54 N.J. Eq. 714 | N.J. | 1896
The opinion of the court was delivered by
This is a suit brought by the appellant to compel the respondent to specifically perform a contract to purchase lands. The only question in the case is whether the appellant has a title to the lands contracted for which the respondent is bound to accept.
The lands in controversy were devised to the appellant by the will of his father, which bears date August 9th, 1866,' and whether or not he has a valid title to them depends upon the true construction of that will.
The devise of these lands is, contained in the first clause of the will, and is as' follows: “ I give and bequeath unto my son John H. Patterson, on the following conditions, and 'as follows, the following described tract of land,” describing the lands which are the subject-matter of the contract which is sought to be en
“Item. I order and direct that not any of .my farms that I have herein given to my said sons as herein specified, shall be sold by any of my said sons during the life of my said wife.
“Item. I order and direct that if any of my said sons John H., Samuel, Ewing and Joseph should die without leaving lawful issue, and leaving a widow, then the widow of such son so becoming deceased may have the use of the farm which is herein given to such son so long as such widow of such deceased son remains unmarried, and, on the event of the marriage or decease of such widow of such son so becoming deceased, I give and .bequeath such farm of such son so becoming deceased unto such persons as may then be my lawful heirs forever.”
It is contended by the respondent that the effect of this last provision of the will was to cut down the devise to the appellant to an estate for life; or, if not that, then to a defeasible estate in fee-simple which would be divested upon his dying without leaving issue surviving him and leaving a widow. The view adopted by the court below was in conformity to that advanced by the respondent, and a decree was made dismissing the bill of complaint. I cannot concur in the view expressed by the vice-chancellor as to the true construction of this will: He considered that the estate devised to the appellant was cut down to a life estate, by the provision of the will last cited, on the theory that the words “die without leaving issue” imported an indefinite failure of issue and consequently created an estate-tail at common law; and that such an estate, as soon as it was created, was transmuted by the eleventh section of our statute of descents into an estate for life. But this view of the effect to be given to the words “die without issue” can only be sustained, it-seems
‘ ‘ that in any devise or bequest of real or personal estate in the will of any person dying after this act shall take effect, the words ‘ die without issue,’ or ‘die without lawful issue,’ or ‘have no issue,’ or any other words which may import a want or failure of issue of any person in his lifetime or at his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not an indefinite failure of issue, unless a contrary intention shall otherwise appear by the will.” Gen. Stat. p. 3671.
I am not able to find in this will anything which makes it appear that the testator intended that the words “ die without leaving lawful issue” should import an indefinite rather than a definite failure of issue, nor is anything pointed out in the opinion below. Indeed, it is there stated that the implied estate in fee-tail, which is declared to have been created by the devise, “ rests upon the presumption that the testator meant by the words ‘without leaving issue’ an indefinite failure of issue, but that such a presumption is not a conclusive one,” and that if it had appeared from other language in the will that issue at death was meant, such language would change the time of the failure of issue from an indefinite to a definite date.
The rule applied by the court below in construing the words “ die without leaving lawful issue,” and determining that they imported an indefinite rather than a definite failure of issue, was that established by the common law. It was applied by this court in the case of Chetwood v. Winston, 11 Vr. 337 (referred to in the opinion below), in construing a devise similar to that now before ús. But in that case the will under consideration was evidently that of a person who had died before the passage of the act of 1851, for the opinion states that the question to be determined was “ whether by force of the testamentary disposition [of certain lands] one I. D., by the rules of the common law,. took an estate-tail.” The will now before us, as has already been ■Stated, was not executed until the year 1866, and consequently-
Giving to the words “die without leaving lawful issue” the effect required by the statute, they import a definite and not an indefinite failure of issue, and consequently do not operate to cut down the fee-simple estate devised to the appellant by his father’s will into an estate-tail.
Nor can I concur in the view expressed in the opinion below that, assuming the words “ die without leaving issue” to import a definite failure of issue, still the appellant has not a perfect title to the lands in controversy, because, instead of having an indefeasible estate in fee-simple, he has an estate which is defeasible upon his dying without issue and leaving a widow. As I read the will before us, the appellant’s estate becomes divested and vests in the heirs of the testator, upon his death without issue surviving him and leaving a widow, only in case his death occurs during the lifetime of his mother, the widow of the testator.
In the case of Pennington v. Van Houten, 4 Halst. Ch. 745, decided by this court in 1852, the testator devised all his residuary real and personal estate to his son Abraham. He then provided as follows:
“ My will is and I do order that my executors shall rent out all my property for the benefit of my son Abraham, and the proceeds arising therefrom to be put out to interest for the benefit of my son, by my executors until he shall arrive to the age of twenty-one years; and I do further order that my executors give unto my said son Abraham, out of my estate, a good college education and a decent support until he arrives at the age of twenty-one years; but if my said son Abraham should die, having no children, then my mil is, and I do hereby dispose of my property in the following manner, viz.,”
giving it to certain collateral relations. The question presented by that case, as was stated by Chief-Justice' Green, in delivering the opinion of this court, was “ whether, under the provisions of the will, the limitation over of the estate given to the testator’s son Abraham was upon the death of the devisee without children.„
By the decision in Pennington v. Van Houten, as I understand it, two rules are established in the construction of wills containing a limitation over by way of executory devise after the death of the original devisee without issue, viz.:
[First. If land be devised to A. in fee and a subsequent clause in the will limits such land over to designated persons in case A. dies without issue, and A. so dies, and the substituted devisees are in esse at his death, and there is no other event expressed in the will to which the limitation over can fairly be referred, then A. takes a vested fee which becomes divested at his death and vests in those to whom the estate is limited over.
Second. Where there is an event indicated in the will other than the death of the devisee to which the limitation over is referable (for instance, the distribution of the testator’s estate or the postponement of the enjoyment of the property devised until the devisee reaches the age of twenty-one or until the exhaustion of a prior life estate), such limitation over will be construed to refer to the happening of such event or to the death of the devisee, according as the court may determine from the context of the will and the other provisions thereof, that the limitation clause is set in opposition to the event specified or is connected with the devise itself, v .
Since the decision of Pennington v. Van Houten the rules established by that decision have been frequently applied by our courts in construing limitations over by way of executory devise. In the case of Ackerman’s Administrator v. Vreeland’s Executor, 1 McCart. 23, the testator devised certain lands to his three daughters in fee, to be equally- divided between them, and then provided that if either of them should die without issue that the portion of the daughter so dying should go to the testator’s surviving children. The limitation over stood in opposition to the
The case of Williamson v. Chamberlain, 2 Stock. 373, is an example of the application of the second rule established by the decision in Pennington v. Van Houten. In that case the testator gave a life estate to his wife in his real and personal property, and then declared that after the death of his wife the same should be sold and divided among his children. He then declared that if any of his children should die without,lawful issue his or her share should be divided among the survivors. It was considered that the limitation over stood in opposition not to the devise itself, but to the event of the distribution'of the estate among the children after the death of the wife, and it was consequently held that the limitation over was defeated by the death of the mother during the lifetime of the children. Other examples of the application of the second rule in Pennington v. Van Houten will be found in the construction put upon certain devises in the case of Wurts’ Executors v. Page, 4 C. E. Gr. 373, 374; in \J Baldwin v. Taylor, 10 Stew. Eq. 78; S. G. on appeal, 11 Stew. Eq. 637; in Barrell v. Barrell, 11 Stew. Eq. 60; and in Bishop v. McClelland, 17 Stew. Eq. 450.
Applying the rules of construction established by Pennington v. Van Houten to the case in hand, it is clear that if the testator, immediately after the devises to his sons, had declared that in the event of any of them dying without issue and leaving a widow, the widow of the one so dying should enjoy the lands devised to him during her widowhood, and that then it should go to .the testator’s, heirs, the construction adopted by the court below would be beyond criticism, for the limitation over would
The mother of the appellant having died before the making of the contract for sale which is sought to be enforced by this proceeding, the appellant was, at that time, seized of an indefeasible estate in fee-simple in the lands which were the subject-matter of the contract, and is entitled to a decree of specific performance against the respondent.
The decree of the court of chancery should be reversed and a decree entered in accordance with these views.
For reversal — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Mague, Van Syckel, Bogert, Brown, Sims, Smith, Talman — 12.
For affirmance — None.