Opinion
03-29-1912
BRANT et al. v. CLIFFORD et al.
Raymond, Mountain, Van Blarcom & Marsh, of Newark, for complainants. R. W. Skinner, of Newark, for defendants.
Bill by Ella L. Brant and others against Martin L. Clifford and others to enforce specific performance. Bill dismissed.
Raymond, Mountain, Van Blarcom & Marsh, of Newark, for complainants.
R. W. Skinner, of Newark, for defendants.
TEN EYCK, Advisory Master. This is a bill to compel specific performance of an agreement to purchase lands. The defendant objects to the title on the ground that under the will of Edward B. Winans, the father of the complainants, it is doubtful whether the complainants have a clear title to the premises. By his will said Winans devised all his property to his wife, and at her death whatever remained he directed should be divided between his two daughters, Ella L. Brant and Anna May Brinkerhoff (the complainants), share and share alike. "If my daughter Ella should die before her sister Anna May, and without issue, then her part must go to her sister Anna May or her child or children." He further provided, in paragraph 3, "In the event of Ann May's death, I order her part to be given to her issue." In paragraph 4, he ordered that the above legacies should be subject only to the control of the legatees named.
The objection made by the defendants is that there is doubt whether the words used (referring to Ella's share) referred to her death before the period of distribution, that is, at the death of the widow, or referred to her death at any time during the lifetime of her sister Anna May; and that, if the latter should be the true construction, there would be an executory devise over to Anna May or her child or children, which may still take effect.
If the words "before her sister Anna May" were not inserted, it seems clear, under the authorities, that the construction would be that the time of the death of Ella referred to her death before the period of distribution, and that, if she survived that period, her share would be vested, and not subject to any contingency. But the insertion of the words "before her sister Anna May" makes it at least very doubtful whether the generalrule, as stated in the case of Brown v. Lippincott, 49 N. J. Eq. 44, 23 Atl. 497, and other cases on that line, applies to this devise. A slight indication of a different period is sufficient to change this general rule. Under the words here used, it is altogether possible, and indeed quite probable, in my opinion, that the testator may have meant to refer to the death of Ella, without issue, at any time during Anna's lifetime, in which case the devise over to Anna or her child or children would take effect. The devise over is in peculiar terms, and it is not at all clear as to what is meant by the words used "or her child or children," or what effect on the title the use of these words would have; this question is not involved in the present case. It is enough for the disposition of this case that it appears that the title of Ella is at the present time subject to serious doubt.
The children of Anna May are not parties to this suit; their rights can only be determined in a direct proceeding in which they are parties. Fischer v. Eggert, 64 Atl. 957. See, also, Fischer v. Fischer, 75 N. J. Eq. 74, 71 Atl. 488.
The agreement should not be enforced and the purchaser compelled to take a title which is not reasonably free from doubt as to its validity. The bill should be dismissed, with costs.