Dranow v. Sherry

• Decision Date: 01 October 1912
• Citation: 85 A. 189,80 N.J.Eq. 447
• Parties: DRANOW v. SHERRY et al.
• Court: New Jersey Supreme Court

85 A. 189

80 N.J.Eq. 447

DRANOW

v. SHERRY et al.

Court of Errors and Appeals of New Jersey.

Oct. 1, 1912.

Appeal from Court of Chancery.

Bill by Harry Dranow against Cassie Sherry and others. From an order in chancery, complainant appeals. Affirmed.

John Bentley, of Jersey City, for appellant.Charles B. Bradley, of Jersey City, for respondents.

GUMMERE, C. J. The complainant by his bill in this cause seeks to have a judgment, which he recovered against the defendant Cassie Sherry, decreed to be a lien upon certain lands which stand in her name as the guardian of Joseph Gerard Sherry, now deceased.

The rights of the parties to the litigation depend upon the true construction of the will of Owen Sherry, who died in November, 1907, and who was the father of Joseph Gerard Sherry. The pertinent parts of the will are as follows:

"(2) I give, devise and bequeath to my son, Joseph Gerard Sherry, and to his heirs and assigns forever, any and all property real or personal which I now possess, or which I may become entitled to.

"(3) That the income thereof shall be devoted to the support and maintenance of the said Joseph Gerard Sherry, and if the income shall not be sufficient to support him, then so much of the principal shall be used as may be necessary for his support.

"(4) That in the event of the death of my said son Joseph Gerard Sherry I give, devise and bequeath to Cassie Sherry, and to her heirs and assigns forever, all property real or personal which I may be possessed of at the time of my death."

"(6) I hereby appoint my executrix Cassie Sherry hereinbefore named guardian of my said son Joseph Gerard Sherry."

The land upon which the complainant seeks to have his judgment impressed as a lien was purchased by the defendant Cassie Sherry during the lifetime of her ward, Joseph Gerard Sherry, with funds out of the personal estate of the testator. Shortly after the investment was made, Joseph Gerard Sherry, who was an infant only three years of age, died; and the question for determination is whether the funds which are now represented by the lands in controversy are a part of his estate, or whether, upon his death, they passed under item 4 of the testator's will to the defendant Cassie Sherry.

By the use of the words "in the event of the death of my said son," appearing in paragraph 4 of the will, the testator applied terms of contingency to an event of all others the most certain and inevitable; and to satisfy them it is necessary to...