Wilson v. Miller, A--770

• Decision Date: 07 April 1953
• Docket Number: No. A--770,A--770
• Citation: 25 N.J.Super. 280,96 A.2d 283
• Parties: WILSON et ux. v. MILLER et al.
• Court: New Jersey Superior Court — Appellate Division

Page 280

25 N.J.Super. 280

96 A.2d 283

WILSON et ux. v. MILLER et al.

No. A--770.

Superior Court of New Jersey Appellate Division.

Argued Dec. 15, 1952.

Decided April 7, 1953.

James M. Davis, Jr., Mount Holly, for plaintiffs-respondents.

C. Zachary Seltzer, Camden, for defendants-appellants (Sidney W. Bookbinder, Burlington, attorney).

Before Judges EASTWOOD, GOLDMANN and FRANCIS.

The opinion of the court was delivered by

GOLDMANN, J.A.D.

This is an appeal from a summary judgment in plaintiffs' favor in a partition action brought by them in the Superior Court, Chancery Division, as alleged owners of an undivided one-ninth interest in certain lands under the will of Elizabeth A. Hays.

Testatrix was in her lifetime seized of a 73-acre farm property on the Delaware River, situate partly in the Township of Florence and partly in the Township of Burlington, Burlington County, together with certain fishing rights in the river. Erected on said lands were a dwelling house occupied by certain of the defendants, a tenant house occupied by still other defendants, and a number of outbuildings. The Hays family burial ground is located on the property.

Elizabeth A. Hays died testate and without issue on February 28, 1910. By paragraph 7th of her will she provided:

'I give and devise unto Ella Horner, daughter of Anna Smith (formerly Horner), the farm whereon I now reside (Together with the fishing right purchased of the Commissioner to sell lands, etc. by deed of March 24, 1873, Book B 9 of Deeds, page 382) for and during the term of her natural life and after her death to her children, born or to be born, and to their heirs and assigns forever; but if the said Ella Horner should die without issue, then at her death I give and devise the said lands and premises herein mentioned to such persons as at the time of her death would be my heirs at law on my father's side in equal portions.'

Ella Horner, the life tenant, died intestate and without issue on July 10, 1947. Plaintiff Wilmer L. Wilson claims through his father George Wilson, who, he alleges, was an heir-at-law of the testatrix on her father's side. By their complaint Wilmer L. Wilson and his wife Reba sought partition of the lands and premises in question and a declaratory judgment adjudging, among other things, that defendants (appellants here) Frank Brotherton and Gladys, his wife, and Lillian B. Hellier and Walter, her husband, together with certain other defendants, had no right, title or interest in the property. They also demanded judgment directing an accounting from defendants Davis for the value of their use and occupation of part of the premises.

A proper understanding of the relation of the more important parties to the litigation requires examination of the Hays genealogy. The names hereinafter italicized are those of persons whom plaintiffs claim are the only ones entitled to an interest in the property.

Henry Hays, the common ancestor on testatrix' father's side, died in 1827. Of his seven children, only four need concern us:

1. Stacy Hays. His daughter Elizabeth A. is the testatrix.

2. Ann Hays Ranier. She had seven children by two marriages, among them Thomas Ranier, Elizabeth Ranier (later Wilson) and Samuel L. Ranier.

(a) Thomas Ranier died in 1925, leaving him surviving three children, only one of whom, Thomas Ranier, Jr., survived the life tenant Ella Horner, having died in August 1948. His widow and residuary devisee, Margaret P. Ranier, succeeded to any interest he might have in the lands in question.

(b) Elizabeth Ranier Wilson had four children, two of whom, George R. Wilson and Elizabeth (Ranier) Adams, survived the life tenant. George R. Wilson died in October 1947, and by his will devised his entire estate to his only son Wilmer L. Wilson, the plaintiff, who in this action claims his father's interest. Elizabeth (Ranier) Adams was survived by three children: Helen (Adams) Johnson, Drucilla (Adams) Yohe, and E. Burd Adams, each of whom claims a third share of the another's interest in the Hays property.

(c) Samuel L. Ranier died in 1927 leaving five children, only four of whom survived the life tenant Ella Horner: Lambert Ranier, Annie (Ranier) Schlindwein, Hays Ranier who subsequently died testate leaving his wife, Anna Ranier, as sole devisee; and Mary (Ranier) Miller.

3. Addis Hays had nine children, all of whom predeceased the life tenant. Of their children, only one, Allie (Hays) Cline, survived the life tenant.

4. Deborah (Hays) Scott had three children, all of whom predeceased the life tenant. There is only one grandchild, Leslie C. Scott.

Thus, at the time of the death of the life tenant, Ella Horner, on July 10, 1947 there were nine persons who were testatrix' heirs-at-law on her father's side, related to her in the fifth (and nearest) degrees of consanguinity as first cousins once removed: Thomas Ranier, Jr., George R. Wilson, Elizabeth (Ranier) Adams, Lambert Ranier, Annie (Ranier) Schlindwein, Hays Ranier, Mary (Ranier) Miller, Allie (Hays) Cline and Leslie C. Scott. Plaintiffs claim each was entitled to an undivided one-ninth interest in the lands and premises in issue. As indicated, Thomas Ranier, Jr., interest would now belong to his widow Margaret P. Ranier; George R. Wilson's interest is claimed by plaintiff Wilmer L. Wilson; Elizabeth (Ranier) Adams' interest would belong to her three children, Helen (Adams) Johnson, Drucilla (Adams) Yohe, and E. Burd Adams in equal shares (one twenty-seventh each); and Hays Ranier's interest would belong to his widow, Anna Ranier. Plaintiffs Wilmer L. Wilson and his wife have joined these several parties in interest as defendants, together with their respective spouses, if any.

Defendants Frank Brotherton and Lillian B. Hellier enter the genealogical picture in this wise: Among the seven children of the common ancestor, Henry Hays, was Speachas Hays. He had two sons, Henry and Mahlon. Nothing is known of Henry's descendants, if any, or if they survived the life tenant. Mahlon Hays died in 1899, leaving ony one child who reached maturity, a daughter, Laura M. Brotherton. Frank and Lillian are her children. Laura M. Brotherton was also related to Elizabeth A. Hays in the fifth degree of consanguinity; her children, the defendants, are related in the sixth degree, being cousins twice removed. Laura M. Brotherton died in 1945 and therefore did not survive the life tenant. Plaintiffs claim that since she never became entitled to nor had vested in her an undivided interest in the lands and premises devised by Elizabeth A. Hays, defendants Frank Brotherton and Lillian B. Hellier did not, as did plaintiff Wilson, succeed to the share of their parent. They must stand in their own right, and accordingly it is alleged that they are not 'heirs at law' under paragraph 7th of the will and have no interest in the subject matter of this action, nor do their spouses.

Defendants Brotherton and Hellier answered setting up five separate defenses: (1) a prior suit now pending, brought by them against substantially the same parties and concerning the same subject matter (partition); (2) the demand for judgment quieting title to the premises is not supported by allegations required by statute in an action to quiet title, because plaintiffs do not claim to be nor are they in actual possession of the premises; (3) plaintiffs fail to indicate what share, if any, as co-tenants or otherwise, they claim in the premises, nor what share the other parties claim to have as co-tenants, and further, the complaint is not verified; (4) determination of the respective rights of the plaintiffs as co-tenants depends on a construction by the court of the provisions of the Elizabeth A. Hays will; and (5) plaintiffs failed to join the Hays Riverview Cemetery Association, a corporation, as party defendant, and no final adjudication can be made without its presence as such party.

Plaintiffs thereupon moved for an order striking the answer and granting summary judgment against the Brothertons and Helliers. The motion was supported by a long and detailed affidavit, setting out all the particulars of the family tree of Elizabeth A. Hays on her father's side, as well as the research that went into its construction. An answering affidavit listed several dozen alleged heirs-at-law of Elizabeth A. Hays, based upon information derived from one Bernice Carson Branch. After oral argument the court granted plaintiffs' motion.

Appellants contend that the granting of the motion was improper because (1) the pleadings and affidavits raised disputed issues of fact; (2) the court should have construed the will in order to determine in what sense testatrix used the words 'heirs at law'; she did not intend them to have a technical meaning, and therefore evidence of her surrounding circumstances was necessary; and (3) the construction of a will or the question of testatrix' intent should not be decided on a motion for summary judgment.

It is necessary to dispose of certain preliminary questions raised in the court below, and incidentally in the brief on appeal, before passing on to a resolution of the more fundamental issues dispositive of the appeal.

Appellants urge, but not with too much conviction, that this is a quiet title action, and hence the complaint is deficient in the respects set forth in the second and third separate defenses to the action. The primary object of this suit is partition, not the quieting of title. A complaint in partition need not be verified. Rules 3:75--1 and 3:11.

Some question has been raised as to the parties named in the cause. It is elementary that to accomplish a legally effective partition it is necessary to join as parties, either as plaintiff or defendant, all persons who have an interest in the premises. Plaintiffs have done so; all persons who might possibly have or claim an interest--there are 48 named defendants and 'the heirs, devisees and personal representatives,'...