This is a suit for specific performance of a contract for conveyance of real estate. Defendant refused to accept plaintiffs' proffer of conveyance upon the ground that title to the premises was substantially doubtful and unmarketable. The case is submitted for decision upon the pleadings and stipulation of facts.
Plaintiffs' title springs from a deed made by William M. Cook, unmarried, dated October 24, 1925. He was the son of Jesse Cook who died seized of the premises on February 7, 1894, and who devised the same by will in the following language:
"On and after the death of my wife or upon her again marrying it is my will and I do order that none of the above mentioned real estate shall be sold at public vendue but that it shall be equally divided between my three sons, Jesse V. Cook, John W. Cook and William M. Cook, share and share alike as soon as may be and that the portions set off and assigned to my two sons, Jesse V. Cook and John W. Cook shall be respectively theirs, their heirs and assigns forever, but that the portion set off and assigned to my son, William M. Cook shall remain his, only during his natural life and after his death it shall go to such person or persons as would by law inherit the same if he had an estate in fee simple."
Defendants contend that under the said devise plaintiffs' predecessor in title, William M. Cook, took only a life estate in the premises in question with remainder over upon his death to his heirs; and, accordingly, they refused to take plaintiffs' title tendered under the contract because it did not convey the lands in fee simple. Plaintiffs submit that the devise vested the fee to the premises in William M. Cook by operation of law because it invokes the rule in Shelley's case whereby a devise of a freehold estate with limitation, mediate or immediate, over to devisee's heirs passes the whole estate or fee to the devisee. It is conceded that equity will decree specific performance of an agreement to convey real estate only where the title is free from substantial doubt and marketable.
It is clear that when the devise to William M. Cook became effective in 1894, under the will of his father, Jesse Cook, the rule in Shelley's case subsisted in this state except to the extent to which it was modified by statute; which modification excepted its application only in case lineal descendants survived the life tenant (P.L. 1846, C.S. 1910, p. 1921, § 10). This statute does not preclude the rule in this case because it is agreed that William M. Cook died in 1934 leaving no issue, nor representative thereof.
Counsel submit, and my examination of the authorities leads me to the conclusion, that the question under consideration -- the effect and extent of the devise to William M. Cook -- is controlled by the principles expounded in Lippincott v. Davis , 59 N.J.L. 241 (E. & A. 1896) and Peer v. Hennion , 77 N.J.L. 693 (E. & A. 1909). The task is to apply these principles correctly.
In Lippincott v. Davis, supra , the devise in question was as follows:
"Item: I give and bequeath to my son, Job Gaskill, my farm, of late occupied by him, situate in the township of Northampton, in the county of Burlington, with all things properly belonging thereto, during his natural life, and afterward to descend unencumbered to his lawful heirs, subject, however, to the payment of $3,000 to his brother, Israel Gaskill, as hereinafter devised."
Chief Justice Beasley, speaking for the Court of Errors and Appeals, held that the devise to Job Gaskill was of an estate in fee because "the clause would be subject to the absolute control of the rule established in Shelley's case." He held that the limitation after the life estate was to the life tenant's heirs general thus vesting the whole estate in him; and he pointed out that the rule was one of law and not of construction, and that consequently the expressed intention of the testator in its presence is inoperative even to the extent that ...