Michael v. Minchin

• Decision Date: 18 June 1917
• Citation: 101 A. 283,90 N.J.Law 603
• Parties: MICHAEL v. MINCHIN.
• Court: New Jersey Supreme Court

101 A. 283

90 N.J.Law 603

MICHAEL

v. MINCHIN.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Mary F. K. Michael against Harry W. Minchin. Judgment for plaintiff, and defendant appeals. Reversed, and venire de novo awarded.

George Minchin died leaving a last will and testament in which, by the first paragraph, he devised to his wife for life his real estate, and at her death to his three children, Harry, Emma, and Adaline, each a distinct parcel specifically described, and to his son Abraham $3,000, subject to the following conditions:

"Should death take my Dauter Addeline or She do not have anny issue Children living at her death her Part will be divided between my son Harry W, Minchin and my dauter Emma Jane Minchin in Case my Son Harry W, Minchin Should depart this life without Issue His Share will go to my Dauter Emma Jane Minchin if Emma Should depart this life without (Issue Children) her Share Should go to my Son Harry W. Minchin in Case of my (three 3) last mentioned children depart this life without issue then the whole Shall go to my Son Abraham C. Minchin.

"Second—I leave to my wife Mary Jane my life insurance Poliseys and when Paid She Should Pay my Son Abraham C. Minchin his Share $3000.00/100 out of it besides in Say Sixty days after or as can be done I leave my Wife Mary Jane all My Personal Property for her lifetime and at her death it Shall go to my Son Harry W. Minchin if alive and if not alive to my Dauter Emma Jane and is not alive to my Dauter Addie L La Bough and if She is dead to my Son Abraham C. Minchin but at anny time during my wife life if She Wish she can give to my son Harry or my Dauter Emma anny or all Parts of what was left to them besides She is to Sei>ort them uutill the are of age in as good a way as it will Alow I diret my Exectiors to Pay all my lawful deaths."

The testator left him surviving his widow and the four children mentioned in the will, which was probated August 8, 1892. The widow is dead, and of her children three died in her lifetime, Abraham without issue, and Adaline and Emma leaving issue. Harry is still alive, and has two children living.

The widow conveyed her life estate in the land devised to Harry, to him, and he and his wife conveyed the land, the. subject of this suit, to the plaintiff by a deed containing a special covenant of seisin in fee simple, and the plaintiff brought this action to recover damages for an alleged breach of that covenant because, as she claims, Harry has not an indefeasible estate, but one that is subject to the gift over to Emma if he should die at any time without leaving issue.

Arthur H. Mitchell, of Newark, for appellant. Lum, Tamblyn & Colyer, of Newark, for respondent.

BERGEN, J. (after stating the facts as above). Upon the foregoing facts the trial court held, a jury being waived, that the estate of Harry was a fee simple subject to a defeat upon his death at any time without issue, in which event the executory devise over to his sister Emma J. Minchin, who died in his lifetime, vested in her heirs or devisees, and that Harry's estate remained defeasible until after his death leaving issue, and ordered judgment entered for the plaintiff, from which the defendant has appealed.

The result reached by the court below is erroneous for reasons to be stated. The trial court disposed of the case without at all considering the effect of the intervention of the life estate of the widow, and the postponement of the right of possession of Harry until after the death of the life tenant.

Passing for the present the consideration of the question concerning the character of the estate which Emma took under this will if she died before Harry, to be hereinafter dealt with, and assuming that there are two gifts after the life estate, one to Harry, defeasible upon his death at any time without issue, and another, the remainder, to his sister Emma in that event, the limitation, over, in such case, will be referred either to the death of the first devisee, or of the life tenant, as the court may determine from all the provisions of the will, because it should be so construed as to give effect to the intent of the testator ascertainable from his will. In the present case the will should be so construed as to refer the death of Harry without issue to death in the lifetime of the life tenant. "Where the two concurrent or alternative gifts are preceded by a life, or other partial interest, or the enjoyment under them is otherwise postponed, the way is open to a third construction, that of applying the words in question (depart this life without issue) to the event of death occurring before the period of possession or distribution." Jarman on Wills, vol. 3, 648. In Patterson v. Madden, 54 N. J. Eq. 714, 723, 36 Atl. 273, 275, Justice Gummere, in a well-considered opinion read for this court, declared that two rules are established in this state, in the construction of wills containing a limitation over by way of an executory devise after the death of the original devisee without issue, and they are stated by him as follows:

"First. If land be devised to A. in fee and a subsequent clause in the will limits such land over to designated persons in case A. dies without issue, and A. so dies, and the substituted devisees are in esse at his death, and there is no other event expressed in the will to which the limitation over can fairly be referred, then A. takes a vested fee which becomes divested at his death and vests in those to whom the estate is limited over.

"Second. Where there is an event indicated in the will other than the death of the devisee to which the limitation over is referable (for instance, the distribution of the testator's estate or the postponement of the enjoyment of the property devised until the devisee reaches the age of 21 or until the exhaustion of a prior life estate), such limitation over will be construed to refer to the happening of such event or to the death of the devisee, according as the court may determine from the context of the will and the other provisions thereof, that the limitation clause is set in opposition to the event specified or is connected with the devise itself."

It will be observed that under the first rule the substituted devisees must be in esse at the death of the first taker which is not the condition in the case under consideration, for here the executory devisee 'died in the lifetime of the first taker, and during the existence of the life estate. In the Patterson Case the will gave certain farms to his four sons upon condition that neither of the farms should be sold by his sons during the lifetime of his wife, with the proviso that if either should die without lawful issue, the widow of the one dying should have the use of the farm given to the son so long as she remained unmarried, and on her marriage or decease, over to his lawful heirs, and it was there held that the limitation over stood not in opposition to the devise, but to the event of the devisees coming into possession, and that the limitation over became operative only in case the prior devisee died without issue before the death of his mother, and the case of Williamson v. Chamberlain, 10 N. J. Eq. 373, was cited as an example of the application of the second rule. In that case there was a gift of a life estate to a wife in real and personal property with remainder to his children, upon condition that if any of his children should die without lawful issue his or her share should be divided between the survivors, and it was held that the limitation over stood, not in opposition to the devise, but to the distribution to the children after the death of the wife, and that the limitation over was defeated by the death of the mother during the lifetime of the children. Under the cases referred to, supporte'd by numerous citations not necessary to be here repeated, the present will should be construed...