75 N.J. Eq. 74 | New York Court of Chancery | 1908
It will be observed that testatrix by the first paragraph of her will devises an absolute estate to her son Otto and his wife. By the third paragraph two successive contingencies are introduced to the effect—first, that if the son Otto dies before his wife the property shall go to the wife and the two grandchildren, and second, if the wife thereafter remarries, the property shall go wholly to the two grandchildren. The question is, therefore, presented whether the death of Otto before his wife is a contingency which testatrix intended to be operative only in the event of the contingency occurring before the death of testatrix, or as a contingency to be equally operative in the event of the contingency happening after the death of testatrix. As the contingency did not occur until after the death of testatrix her intention in the respect named must be ascertained.
Conceding the rule of construction referred to as applicable to the same extent in devises of real estate as in bequests of personal property, I am unable to reach the conclusion that the contingency of the death of Otto referred to by testatrix was intended by her to relate to the death of Otto only in the event of the death of Otto occurring before the death of testatrix. Where a bequest is made to one person with a gift over in case of his death, courts have uniformly held that the expression “in case of his death” must be understood to mean in case of his death before the death of testator, or in case of his death before distribution where a period of distribution may be said to be contemplated. But the reason of that rule is apparent and well understood, and, as is the case with any general rule, it is difficult to find justification for its retention when the reason for its application disappears. The expression “in case of his death” imports a contingency in the mind of testator, and j^et death is not a contingency, but, on the contrary, is the most certain of all events; hence an absolute bequest to a person followed by the expression “in case of his death”-cannot be understood to mean “at his death” or “from his death,” because in that ease the element of contingency is absent and no proper force is given to the expression “in case of.” To give full meaning to the words “in case of,” something that is a real contingency must be understood to have been in the mind of testator, so in order to- give entire force to the expression it is necessary to
But I find it unnecessary to base my conclusions upon the rule above quoted from the text of Jarman on Wills. All au
Touching the real estate in question I think it entirely clear that the will created an estate in fee by the entirety (Den v. Hardenberg, 10 N. J. Law (5 Halst.) 42) in Otto and his wife with limitation over by way of executory devise in the event of the death of Otto before his wife, irrespective of whether Otto’s death occurred before or after the death of testatrix. At the death of Otto the estate by the entirety was defeated by the happening of the contingency named, and the fee passed to complainant and her two children in equal shares, with the fee of complainant in her share made again defeasible in the event of her remarriage, in which latter event the whole estate will pass to the two children absolutely. This appears to be in accordance with the manifest intent of testatrix and I find no rule of construction or principle of law touching the disposition of real estate by devise inconsistent with the creation of the estates above defined.