Opinion
11-01-1906
FISHER v. EGGERT.
William S. Stuhr, for complainant. Samuel A. Besson, for defendant.
(Syllabus by the Court.)
Bill by Mary N. Fischer against Henry Eggert, Jr., for specific performance Dismissed.
The bill in this cause is filed by complainant to compel defendant to specifically perform a written contract wherein complainant agreed to sell to defendant a certain tract of land at a price named which price defendant agreed to pay. Defendant claims that the title of complainant to the land in question is defective, and upon that ground refuses to perform the contract. The interest of complainant in the land in question is acquired under the will of Kunigunde Fischer, deceased, which will provides as follows:
"First, after my lawful debts are paid I give and bequeath and devise all my real estate being my house known as 'number (108) one hundred and eight Monroe Street' in the city of Hoboken, county of Hudson and State of New Jersey as well as all my personal estate, goods and chattels of whatever nature and kind soever to my beloved son Otto A. Fischer and his wife Mary N. Fischer and their heirs and assigns forever.
"Second, my dear husband Charles August Fischer who bad been and is now in feeble health and will be taken care of by my son and his wife so that they have to care for all his necessities and wants and will receive from them as pocket money Four (4) dollars cash every month during his lifetime.
"Third. In case my son Otto August Fischer should die before his wife it is my will that as long as his wife Mary N. Fischer does not remarry and will be his widow, that in this case she becomes the heir to the property with her two children Anna and George otherwise the property has to go to these two children alone as their inheritance from their grandmother."
The will bears date March 13, 1901. Kunigunde Fischer testatrix, died April 12, 1901. Charles Augustus Fischer, the husband of testatrix, named in paragraph second of the will, died November 8, 1901. Otto A Fischer, the son, died April 15, 1906. Mary N. Fischer, the son's wife named in the will, is complainant in this cause. It is contended on behalf of complainant that upon the death of testatrix an estate by the entirety vested in the son Otto A. and complainant, and that upon the death of Otto A. an absolute estate vested in complainant. Upon the part of defendant it is asserted that complainant is, under the terms of the will, only entitled to share the property in question equally with her children as long as she remains unmarried, and that upon her remarriage her children (grandchildren of testatrix), will become the sole devisees of the property in fee.
William S. Stuhr, for complainant. Samuel A. Besson, for defendant.
LEAMING, V. C. (after stating the facts). I am unable to advise a decree of specific performance in this cause because of reasonable doubts which, in my opinion, exist touching the title of complainant This court has uniformly refused to decree specific performance by a purchaser in all cases where the title of vendor cannot with certainty be pronounced free from doubts. St. Mary's Church v. Stockton, 8 N. J. Eq. 520, 531; Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773; Dobbs v. Norcross, 24 N. J. Eq. 327, 330; Tillotson v. Gesner, 33 N. J. Eq. 313, 326; Cornell v. Andrews, 35 N. J. Eq. 7, 12; s. c. 30 N. J. Eq. 321; Paulmier v. Howland, 49 N. J. Eq. 364, 24 Atl. 268, 372. The cases here cited proceed upon the view that where all parties interested in a title are not before the court, and consequently are not bound by the decision, a decree of specific performance should not be made if the character of the title be doubtful, even though the court might be able to come to the conclusion that a title could be made by vendor that would not probably be overthrown; that if a title is to be forced upon a purchaser against his will it should be a title that will enable him not only to hold the land, but to hold it in peace, and to sell it with reasonable certainty that no flaw or doubt will disturb its marketability. In Cornell v. Andrews, supra, it is said: "The real question to be decided in this case is whether the title which the complaint offers is a marketable one. If it is such a title as would be questionable, the court ought not to force it on the unwilling purchaser, even though, in its opinion, it would, on litigation, be sustained."
It is urged on behalf of complainant that the title, now under consideration, is free from doubt; that the contingency of the death of Otto before his wife, contained in the third paragraph of the will in question, refers to the death of Otto before testatrix, and not to a later period. I recognize the rule, often adopted in this and other jurisdictions, that where there is a devise to one person and, in case of his death, to another, such expression is ordinarily confined to the event of the death happening before the death of testator. It is frequently said that the reasoning upon which the rule referred to is founded is "the inconsistency of treating as a contingent event that which of all others is the most certain, and the leaning of the courts in favor of vesting, and against a construction which will postpone the absolute enjoyment and keep in doubt and suspense the nature of the interest bestowed." This is, indeed, but the equivalent of the statement that such determinations are reached by the courts where, under all the circumstances, that conclusion seems most plainly to ascertain the intention of the testator; for the ascertainment of the intention of the testator is, in all cases, the first concern of the courts. Accordingly it is uniformly held that where the context of the will discloses an intention upon the part of the testator to refer to the contingency of death after the death of the testator, such intention will berecognized and enforced. In Burdge v. Walling, 45 N. J. Eq. 10, 16 Atl. 51, the Chancellor reviews a series of English oases showing that any manifestation of an intent upon the part of testator to refer to death subsequent to testator's death will be recognized as controlling and destructive of the rule contended for on behalf of complainant, even though such manifestation of intent may almost seem trivial and inconsiderable. Without entering upon a discussion of the cases referred to it may be said that the rule of construction that a contingency of death referred to in a will by the use of the terms "in case of his death," and similar expressions, will be held to relate to death prior to that of testator only in the absence of even slight manifestation of intention to the contrary upon the part of testator.
The first paragraph of the will now in question devises the land which forms the subject-matter of the contract of sale to the son of testatrix and his wife absolutely. The second paragraph of the will imposes upon the devisees named the burden of supporting the husband of testatrix during his life and also paying to him, during that period, $4 per month. The third paragraph contemplates the contingency, now in question, of the death of the son, and appears to provide that in case the son should die before his wife his widow (complainant) should then become the owner of a half interest in the property conditioned on her never remarrying and the two grandchildren (children of the son and son's wife) owners of the other half. In the event of the remarriage of the son's widow the two grandchildren were to become the sole owners of the property. I am not at all clear that the provisions of the first and third paragraphs of this will, taken together, making provisions as they do, first for the contingency of the death of the son before his wife, and then for the possible remarriage of the widow evince an intention upon the part of testatrix to refer alone to the death of the son before her death. It would seem that the testatrix had in mind a purpose to guard against the possibility of the second marriage of her daughter-in-law to the detriment of her children, the grandchildren of testatrix, and I am impressed that any court would hesitate to conclude that testatrix sought to guard against this contingency only in the event of the death of her son before her own death. In this provision for the protection of the grandchildren, I find evidences of an intention upon the part of testatrix to contemplate the death of the son after her death which impress me as of sufficient potency to at least raise such a reasonable doubt as to render complainant's title unmarketable. The provisions of the second paragraph of the will enjoining the son and daughter-in-law to support the husband of testatrix during his lifetime also indicates to me the possibility that testatrix had in mind the death of her son after her death, for the necessity of support and the provisions of the will touching support could only become operative at the death of testatrix.
Under these conditions I am compelled to deny the relief prayed by complainant.