Davis v. Scharf

• Decision Date: 11 May 1926
• Citation: 133 A. 197
• Parties: DAVIS et al. v. SCHARF et al.
• Court: New Jersey Court of Chancery

133 A. 197

DAVIS et al.

v. SCHARF et al.

Court of Chancery of New Jersey.

May 11, 1926.

(Syllabus by the Court.)

Suit by Austin Davis and another against Morris Scharf and another for specific performance of his agreement to purchase property. Decree for plaintiffs.

George B. Astley, of Newark, for complainants.

Jacob Lubetkin, of Newark, for defendants.

BACKES, V. C. This bill is to compel the defendants to perform their agreement to purchase the house and lot 117 Arlington street, Newark. The defendants answer that the title is not marketable.

The complainant Austin (Hunt) Davis acquired title by will of his adoptive father, John Davis. The cocomplainant is his wife. By the will the testator devised to his two sons, William and James, each a lot, and to his adopted son, Austin, another lot, and the remainder of his estate to his wife during widowhood. At her death, he devised the homestead to his grandson, John W. Davis, the property here involved to his son William for life and then to the complainant, Austin, and the residue of his estate, after some specific bequests of household articles to members of his family, to his sons, William and James, in equal shares, with power in his executors to sell his real estate. The sixth item of the will, which contains the devise to the complainant Austin reads as follows:

"Sixth: In case the house No. 117 Arlington street in the city of Newark, now owned by me shall not be sold during the lifetime or widowhood of my said wife as hereinafter provided, then at the death of my said wife I give, devise and bequeath the said house No. 117 Arlington street, to my son William A. M. Davis, to be used and enjoyed by him during the term of his natural life; and from and immediately after his death I give, devise and bequeath the same to my adopted son Austin Hunt, and to his heirs and assigns forever, but in case said Austin shall die leaving no children to inherit, then said house and lot shall go to my son James N. Davis, his heirs and assigns forever."

The testator's widow and his son William, the life tenants, are dead. The property was not sold during the widow's lifetime. The defendants contend that Austin's estate is subject to defeat if he dies "leaving no children to inherit." That undoubtedly would be the case if there was no other event than his death at any time without leaving children to which the limitation over would be referable, but where, as here, there is another event expressed in the will to which the limitation over can fairly be referred—i. e., the event of the death of the life tenants, and the right of possession by the devisee—then according to Chief Justice Gummere's second rule of construction in Patterson v. Madden, 54 N. J. Eq. 714, 36 A. 273:

"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."

The accepted rule of construction of wills in this state is, where a limitation over upon failure of issue at the death of the devisee is incident to a devise of a remainder upon the termination of a life estate, to refer the limitation clause to the event of the death of the devisee before the death of the life tenant, unless there are indications in the will of a contrary intent. The inclination of our decisions is to...