REED, V. C.

Bill by John H. Patterson against Thomas B. Madden to compel specific performance of an agreement to purchase lands. Decree for defendant.

On January 1, 1895, John H. Patterson, the complainant, contracted to convey to Thomas B. Madden, the defendant, by deed of general warranty, free from incumbrances, a certain tract of land in Monmouth county. Madden agreed to pay, upon delivery of a deed for the said property, the sum of $4,000. A deed was duly executed by the complainant, and, with it, he attended at the time and place at which it was to be delivered; but the defendant did not then and there appear, and, although since requested to perform his part of the agreement, has refused to do so. The defendant sets up, as an answer to complainant's bill, that the complainant is not seised of a title in fee simple, and therefore is unable to convey to the defendant the title for which the defendant promised to pay the $4,000.

G. D. W. Vroom, for complainant.

Edwin Robert Walker, for defendant.

REED, V. C. (after stating the facts). It is not questioned that the locus in quo is a part of a tract of land which was devised to the complainant by his father, James Patterson. Nor is it questioned that the father had a title in fee simple in the said land. The single question presented is, what interest devolved upon the complainant by force of the devise contained in the will of his father? If such interest is a fee simple, then the complainant is entitled to a decree; but, if less than a fee simple, he is without equity. As already remarked, to discover of what title the complainant is seised, we must recur to the will of James Patterson. The first clause of that will is couched in the following language: "I give and bequeath unto my son John H. Patterson, on the following conditions, as follows, the following described tract of land [describing the farm and one-third of a tract of woodland]." By the same language he gave Samuel H., another son, another farm, and one-third of the same woodlot. By the same language he gave to Henry Patterson, still another son, a third farm, with the remaining third part of said wood lot, subject to the use of the tenant thereon for one year from the 1st of April next after his decease. He gave to his wife the use of the homestead farm and the big meadow adjoining, and of another farm adjoining the homestead farm, during her natural life. After her death, he gave to his son Ewing Patterson one of these farms, and to his son Joseph C. Patterson the other of these farms, and divided the big meadow between these two sons. He gave certain legacies to his daughters, one of which was charged upon the farms devised to James H. and Henry Patterson. This legacy has been paid. He then ordered that none of the farms should be sold by any of the sons during the life of the testator's wife. Then follows this clause: "I order and direct that if any of my said sons, John H., Samuel, Henry, Ewing, and Joseph, should die without leaving issue, and leaving a widow, then the widow of such son so becoming deceased may have the use of the farm which is herein given to such son so long as such widow of such deceased son remains unmarried; and, on the event of the marriage or decease of said widow of such son so becoming deceased, I give and bequeath unto such persons as may then be my lawful heirs, forever."

The question is whether the first devise, which, under our statute, is one in fee simple, is cut down by the subsequent clause limiting over the estate in case the devisee should die without leaving issue. It was entirely settled at common law that the phrase "leaving no issue," or "without leaving issue," when applied to a devise of land, meant an indefinite failure of issue; but, when applied to a bequest of personalty, it imported failure of issue at the time of the death of the first legatee. 3 Jarm. Wills (Rand. & T. Ed.) p. 298. The effect of a limitation over in the event of the devisee dying leaving no issue, or without leaving Issue, upon a preceding devise of land to a person indefinitely, or to a person for life, or to a person and his heirs, was also entirely settled. If a devise was to a devisee and his heirs, the limitation over imported that the testator used the word "heirs" in the qualified sense of "heirs of his body." If the gift was to the devisee expressly for life, or was to him without words of inheritance, the limitation over implied that the testator intended that the estate to be taken by the first devisee should be of such duration as to fill up the chasm in the disposition, to prevent the failure of the ulterior devise, which would otherwise be bad for remoteness. 2 Jarm. Wills, pp. 130,137. The gift to the first devisee was in both instances, by implication, a devise to him and the heirs of his body; and so his estate. If given for life, was enlarged, and, if given in fee simple, was cut down to a fee tail. In the case of Chetwoodv. Winston, 40 N. J. Law, 337, the limitation over after a devise in fee was in substantially the same words as appear in the present will. Chief Justice Beasley, for the court of errors, remarked that the legal effect of this language, by an almost unbroken line of authorities, was to create, by the rules of the common law, an estate tail. This being the effect of the language employed in the present devise, the estate of the devisee is seized by the eleventh section of our statute of descent, and transmuted into an estate for life. Redstrake v. Townsend, 39 N. J. Law, 372. It is to be remarked that an implied estate in fee tail rests upon the presumption that the testator meant, by the words "without leaving issue," an indefinite failure of issue. This, however, is not a conclusive presumption; for if it clearly appears, from other language employed in the will, that issue at death was meant, such language will change the time of the failure from an indefinite to a definite date. I fall to discover such intention clearly manifested by the testator in the present will. But if it appealed, in the most convincing shape, that the testator meant, by the phrase "dying without leaving issue," that the limitation over was to occur only in the event of the absence of issue at the time of the death of the first devisee, it would not, in the least, help the complainant. It would not clothe him with the estate which he bargained to convey. Instead of an indefeasible fee simple,—which estate he required, to fill his contract,—he would then be seised of an estate in fee simple with a limitation over by way of executory devise. His estate would be defeasible upon his dying without leaving issue, and leaving a widow. Kennedy v. Kennedy, 29 N. J. Law, 185; Groves v. Cox, 40 N. J. Law, 40. In respect to the insistence of counsel for the complainant that the words "dying without leaving issue" refer to the death of the first devisee before the death of testator, I can draw no such intention from the other language used by the testator. Nor do I regard any one of the cases cited in support of this position as pertinent to the specific devise found in the present instance. There must be a decree for the defendant.