In re Forman's Estate

• Decision Date: 25 April 1929
• Citation: 145 A. 867
• Parties: In re FORMAN'S ESTATE.
• Court: New Jersey Supreme Court

145 A. 867

In re FORMAN'S ESTATE.

Prerogative Court of New Jersey.

April 25, 1929.

Proceeding by the State against the estate of George A. Forman to collect an inheritance tax. On the determination of the Comptroller, the State appeals. Affirmed.

Harry J. Able, of Frenchtown, for appellant.

Edward L. Katzenbach, Atty. Gen., for respondent.

BUCHANAN, Vice Ordinary. Decedent was a nonresident of New Jersey. The comptroller determined that decedent was the owner in fee of a certain tract of land in this state, valued at $6,500, and included the same as an asset of the estate in the appraisal and computation of the transfer inheritance tax due from said estate.

The correctness or error of this determination is the issue raised by the present appeal. It is purely a question of law, of construction of a deed.

The land in question was conveyed to decedent in 1896 by deed, wherein the grant reads: "Unto the said George A. Forman for and during his natural life, and at his death to his heirs forever." The habendum clause is the same, except that the word "lifetime" is used instead of "life."

Under the rule in Shelly's Case, where an estate for life is limited to A., and the same instrument contains a limitation, either mediate or immediate, to his heirs, the word "heirs" is a word of limitation and not a word of purchase, and A. takes a fee simple estate. Shelly's Case, 1 Coke 104a; Lippincott v. Davis, 59 N. J. Law, 241, at page 244, 28 A. 587.

The rule in Shelly's Case is still the law in this state, except to the extent that it has been modified by section 10 and 11 of our Descent Act (2 Comp. St. 1910, p. 1921). Lippincott v. Davis, supra, at page 246 (28 A. 587). Neither section is applicable to the case at bar, for section 10 refers only to estates created by devise, and in the present case the estate is created by deed; and section 11 refers only to estates tail, and, in the present case, the language of the grant is not that which would, in former times, have created an estate tail. The rule, therefore, so far as concerns the present case, is unmodified by statute.

It is however contended by appellant that the word "heirs" in this grant was not used in its proper and technical sense, but otherwise, and that hence the rule is not applicable. It is true that, if it appears that the word "heirs", in the grant or devise, is not used in its technical sense, but is used as a description or designation of certain persons (to be ascertained in...