On appeal from Superior Court, Chancery Division, Passaic County.
McGeehan, Donges and Colie.
The following is the opinion of Judge Grimshaw in the Chancery Division of the Superior Court:
"This is a bill for the partition of real estate of which Charles W. Simonds died seized. The testator who died August 28, 1920, in his will provided among other things as follows:
"'THIRD: I give. devise and bequeath the use and income of all the rest residue and remainder of my estate both real and personal unto my beloved wife Margaret Simonds, together with so much of the principal as may be necessary for her support and maintenance, for and during the term of her natural life.
"'FOURTH: Upon the death of my said wife Margaret Simonds, I order and direct my executors hereinafter named or the survivors
of them, to sell and dispose of all my real estate then remaining and to divide all my then remaining estate both real and personal as follows:
"'To my son Grover Simonds, a one-sixth part thereof, to my daughter Ellie Forshay, a one-sixth part thereof, to my son Joseph Simonds a one-sixth part thereof, to my daughter Louise Simonds, a one-sixth part thereof, to my daughter Alice Anderson a one-sixth part thereof and to Mary M. Simonds, widow of my son Edgar Simonds, the remaining one-sixth part thereof for the support, education and maintenance of her son Charles Edgar Simonds.
"'LASTLY: I nominate and appoint my son Grover Simonds, my daughter Ellie Forshay, and my daughter-in-law Mary M. Simonds, executors of this my last will and testament with full power and authority to sell and dispose of any or all of my real estate, excepting however the property above specifically devised to the children of my deceased brother, John Simonds, together with the power to mortgage the same or any part thereof, should the same be necessary for the proper support and maintenance of my said wife.'
"By a codicil to the will, the testator modified the provision for his grandson, Charles E. Simonds, contained in the fourth paragraph of the will.
"On August 20, 1928, a judgment was obtained against Joseph Simonds, one of the residuary beneficiaries. By virtue of a writ of execution and levy made under the judgment, the sheriff of Passaic County sold all of the right, title and interest of the said Joseph Simonds in the lands sought to be partitioned to the complainant Jennie D. Kuiken.
"Margaret Simonds, widow of the testator, died November 24, 1939. The said Joseph Simonds died May 16, 1943, intestate, leaving as his only next of kin and heirs at law his widow, ...