Kanouse v. Stockbower

• Decision Date: 05 February 1891
• Citation: 21 A. 197,48 N.J.E. 42
• Parties: KANOUSE v. STOCKBOWER.
• Court: New Jersey Court of Chancery

21 A. 197

48 N.J.E. 42

KANOUSE

v. STOCKBOWER.

Court of Chancery of New Jersey.

Feb. 5, 1891.

(Syllabus by the Court.)

On final hearing on bill, answer, and proofs taken orally.

James H. Neighbour and Theodore Runyon, for complainant.

John L. Conorer and Alfred Mills, for defendant.

VAN FLEET, V. C. This is a partition suit. The complainant, by his bill, asserts a title to a little over two-thirds of the land he asks to have divided. His exact fractional interest, as he states it, is 81-120, and he says that other persons hold the other 39-120. The defendant, Maria Stockbower, according to the complainants' statement of the title, is entitled to 10-120, or 1-12. She, however, asserts a title to all the land. She claims to own the whole in severalty. Temperance Nolen is the common source of title. Both parties attempt to trace the title they respectively set up to her. The land in question constitutes a part of what was Temperance Nolen's homestead farm. Eighty-three acres in Jefferson township, Morris county, were set off to her in 1807, on the partition of her father's land, and the land in question is a part of this tract. Temperance Nolen died testate in January, 1864. Her will bears date June 12, 1861. The land in controversy is covered by the water of Lake Hopatcong, and was, prior to the date of the will, when the water of the lake was in its ordinary state and condition. The first gift made by the will is to the testatrix's son Abraham. The words of this gift, so far as they are material to the questions to be hereafter discussed, are the following: "I give and bequeath to my son Abraham the use and income of the south-easterly part of my homestead farm, as hereafter described; that is to say: Beginning at the sixth corner of my homestead farm, thence running," etc. The words "beginning at the sixth corner of my homestead farm "refer, undoubtedly, to the sixth corner of the 83-acre tract as established by the survey by which that tract was allotted to the testatrix. A plotting of the two tracts, which is in evidence, shows conclusively that that is the sense in which they were used. The laud devised to Abraham is described by course and distance and metes and bounds, and the only allusion made to the lake in the description is found in the eleventh line, which reads as follows: "North, twenty-four degrees west, three chains and fifty-nine links, to a corner of Beemer's land at the edge of the pond." The second gift is to the children of testatrix's deceased son, Nathan. The controlling words of this gift are: "I give and bequeath unto my sou Nathan, now deceased, to his children, the remainder of my homestead farm, as hereafter described; that is to say: Beginning at a stake standing at the edge of the Great pond, and in the third line of the whole tract, distant three chains and fifty links from the third corner of said tract, thence * * *." Then the different lines of the tract intended to be devised are described, by course, distance, and monuments, until the line extending to the lake is reached, when the will, in describing the last two lines, says: "North, fifty-two degrees west, eleven, chains, to the edge of the pond; thence by the same, the several courses thereof to the beginning." The dispute between these parties grows out of the language in which this last devise is made; and the question whether the complainant or the defendant shall prevail in this suit depends entirely on the construction which the clause just epitomized shall receive. The single point in dispute is as to the extent or quantity of land which passed by the devise, the contention of the complainant being that no land covered by the water of the lake lying beyond or below low-water mark passed; while the defendant's insistment is that all the testatrix's homestead farm which she owned at the time of her death, and which did not pass by the devise to Abraham, passed to the children of Nathan. Since the death of Temperance Nolen, the complainant has procured conveyances from a part of her heirs at law, assuming that she died intestate as to the land he asks to have divided; while the defendant stands before the court as the successor in title to the land devised by the testatrix to the children of her son Nathan. It is thus seen that the question presented for decision is purely one of construction.

It is not disputed that the land in controversy, though covered by the water of Lake Hopatcong, is the subject of private property, as much so as land lying adjacent to the lake, but untouched by its water. The title to the soil under the waters of the lakes and ponds in this state passed to the proprietors, and not to the state, and is therefore subject to the same legal regulations that govern the acquisition, enjoyment, and transmission of other real property. This was so decided by the supreme court in Cobb v. Davenport, 32 N. J. Law, 369, and is the settled law of this state. This devise, as I read it, presents no ground whatever for the application of the maxim, falsa demonstratio non nucet. That maxim, as its language imports, is without pertinency or utility except in cases where the testator has, in designating the thing which he means to make the subject of his gift, given two or more descriptions of it which are contradictory or inconsistent. A quotation from Sheppard's Touchstone will illustrate what is meant. It is there said: "If one grant all his lands which he hath in D. in this manner, 'all my lands in D. which I had of the grant of I. S.,' this is a good grant of all his lands in D., albeit he had them not of the grant of I. S., but of the grant of another. But if the words be, 'all my lands which I had by the grant of I. S. in D.,' in this case the grant is not good to carry any other lands in D. but such he had of the grant of I. S. So if one grants in this manner,' all my manner of sale in Dale, which I had by descent,' and in truth he had it not by descent but by purchase, this is a good grant of the manor." Shep. Touch. (1st Amer. Ed.) marg. p. 247; Griscom v. Evens, 40 N. J. Law, 402, on error, 42 N. J. Law, 579, also furnishes a very apposite illustration. The descriptive words in that case were: "All that my farm and plantation near Cropwell, conveyed to me by the heirs of my deceased wife, and where my son, Thomas Evens, now resides, containing about eighty-five acres, more or less." The testator's farm near Cropwell, whereon his son Thomas resided, embraced, in fact, 14 acres which had not been conveyed to him by the heirs of his wife, but had come to him from an entirely different source. Consequently the words "conveyed to me by the heirs of my deceased wife" stood in direct incompatibility with two other descriptions of the lands intended to be devised, namely, "all that my farm near Cropwell," and "where" or wherever "my son Thomas now resides;" so that a case was presented which compelled the court to decide whether the words "conveyed tome by the heirs of my deceased wife" were a mere false description, or were used to restrict the generality of the language of both a previous and subsequent description. But here there is no conflict or incompatibility. The description of the thing intended to be given is single, simple, and definite. The descriptive words are, "the remainder of my said homestead, as hereinafter described; that is to say;" and then follows a description as certain and definite as can be expressed in words. Not all or the whole of the remainder is given, but...