Carter v. Gray

• Decision Date: 30 June 1899
• Citation: 58 N.J.E. 411,43 A. 711
• Parties: CARTER v. GRAY et al.
• Court: New Jersey Court of Chancery

43 A. 711

58 N.J.E. 411

CARTER

v. GRAY et al.

Court of Chancery of New Jersey.

June 30, 1899.

(Syllabus by the Court.)

Bill by Mary A. Carter against John Gray and others. Decree for complainant.

Alan H. Strong and Woodbridge Strong, for complainant.

James H. Durand and Leslie Lupton, for defendants.

GREY, V. C. This cause is presented on bill to quiet title, and answer admitting all the material allegations of the bill, save the averment that the complainant took a title in fee simple to the land in question under the will of Simon Carter, deceased, under whom both parties claim,—the complainant by devise, the defendants by descent. The lands consist of five separate tracts in New Brunswick, N. J. Of these Simon Carter died seised in fee simple in 1893. His will is dated the 10th day of March, 1893, and was proven on April 6, 1893, which is within a month after its date. The whole controversy between the parties arises upon the construction of the will, and particularly upon the residuary clause and the next following paragraph. The complainant, who is the widow of the testator, contends that the will devises to her a fee-simple estate in all the testator's real property; and the defendants, who are the collateral heirs of the testator, insist that the devise to the complainant passed only a life estate in the realty, and that the testator died intestate of the fee. The testator left, him surviving, his widow, the complainant in this suit, and no children; his heirs at law being his nephews and nieces, who are the defendants in this suit. He was possessed at the time of his death of about $11,320 of personal estate. He does not appear to have owed debts to any substantial amount. He gave to his nephews and nieces 10 money legacies. The sum of the legacies is $11,500, which would more than exhaust the whole of the personal estate. There la but one clause which makes any disposition of the testator's real estate, and that is the residuary clause. Looking at the whole instrument, it is readily seen that care for his wife was the dominant purpose of the testator's mind, but in forming the will no expression was given to that purpose until he had by his money gifts disposed of all his personalty. Then comes the residuary clause, which shows the first dealing with the testator's real estate. It is in these words: "All the rest and residue of my estate and property, real and personal, and of every nature and kind, and wheresoever situate and being, I give, devise, and bequeath unto my wife, Mary A. Carter." The testator by this clause clearly shows his intent to give to his wife the residue of both his realty and personalty. This was the subject-matter of the gift. He does not define the extent of the interest which he devises to her, but his use of the words "estate" and "property," in this connection, shows that he was giving to her his whole interest and ownership in this residue. The word "estate," at common law, even when used in a grant, signified such inheritance, freehold, etc., or the like, as any man hath in lands (Co. Litt. 345); and a devise of all one's real estate comprehends, not only the physical thing itself, but the interest which the testator has in it. It is a description of his fee (Holt, C. J., Countess of Bridgwater v. Duke of Bolton, 1 Salk. 237), and carries, not only the land, but also the testator's interest in it (Barry v. Edge worth, 2 P. Wms. 524, and cases there cited; Jackson v. Merrill, 6 Johns. 191). So, also, the word "property," when used in connection with other expressions showing that it refers to the testator's real estate, or where the devise is of all the testator's property, will give a fee to the devisee. Morrison v. Semple, 6 Bin. 94; Jackson v. Housel, 17 Johns. 283. These constructions of the meanings of these words are those given at the common law, and without the aid of any statutory declaration of the effect to be given to them. They accord with their usual and ordinary use by all classes of persons, and must be held to indicate a purpose to devise a fee in the testator's real estate, unless some other expressions in his will control their use, and indicate a different intent. In addition to the common-law rule above cited, the statute of 1784 (3 Gen. St. p. 3763, § 35) provides that devises from which the words of inheritance may be omitted, but which contain no expressions indicating an intent to pass an estate for life only, and no limitation over, shall pass a fee simple. This statute is declared in its preamble to be enacted to aid testators who intend by their wills to pass absolute estates, but who omit to use the technical expressions apt for that purpose. Since this statute, it has become common usage in drawing wills intended to pass a fee to omit the use of the word "heirs." A devise of the character named in the statute has, in legal construction, under the operation of this statute, precisely the same effect as it would hare had if the word "heirs" had been used. The effect of the common-law construction of the words "estate and property" in this residuary gift must be held to pass a fee, if they alone supported the complainant's contention. The statute has the same effect, unless there be something in the will indicating a purpose to pass an estate for life only or to create a limitation over.

The only expression in the will which is claimed to show a contrary intent or to have a limiting effect is found in the paragraph following the residuary gift, in these words: "I do further will and direct that none of the foregoing moneys and legacies shall be paid until after the death of my said wife,...