Opinion
08-01-1895
WEBB v. CARNEY.
John H. Backes, for complainant E. R. Walker, for defendant
Bill by Mary Webb against Margaret Carney for the construction of a will. Decree for defendant.
John H. Backes, for complainant E. R.
Walker, for defendant
BIRD, V. C. The bill in this case is filed to have the court declare what the testator, Joseph Webb, intended should pass by the following clause in his will: "On the death of my said wife, Catherine Webb, I give and. devise to my daughter, Margaret Webb, the house and lot of land situate on the northwesterly side of Rose street, in the city of Trenton, county of Mercer, and state of New Jersey, to be to her, the said Margaret Webb, and to her heirs and assigns forever." By the residuary clause he gave all the rest and residue of his estate to his five sons. The insistment upon the part of the complainant is that, when the language of the gift is applied to the subject-matter there is such ambiguity or uncertainty as to render the gift to Miss Webb void, and that consequently the house and lot referred to are given to the sons, under the residuary clause, or that there was an intestacy as to so much of the estate. It will be seen from this contention that if the attempted gift to Miss Webb be declared void for uncertainty, and it should be decided that it passes under the residuary clause, the five sons would get the whole estate, and the daughter nothing. In case of intestacy, Miss Webb would only get one-sixth of the house and lot, while the five sons would get the entire balance of the estate. It will be admitted that, if the ambiguity be so pronounced as to compel this result, greater injustice would manifestly be done to Miss Webb than to the other children by giving effect to the devise to Miss Webb. The statement of the case will show the grounds upon which it is alleged that the ambiguity arises. According to the will, the premises given consist of a house and lot on the north side of Rose street. It is alleged that there are two houses and two lots on the north side of Rose street The description of the property in the deed by which the testator took the title is: "All that certain tract or land and premises hereinafter particularly described, situate, lying, and being in the city of Trenton, in the county of Mercer, and state of New Jersey, and described as follows, viz.: Lot No. 1, being lot No. (10) ten in a plan of lots made by the Schiller Building Association, in the city of Trenton, fronting or in width 25 feet on the northerly side of Rose street, and running back to the line of lots (now or formerly) of Joseph Slack, being the same width, of 25 feet, more or less, on said lots, and being between lots No. 9 and 11. Lot No. 2 being lot No. (9) nine,"—referring to the same plan of lots, and described, precisely, as lot No. 1. This title deed shows conveyance of a single tract of land, described in two parcels, and so described to conform to the artificial and arbitrary description of the lots in that locality, according to the number of the several lots in such description. There is what is usually termed a "double house," or two under one roof, each complete in itself, with closed partition between, and with independent means of ingress in front and rear. Each house has been numbered according to the designation on the plan of lots referred to in the description given above. The premises had been rented by the testator to separate families. He had owned them for seven or eight years before his death, so that he was very familiar with the location, manner of construction, and purpose to which the building was adapted. To my mind, there is no latent ambiguity. When the description in the will is applied to the alleged subject-matter, it will be seen that the will speaks of a house, and the house is found or ascertained to be at the place named in the will. It is true it is a double house, yet nevertheless it answers the description so far as to exclude the necessity of declaring the will void in this respect. The will also speaks of a lot, and the deed under which the testator held title conveys a certain "lot," although the description is of the two lots which have been arbitrarily designated as such upon the map of the city lots, with which map, so far as appears, the testator had nothing to do, but in all probability he adopted for his own convenience, if not for the purpose of complying with city regulations. I will advise accordingly.