Opinion
No. 53/214.
10-31-1923
TZESES et ux. v. TENEZ CONST. CO.
Benjamin Newman, of Newark, for complainants. Harry Levin, of Newark, for defendant.
Bill for specific performance by Morris Tzeses and wife against the Tenez Construction Company. Decree for complainant.
Benjamin Newman, of Newark, for complainants.
Harry Levin, of Newark, for defendant.
CHURCH, V. C. This bill is filed to compel specific performance of a contract for the sale of property owned by the complainants to the defendant corporation. The defendant refuses to perform, attacking the title of complainant, which rests upon the will of one Katherine Farrell. The will is as follows:
"I wish my niece, Miss Nellie Quinn to be put in possession of all I have in clothes, money, jewelry in fact all I have."
The first point is whether the expression "I wish" is sufficient to pass title to real estate. Both the solicitor of the complainant and the solicitor of the defendant agree that it is.
Second, whether the expression "to be put in possession" is sufficient to entitle Miss Quinn to an estate in fee simple, or whether she has only a life estate.
In my opinion, without citing any other authority, the Compiled Statutes, § 36, p. 5873, settle the point and lead me to the conclusion that Miss Quinn has an estate in fee simple.
The third point is whether the expression "In clothes, money, in Jewelry in fact all I have" is sufficient to carry real estate. I believe it is.
Any words, however untechnical or informal, which clearly indicate an intention on the part of the testator to pass aninterest in real estate possessed by him, will be given that effect. 40 Cyc. 1530, and cases cited. Moreover, the law abhors intestacy, and therefore it is the duty of this court to construe the will, if possible, so that it will pass all that the testator possessed.
I am of the opinion that under this will, brief and untechnical as it is, Miss Nellie Quinn is the owner in fee simple of the premises described in the bill, and I will therefore advise a decree of specific performance.