This is an action to quiet title to certain real estate and to construe a will by which the real estate in question passed to plaintiff's devisor.
Plaintiff The Rector, Wardens and Vestrymen of St. John's Church in Salem was the devisee of a tract of land in the City and County of Salem under the fifteenth clause of the will of Howard B. Keasbey, deceased. It is alleged that Keasbey became the owner in fee of the said tract by virtue of the will of his aunt, M. Caroline Keasbey, deceased. The construction of the will of the aunt is the subject of this suit.
The third clause of the will of M. Caroline Keasbey reads as follows:
"Third; I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal or mixed to my Sister, Elizabeth, for and during the term of her natural life; and, after her decease, I give and devise all of my said real estate to my nephew, Howard B. Keasbey, for and during the term of his natural life, and, after his death to the heirs of his body lawfully begotten; but if my said nephew, Howard B. Keasbey, should die without leaving lawful issue, then the above estate shall descend and go to my nephew, Charles Quinton Keasbey, and my niece Helen Keasbey (children of my brother John) to be divided between them equally, share and share alike, for and during their natural lives, and, after their decease, or the decease of either of them, to their lawful issue * * *
But, if it should so happen that my nephews, Howard B. Keasbey and Charles Quinton Keasbey, and my niece, Helen Keasbey, should all depart this life without leaving lawful issue, then all my said estate, both real and personal to go to and vest in my sister Elizabeth and her heirs forever * * *"
It is the opinion of this court that the above language has the following meaning:
(1) The Rule in Shelley's Case does apply. The Rule was not abrogated in its entirety until 1934. The will of M. Caroline Keasbey was probated in August of 1901. The statute in effect in 1901 was section 10 of the Descent Act. However, as was pointed out in Neill v. Petry , 96 N.J. Eq. 478 (Ch. 1924):
"This section * * * has no effect beyond the 'single instance where there are children, or the issue of children, in whom the remainder can vest,' * * *." (at p. 481)
Therefore, in this case, the Rule in Shelley's Case does apply and the interest of Howard B. Keasbey under the will of M. Caroline Keasbey was a remainder in fee tail subject to a condition subsequent.
(2) The limitation over in the will of M. Caroline Keasbey refers to the death of Howard B. Keasbey, Charles Q. Keasbey or Helen Keasbey during the lifetime of Elizabeth.
The limitation over is not void for remoteness. Morehouse v. Cotheal , 22 N.J.L. 430 (Sup. Ct. 1850), cited by plaintiff, was reversed by the Court of Errors and Appeals, at the April term, 1851. As the rule now stands in New Jersey, "die ...