CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF

THE STATE OF NEW JERSEY,

MAY TERM, 1901.

WILLIAM J. MAGIE, CHANCELLOR.

HENRY C. PITNEY, JOHN R. EMERY, ALFRED REED, FREDERIC W. STEVENS, MARTIN P. GREY AND EUGENE STEVENSON, VICE-CHANCELLORS.

R. HENRY HOLME et al.

V.

LOUISA J. SHINN.

[Filed May 22d, 1901.]

1. Lands were devised to Israel Smith and the heirs of his body by a will executed in 1818. Testatrix died in 1825, and the operative effect of her will was governed by the provisions of the act of June 18th, 1820. Upon her death, Israel took a vested estate therein for life; when he after

Holme v. Shinn.

wards married, his wife took an inchoate estate of dower therein; as children were born, each became seized of a vested estate in fee expectant on Israel's death, and opening to admit a like vested estate in subsequently born children.

2. Israel and Lucy, his wife, and their only surviving child, James, conveyed their respective interests in the lands to one Van Meter, who reconveyed the same to Israel, Lucy and James as joint tenants. Van Meter's conveyance on its face passed only a life estate because the word "heirs" was omitted. By a stipulation of parties, it is admitted that the deed was intended to pass a fee-simple estate, and the omission of words of inheritance was by mistake of the parties.-Held, that the deed may be reformed to effectuate the admitted intent of the parties thereto, either under the general prayer for relief, or under an amendment of the bill by a specific prayer.

3. James survived his father and mother, and died seized of the lands in question, unmarried and intestate. Those nearest to James in consanguinity were first cousins, who were not of the blood of Ann Smith, and they are complainants in the bill. The next in consanguinity was defendant, who was of a more remote degree than complainants, but was of the blood of Ann Smith. Upon bill to quiet title-Held, that James took by purchase from Van Meter and that his heirs-at-law took the lands, although not of the blood of Ann Smith.

Argued at February Term, 1901, and briefs afterward submitted, the last on May 16th, 1901.

This is a bill to quiet title to lands.

Complainants are first cousins of one James D. Smith. They are in possession of the lands in question, and claim them as the heirs-at-law of the said James D. Smith, who died in possession thereof, seized, as they claim, of a descendible title therein.

The defendant is a cousin of the said James D. Smith, but of one degree more remote than the complainants. Her claim is that although of more remote relationship, her title to the lands is to be preferred to that claimed by the complainants, because, as she maintains, the title of James D. Smith was derived from his great-grandmother, Ann Smith, and that complainants are not of the blood of the said Ann Smith, while she, the defendant, is of her blood.

The respective claims of the parties being presented by proper pleadings, an order for a feigned issue was made in the cause. The transcript has been returned, certified, with a special verdict, from which the following facts appear:

Holme v. Shinn.

Ann Smith died in December, 1825, seized of the lands in question. She left a will, dated April 17th, 1818. By the construction given to that will by the supreme court in 1830 (Den v. Hance, 6 Halst. 244), the lands in question passed by a devise in the following words:

"I give and devise said plantation and tract of woodland to the said Israel Smith and to the heirs of his body, and for want of such heirs, to the aforesaid Joshua Smith, Powell Smith and Mary Smith, wife of Merriman Smith."

Israel Smith was the grandson of Ann Smith, and was at her death an infant and unmarried. Afterward he intermarried with Lucy Ann Dennis, his cousin, and had five children, all of whom died in infancy except one, named James D. Smith, who was born October 20th, 1846. Three children of the said Israel and Lucy Smith had been born previous to the birth of James, but were all then dead. One child was born afterward, and died in infancy.

James D. Smith survived his father and mother and died intestate and without issue, October 20th, 1889. It appears from the special verdict that the complainants include all of the first cousins of James D. Smith, deceased, except one, and he is represented by persons to whom he had assigned his interest in the lands in question. Although they are nearest in consanguinity to James D. Smith, deceased, complainants are not of the blood of Ann Smith. It also appears from the special verdict that the defendant is a second cousin of James D. Smith, and is of the blood of Ann Smith.

The special verdict shows that James D. Smith, by a deed bearing date October 21st, 1867, conveyed to one Edward Van Meter all his estate in the lands in question, and that the said Israel Smith and Lucy A. Smith, his wife, by a deed bearing date October 22d, 1867, conveyed all their estate in the lands in question to the said Van Meter.

It further appears that the said Van Meter and his wife, by deed bearing date October 23d, 1867, conveyed the lands in question to Israel Smith, Lucy A. Smith and James D. Smith, habendum, as joint tenants and not as tenants in common. Since

Holme v. Shinn.

this deed did not contain any words of inheritance in its grant (the word "heirs" being omitted), it operated only to convey a life estate, terminable at the death of the last survivor of the three grantees.

After Israel Smith and his wife, and James D. Smith had died, Caroline Van Meter, the widow of the said Edward Van Meter, to whom said Edward Van Meter had devised all his estate by his last will, conveyed an undivided seven-eighths of the lands in question to the seven complainants related to James D. Smith, and by a separate deed conveyed one undivided eighth of the lands in question to the assignees of the remaining first cousin of James D. Smith, who are the other complainants.

Mr. Clement H. Sinnickson, for the complainants.

Mr. Norman Grey, for the defendant.

MAGIE, CHANCELLOR.

For reasons counsel will understand, I deem it my duty to state the conclusions I have reached in this case, without the. delay which would be required to enable me to prepare an elaborate opinion.

When Ann Smith executed her will in 1818, the law of this state in respect to such estates as were estates tail at common law, had been declared by the provisions of the act of August 26th, 1784 (Pat. L. of 1784 p. 53), as explained by the act of March 23d, 1786. Pat. L. of 1786 p. 78. When Ann Smith died in 1827, the act above cited had been repealed by section 3 of "An act further regulating the descent of real estates," passed June 18th, 1820. R. L. of 1820 p. 774. By section 2 of the act last mentioned, regulations as to such estates were enacted. They were in force at the death of Ann Smith. The section in question is now the eleventh section of our present statute of descents. Gen. Stat. p. 1195.

It has been suggested in the argument that there might be a question whether the nature of the estate transmitted by the will of Ann Smih was to be discovered by the act which was