40 N.J.L. 40 | N.J. | 1878
The opinion of the court was delivered by
The will of the testator was made on the 11th of January, 1811, and was proved April 27th, 1811.
The premises in controversy are those mentioned in the second and fifth articles of the will.
James Perrine, Jr., survived the testator, and entered into possession of the premises immediately after his father’s death, and paid to the testator’s daughters the sum of $300 each, as required by the fifth clause of the will, and fulfilled all the charges upon him contained in said will.
The plaintiff makes a title derived from the heirs-at-law of the testator. The defendant claims under a devise to her by the will of James.
The Circuit Court certified unto this court, for its advisory opinion, the two questions—First. Whether James Perrine, Jr., under the will of his father, took an estate in fee in the premises; and, Second. Whether his estate therein ended at his death without issue.
But the rule above mentioned is a rule of construction, founded on the presumption that the testator, in imposing the charge, intended to give a fee where the quantity of the estate is not defined. It applies only to indefinite devises. Where the estate is given for life in express terms, or an estate tail, or some other determinate estate is expressly given or arises by necessary implication from the language of the devise over, this rule is inoperative to enlarge such estate to a fee. The charge upon the devisee is a circumstance affording a rule of construction, but cannot enlarge the estate given, as ascertained by a construction upon the language of the whole will. Doe v. Fyldes, Cowp. 834; Doe v. Owens, 1 B. & Ad. 318; Den v. Cook, 2 Halst. 41; Den v. Small, Spencer 151; Jackson v. Merrill, 6 Johns. 185; Jackson v. Staats, 11 Johns. 337-348; 2 Jarman on Wills 173.
The implication of an absolute estate in fee in James, arising from the personal charge imposed, is overcome by the eighth clause of the will. The words “ die without issue,” in that clause, which, standing alone, import an indefinite failure of issue, and would create a fee tail, are qualified by the succeeding words, “ such share or shares to be equally divided amongst the surviving heirs.” The superadded words of survivorship make the limitation over depend on a definite event—the failure of issue at the death of James—and the estate of James became thereby a fee simple conditional, witli a limitation over by way of an executory devise to “ the surviving heirs.” Den v. Schenck, 3 Halst. 29; Den v. Snitcher, 2 Green 53; Den v. Allaire, Spencer 6; Seddel v. Wills, Spencer 223; Kennedy v. Kennedy, 5 Dutcher 185; Fairchild, v. Crane, 2 Beas. 105. These cases, though perhaps not in accord with the weight of authority in England, have settled the law in this state.
The estate thus created was determinate and defeasible on the happening of two events: first, the death of James, without issue at his death ; and second, the survivorship, at his death,
In order to determine the estate of James, both the events-mentioned must happen. On a devise of a fee simple conditional, with an executory devise over to another, the whole estate goes out of the devisor, in the first instance, to the complete disinherison of the heir. 2 Washb. on Real Prop., p. 344, § 8, p. 345, § 10; 2 Powell on Devises 241. And if there be no one to take under the executory devise, the estate will not revert to the right heirs of the testator. Jackson v. Staats, 11 Johns. 339.
In the event of there being no one surviving, at the death of James, competent to take under the designation of “the surviving heirs,” his estate was a fee simple absolute, and passed to the devisee under his will. Den v. Schenck, supra; Drummond v. Drummond, 11 C. E. Green 234. On the other hand, if there was, at the death of James, some one surviving who might take under the designation of “the surviving heirs,” his estate ended at his death without issue. The state of the case is somewhat obscure on this subject, and the second of the inquiries of the Circuit Court, therefore, is not answered categorically.