Schulz v. Ziegler

• Decision Date: 19 June 1912
• Citation: 80 N.J.E. 199,83 A. 968
• Parties: SCHULZ v. ZIEGLER.
• Court: New Jersey Supreme Court

83 A. 968

80 N.J.E. 199

SCHULZ

v. ZIEGLER.

Court of Errors and Appeals of New Jersey.

June 19, 1912.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill in equity by Louisa Schulz against Louisa Ziegler. From an order advised by the Vice Chancellor denying a motion to strike out the bill of complaint, defendant appeals. Affirmed.

On appeal from order advised by Vice Chancellor Walker, denying motion made under rule 213 of the Court of Chancery to strike out the bill of complaint. The Vice Chancellor filed the following memorandum: "Walker, V. C. This is a bill for partition. The complainant is the daughter of the defendant. The lands sought to be partitioned were deeded to the defendant and her husband, who thereupon became tenants of the premises by entirety. The husband and father conveyed all his right, title, and interest in the lands to his daughter the complainant, and thereupon the mother and daughter, the bill alleges, 'became seized thereof as tenants in common in fee simple in the said premises for and during the joint lives of the said Jacob Ziegler and said Louisa Ziegler, his wife.' It is, of course, erroneous to plead that parties, complainant and defendant, became seized 'in fee simple' during the joint lives, etc. A life estate is not a fee simple. What they became by virtue of the father's conveyance to the daughter was tenants in common for the joint lives of the parents. The father's conveyance to the daughter did not operate in any wise to limit the estate of the wife or her right to the survivorship, and it seems that it will not defeat his right of survivorship, but that it amounts only to a conveyance of his right of possession during his life, and that it cannot operate to let in a third party as tenant by entirety with his wife. That estate exists only between husband and wife, and neither can dispose of any part of it without the assent of the other; the peculiar interest and estate not being severable. Den. v. Gardner, 20 N. J. Law, 556 . The husband can, however, alienate his interest in the estate for his own life. Id. See, also, Servis v. Dorn, 76 N. J. Eq. 241 . Life tenants may be tenants in common, and their estates may be partitioned. Roarty v. Smith, 53 N. J. Eq. 253, 255, 31 Atl. 1031. The defendant is entitled to the enjoyment of her estate in the lands during the lifetime of herself and her husband by virtue of the married woman's act of 1852 (P. L. p. 407). Servis v. Dorn, supra. The complainant is entitled to the enjoyment of the estate and interest in the lands which she derived from her father's conveyance during the joint lives of her father and her mother, the defendant. The first section of our partition act (P. L. 1898, p. 644 [3 C. S. p. 3897]) gives the right to partition to tenants in common, and the parties to this suit are such. True, their estate is less than a fee simple, but it is an estate for the joint lives of the parents of the complainant, and such an estate is partible. If the premises should prove not to be susceptible of division between the parties, and shall be ordered to be sold, the purchaser's estate will terminate upon the death of either Mr. or Mrs. Ziegler. The motion to strike out the bill must be denied, with costs."

George S. Silzer, of New Brunswick, for appellant.

Charles T. Cowenhoven, of New Brunswick, for respondent.

PARKER, J. We concur in the result reached by the court below, and, for the most part, upon the grounds expressed in the foregoing memorandum of Vice Chancellor (now Chancellor) Walker.

In Buttlar v. Rosenblath, 42 N. J. Eq. 651, 9 Atl. 695, 59 Am. Rep. 52, it...