Opinion
No. 40/515.
12-01-1916
FENSTER v. BIERMAN et al.
Levy & Fenster and Frank E. Bradner, all of Newark, for complainant. Isidor H. Brand, of Hoboken, and M. T. Rosenberg, of Jersey City, for defendant Fannie Greenbaum. Samuel F. Leber, of Newark, for defendant Michael Bierman. Leo Stein, of Newark, for defendant Morris & Co.
Suit between Flora Fenster and Michael Bierman and others to obtain a construction of the will of Harry Bierman, deceased, and a determination of the rights of the parties interested. Decree advised in accordance with the opinion.
Levy & Fenster and Frank E. Bradner, all of Newark, for complainant. Isidor H. Brand, of Hoboken, and M. T. Rosenberg, of Jersey City, for defendant Fannie Greenbaum. Samuel F. Leber, of Newark, for defendant Michael Bierman. Leo Stein, of Newark, for defendant Morris & Co.
FOSTER, V. C. The purposes of this suit are to obtain a construction of the will of Harry Bierman, deceased, and a determination of the rights of the parties interested thereunder. After directing the payment of his debts and funeral expenses, and the payment of $5 by his wife, Flora, to his daughter Annie, the will then provides:
"3. All the rest, residue and remainder of my estate, real and personal, wheresoever and whatsoever I give and devise and bequeath to my wife Flora to have, hold, manage, control, lease, sell, mortgage, exchange, convey and convert the same in her discretion and to have full charge and control of same (this third provision of my will shall be in full force and effect so long as Flora does not remarry).
"4. Upon the remarriage of my wife, after my death, I request and direct my wife, Flora, to divide the rest, residue and remainder of my estate, real and personal, wheresoever and whatsoever, into four equal shares, and to pay, make over and convey one of said shares to each of my sons here named."
The will then names the children who are to receive three of the shares, and gives the fourth equal share to testator's wife, Flora, in the event of the widow remarrying as contemplated in this fourth clause. The sixth clause of the will directs that upon the death of his widow without remarrying, all testator's property shall be divided equally among his children, then living, and the heirs of those who may have died. The seventh clause makes provision for all the property being held in trust for his three children in the event of the death of his wife before him, or in the event of their perishing together in a common calamity.
Testator's widow has remarried, without having made complete disposition of his property, and she is the complainant herein. The question to be determined is the nature of the estate the widow takes in the real estate under the third clause of the will.
Complainant contends that she takes the land in fee, while the defendants insist she takes only a life interest in it which was terminated by her remarriage, and that they are entitled to have three-fourths of the remainder of the estate after payment of debts and funeral expenses, divided equally among them, and that complainant is entitled to the remaining one-fourth, under the fourth clause of the will.
By the parenthetical statement which concludes the third clause of his will, testator has in express terms limited the devise to his widow, and the force and effect of this provision of his will during her widowhood, or in his language, "so long as Flora does not remarry." That is, therefore, a devise to his widow during her widowhood. And in Dubois v. Van Valen, 61 N. J. Eq. 331, 48 Atl. 241, it was held that a devise to a widow during widowhood is a devise for life. And in the recent case of Stengel v. Edwards et al., 98 Atl. 424, the opinion of the Supreme Court holds that this is the law as settled in this state.
The situation here is easily distinguishable from that present in Downey v. Borden, 36 N. J. Law, 460, cited by counsel for complainant, because as shown, the widow here does not take an estate indeterminate in quantity, with an unlimited power of disposition; her estate and her power of disposition are expressly limited, by the language of the third and other clauses of the will, to the period of her widowhood. By the limitation thereby imposed, her life estate and her power of disposition over the estate cease upon her remarriage.
The construction thus placed upon the provisions of the third clause of the will gives effect to the general scheme which I find testator adopted for the disposition of his estate. It accords with the rule, which requires:
"That the will must be construed, if possible, so that all parts of it may stand. Hence, if the expression depended upon be susceptible of a fair interpretation that will permit the limitation over to stand, that interpretation should be given to it." Downey v. Borden, supra.
My conclusion is that complainant, during her widowhood, took a life estate in testator's lands, which she terminated by her remarriage; that in accordance with the fourth clause of the will she is to divide the residue of the estate into four equal shares, one of which shares she is entitled to absolutely, and the remaining three shares are to go to testator's three children; and a decree will be accordingly advised.