Doty v. Teller

• Decision Date: 29 February 1892
• Citation: 54 N.J.L. 163,23 A. 944
• Parties: DOTY v. TELLER et al.
• Court: New Jersey Supreme Court

23 A. 944

54 N.J.L. 163

DOTY

v. TELLER et al.

Court of Errors and Appeals of New Jersey.

Feb. 29, 1892.

(Syllabus by the Court.)

Error to circuit court, Union county; before Justice Van Syckel.

Suit by Asher Teller, Phoebe J. Decker, and Lewis Teller against John H. Doty to recover land. Judgment for plaintiffs. Defendant brings error. Affirmed.

The other facts fully appear in the following statement by McGill, Ch.:

Daniel Wade died on the 9th of September, 1821, seised of the land in Union county for which ejectment is here brought. On the 3d of November, 1818, while seised of that land, he made his last will, which was duly admitted to probate in December, 1821, and, in the operative parts there of, is in the following language: "First. It is my will, and I do order, that all my just debts and funeral expenses be fully paid and satisfied as soon as conveniently can be after my decease. Item: I give and bequeath unto my beloved wife, Abigal Wade, the use of all my estate, both real and personal, during her natural life, (except so much of my personal estate as may be wanted to pay my just debts and funeral expenses.) And, further, I do hereby authorize and empower my said wife, Abigal, that if in the course of divine providence her daughter, Fanny Teller, now the wife of Samuel Teller, should be reduced to indigent circumstances, to relieve her necessities in that way which shall be most expedient and least injurious to my estate. Item: After the decease of my wife, the said Abigal Wade, I give and devise unto Daniel Wade Teller, the son of Samuel and Fanny Teller, all my lands, tenements, and real estate whatsoever and wheresoever, to him and to his heirs, entail the same, forever. Lastly. I appoint my said wife, Abigal Wade, executrix, and my trusted friend, Luke Tucker, executor, of this, my last will and testament." The testator's wife, Abigal Wade, died on the 12th of December, 1825. Daniel Wade Teller was her grandson, not of the blood of the testator. Upon the death of Abigal Wade while ho was yet a minor, Daniel Wade Teller entered into possession of the lands devised to him, and in March, 1831, when of full age, executed a deed of the locus in quo to one John Smith, which purported to convey the property in fee, and contained covenants of seisin and warranty. Smith went into possession under his deed, and, by like instrument in November, 1846, conveyed the property to Elias Crane, who, after taking possession by a similar deed, dated in January, 1853, conveyed the property to Samuel H. Doty, the father of the plaintiff in error, who died intestate on the 21st of March, 1871, leaving several heirs at law, of whom the plaintiff in error is one. The possession of the plaintiff in error is admitted to be the possession of all the heirs of Samuel H. Doty. Daniel Wade Teller died on the 3d of March, 1889, leaving his children, Asher Teller, Phoebe J. Decker, and Lewis Teller, the plaintiffs below, and defendants in error, and two children of a deceased daughter, his only heirs at law. At the circuit court the defendant was found guilty as to the undivided three-fourths of the premises sued for.

Gilbert Collins, for plaintiff in error.

John T. Dunn, for defendants in error.

MCGILL, Ch., (after stating the facts.) A single question is presented by the error assigned in this case. It is whether Daniel Wade Teller took a fee or merely an estate for life under the will of Daniel Wade. That will devises the land in question, after the death of the testator's wife, "to him and to his heirs, entail the same, forever." The construction must depend upon the force or effect which is to be accorded to the words "entail the same." Without those words, the devisees would clearly take the lands devised in foe. Their natural import, in the connection in which they are used, is to condition or qualify the fee that is given. The effect designed by them is expressed by the word "entail," the well-recognized import of which is to restrain the fee to heirs of the body of the donee, to the exclusion of collateral heirs, and imply a condition that, if the donee dies without lineal heirs, the land shall, revert to the donor. After the enactment of the...