Beales' Estate, In re

• Decision Date: 24 April 1951
• Docket Number: No. A--273,A--273
• Citation: 80 A.2d 311,13 N.J.Super. 222
• Parties: In re BEALES' ESTATE. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 222

13 N.J.Super. 222

80 A.2d 311

In re BEALES' ESTATE.

No. A--273.

Superior Court of New Jersey.

Appellate Division.

Argued April 16, 1951.

Decided April 24, 1951.

James A. Major, Hackensack, argued the cause for appellant (Major & Carlsen, Hackensack, attorneys).

Warren Dixon, Jr., Hackensack, argued the cause for respondent.

Before Judges McGEEHAN, JAYNE and Wm. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

Mr. Isaac B. Beales died testate on October 14, 1944, leaving him surviving two daughters, Ruth M Brower and Margaret A. Beales. The will was admitted to probate and pursuant to the nomination expressed in the will, letters testamentary were issued to the respondent, Bertrond A. Weber, who thereupon qualified as executor and assumed the administration of the decedent's estate.

The executor submitted his final account to the Probate Division of the County Court of Bergen County for allowance and settlement. Margaret Beales interposed an exception to its approval. On September 22, 1950, a judgment was entered in the County Court dismissing the exception and adjudicating that 'the said account be in all things allowed as reported.' The present appeal implicates the propriety of that judgment.

One cannot attain a comprehensive understanding of the basic controversy without some familiarity with the antecedent chapters of its history.

The decedent was the owner of a residential property designated as No. 356 Harrison Avenue, Hasbrouck Heights, New Jersey, in which he resided with Mr. and Mrs. Frank Parker during a period of six years before his death. Their associations may be characterized as constituting a family circle.

In June 1944 the testator suggested to the Parkers that they purchase the property for the sum of $5,000. On July 22, 1944, less than three months before his death, the testator accepted a check from Mr. Parker for $100 and subscribed to the following memorandum:

'July 22nd 1944

'Received of Frank Parker

'One Hundred ............ Dollars a Down Payment on purchase of House & Land at 356 Harrison Avenue Hasbrouck Heights New Jersey

'Total Cost $5000.00

'$100.00 I. B. Beales'

The excerpt from a contemporaneous communication of the testator to his daughter Ruth, here reproduced, reflects some illumination upon the considerations which obviously motivated the testator.

'Dear Ruth

'Last Saturday when you came over to 356 I had verbally sold the house to Frank Parker for $5,000.00 and after you left we drew up an agreement to that effect. You may think that is cheap but remember the long time (over six years) that I have lived there with the best of bed, of food, and that surely is worth something.

'I know you will find it easy to settle the estate with Bert and be kind to Peg she has had a rough life. I wish I could have changed but she would not. I am sorry for Peg and hope the future will be brighter than the past has been. I have always loved Peg dearly and wish I had acted differently on several occasions. I have another and wish that I had you, It's happy end'

The memorandum and the check endorsed by the testator were subsequently exhibited to the executor, who seems to have been influenced by the manifestation of the testator's intention. But let him speak for himself:

'A. I decided that as executor of the estate I would be carrying out the testator's wishes by doing just what these documents suggested. I entered into the contract with Mr. Parker because I thought it would, as executor, legalize this condition. I felt that if I didn't sell this property to Mr. Parker that Mr. Parker would have just cause for a suit against me that this was enforcible.

'Q. And the price mentioned in these documents was five thousand dollars? A. Was five thousand dollars.'

It is of some significance to relate that the executor is a jeweler and not specially educated in the discriminations of the law.

The testator's will which was executed by him on February 24, 1939, contained the following direction: 'The property at 356 Harrison Ave. Hasbrouck Hts. N.J. to be sold and the proceeds derived, divided equally between my daughters Ruth M. Brower and Margaret A. Beales.'

In the existing circumstances the executor entered into a contract with Mr. Parker for the sale to him of the property at the price of $5,000. The United States Mortgage and Title Guarantee Company of New Jersey declined to guarantee the title unless the two daughters of the testator joined in the deed of conveyance. Margaret refused to do so.

In that situation the executor filed a bill of complaint in the former Court of Chancery in which, Inter alia, he alleged the contract into which he had entered for the sale of the property for the price of $5,000 and the pertinent provision of the will, and prayed that the court 'declared that the complainant, Bertrond A. Weber, has an implied power of sale and can sell the lands and premises described herein * * *.' A decree was advised that 'under the provisions of the Last Will and Testament of said decedent, and Under the provisions of the said contracts hereinabove recited (contracts of decedent and executor) that the said Bertrond A. Weber, Executor of the Last Will and Testament of said decedent, be and he hereby is directed to execute and deliver to said Frank Parker his said deed' for the No. 356 Harrison Avenue property upon payment of the sale price of $5,000. (Parenthetical insertion and emphasis ours.) Margaret A. Beales was an answering defendant in that cause and prosecuted an appeal from the decree, in the Court of Errors and Appeals. Weber v. Beales, 140 N.J.Eq. 423, 55 A.2d 67 (E. & A.1947).

The essential signification of the opinion rendered by the appellate court is revealed by the following selected quotations: 'The Vice-Chancellor based his opinion upon his finding that there was a memorandum made by the testator from which he spelled a valid contract to sell to the defendant-respondent Frank Parker and that there arose from such special circumstances the power to sell by implication. While we concur in the result, we prefer to rest our opinion upon a different basis, namely that in the construction of the will of the decedent, to give effect to the apparent intention and purpose of the testator, there arises an implied power of sale in the executor to sell and convey the premises hereinafter referred to. In the bill of complaint no mention was made of the action of the decedent with respect to the premises and the prayer for relief was based upon the allegation of an implied power of sale in the executor by means of construction of the will.

'We hold that there is an implied power of sale by the executor.'

The entry of a revised final decree thereupon eventuated on October 10, 1947, in the Court of Chancery which after a recital of the antecedent proceedings on appeal ordered, adjudged, and decreed 'that said Executor be and he hereby is directed to execute and deliver to Frank Parker his said deed * * * upon payment of the sale price of Five Thousand ($5,000) Dollars, upon which One Hundred ($100) Dollars has been paid on account thereof, all in accordance with the provisions of a certain contract of sale entered into between the said Executor and said Frank Parker.' The file in the cause in Chancery from which much of the foregoing information is derived was admitted in evidence in the accounting proceedings here under review.

The sale was accordingly consummated and the executor in accounting for the proceeds encountered the exception interposed by the present appellant accusing him of the failure to 'exercise reasonable care and skill' in conveying the property for $5,000 instead of for a higher price.

In view of the peculiar characteristics of the events to which reference has been made, a consideration of the doctrine of estoppel by record naturally intrudes. The bill of complaint in Chancery was not one of the conventional type which seeks merely a construction of the will with respect to the power of the fiduciary, but one which also alleged the contract into which the executor had entered and its terms, and presented to the court evidence of the decedent's Ante mortem intentions, the contract of the executor, and the provision in the will, and in this particular requested the determination of the court concerning the power of the executor to perform the specified contract which was in all respects conformable to the contemplations of the...