Content v. Dalton

• Decision Date: 24 February 1937
• Citation: 190 A. 328
• Parties: CONTENT v. DALTON et al.
• Court: New Jersey Court of Chancery

190 A. 328

CONTENT

v. DALTON et al.

Court of Chancery of New Jersey.

Feb. 24, 1937.

Syllabus by the Court.

1. At common law a devise to one and the heirs of his body, or his lawful issue, created an estate in fee tail, but by our statute of descents (C.S.1924, § 57—11, to 2 C.S.1910, p. 1921, § 11) such an estate is converted into a life estate in the one with a vested remainder in fee in his children.

2. In a devise to one with a gift over "in case of his death," unexplained by the context of the will, the quoted words refer to the event of death happening before the death of the testator.

3. While the court cannot make a will for a testator, it may rephrase or reconstruct the language of a given will so that it will make sense and grammatically express his apparent intention.

4. Thirty years' possession, in order to ripen into a complete statutory title under chapter 188, P.L.1922 (Comp.St.Supp.1924, § 119—28), must be adverse in character. If the element of hostility is lacking, the statute is inoperative.

5. Where actual possession for the statutory period in a claimant to title is shown, the burden of showing that such possession was not adverse is upon the party claiming the statute inoperative.

6. The statute of limitations does not begin to run against any person until a right of action has accrued to him; hence, it will not run against the remainderman until the termination of the precedent life estate. And that is so notwithstanding the deed from the life tenant under which the person in possession claims purports to convey a fee, for the life tenant can convey no greater estate than he has.

Suit by Harry Content against Robert J. Dalton and others.

Decree in accordance with opinion.

Leavitt & Talley, of Elizabeth (Robert H. McCarter, of Newark, of counsel), for complainant.

Lum, Tamblyn & Fairlee, of Newark, for answering defendants.

BERRY, Vice Chancellor.

The bill is to quiet title to certain lands in Monmouth county. Of the sixteen defendants only six answered, and a default decree was entered against the ten nonanswering defendants on May 11, 1936, on the advice of an advisory master. The answering defendants, Helen B. Small, James G. Beattie, Jr., and Margaret B. Palmer, each claim an undivided remainder interest in the premises described in the bill of complaint by virtue of the will of their grandfather Robert J. Dalton. The answering defendants Fred G. Small and Prescott W. Palmer each claim an inchoate right of curtesy in the shares of their respective wives and the answering defendant May I. Beattie claims an inchoate right of dower in the share of her husband. The issues as framed by the pleadings involve the construction of the will of Robert J. Dalton, deceased, and also the construction of section 1 of "An Act for the limitation of suits respecting titles to land" Revision of 1877, p. 598, now section 28, vol. 3, C.S.1910, p. 3172, as amended by chapter 188, P.L.1922, p. 315 (Comp.St.Supp.1924, § 119—28). For a clear understanding of the issues the following statement of facts touching the title claimed by the respective parties is necessary:

Robert J. Dalton, of Jersey City, died on January 10, 1889, seized of considerable real estate in Hudson county, and of certain property abutting on the Shrewsbury river in Monmouth county known as the "Goose Neck property." He left him surviving three sons, Frank, William, and Leon, and two daughters, Rosamond Reynolds and Mary Ella Beattie. By his will, which was probated June 21, 1889, he made provision for all of his children, his two daughters being provided for by the 5th and 6th (unnumbered) paragraphs of said will. The 6th paragraph, the only portion of the will requiring construction, is as follows: "I also give, devise and bequeath jointly, share and share alike, to my daughters, Rosamond and Mary Ella, my farm or messuage situated at Goose Neck, Monmouth County and State of New Jersey, together with all furniture, plate, horses, wagons and everything belonging to me, situated thereon, and to their lawful issue providing however should either die before or without legal issue, then the whole of the real estate before mentioned or the share of the one dying. I give, bequeath and devise to my sons, Leon and Wm. Dalton and to their issue share and share alike as to and meaning the property situated in Jersey City, Hudson County, the property in Monmouth Count at Goose Neck in case of death of either daughter with or without legal issue (the aforesaid share mentioned) to my son Leon Dalton I give, devise and bequeath in case of death of both daughters he the said Leon Dalton to take the whole of the property aforementioned, situated at Goose Neck, Monmouth County and State of New Jersey."

Complainant's title subsequent to the death of Robert J. Dalton, chronologically, is as follows:

June 1, 1900, Rosamond and Mary Ella, daughters of Robert J. Dalton, conveyed the premises in question to Leon Dalton in fee.

March 10, 1904, Leon Dalton conveyed to Charles W. Ostrum.

March 10, 1904, Charles W. Ostrum conveyed to Mary J. Dalton, wife of Leon Dalton.

August 3, 1919, Mary J. Dalton conveyed to Mary B. Shera.

March 4, 1934, Mary B. Shera conveyed to complainant.

The bill of complaint was filed February 6, 1936, Leon Dalton and his successors in title having been in actual possession of the premises in question since June 1, 1900.

Rosamond Reynolds and Mary Ella Beattie are still alive. Rosamond had issue one son, Edmond B. Reynolds, one of the non-answering defendants, who is still alive.

Mary Ella had issue six children, as follows: Helen B. Small, born 1893, James G. Beattie, born 1895, and Margaret B. Palmer, born 1897, answering defendants, and Lawrence Beattie, Gordon Beattie, and Frank D. Beattie, nonanswering defendants, all of whom are still alive.

Complainant contends that under the will testator's daughters took a life estate in the Goose Neck property with remainder in fee to Leon Dalton and that upon the purchase of their interests by Leon in 1900 an estate in fee simple vested in him. On the other hand, the answering defendants (issue of Mary Ella) claim that the daughters took a life estate with remainder to their issue. Complainant counters with the contention that irrespective of what title was vested in Rosamond and Mary Ella, his title is now complete because he and his predecessors in title back to Leon Dalton have been in actual possession of the premises for a period of over thirty years, and that by virtue of chapter 188, P.L.1922, p. 315 (Comp.St.Supp.1924, § 119—28), his title is complete; and that, therefore, he is entitled to a decree in this cause. The answering defendants rejoin with the assertion that the possession of Leon Dalton and his successors in title, including that of complainant, was not adverse to them because the statute does not run against a remainderman until his right to possession accrues, that is, until the death of the life tenants, and that the life tenants are still living. But, says the complainant, the possession required under the statute is not adverse possession, but actual possession only, irrespective of its character or how it was acquired. These various contentions necessitate, first, the determination of the estate vested in Rosamond and Mary Ella under the will; second, the character of the possession required under the statute for the vesting of title in one other than the true owner; and, third, whether complainant's possession is effective to vest a complete title in him as against the answering defendants.

I. In construing the Dalton will, it should be borne in mind that, as is evident from its composition, it was prepared by one unskilled in legal phraseology, unlearned in the law, and ignorant of the rules of punctuation as well as those of English grammar. It probably was prepared by the testator himself; certainly, not by a lawyer. A careful reading of the 6th paragraph, above quoted, shows that it is readily divisible into four parts, as follows:

1. "I also give, devise and bequeath jointly, share and share alike, to my daughters, Rosamond and Mary Ella my farm or messuage situated at Goose Neck, Monmouth County and State of New Jersey, together with all furniture, plate, horses, waggons and everything belonging to me, situated thereon, and to their lawful issue"

2. "providing however should either die before or without legal issue, then the whole of the real estate before mentioned or the share of the one dying. I give, bequeath and devise to my sons, Leon and Wm. Dalton and to their issue share and share alike as to and meaning the property situated in Jersey City, Hudson County"

3. "the property in Monmouth Count at Goose Neck in case of death of either daughter with or without legal issue (the aforesaid share mentioned) to my son Leon Dalton I give, devise and bequeath"

4. "in case of death of both daughters he the said Leon Dalton to take the whole of the property aforementioned, situated at Goose Neck, Monmouth County and State of New Jersey."

It is conceded by counsel for both complainant and the answering defendants that at common law the language of part 1 above quoted would vest a fee tail in Rosamond and Mary Ella and that by the statute of descents (Cum.Supp.1924, § 57—11 to 2 C.S.1910, p. 1921, § 11) such estate is changed to a life estate in the daughters with a vested remainder in fee to their children. Complainant contends, however, that the subsequent language of that paragraph vests a remainder in fee in Leon Dalton.

The entire remainder of the 6th paragraph of the will may be exscinded and disregarded, as a careful reading will demonstrate that it has no bearing on the present controversy. Part 2 relates only to the Jersey City property described in the preceding (5th unnumbered) paragraph of the will. Part 3 gives to Leon Dalton a life estate in case of the death of either daughter with or without issue, an event which...