This suit involves the construction of the will of one Fannie Swarzman, and an agreement between Fannie Swarzman and her husband Abram Swarzman. The facts in connection herewith are as follows:
On or about April 30, 1943 Fannie Swarzman and her husband Abram Swarzman entered into the following agreement:
"It is understood and agreed between Abram Swarzman and Fannie Swarzman, as follows:
In consideration of the completion of settlement covering the purchase of premises # 1920 Pacific Avenue, Atlantic City, New Jersey, in which the parties hereto are taking title by the entireties;
It is agreed that in the event Abram Swarzman should pre-decease Fannie Swarzman, so that Fannie Swarzman becomes the sole title-holder, the said Fannie Swarzman shall provide for the inheritance of said property so that 50% of said property shall be devised to the heirs of Abram Swarzman as of the date of his death, and the other 50% to the heirs of the said Fannie Swarzman.
In the event that Fannie Swarzman should pre-decease Abram Swarzman, so that Abram Swarzman becomes the sole title-holder, the said Abram Swarzman shall provide for the inheritance of said property so that 50% shall be devised to the heirs of Fannie Swarzman as of the date of her death; and the other 50% to the heirs of the said Abram Swarzman.'
On November 29, 1953 Fannie Swarzman died leaving a last will and testament which provided, in part, as follows:
"I give and devise my undivided one-half interest in real estate known as 1920 Pacific Avenue, Atlantic City, New Jersey, to my brother, Louis Sevel, of Cleveland, Ohio, and his heirs, absolutely and forever.'
Fannie Swarzman died without leaving any children, and left her surviving, as her sole heir-at-law, under the statute of descent, her husband, Abram Swarzman. Abram Swarzman is still living.
This was a second marriage for both Fannie Swarzman and Abram Swarzman. The former had no children by either marriage. The latter had two children born of his prior marriage. At the date of the execution of the agreement Fannie Swarzman was 59 years of age and Abram Swarzman was 65 years of age.
The plaintiff Louis Sevel contends that he is the person designated by Fannie Swarzman to whom Abram Swarzman must devise a one-half interest in the property at 1920 Pacific Avenue, since the word "heirs' as used ...