Freund v. Freund

• Decision Date: 17 November 1919
• Docket Number: No. 34.,34.
• Citation: 110 A. 449
• Parties: FREUND et al. v. FREUND.
• Court: New Jersey Supreme Court

110 A. 449

FREUND et al.

v. FREUND.

No. 34.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1919.

Appeal from Court of Chancery.

Suit between Anna M. Freund and John M. Freund and others to quiet title. Judgment for the former, and the latter appeal. Affirmed.

The following is the opinion of Vice Chancellor Stevenson:

This case was submitted for decision on briefs without any oral argument.

1. The bill is filed by four children and devisees of Herman C. Freund, deceased, with whom are joined their respective spouses. The sole defendant is the widow and universal devisee of a fifth child of Herman C. Freund. The whole litigation depends upon the very narrow question whether under the terms of the will of Herman C. Freund the deceased son, Herman G. Freund, had any devisable interest in the two tracts of real estate described in the bill of complaint, and of which the testator, Herman C. Freund, died seized.

The following is the only portion of the will in question which it is necessary to set forth:

"Third. I give and devise to my beloved wife Anna Freund in lieu of dower, all my personal property household furniture, jewelry and money, also all my real estate and liens I may own on other property, the rents, profits and interest of everything to go to her during her lifetime. I direct that after her demise all the property shall go to my children in equal shares and in case one of my children dies without issue his or her share shall be divided equally among the other children. I hereby appoint my wife Anna and my son Herman G. Freund executors of this my last will and testament with full power to sell all or any of my real estate I die possessed of."

All five of the children of the testator survived him and survived his widow, the life tenant. The testator died in 1911. His widow, the life tenant, died in 1915. Herman G. Freund, one of the five children of the testator, died in 1918 without issue, leaving all his estate, real and personal, to his widow, the defendant, Anna M. Freund.

The complainants claim that no interest in the land in question was vested in Herman G. Freund under the terms of his father's will until the decease of the life tenant, and that, while a one-fifth share of the land in question then vested in him, it was divested at the time of his decease without issue under the operation of an executory devise. The defendant claims that the words "dies without issue" relate either to the death of the testator or the death of the life tenant, either of which constructions will sustain the defendant's case, inasmuch as Herman G. Freund survived the life tenant.

2. It will be observed that the gift of the equal shares is wholly contained in the direction that the property "go to," i. e., be distributed to, the testator's children in equal shares. The will also contained an unrestricted power of sale of real estate, so that during the lifetime of the widow, the life tenant, the land in question in this case might have been converted into money. The mind of the testator was concerned with the division or distribution of his entire estate upon the death of the life tenant. It would seem, if we take no notice of the context, that the effect of the direction would be to give to each of the five children a vested estate immediately upon the death of the testator, because the distribution is postponed manifestly "for the convenience of the estate" in order to let in an intermediate interest which the testator naturally would desire and endeavor to protect with the utmost care. The gifts were held back in order that the support of the widow might be provided for in her lifetime in case she survived the testator. A legacy under these circumstances, although expressed solely in a direction to distribute upon the happening of an event subsequent to the death of the testator, must be deemed vested upon the decease of the testator. Post v. Herbert's Executors, 27 N. J. Eq. 540; Potter v. Nixon, 81 N. J. Eq. 338, 86 Atl. 444; Id. (affirmed), 82 N. J. Eq. 661, 91 Atl. 1070.

I do not, however, intend to discuss the question whether the shares of these devisees were vested in them at the time of the death of the testator, subject, however, to be divested upon the death of the devisee without issue prior to the date of distribution, i. e., the death of the life tenant. I am merely pointing out that under the authorities above cited the fact that the gift is contained solely in the direction for distribution is not a circumstance which can affect the defendant's claim adversely. Thus we start out with language which, without the subsequent words, imports a devise of a vested remainder postponed only in respect of enjoyment in order to secure the proper and convenient support of the widow in case she survived the testator.

3. Passing now from the consideration of the phraseology above referred to, which, under the authorities cited, taken by itself, would effect at the death of testator a vested remainder, the question then arises, What is the exact force of the phraseology immediately following as a qualification? Counsel for the defendant argues that the ordinary rule favoring the vesting of estates must be applied to the construction of this will, and the result is that the phrase "in case one of my children dies without issue" refers to the period terminated by the death of the testator.

It may be noted that the word "dies" is employed, and not "shall have died." It also may be observed that we are dealing with two forms of gift, each of which is contained solely in a direction, or, in other words, an order for distribution. The mind of the testator is occupied with what he is directing to be done after the death of the life tenant, and he proceeds, apparently without punctuation, without even a comma, to annex to his direction that his estate be distributed among his children upon the death of the life tenant a qualification, and the qualification is "that in case one of my children dies without issue his or her share shall be divided," etc. There certainly seems to be some ground for arguing that, notwithstanding the rule established by Post v. Herbert's Executors, supra, these two future directions taken together indicate that the mind of the testator was providing for a contingency which would be de-

termined, not at the time of his own death, but at the time of the death of the life tenant.

4. Counsel for the complainants, in an elaborate and ingenious brief, argues that the words "and in case one of my children dies without issue" relate to the death of each child in turn whenever such death may occur, but after the death of the life tenant.

According to this view the fatal executory devise would necessarily impend over the estate of each of these children until his or her death. Hence the share of land and the share of the personal estate, if the testator left any, which Herman G. Freund held by a defeasible title, passed absolutely upon his death in 1918 to his four brothers and sisters, each taking a one-fourth share, or, in other words, a one-twentieth share of the entire estate as it stood upon the death of the life tenant. The fact that issue was born to three of the other children did not release their one-fifth shares from this destructive contingency. Ten, twenty, perhaps forty years from the present time the four brothers and sisters may be alive, and each original one-fifth share will be subject to be defeated by the operation of the executory devise, because the contingency is not removed by the birth of issue but by the death of the holder of the one-fifth interest leaving issue surviving. Children and grandchildren may be born to one of these shareholders and all die without issue in the lifetime of their father and grandfather.

Let us consider some other possibilities which are quite liable to occur. We are postulating that the testator did not entertain the unnatural and bizarre intention of giving only the share of the child who should die first without issue to the surviving children under the operation of the executory devise. The point in dispute relates solely to the question whether the phraseology above quoted must be construed as referring to the death of the testator or the death of the survivor of the testator and his wife, on the one hand, or to the death of each devisee in turn, on the other hand. Accepting the view that all five shares were intended to be equally affected by the executory devise, and not merely the share of the child who should die first, many situations seem entirely possible according to the construction for which the complainants' counsel contends, which, however, it is difficult, if not impossible, to believe the testator contemplated. This argument is not conclusive, it is true, but it has weight when the phraseology of the will is not entirely clear. When the will was made in 1903 the oldest child was 34 years of...