Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
This is an appeal from a summary judgment in plaintiffs' favor in a partition action brought by them in the Superior Court, Chancery Division, as alleged owners of an undivided one-ninth interest in certain lands under the will of Elizabeth A. Hays.
Testatrix was in her lifetime seized of a 73-acre farm property on the Delaware River, situate partly in the Township of Florence and partly in the Township of Burlington, Burlington County, together with certain fishing rights in the river. Erected on said lands were a dwelling house occupied by certain of the defendants, a tenant house occupied by still other defendants, and a number of outbuildings. The Hays family burial ground is located on the property.
Elizabeth A. Hays died testate and without issue on February 28, 1910. By paragraph 7th of her will she provided:
"I give and devise unto Ella Horner, daughter of Anna Smith (formerly Horner), the farm whereon I now reside (Together with the fishing right purchased of the Commissioner to sell lands, etc. by deed of March 24, 1873, Book B 9 of Deeds, page 382) for and during the term of her natural life and after her death to her children, born or to be born, and to their heirs and assigns forever; but if the said Ella Horner should die without issue, then at her
death I give and devise the said lands and premises herein mentioned to such persons as at the time of her death would be my heirs at law on my father's side in equal portions."
Ella Horner, the life tenant, died intestate and without issue on July 10, 1947. Plaintiff Wilmer L. Wilson claims through his father George Wilson, who, he alleges, was an heir-at-law of the testatrix on her father's side. By their complaint Wilmer L. Wilson and his wife Reba sought partition of the lands and premises in question and a declaratory judgment adjudging, among other things, that defendants (appellants here) Frank Brotherton and Gladys, his wife, and Lillian B. Hellier and Walter, her husband, together with certain other defendants, had no right, title or interest in the property. They also demanded judgment directing an accounting from defendants Davis for the value of their use and occupation of part of the premises.
A proper understanding of the relation of the more important parties to the litigation requires examination of the Hays genealogy. The names hereinafter italicized are those of persons whom plaintiffs claim are the only ones entitled to an interest in the property.
Henry Hays, the common ancestor on testatrix' father's side, died in 1827. Of his seven children, only four need concern us:
1. Stacy Hays. His daughter Elizabeth A. is the testatrix.
2. Ann Hays Ranier. She had seven children by two marriages, among them Thomas Ranier, Elizabeth Ranier (later Wilson) and Samuel L. Ranier.
(a) Thomas Ranier died in 1925, leaving him surviving three children, only one of whom, Thomas Ranier, Jr., survived the life tenant Ella Horner, having died in August 1948. His widow and residuary devisee, Margaret P. Ranier , succeeded to any interest he might have in the lands in question.
(b) Elizabeth Ranier Wilson had four children, two of whom, George R. Wilson and Elizabeth (Ranier) Adams, survived the life tenant. George R. Wilson died in October 1947, and by his will devised his entire estate to his only
son Wilmer L. Wilson , the plaintiff, who in this action claims his father's interest. Elizabeth (Ranier) Adams was survived by three children: Helen (Adams) Johnson, Drucilla (Adams) Yohe , and E. Burd Adams , each of whom claims a third share of the mother's interest in the Hays property.
(c) Samuel L. Ranier died in 1927 leaving five children, only four of whom survived the life tenant Ella Horner: Lambert Ranier, Annie (Ranier) Schlindwein , Hays Ranier who subsequently died testate leaving his wife, Anna Ranier , as sole devisee; and Mary (Ranier) Miller.
3. Addis Hays had nine children, all of whom predeceased the life tenant. Of their children, only one, Allie (Hays) ...