On certiorari to review a decree of the Prerogative Court advised by Vice-Ordinary Jayne, whose opinion is reported in 136 N.J. Eq. 365.
For the prosecutors, Irving Dincin.
For the defendant, Walter D. Van Riper, Attorney-General (William A. Moore, of counsel).
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
HEHER, J. The issue here is one of testamentary construction. The inquiry is whether the devise made by the will of Mary G. Bakman, deceased, to her nephew, Joseph M. H. Renner, created a vested estate in remainder in the lands, subject to divestiture upon certain contingencies, neither of which happened, and the subsequent transfers of the interest occasioned by the devolution of title under the Descent Act are subject to the inheritance taxes levied by the defendant Tax Commissioner, or whether the deaths of Renner and his brother, John Frederick Renner, during the lifetime of the life tenant served to effect a devolution of the entire interest in the lands to Anne M. Conklin and June Renner,
children of John Frederick Renner, under the will rather than the statute of descent, and thus a transfer exempt from taxation by force of chapters 247, 248 and 249 of the Laws of 1927, which repealed the acts of 1892, 1893 and 1894, under which a transfer inheritance tax would have been leviable on the transfer of property of the testatrix, which repealers were saved from repeal by R.S. 54:33-4. Vice-Ordinary Jayne resolved the question in favor of the first-stated theory; and we concur in that view and also in his reasoning, and should be content to rest the affirmance upon his opinion were it not for prosecutors' earnest insistence that gifts over to John Frederick's children arose by necessary implication from the will taken as a whole.
Under the will, the estate in remainder was limited over, by way of executory devise, upon the occurrence of either of two conditions: (1) "In case that at the time of my sisters (sic) death either one of the two boys John Frederick Renner or Joseph M. H. Renner shall have died leaving lawful issue, then it is my will that such child or children shall take his or her parents (sic) share;" and (2) "In case both boys die without leaving lawful issue before the death of my sister Annie M. Renner, then I give devise and bequeath the above land and premises to the persons who by the law of descent of New Jersey would be the heirs at law of my sister Annie M. Renner, the same as if she has (sic) died intestate."
The testatrix died on August 3d, 1908. The life tenant died on April 10th, 1935, survived by her two grandchildren, Anne M. Conklin and June Renner, as her heirs-at-law and next of kin. Their father, John Frederick Renner, died on August 17th, 1930. Joseph M. H. Renner also predeceased the life tenant. He died on July 12th, 1927. His son and only child, Carroll, died on October 16th, 1927.
The argument is that the terms of the particular provision of the will are unclear and ambiguous, but that the language considered as a whole reveals a testamentary design that the title to the lands "should not vest in any person not alive at the time of the death" of the life tenant, and that the testatrix' failure to foresee "the actual happenings should not militate against her unwritten but discernible intentions."
Then, again, it is said that Joseph and John Frederick were seized of vested estates in remainder, divestible by their death in the lifetime of the life tenant, and that their children's respective interests in the remainder were in the nature of an executory devise which became vested upon the parent's death in the lifetime of the life tenant, "and their surviving the life tenant," and therefore title to the lands devolved upon Anne M. Conklin and June Renner by operation of the will and not through the intermediate stages of intestate succession found by the learned Vice-Ordinary. In a word, it is urged that Carroll J. Renner's interest in the lands was a contingent remainder in the nature of an executory devise which could not vest until the death of the life tenant and, since he predeceased the life tenant, he held no interest which passed to his uncle, John Frederick, by intestate succession; that it was the testatrix' "evident intention" that in the event Joseph and John Frederick both predeceased their mother, one only leaving lawful issue, ...