct. of Ch. | 1947
The will of Joseph J. Feger, late of Paulsboro, New Jersey, is submitted for construction. The instrument was drawn by a justice of the peace in 1923. At that time the testator owned and was successfully operating a coal and ice business; his family consisted of his widow, 39 years of age, and two daughters, aged 19 years and 16 years. No other children were born to the decedent and his wife. The decedent's widow and his two daughters, all of whom survive, are now, respectively, 63, 43 and 40 years of age.
It is the third paragraph of the will, in particular, which engendered the doubt prompting this proceeding. That paragraph reads: *123
"Third: As to the rest, residue and remainder of my estate, be it Real, Personal or Mixed, of whatsoever kind or nature or wheresoever found, I give, devise and bequeath unto my beloved wife, Mary E. Feger, for her maintenance and comfort, as long as she is my widow; should she marry again, then she is to receive one third of said Estate, the two thirds to be divided to my two daughters Mildred and Margaret, share and share alike and to their heirs forever."
Complainant, the widow, contends that by her husband's will she takes all of the residue of his estate, both real and personal, absolutely. She cites Downey v. Borden,
R.S. 3:2-19 reads:
"When a devise of real estate within this state omits the words `heirs and assigns' or `heirs and assigns forever' and the will contains no expressions of intent to convey only an estate for life, or the real estate is not further devised after the death of the devisee to whom the same is given, it shall be taken and understood that the testator thereby intended to grant and devise an absolute estate in such real estate and the devise shall be construed, deemed and adjudged, in all courts of this state, to convey an estate in fee-simple to the devisee for all the real estate so devised, in as full a manner as if the real estate had been given or devised to the devisee and to his heirs and assigns forever."
I shall not here attempt to review the numerous decisions wherein Downey v. Borden, supra, has been cited and the rule there declared applied. That rule is not entirely dispositive of the construction problem before the court; nor is the cited statute. Downey v. Borden was distinguished, and the principles to be applied in a case such as the present one were *124
stated by Vice-Chancellor Pitney in Dubois v. Van Valen,
The testator appointed his wife and his daughter Mildred Eleanor as executrices. Here is certain evidence, it seems to me, that the testator did not intend to make an absolute gift of the residue of his estate to his wife. It indicates that he wished a daughter to participate in the administration of his estate until the death of the mother, or until her mother's remarriage, in order that the daughter might observe and preserve the estate until she and her sister became entitled to it.
In Peer v. Jenkins,
In Buck v. Beckman,
It is my conclusion and conviction that the testator intended to give and did give to his wife a life interest in all the residue of his estate, subject to termination in the event of her remarriage. If the widow remarry, then she is to receive one-third of the residue of decedent's estate absolutely, and the remainder is to be divided between the testator's two daughters, share and share alike.