Carter v. Mishell

• Decision Date: 29 June 1949
• Docket Number: No. A-19.,A-19.
• Parties: CARTER v. MISHELL et al.
• Court: New Jersey Superior Court

67 A.2d 199

CARTER

v.MISHELL et al.

No. A-19.

Superior Court of New JerseyAppellate Division.

Argued June 20, 1949.

Decided June 29, 1949.

Appeal from Orphans' Court, Ocean County.

Petition by Grace Carter for specific performance of a contract for the purchase of real estate on behalf of her husband George Carter, deceased against Edward E. Mishell, substituted administrator etc., and another, wherein Kirk Cherico, filed a petition praying that the court order the administrator to give him a deed for the lands described in his contract. The Orphans' Court, ordered the administrator to execute a deed to Cherico and Grace Carter appeals.

Order reversed with directions to dismiss both petitions.

Before Judges JACOBS, EASTWOOD and BIGELOW.

William A. Fasolo, Fort Lee, argued the cause for the appellant (Milton T. Lasher, Hackensack, attorney).

Robert E. Rosenberg, Newark, and Matthew Krafte, Irvington, argued the cause for respondents (Emanuel Gerstein, Hillside, attorney).

The opinion of the court was delivered by

BIGELOW, J.A.D.

John F. McLagan died in 1934, leaving a last will and testament in which he gave to his executor power to sell and convey lands owned by the testator at his death. In September, 1944, Edward E. Mishell, as substituted administrator with the will annexed, presented to the Ocean County Orphans' Court a petition setting forth that testator had died seized of a tract of 20.02 acres designated as Section No. 9 on a certain map; that ‘George Carter, or nominee’ had offered $3,000 for the premises; that Carter was a licensed, authorized agent, and the sale was subject to the payment to him of a commission of 10 percent upon the purchase price. The administrator submitted the terms of the proposed sale to the court for approval and prayed for an order authorizing him to execute a deed of conveyance to Carter, or his nominee, for the said premises and for the consideration named. Such proceedings were had on the petition that the court made an order October 27, 1944, that ‘the aforesaid sale of land and premises * * * be and the same is hereby approved and confirmed pursuant to the statute in such case made and provided, and the court being satisfied that the said administrator is now under sufficient bonds, no additional security will be required from him.’

The matter next came to the attention of the Orphans' Court nearly three years later, on August 22, 1947, when Mrs. Grace Carter filed a petition showing that George Carter was her husband, now deceased, and that she was the sole devisee and executrix of his will. She recited the prior proceeding and set forth that pursuant to the order, McLagan's administrator in January, 1945, had conveyed to one Kirk Cherico a part, but not all, of lot No. 9. She prayed that the court require the administrator to deed to her all of the lot, excepting therefrom so much as had been conveyed to Kirk Cherico. Cherico responded by filing a petition November 11, 1947, alleging that he had negotiated with Carter for the purchase of the premises which Carter represented to contain about 20.02 acres; and that when he accepted the deed, he believed the description to include the whole 20.02 acres. He prayed that the court order the administrator to give him a deed for the land described in the contract.

The two petitions came on for hearing together. From the testimony it appeared that Cherico paid or secured by mortgage the entire consideration of $3,000, and that Carter was concerned only as a broker and that he was paid the agreed commission. The administrator, in explanation of the fact that he had conveyed to Cherico less than the whole lot, testified that Carter had told him that the land described in the deed was all the purchaser wanted. The Orphans' Court, at the conclusion of the hearing, ordered the administrator to execute a deed to Cherico for the entire lot of 20.02 acres. Mrs. Carter appeals.

The original order approving the sale was made pursuant to R.S. 3:17-13 and 14, N.J.S.A. The first of these sections vests in a substituted administrator with the will annexed the same power and authority with respect to the sale of real estate of the testator that the original executor had, either as executor or trustee under the will. The other section enacts that no such sale shall be valid until the terms thereof have been submitted to and approved by the Prerogative Court or the Orphans' Court of the...