112 N.J. Eq. 445 | N.J. Ct. of Ch. | 1933
The petition is by Gertrude L. Nilsson and Lucie L. Heisinger, only children of John Sherman Lyons, and prays for an order directing the clerk in chancery to pay to them certain moneys now on deposit with the clerk of this court and representing the proceeds of the sale of certain lands owned by Emma Jane Judge at the time of her death on March 17th, 1905. By the fifth and eighth clauses of the last will and testament of Emma Jane Judge, she devised as follows:
"Fifth. I give and devise to John Sherman Lyons, house and lot No. 155 West Side avenue, lots 153 and 154, corner West Side avenue and Ege avenue, lot 33 West Side avenue; lot No. 20 (being No. 213) Grand street, situate in Jersey City, State of New Jersey, as long as he may live, to use the interest and income of such real property, and after his decease I give and devise the same to his child or children, if any, and if the said John Sherman Lyons leaves no children or the descendants of any children surviving him, then and in that case I give and devise the said real property to the heirs of said John Sherman Lyons."
"Eighth. I give and devise to John Sherman Lyons that part of the real estate located at Toms River, Ocean county, New Jersey, upon which is situate the old house and the land described upon which the *446 old house is situated, so long as he may live, and after his decease I give and devise the same to his heirs as provided in the fifth clause or paragraph of this will."
Upon application of the life tenant the lands so devised were sold (in the matter of the application of John Sherman Lyons for sale of lands limited over — Docket 29, page 569; Docket 43, page 102), and the proceeds of such sale, amounting to $9,657.83, were deposited with the clerk of this court, since which the interest thereon has been paid periodically to John Sherman Lyons, the life tenant. On December 27th, 1929, the petitioners assigned to their father, the life tenant, the remainder interest in the subject of said devises and the life tenant thereupon petitioned this court for an order directing the payment of the principal of said fund and accumulated interest to him on the theory that the remainder, by virtue of said assignment, had merged with the life estate. This application was denied. On December 6th, 1932, John Sherman Lyons, the life tenant, together with his wife, reassigned said remainder interest to the petitioners and also renounced and released to them his life interest and all other interest in the subject to said devises "to the intent and purpose that said life interest be destroyed and merged in the remainder, and to the further intent and purpose of terminating said life interest or interest of the said John Sherman Lyons." Upon the filing of the present petition the matter was referred to one of the special masters of this court who has taken proofs and reported that the prayer of the petition should be granted. The matter now comes before the court on motion to confirm this report. I am unable to agree with the master and the master's report will be disaffirmed and the prayer of the petition denied. The decision of the court of errors and appeals in Schmeider v.Meyer,