Patterson v. Madden
| Decision Date | 26 December 1896 |
| Parties | PATTERSON v. MADDEN. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from court of chancery.
Bill by John H. Patterson against Thomas B. Madden. Judgment for defendant (33 Atl. 51), and complainant appeals. Reversed.
G. D. W. Vroom and Chauncy H. Beasley, for appellant.
Edwin Robert Walker, for respondent.
This is a suit brought by the appellant to compel the respondent to specifically perform a contract to purchase lands. The only question in the case is whether the appellant has a title to the lands contracted for which the respondent is bound to accept. The lands in controversy were devised to the appellant by the will of his father, which bears date August 9, 1866, and whether or not he has a valid title to them depends upon the true construction of that will. The devise of these lands is contained in the first clause of the will, and is as follows: "I give and bequeath unto my son John H. Patterson, on the following conditions, and as follows, the following described tract of land" (describing the lands which are the subject-matter of the contract which is sought to be enforced). Then follow clevises of other lands to the testator's sons Samuel H. and Henry. The testator then gave to his wife, for her natural life, the use of the homestead farm and the meadow adjoining it, and also the use of another farm adjoining the homestead one. After her death he gave the homestead farm to his son Joseph C, and the other farm to his son Ewing, and the one-half of the meadow to each of them. He then gave certain pecuniary legacies to his daughters, one of which was charged upon the farms devised to John H. and Henry This legacy has been paid. Then follow these two clauses:
It is contended by the respondent that the effect of this last provision of the will was to cut down the devise to the appellant to an estate for life, or, if not that, then to a defeasible estate in fee simple, which would be divested upon his dying without lawful issue surviving him, and leaving a widow. The view adopted by the court below was in conformity to that advanced by the respondent, and a decree was made dismissing the bill of complaint. I cannot concur in the view expressed by the vice chancellor as to the true construction of this will. He considered that the estate devised to the appellant was cut down to a life estate by the provision of the will last cited on the theory that the words "die without leaving issue" imported an indefinite failure of issue, and consequently created an estate tail at common law, and that such an estate, as soon as it was created, was transmuted by the eleventh section of our statute of descents into an estate for life. But this view of the effect to be given to the words "die without issue" can only be sustained, it seems to me, by ignoring the provision of the fourth section of the supplement to the act concerning wills, approved March 12, 1851, which was in force at the time of the execution of the will under consideration, and which declares "that in any devise or bequest of real or personal estate in the will of any person dying after this act shall take effect, the words 'die without issue,' or 'die without lawful issue,' or 'have no issue,' or any other words which may import a want or failure of issue of any person in his lifetime, or at his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not an indefinite failure of issue, unless a contrary intention shall otherwise appear by the will." Gen. St. p. 3761. I am not able to find in this will anything which makes it appear that the testator intended that the words "die without leaving lawful issue" should import an indefinite, rather than a definite, failure of Issue, nor is anything pointed out in the opinion below. Indeed, it is there stated that the implied estate in fee tail which is declared to have been created by the devise "rests upon the presumption that the testator meant by the words 'without leaving issue' an indefinite failure of issue, but that such a presumption is not a conclusive one," and that, if it had appeared from other language in the will that issue at death was meant, such language would change the time of the failure of issue from an indefinite to a definite date. The rule applied by the court below in construing the words "die without leaving lawful issue," and determining that they imported an indefinite, rather than a definite, failure of issue, was that established by the common law. It was applied by this court in the case of Chetwood v. Winston, 40 N. J. Law, 337 (), in construing a devise similar to that now before us. But in that case the will under consideration was evidently that of a person who had died before the passage of the act of 1851, for the opinion states that the question to be determined was "whether, by force of the testamentary disposition (of certain lands), one I. D., by the rules of the common law, took an estate tail." The will now before us, as has already been stated, was not executed until the year 1866, and consequently the question to be determined in the case now before us is not what estate the devisee took in the lands devised, by the rules of the common law, but what estate he took by the rule established by the act of 1851, which is just the reverse of the common-law rule. Giving to the words "die without leaving lawful issue" the effect required by the statute, they import a definite, and not an indefinite, failure of issue, and consequently do not operate to cut down the fee-simple estate devised to the appellant by his father's will into an estate tail.
Nor can I concur in the view, expressed in the opinion below, that, assuming the words "die without leaving issue" to...
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