Smith v. Terry

• Decision Date: 02 February 1888
• Parties: SMITH et al. v. TERRY.
• Court: New Jersey Supreme Court

12 A. 204

43 N.J.E. 659

SMITH et al.

v. TERRY.

Court of Errors and Appeals of New Jersey.

February 2, 1888.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill for partition and to construe the terms of a will. For the decision of the chancellor, now reversed, see 8 Atl. Rep. 886.

Samuel A. Patterson and C. Collins, for appellants. Hawkins & Durand, for appellee.

REED, J. Georgiana B. Terry, the respondent, filed the bill in this suit primarily to obtain partition of the real estate which had been devised to her and others by the will of her mother, Harriet E. Manning. Incidentally, she wishes a construction of the terms of the will in respect to the quantity of her interest in the estate, and she prays the division of said estate shall be made upon her interpretation of the extent of her rights. She insists that, by the terms of the will, she is entitled to an estate, for life, in an equal undivided one-sixth part of the land and personal property of which the testatrix died seized or possessed, without any diminution on account of the debts of the testatrix, or the legacies by her bequeathed. The court of chancery so construed the will, and decreed that she was entitled to the interest of the clear one-sixth part of the estate, both real and personal. 8 Atl. Rep. 886. From this part of the decree only is an appeal taken. In reviewing the correctness of this construction of the will of the testatrix, we find, upon turning to that instrument, that its provisions, so far as they are material to this inquiry, are as follows: "Item. I give and bequeath unto my beloved daughter, Georgiana B. Terry, wife of Henry Terry, of Buffalo, the interest of the equal undivided one-sixth interest part or portion of my whole estate during her natural life, and upon her death the said interest, as well as principal thereof, to be paid to her daughter the said Georgiana Swett, absolutely. A provision similar to that in favor of Mrs. Terry was made in favor of another daughter, Mrs. "Wilson. Then several pecuniary legacies were given to other relatives. Then the residue of all the other property, both real and personal, was given and devised to the executor of the will in trust for the execution of the will. Then all the rents and issues from all the estate so held in trust was bequeathed to Nellie J. Smith, another daughter, with directions that the executor and trustee pay over the rents, issues, and profits quarterly for and during her natural life. Then it was provided that, upon the death of Nellie J. Smith, all the residue and remainder should go to her two daughters absolutely, and the trust is then to cease. The point to be resolved is the ascertainment of the meaning of the testatrix when she used the words "one-sixth interest of my whole estate."

The question is whether the one-sixth interest is the proportion of the entire amount of the property of the testatrix without any deduction for debts, or is that part of the property of the testatrix after such deduction. The expression, "my whole estate," without any other words in the will modifying its meaning, I think would signify the property which would be left for distribution after the payment of the debts of the deceased, and the expenses of administration. Unless words or...