25 N.J. Eq. 561 | N.J. | 1874
The opinion of the court was delivered by
It was held by the Chancellor in this case, and I think rightly, that the deceased, Samuel Graydon, died intestate as to liis real estate, and as to all that part of his personal estate in moneys and securities, except the money legacy and annuity mentioned in the second and third items of the will. In the fifth item, directions are given for the investment and payment over of that part of the estate embraced in that item
I think the plain, natural import of the words used is that, in case John contracts the prohibited marriage, he shall forfeit only that part of the estate given him and his descendants by the will. In no part of the will, save one which will hereafter be noticed, does the testator give directions as to the disposition of any part of his estate, except that willed in item five; and, in my opinion, it would be a strained construction, to make the eighth item, which contains the clause of forfeiture, relate to any other property except that with which the testator was dealing in and by his will. I see no warrant for holding, on the language, used, that he then had in his mind that part of his estate not embraced in the will. If conjecture might be indulged, we might readily enough, perhaps, conclude that the testator intended to dispose of his whole estate, and supposed that he had done so, aud that
If the clause ended here, I think it would be very clear that it related only to the provision thereinbefore made for John. The words, “ principal and interest,” cannot be made to refer to lands, and it is evident, from the words used, that the testator did not suppose he was dealing with any part of his estate other than that from which he had just before made “ provision” for his children. But stress is laid on the concluding words of the clause, which are that, in the event named, the executors are ordered to dispose of the estate as if John were dead in the lifetime of testator intestate, and without issue, hut subject, in other things, to the provisions of the will. I do not think this latter clause can be extended in meaning or effect, beyond the first. By the first clause of the item or section, the testator had named an event, on the happening of which, the gifts made to John should be recalled. By the second clause, he declares the mode of the disposition of these gifts when so recalled. It would certainly be a forced and strained construction to hold that, in the first clause of the eighth item, the testator is dealing with the “provision” which he had made for John, and in the second clause he refers to property not affected by the will, and from which no “provision” had been made for John or any other of testator’s children.
The construction of the will by the Chancellor, in other respects, is, for the reasons assigned by him, adopted by this court.
The decree must be reversed and made in conformity with the views above expressed.
Decree reversed by the following vote:
For reversal — Beasley, C. J., Bedle, Clement, T)alr imple, Lathrop, Lilly, Woodhtill. 7.
For affirmance — Dodd, Green, Scudder, Van Syckel. 4.