In re Nilsson

• Decision Date: 25 February 1933
• Parties: In re NILSSON et al.
• Court: New Jersey Court of Chancery

164 A. 578

In re NILSSON et al.

Court of Chancery of New Jersey.

Feb. 25, 1933.

Syllabus by the Court.

An assignment of a life estate by the life tenant to the remainderman under a devise to A for life "and after his death * * * to his child or children if any and if the said" A "leaves no children or the descendants of any children surviving him then * * * to the heirs of the said" A does not effect a merger of the two estates so as to make the corpus presently distributable.

Proceedings in the matter of the application of Gertrude L. Nilsson and another for the withdrawal of certain funds. On motion to confirm the report of the master determining that the prayer of the petition should be granted.

Decree disaffirming the master's report and denying the petition.

Stephen F. Somogyi, of Perth Amboy, for petitioner.

BERRY, Vice Chancellor.

The petition is by Gertrude L. Nilsson and Lucie L. Heisinger, only children of John Sherman Lyons, and prays for an order directing the clerk in chancery to pay to them certain moneys now on deposit with the clerk of this court and representing the proceeds of the sale of certain lands owned by Emma Jane Judge at the time of her death on March 17, 1905. By the fifth and eighth clauses of the last will and testament of Emma Jane Judge, she devised as follows:

"Fifth: I give and devise to John Sherman Lyons, house and lot No. 155 West Side Avenue, Lots 153 and 154, corner West Side Avenue and Ege Avenue, Lot 33 West Side Avenue; Lot No. 20 (being No. 213) Grand Street, situate in Jersey City, State of New Jersey, as long as he may live, to use the interest and income of such real property, and after his decease I give and devise the same to his child or children, if any, and if the said John Sherman Lyons leaves no children or the descendants of any children surviving him, then and in that case I give and devise the said real property to the heirs of said John Sherman Lyons."

"Eighth: I give and devise to John Sherman Lyons that part of the real estate located at Toms River Ocean Co. New Jersey upon which is situate the old house and the land described upon which the old house is situated, so long as he may live, and after his decease I give and devise the same to his heirs as provided in the fifth clause or paragraph of this will."

Upon application of the life tenant, the lands so devised were sold (In the Matter of the Application of John Sherman Lyons for Sale of Lands Limited Over, Docket 29, page 569, Docket 43, page 102), and the proceeds of such sale, amounting to $9,657.83, were deposited with the clerk of this court, since which the interest thereon has been paid periodically to John Sherman Lyons, the life tenant. On December 27, 1929, the petitioners assigned to their father, the life tenant, the remainder interest in the subject of said devises and the life tenant thereupon petitioned this court for an order directing the payment of the principal of said fund and accumulated interest to him on the theory that the remainder, by virtue of said...