Mazzola v. Malley, C-1934.

• Decision Date: 07 October 1949
• Docket Number: No. C-1934.,C-1934.
• Parties: MAZZOLA et al. v. MALLEY et al.
• Court: New Jersey Superior Court

68 A.2d 655

MAZZOLA et al.

v.MALLEY et al.

No. C-1934.

Superior Court of New JerseyChancery Division.

Heard Sept. 23, 1949.

Decided Oct. 7, 1949.

Suit by Eleanor D. Mazzola and another against John P. Malley and another for specific performance of a contract for conveyance of realty, devised to plaintiffs' predecessor in title for life with provision that after his death it should go to such person or persons as would inherit it if he had an estate in fee simple.

The Superior Court, Chancery Division, Rogers, J.S.C., held that under such devise the rule in Shelley's case did not operate to vest the whole fee in life tenant and dismissed the complaint on ground that plaintiffs did not have marketable title.

Sidney Alpern, Long Branch, for plaintiffs.

Charles W. Jones, Long Branch, for defendants.

ROGERS, J.S.C.

This is a suit for specific performance of a contract for conveyance of real estate. Defendant refused to accept plaintiffs' proffer of conveyance upon the ground that title to the premises was substantially doubtful and unmarketable. The case is submitted for decision upon the pleadings and stipulation of facts.

Plaintiffs' title springs from a deed made by William M. Cook, unmarried, dated October 24, 1925. He was the son of Jesse Cook who died seized of the premises on February 7, 1894, and who devised the same by will in the following language: ‘On and after the death of my wife or upon her again marrying it is my will and I do order that none of the above mentioned real estate shall be sold at public vendue but that it shall be equally divided between my three sons, Jesse V. Cook, John W. Cook and William M. Cook, share and share alike as soon as may be and that the portions set off and assigned to my two sons, Jesse V. Cook and John W. Cook shall be respectively theirs, their heirs and assigns forever, but that the portion set off and assigned to my son, William M. Cook shall remain his, only during his natural life and after his death it shall go to such person or persons as would by law inherit the same if he had an estate in fee simple.’

Defendants contend that under the said devise plaintiffs' predecessor in title, William M. Cook, took only a life estate in the premises in question with remainder over upon his death to his heirs; and, accordingly, they refused to take plaintiffs' title tendered under the contract because it did not convey the lands in fee simple. Plaintiffs submit that the devise vested the fee to the premises in William M. Cook by operation of law because it invokes the rule in Shelley's case whereby a devise of a freehold estate with limitation, mediate or immediate, over to devisee's heirs passes the whole estate or fee to the devisee. It is conceded that equity will decree specific performance of an agreement to convey real estate only where the title is free from substantial doubt and marketable.

It is clear that when the devise to William M. Cook became effective in 1894, under the will of his father, Jesse Cook, the rule in Shelley's case subsisted in this state except to the extent to which it was modified by statute; which modification excepted its application only in case lineal descendants survived the life tenant (P.L.1846, C.S.1910, p. 1921, sec. 10). This statute does not preclude the rule in this case because it is agreed that William M. Cook died in 1934 leaving no issue, nor representative thereof.

Counsel submit, and my examination of the authorities leads me to the conclusion, that the question under consideration,-the effect and extent of the devise to William M. Cook-is controlled by the principles expounded in Lippincott v. Davis, 59 N.J.L. 241, 28 A. 587 (E. & A.1896) and Peer v. Hennion, 77 N.J.L. 693, 76 A. 1084, 29 L.R.A.,N.S., 945 (E. & A.1909). The task is to apply these principles correctly.

In Lippincott v. Davis, supra, the devise in question was as follows: ‘Item. I give and...