Gertrude B. Sheldon, as executrix under the will of John J. Sheldon, deceased, files this complaint for judicial construction and instructions. Defendants Elvira Dennis Sheldon, John J. Sheldon, Jr., and Rosella R. Sheldon are respectively the widow, the son, and the former wife of testator.
By virtue of orders entered heretofore collateral issues have been concluded and are not now involved.
The matters sub judice will be stated: (a) should the will of testator be construed to the effect that he died intestate as to specific real estate designated as 6 Gates Avenue, Roseland, New Jersey, and in that event inherited by the said son, subject to his said widow's right of dower, or (b) should the said former wife of testator take the aforesaid
real property under the will? A clear understanding of the contra issues will be manifest by a full statement of the factual circumstances and by reference to the pertinent provisions of the testament hereafter.
Testator and Rosella were married in August 1938 and became the parents of John, Jr. On December 30, 1943 testator executed his will. Thereafter, on May 15, 1957, testator divorced Rosella, and a judgment of divorce became final August 16, 1957. During coverture testator was the sole owner of the aforementioned real property. In the manner of a consent property settlement in the matrimonial proceedings testator (plaintiff therein) was ordered to pay Rosella (defendant therein) $6,000. An excerpt from the order therefor follows:
"It is further ORDERED that the plaintiff, (John J. Sheldon) pay to the defendant (Rosella Sheldon) on or before August 26, 1957, $6,000.00 in full payment of all of her right, title and interest in and to the premises known as No. 6 Gates Avenue, Roseland, New Jersey, which premises are more particularly described in Deed Book T96-61, and that until said sum of $6,000.00 has been paid the plaintiff shall not encumber said premises without the consent of the defendant."
The payment to Rosella was accomplished by the procurement of moneys secured by a mortgage on the aforesaid premises given to testator's mother, the plaintiff herein. At the time of payment to, and receipt by, Rosella, she on August 16, 1957 executed a form of quitclaim deed which, in effect, conveyed her full interest in the subject real estate. In addition, on August 16, 1957 Rosella executed her general release of all claims, including those of her heirs, against testator and his heirs "from the beginning of the world to the day of the date of these presents."
On August 23, 1957 testator married Elvira, who became his widow upon his death on October 29, 1959. Testator's son was his only surviving heir. It is noticed that on the date of testator's death his former marriage to Rosella had been dissolved about 26 1/2 months.
The determined testacy or intestacy as affecting the subject real estate will be dispositive of the issues sub judice. Thus, pertinent portions of the questioned will are produced as follows:
"THIRD: I order and direct my executrix and trustee hereinafter named to sell my home at 6 Gates Avenue, Roseland, New Jersey, as soon as conveniently possible after my decease, with the proviso, however, that my said executrix may, in her sole and unrestricted discretion, sell said property at public or private sale at such time and upon such terms and conditions as she may deem proper or opportune and I hereby authorize and empower my executrix and trustee hereinafter named to execute, acknowledge and deliver all proper or convenient writings, deeds of covenants and transfer therefor, it being my intention to reduce this property to ...