Drenk, J.c.c. (temporarily assigned).
This is an action for the partition of certain lands and premises and seeking an accounting for rent since the death of last life tenant; and a counterclaim.
Having heard testimony and considered the arguments and memoranda of the respective attorneys, there appears to me to be two principal questions to be determined by the court:
1. Determination of the fractional interest of the parties in question.
2. What is the fractional interest of the plaintiffs and whether or not it extends to the improvements or is in the lands alone.
Each question will be considered separately.
THE FRACTIONAL INTEREST OF THE PLAINTIFFS.
It appears that the property in question was once an unimproved farm or country estate, formerly owned by Robert J. Dalton, who died January 10, 1899, and located in Goose Neck, Monmouth County, New Jersey.
The provisions of the will of Mr. Dalton, as to the property in question, give rise to the question now being considered. That part which deals directly with the property in question reads as follows:
"I also give, devise and bequeath jointly share and share alike to my daughters Rosamund and Mary Ella my farm or messuage situated at Goose Neck, Monmouth County and State of New Jersey, together with all furniture, plate, horses, wagons and everything belonging to me situated thereon and to their lawful issue, providing however should either die before or without legal issue then the whole of the real estate before mentioned or the share of the one dying, I give, bequeath and devise to my sons Leon and William Dalton and to their issue share and share alike as to and meaning the property situated in Jersey City, Hudson County; the property in Monmouth County at Goose Neck, in case of death of either daughter with or without Legal issue (the aforesaid share mentioned) to my son Leon Dalton, I give, devise and bequeath in case of death of both daughters, he the said Leon Dalton to take the whole of the property aforementioned situated at Goose Neck, Monmouth County and State of New Jersey."
To paraphrase the above, it appears that the will of the testator, Dalton: (1) devised and bequeathed to his two daughters the property in question and to their lawful issue; (2) provided that his son Leon should take the interest of Rosamund or Mary Ella in said premises should either of them die with or without legal issue; (3) provided that should both daughters die without issue, in that event the entire premises in question was devised to Leon.
By reason of the uncertainty generated by the wording of the will of the testator, it was found necessary to have the will interpreted by the then Court of Chancery, Content v. Dalton , 121 N.J. Eq. 391 (1937), and by the then Court of Errors and Appeals, Content v. Dalton , 122 N.J. Eq. 425 (1937). Said courts determined that a fee tail vested in Rosamund and Mary Ella which, by operation of the statute of descent, C.S. 1921, ...