[1 NJSuper Page 407] This suit was commenced by a petition to the Union County Circuit Court for a declaratory judgment. By order of that Court dated May 3, 1948 it was transferred to the Court of Chancery.
Fannie C. Turner died on February 11, 1947, leaving a last will and testament dated September 16, 1943, which was duly probated by the Surrogate of the County of Union, which inter alia provided as follows:
"Third. I give, bequeath and devise absolutely and in fee simple to my said beloved daughter, Vella Wooten, all my land and premises known and described as street number 212 Spooner Avenue, Plainfield, New Jersey, subject, however, to the provisions hereinafter mentioned.
"Fourth. I direct that my said daughters, Viola Harvey and Ruth Mizell, shall have the right to reside in my said home devised and bequeathed as set forth in the third paragraph of this my last Will and Testament, and as long as they might desire so to do, provided, however, that they share equally in respect to the upkeep of the said lands and premises and the payment of taxes, water rents and other assessments against the same.
"Fifth. I further direct that if the said Vella Wooten should at any time during her life sell or dispose of the said lands and premises herein devised by me and as set forth in the third paragraph of this Will, then and in that case the proceeds of the sale shall be divided equally between herself, the said Viola Harvey and the said Ruth Mizell."
Testatrix at the time of her death was seized of premises known as 212 Spooner Avenue, Plainfield, New Jersey. Since the death of testatrix, the defendants, Viola Harvey and Arthur Harvey her husband, and their children have been in possession of these lands and premises and have collected the rents therefrom. During this time they have denied the plaintiff Vella Wooten the right to occupy any part of the premises.
The complaint seeks a construction of the will. The pretrial order gives the plaintiffs leave to amend their complaint to include a cause of action against the defendants for an accounting of the rents, issues and profits of the mentioned premises.
There can be no doubt that under the third paragraph of testatrix' will, Vella Wooten took an estate in fee simple in the premises 212 Spooner Avenue. The language is clear and unambiguous. By the fourth and fifth paragraphs of the will the testatrix places a limitation upon the fee. In the fourth paragraph she directs that her daughters, Viola Harvey and Ruth Mizell, shall have the right to reside in said premises as
long as they desire so to do. By the fifth paragraph she directs that if the premises are sold by Vella Wooten that the proceeds thereof are to be equally divided among the said Vella Wooten, Viola Harvey and Ruth Mizell.
The provisions of the fourth and fifth paragraphs of the will are plainly inconsistent with the provisions of the third paragraph. They demonstrate that testatrix had two intentions with respect to this property -- the first to give it outright to her daughter, Vella Wooten, and the second to place a limitation upon the fee by directing that her other two daughters may occupy the ...