Francisco v. Bailey, 210.

• Citation: 29 A.2d 884,133 N.J.Eq. 28
• Decision Date: 22 January 1943
• Docket Number: No. 210.,210.
• Parties: FRANCISCO et al. v. BAILEY.
• Court: United States State Supreme Court (New Jersey)

29 A.2d 884

133 N.J.Eq. 28

FRANCISCO et al.

v. BAILEY.

No. 210.

Court of Errors and Appeals of New Jersey.

Jan. 22, 1943.

Syllabus by the Court.

A testator devised to his wife their home absolutely, and the income of the balance of his estate for life, and after her death the principal to his "next of kin in equal shares in fee." Held, that the widow took only a life estate in the residue, and that such residue vested in those who were next of kin after the death of the widow.

Appeal from Court of Chancery.

Suit in equity by Sherman W. Francisco and others, complainants, against the Citizens Trust Company, substituted administrator of the estate of Sherman G. Francisco, deceased, George B. Bailey, executor under the last will and testament of Harriet Francisco, deceased, and others, defendants, for construction of the will of Sherman G. Francisco, deceased, and a codicil thereto. From a decree advised by vice chancellor, 29 A.2d 320, George B. Bailey, executor under the last will and testament of Harriet Francisco, deceased, appeals.

Decree affirmed.

William M. McConnell, of Newark, for appellant.

Philip Goodell, of Montclair, for respondent Little Falls Sand & Gravel Co. and another.

George T. Anderson, Jr., of Paterson, for respondent Harry H. Francisco.

J. Chester Massinger, of Paterson, for respondent Frank M. Francisco.

Ernest F. Keer, Jr., of Montclair, for respondent Montclair Trust Co.

Frank J. Valgenti, Jr., of Madison, for respondent Vida Naegeli and others.

PARKER, Justice.

The controversy is over the meaning and effect of the third clause in the will of Sherman G. Francisco, who died on April 13, 1924. The will itself is brief. Clause 1 directs the payment of debts and funeral charges. Clause 2 reads as follows: "I give, bequeath and devise to my wife, Harriet Francisco, absolutely, the residence in which we now live, together with all the household contents therein." Clause 3, the one in dispute, is as follows: "I give and bequeath to my said wife, Harriet Francisco, the use, benefit and enjoyment of the income of the balance of my estate for and during the term of her natural life, and after her death, I give, bequeath and devise said residue of my estate, wherever and of whatever it may be to my next of kin in equal shares in fee." Clause 4 authorizes continuance of his business and confers power to sell real estate and the testator's interest in the business, and invest the proceeds. Clause 5 appoints his widow and two others as executors and revokes former wills. The will is dated December 18, 1908. There is a codicil of December 27, 1918, which may be relevant to the present inquiry and the disposing part of which is as follows: "I hereby give and devise to my wife, Harriet Francisco, absolutely, the burial plot belonging to me located in Mount Hebron Cemetery.

"In all other respects I hereby ratify and confirm my aforesaid will."

The dispute is over the legal construction of the phrase "next of kin in equal shares in fee." The widow lived until August 10, 1940, and of course enjoyed the user and income under Clause 3 until her death. When that occurred, the question arose as to who were (or was) the "next of kin" to whom the residue was left "in equal shares in fee." Testator left no children, but two brot...