Peer v. Hennion

• Decision Date: 15 June 1909
• Parties: PEER v. HENNION et al.
• Court: New Jersey Supreme Court

76 A. 1084

77 N.J.L. 693

PEER

v. HENNION et al.

Court of Errors and Appeals of New Jersey.

June 15, 1909.

(Syllabus by the Court.)

Action by Newton Peer, executor of Jacob N. Peer, against Martin Hennion and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Joshua R. Salmon (Charlton A. Reed, of counsel), for plaintiff in error Lucas.

Vreeland, King, Wilson & Lindabury, for defendant in error.

REED, J. The judgment brought up by this writ of error was entered upon the finding of the trial judge in an action brought in the Supreme Court; a jury having been waived by the parties. The action was for trespass quare clausum fregit, and involved the right of possession flowing from title to the locus in quo. The solution of the question of title rests upon the construction to be given to a clause in the will of one Jacob N. Peer. Jacob N. Peer died, leaving a daughter, Catherine. To this daughter he devised, with other property, the locus in quo. Catherine died, having by her will devised the same to Robert Lucas, a defendant; the other defendant claiming possession as the licensee of Lucas. The defendants, therefore, claim under the devise by Catherine. The plaintiffs claim under the will of Jacob N. Peer; they insisting that Catherine took only an estate for life in the locus in quo under the will of her father, and that after her death the property, by the terms of that instrument, became theirs as devisees designated in the will of Jacob N. Peer to take the property after the death of Catherine. The provisions of the will of Jacob N. Peer to be construed are substantially as follows: The testator first gives to his daughter Catherine certain parcels of land, including the property in question, in general terms. Then follows this clause: "The said lands hereinbefore given by me to my daughter Catherine are given for and during her natural life, and after her decease I do give and devise the said lands to such person or persons as shall be her heir or heirs of land held by her in fee simple." The plaintiff represents the interest of Jacob N. Peer, being one of those who, in the language of the above clause, was at the time of the death of Catherine her heir of lands held by her in fee simple. The defendant, as has been stated, represents whatever interest Catherine took under her father's will.

That the intention of the testator was that Catherine should take a life estate only is manifest. The testator says so in express unequivocal language. That the testator's intention was that the property after her death should go to the class of which Jacob N. Peer was one is equally manifest. The testator says so in clear unambiguous language. The court, in its judgment below, effectuated this clear testamentary intention.

But it is insisted by the plaintiff in error that, by a certain judicial rule of construction, known as the rule in Shelley's Case, the actual testamentary intention is of no account, as the courts have fixed a constructive intention upon a grant or devise couched in the language employed by the testator in this case. The rule in Shelley's Case, as defined by law writers and judges, need not be now restated. The...