Zabriskie v. Wood

23 N.J. Eq. 541

• Court: Supreme Court of New Jersey
• Decided: November 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

The Chief Justice.

The question is whether the title tendered in the bill is good, and is such a one as is called for by the agreement to purchase. This controversy depends on the legal effect of a certain provision in the will of Michael Zabrislcie. The complainant claims that by force of this instrument he has a fee simple in the entire property, or at the least, a fee in the undivided fourth part of the premises, which was the quantity agreed to be sold by him. He further claims that such estate is subject to no contingency and is indefeasible. These are the questions to be settled on this appeal.

The contested declaration of this will is in these words, viz: “ I give and bequeath to my son Michael, for life, and to such lawful issue of his body as he may have by any after-marriage, their heirs and assigns forever, the house, &c., (describing the lands.) Should my son Michael die without leaving such issue, then I give, devise, and bequeath the said lands to the lawful issue of my grandson Albert, their heirs and assigns forever. Should my grandson Albert die without leaving such lawful issue, then I give, devise, and bequeath the said lands to the lawful issue of the body of my grandson Jasper Garretson, their heirs and assigns forever. Should his (Jasper’s) line fail, then I give, devise, and bequeath the said lands to my own heirs, their heirs and assigns forever, according to the law of descents of New Jersey in force at the time of my decease.”

Michael, the son of the testator, died without leaving issue by the designated marriage; Albert, the grandson, is still living and has eight children, of whom the complainant is one. It also appears in the case that the complainant has? through mean conveyances, all the interest in the lands, if any such accrued, which came by virtue of the foregoing testamentary provision to his father Albert, and this condition of the case gives occasion to the inquiry above stated, whether or not the complainant has an estate in fee simple in the premises embraced in the bill of complaint. This contention stands upon these grounds: that the devise to Michael, the grandfather of complainant, is a fee tail; that by force of the statute of this state regulating the descent of lands, such an estate wras converted into a life estate in the grandfather, and into a remainder in fee in Albert, the son, and that such fee, by the conveyances just mentioned, is now vested in the complainant. The title thus deduced was not approved of in the Court of Chancery, it being there decided that the devise in question did not erpate an estate tail. It -was conceded that the -words, “ I give, devise, and bequeath to my son Michael, for life, and to such lawful issue of his body as he may have by any after-marriage,”' standing alone and unexplained, would, by virtue of the rule in Shelly’s case, have created a fee tail, but it was considered that the subsequent words, limiting forever the estate to the “ heirs and assigns” of the issue of the body, showed a clear intention that the estate was not to pass by way of indefinite succession to the lineal descendants.

It is certainly clear that this devise, in the absence of the words which were deemed explanatory of the previous limitation, would, in view of a rule of law, entirely settled, have given a fee tail to Michael, the son of the testator, and his issue by the designated marriage. It was said that such a limitation would have fallen under the regulation of the tenth section of the act relating to the descent of lands. Nix. Dig. 237. But as the estate thus formed would have been an estate tail special, being confined to the issue by a subsequent marriage, that clause of the act would have been wholly inapplicable. It is true that in order to bring this section into force it is not necessary that the verbal description of the estate in the will must correspond with the verbal description of the statutory subject, but the two things in point of fact must be the same. This provision in the act, construed according to the unobscure meaning of its plain terms, and giving to them their common law effect, embraces nothing except estates tail general, arising by devise. Its language is: “ In case any lands, &c., shall hereafter be devised by the owner thereof to any person for life, and at the death of the person to whom the same shall so be devised for life, to go -to his or her heirs, or to his or her issue, or to the heirs of his or her body, then, and in that case,” &c. The 'subject to be regulated is, in these terms, very plainly described. It is a life estate in the first devisee, with a remainder to his lineal descendants in indefinite succession. It, therefore, does not apply when the limitation is only to a particular class of lineal descendants, which is the present case. But it does not seem to me that this construction can have any important influence in the application of this statute to the present, or to any other testamentary disposition which relates to estates tail. I have not been able to discern that there can arise any case in which this tenth section of this act can have, in such respect, any practical effect, whatever. It has been said by Mr. Griffith, that the purpose of the clause was to abolish the rule in Shelly’s case; but it is manifest that it can effect this end only to a limited extent, as it does not relate to estates tail, arising by force of such rule out of the limitations of a deed, nor to estates tail special. However, I suppose there can be no doubt that the design was to control the rule in this limited degree. But the difficulty is to perceive the use of such a control over the creation of estates tail, because, if the rule is allowed to remain, and an estate tail should come into existence under its operation, the result will be, in point of fact, the same as though the rule had boon rendered inoperative. In every case in which an estate tail arises, the eleventh section of the act disposes of it in the same way as it is disposed of in the tenth section, that is, it gives a life estate to the first taker, and a remainder in fee to his children, in equal shares. In point of utility the former of these sections appears to me to be a nullity, except where there is a devise to a person for life, with a remainder to his heirs in fee. This was the case in Den ex. dem. of Hopper v. Demarest, 2 Zab. 599. But if the present devise produces an estate tail, it will be subject, not to the regulation of the tenth, but to that of the eleventh section of the statute in question.

I have already said that it is obvious that, if this devise had limited the estate to Michael for life, and to the issue of his body by any subsequent marriage, an estate tail would, according to the fnlos of the common law, have arisen. The only subject of inquiry, therefore, is, as to the legal effect of the words superadded to the clause, giving the estate to the special issue of the body.

This problem is not, of course, susceptible of a demonstrative solution. Like most bf the questions belonging to this branch of the law, it has been obscured by subtle distinctions and over-nice refinements, and rendered intricate by judgments which it is difficult, if not impossible, to harmonize. The proposition on which the decision in the Court of Chancery is grounded is, that where a devise gives an estate to a person for life, and to the issue of his body, the addition to a limitation to the heirs general, forever, of such issue, will prevent the words “ issue of the body ” from operating, according to their technical effect, to give an estate tail. The argument for this conclusion is, that this limitation to the heirs general of the issue, is not consistent with the order of the devolution of an estate tail, and that it, consequently, appears that it was not the intention to create such an estate.

This general proposition is explicitly controverted by Mr. Jarman, in his Treatise on Wills, Vol. II., p. 246, and he appears to consider that the opposite rule is now settled by the authorities. His language, in this particular, is : “ It is also established that the addition of the limitation to the heirs general of the issue, will not prevent the word ‘ issue ’ from operating to give an estate tail as a word of limitation.” A more recent writer, Mr. Hawkins, has drawn a similar conclusion from the adjudged cases. Hawk. on Wills, p. 185. Each of these authors cites a line of adjudications in support of the view entertained by him, and this array of authority is certainly imposing. But I have also found a line of decisions adopting the opposite view, and some of which are of great weight. I shall not attempt any comparison or review of these conflicting opinions, as from the view which I take, such a course would subserve no useful purpose. I will simply remark that, in my judgment, the authorities referred to do not put this question entirely at rest. It is proper, however, to say that the preponderance of opinion is in favor of the rule indicated in the text books above quoted. But, as I find the point still in suspense, there being a line of decisions sustaining each side of the question, and, as it seems to me that there exists no consideration of such paramount weight as to incline the mind, of necessity, either way, I should have been unwilling to dissent, under the force of these influences alone, from the view already expressed in this case. But my attention has been called to a decision in the Supreme Court of this state, which is directly in point, and which does not appear heretofore to have been presented for judicial consideration in the progress of this suit. Den. v. McPeake, Penn. 291, is the case to which I refer. The question was raised on the language of a deed, which the report states was to this effect: “ Unto Susanna McGennis, for her support during her natural life, and after her decease, to the heirs of her body, and to their heirs and assigns for ever.” It will be thus observed that the superadded words were the same as those employed in the present devise, and their effect was the principle subject of inquiry. The point was thus disposed of, the language of the opinion being: “ The subsequent words, and to their heirs and assigns, are either merged in the preceding words, limiting the estate to the heirs of her body, or are too uncertain to control them. There are cases of devises where the testator hath superadded fresh limitations and grafted other words of inheritance upon the heir to whom he gives the estate, whereby it evidently appeared that these heirs were meant by the testator, to be the root of a new inheritance, and not considered as branches derived from their own ancestor. But I do not consider the present case as coming within any of them.”

There are but two differences between the case thus decided and the one now under consideration. In the reported case the estate was created by deed, and the words of the first limitation were, “to the heirs of the bodyin the present devise the expression is, to the issue of the body. But although the words “ issue of the body ” have been sometimes held to be terms of less inflexibility than the term, “ heirs of the body,” I do not find that they have been so received with respect to the present superadded phrase. Hor do I think that these engrafted terms ought to have, in the same connection, a construction in a deed different from what they will bear in a will. This case in the reports of Mr. Pennington is too closely apposite to be disregarded on this occasion. There is no ground on which it should be overruled. It lias stood in our reports, apparently unquestioned, since the year 1807. Gentlemen of the profession had a right to rely on it in giving advice to their clients, and it is probable that titles have been sold and purchased on its authority. To create a fanciful distinction between this case and the devise now open for construction would involve the subject in obscurity and perplex it with doubts, while it is .important to have the legal effect of the terms in 'question plain and easily comprehensible. It is on this account I conclude that the super-added words should not have the force which has been attributed to them.

The result is, that in my judgment, by force of the testamentary clause now considered, Michael, according to the principles of the common law, would have been seized of an estate tail, and that consequently, under the operation of the eleventh section of the statute in question, he became the owner of a life estate, with a vested remainder in fee in his son Albert. As the case shows that the complainant has the title of his father by force of a conveyance, such title is good, and the defendant should take the premises in compliance with his agreement to that effect.

The appellant is entitled to judgment in this court.

Decree reversed.

For reversal — Beasley, C. J., Depute, Olees, Scudder, Vas Syckel. 5.

For affirmance — Bedle, Dalrimple, Ogees, Woodhull. 4.