Opinion
11-06-1939
SCHUMANN v. BOGERT et al.
William R. Gannon, of Jersey City, for complainant. Walter J. Freund, of Jersey City, for defendants.
Syllabus by the Court.
A devise to A with limitation over, "if A should die without issue" then to B or his issue, unless modified or explained by some other provision in the will, must be construed to mean A's death whether before or after the death of the testator.
Such a devise does not create a fee tail but gives to A a vested fee which will become divested at his death with failure of issue, and will vest in the person or persons then in esse to whom the estate is limited over.
Action by Irma T. Schumann against Charles E. Bogert and others, for decree adjudging complainant's estate or interest in devised premises.
Decree in accordance with opinion.
William R. Gannon, of Jersey City, for complainant.
Walter J. Freund, of Jersey City, for defendants.
FIELDER, Vice Chancellor.
John C. Bogert died December 27, 1937 leaving a will dated June 5, 1934 wherein he made the following devise:
"I devise the house and lot of land known as 802 Montgomery Street in said Jersey City, to my grand-daughter, Irma G. Schumann. If said Irma G. Schumann die withoutissue, I devise said real estate so devised to her, to my son, Charles E. Bogert, or to his issue, if he shall predecease said Irma G. Schumann."
The devisee named in above clause is the complainant herein seeking a decree adjudging her estate or interest in the devised premises. She is a daughter of testator's deceased daughter, is married, her husband is living and she has never had issue. In arriving at the testator's intention the whole will should be read but I find nothing in any other part thereof of assistance in construing the quoted clause.
1. The first sentence of the quoted clause standing by itself devises an absolute fee to complainant. The second sentence is not void as repugnant to the preceding sentence but the two sentences, constituting the whole clause, must be read together to ascertain the testator's intention.
2. The complainant is not entitled to a fee simple absolute. The words "If said Irma G. Schumann die without issue", are not intended to refer merely to her death in the testator's lifetime. Under the rule of will construction followed by our courts, had the devise been to Mrs. Schumann and "if she die" (and nothing more) it would be held that the contingency the testator had in mind was Mrs. Schumann's death in the testator's lifetime (Dranow v. Sherry, 80 N.J.Eq. 447, 85 A. 189) and in such case the devise over would not take effect because she has survived the testator. But the contingency upon which the devise over is to take effect being expressed to be Mrs. Schumann's death without issue, such contingency is not her death, which is certain, but her death without issue, which is uncertain—a contingency which cannot be determined until her death occurs, whether before or after the testator's death. McDowell v. Stiger, 58 N.J.Eq. 125, 42 A. 575; Rogers v. Baily, 76 N.J.Eq. 29, 73 A. 243, affirmed 78 N.J.Eq. 589, 81 A. 1134; Hampton v. Newkirk, 93 N.J.Eq. 270, 115 A. 656; Ambruster v. "Own Your Home" Ass'n, 97 N.J.Eq. 69, 127 A. 167.
Such construction is particularly applicable in this case, when it is understood that the testator was 95 years of age when he executed his will and Mrs. Schumann was then 42. She had then been married eleven and a half years and had had no child. In the natural course of human life she would be expected to survive the testator and when the testator was contemplating her death without issue, it is not probable that he was thinking only of her death prior to his.
3. The devise to Mrs. Schumann with the limitation over if she should die without issue does not create a fee tail which by force of P.L.1934, Ch. 205; R.S. 46:3-15, N.J.S.A. 46:3-15, would be converted into a fee simple. The act of 1934 became a law six days after the execution of the testator's will and did not become effective until a month later. Comp.Stat. 4973, sec. 13; R.S. 1:2-3, N.J.S.A. 1:2-3. It provides that when under any will "hereafter" made, a devisee shall become seized of such an estate as theretofore would have been held an estate of fee tail of any type, such will shall vest an estate in fee simple in such devisee.
The devise to Mrs. Schumann of a fee with limitation over in case she dies without issue, means a want or failure of issue in her lifetime or at her death, and not an indefinite failure of issue. Comp.Stat. 5870, sec. 27; R.S. 3:2-17, N.J.S.A. 3:2-17. I think the act of 1934 does not apply to this will, executed prior to the date that act became a law but even if it does, the estate devised is not a fee tail but an estate in Mrs. Schumann in fee simple defeasible only in the event of her death without issue. Den ex dem. Wardell v. Allaire, 20 N.J.L. 6; Seddel v. Wills, 20 N.J.L. 223.
4. There being nothing found in the will to show a contrary intent, my conclusion is, on the authority of the above cited cases, that it was the testator's intention to give Mrs. Schumann a vested fee which will become divested at her death without issue and will vest in the person or persons then in esse, to whom the estate is limited over.