Opinion
01-20-1898
HAYDAY v. HAYDAY et al.
A. B. Endicott, for complainant. Stephany & Son, for defendants.
Bill by William Hayday against George Hayday and others for the construction of a will. Dismissed.
The complainant is a devisee of one George Hayday, who died in 1895, seised of lands in Atlantic county. By his will, he gave several money legacies, and devised several different tracts of land, to his children and grandchildren. One devise was in favor of the complainant, who was a son of the testator. The devise to the complainant is in these words: "Item. I give, bequeath, and devise the house and lot on Atlantic avenue, said Atlantic City, twenty-six feet in width, and eighty feet in depth, southeastwardly; also, the use of the adjoining lot on the southwesterly side, about twenty feet wide on Atlantic avenue, extending of that width about sixty feet southeastwardly, to an open yard, to my son William Hayday, to be used and enjoyed by him during the term of his natural life; and from and immediately after his death I give, bequeath, and devise tie same to grandchildren, in equal shares; and, in case my said grandchildren dying before me, her, his, or their shares shall be divided equally among their lawful issue, per stirpes." The executor proved the will in May, 1895, before the surrogate of Atlantic county. The complainant files this bill against the other devisees named in the will, alleging that by virtue of the above-recited devise "he became seised in fee simple of the house and lot first mentioned and designated in said item, being twenty-six feet in width, and eighty feet in depth, southeastwardly," and, in another paragraph, that he is by the devise entitled, during his natural life, to the use and enjoyment, and the rent, issues, and profits, of the building erected by the testator on the adjoining lot. He alleges that he files his bill in order that his interest in the two lots may be judicially ascertained and determined. To this end, he requests directions especially upon three formulated questions: "First. What right, title, and interest in the estate of the said George Hayday does your orator take under and by virtue of the premises, and by his last will and testament? Second. Has he an absolute and unqualified estate in the house and lot on Atlantic avenue, in said Atlantic City, twenty-six feet in width, and eighty feet in depth, southeastwardly, or has he only an estate for life therein? Third. Has he the use of the adjoining lot on the southwestwardly side, being twenty feet wide on Atlantic avenue, and extending of that width about sixty feet southeastwardly, to an open yard, together with the three-story building erected on said lot after the making of the said will, and before the death of the said testator?" He prays that his rights and interests in the estate may be defined and declared, and to have due effect given the same, and that testator's intention, as expressed by the will, may be ascertained and construed. The defendants file a joint and several answer, substantially admitting all the facts, but denying the complainant's claim that he has an absolute estate in the 26 feet front lot, and alleging that, by the true intent of the will, the complainant has no more than a life estate in either of the lots. No testimony was taken. The cause was argued on briefs, solely on the dispute as to the true construction of the will.
A. B. Endicott, for complainant.
Stephany & Son, for defendants.
GREY, V. C. This bill is filed by the complainant, in his own right as devisee, for the purpose of obtaining a construction of the effect of the devise in his father's will, under which he claims title. He makes defendants the other devisees,—the grandchildren who are referred to in the will as devisees over of the two lots in question. The sole question in doubt or dispute is whether the complainant, by the terms of the will, takes a fee in the 26 feet front lot, and a life estate in the adjoining lot, or only a life interest in both. There is no trust created by the will, touching either of these properties. Nor is there any power given for their disposition which any trustee is charged to exercise. No relation of a fiduciary character appears to be in any way connected with the devise. No equitable estate is created which needs to be defined or protected. The devise to the complainant, whether it be in fee as to the first lot referred to, or for life as toboth, passes a purely legal estate. Under circumstances such as these, this court will not assume jurisdiction to determine the title to lands, nor to construe a will, to declare whether it passes one legal title, or another of greater extent. The claimant under a devise of a purely legal title to lands, who seeks to establish his title, as against the heir at law of another devisee, by the construction of the will, must assert his rights at law. The whole question was considered in the recent case of Torrey v. Torrey, 55 N. J. Eq. 410, 36 Atl. 1084, where a collation of decisions may be found.