Francis, J.c.c. (temporarily assigned).
Plaintiff here became vested with a life estate in the leasehold in question under the will of Annie V. Heiss, who died on May 8, 1916. Subsequently she acquired by assignment all the remainderman's rights in the leasehold, which were likewise created by the will.
In August, 1950, plaintiff entered into a written agreement to sell and convey the leasehold estate to the defendant. Defendant has refused to accept the assignment of the plaintiff's leasehold interest, maintaining that a marketable assignment thereof cannot be made. Plaintiff therefore seeks specific performance in this action.
The basis for defendant's assertion that a marketable assignment cannot be executed is the following provision of the Heiss will, under which plaintiff received her original life interest:
"I give and bequeath to my beloved nephew Annie H. and Luther Wilcox, her husband, my residence No. 119 Main Ave., Ocean Grove, New Jersey. To be kept as a memorial during their lifetime and after the death of the said Annie H. and Luther Wilcox, her husband, I bequeath the said residue to Oscar H. Heiss of the City of Philadelphia or to his heirs and assigns."
The dwelling house upon the demised premises is in a bad state of disrepair, and is without adequate heating and plumbing facilities. The plaintiff is 85 years of age, a widow (her husband having died in 1946), and without sufficient funds with which to make the necessary repairs and to pay carrying charges, such as fire insurance and taxes.
The stipulation of facts shows that the parties also made a collateral written agreement under which the plaintiff "retains the right to use and occupy the rear room on the first floor
and the rear room on the second floor of the dwelling house during the term of her natural life."
These agreed facts with respect to the plaintiff's age, financial condition, condition of the house, and the reservation of the use of two rooms therein, move the compassion of a court of equity. However, they cannot form a base on which to construct a judgment favorable to her. Such a judgment must be founded upon a determination that when she added the remainder interest to her life estate she acquired the unqualified right to sell the leasehold in her lifetime, regardless of the quoted language of the will.
Although the will says, "To be kept as a memorial during their lifetime * * *," it contains no forfeiture clause and no language in anywise indicating that if the dwelling house was not "kept as a memorial" the leasehold should revert to the estate or pass immediately to the remainderman, or that the plaintiff should be divested of her life estate. No words were used which implied that the testatrix had in mind that on failure to keep the house as a memorial the life estate should terminate, such as words bequeathing a right to use and occupy "so long as" the memorial was kept.
Evidently the testatrix assumed, and perhaps hoped, that the plaintiff and her now deceased husband would continue to live on the premises for the remainder of their lives. However, an intention to require the continued occupancy during their lives cannot be gathered from the writing. Even if plaintiff had not acquired the remainder interest, it would not be reasonable to declare that she could not rent the house to a tenant. Keeping as a memorial would not require personal occupancy. A sensible interpretation would appear to be that Miss Heiss was expressing a sentimental wish that the property would represent a memorial to them but that she did not intend to command its maintenance as such under pain of forfeiture or reversion. What she intended to give to plaintiff was a life estate in memory of her.
The relations between the parties as disclosed by the stipulation support this thought. The ...