Kanouse v. Central Railroad , 12 Gummere 185 ( 1922 )

Black, J.

(dissenting). I regret in this ease I am not in accord with the view entertained by a majority of the court. The controversy involves the construction of one of the clauses of the will of Temperance Nolan. It affects a part of the homestead farm of some eighty-three acres of land at Lake Hopateong, in Jefferson township, Morris county. The item of the will involved in the suit is the gift in the second clause to the children of the testatrix’s deceased son, Nathan, as follows : “I give and bequeath unto my son Nathan Nolan, now deceased, to his children, the remainder of my said homestead farm as hereinafter described, that is to say: beginning at a stake,” &c., and then follows a description by metes and bounds. This, clause of the will was. construed by Vice Chancellor Van Elect in the case of Kanouse v. Stockbower, 48 N. J. Eq. 42, 44. The construction placed upon this clause of the will by the Vice Chancellor in a lucid opinion seems to me to be sound and satisfying. As there stated, the thing the testatrix gave, to repeat the -words of the will,, is., “the remainder of my homestead farm as hereinafter described." The description of the thing intended to be given is single, simple and definite. The intention of the testatrix is manifest from the words of the will. Then, in such a case, the functions! of the court are to ascertain the intention of the testatrix from the language of the will. Griscom v. Evans, 40 N. J. L. 402; affirmed, 42 Id. 579.

It seems to me the view entertained by the majority of the court defeats the testatrix’s expressed intention, as manifest from the -words of the will, by including more land than is described in the will.

Judge White authorizes me to say that he is in accord with the above.

For affirm,anee — Black, White, JJ. 2.

For reversal — The Chancellor, Chibe Justice, Swayze, Parker, Bergen, Minturn, Kalis oh, Katzenbach, HepPENHEIMER, WILLIAMS, GARDNER, VAN BuSKIRK, JJ. 12.