Hampton v. Hampton Holding Co.

• Decision Date: 14 February 1955
• Docket Number: No. A--77,A--77
• Citation: 111 A.2d 761,17 N.J. 431
• Parties: Martha HAMPTON, Plaintiff-Appellant, v. HAMPTON HOLDING COMPANY et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 431

17 N.J. 431

111 A.2d 761

Martha HAMPTON, Plaintiff-Appellant, v. HAMPTON HOLDING COMPANY et al., Defendants-Respondents.

No. A--77.

Supreme Court of New Jersey.

Argued Jan. 10, 1955.

Decided Feb. 14, 1955.

John P. Holly, Newark, argued the cause for appellant.

Herman E. Dultz, Newark, argued the cause for respondents.

The opinion of the court was delivered by

HEHER, J.

By this proceeding in equity plaintiff seeks an assignment of dower in lands situate in Newark, New Jersey, known as 138--146 Norfolk Street and 9 Tuxedo Parkway, dowable it is affirmed as property of which her deceased husband, Robert, had the beneficial seisin in his lifetime.

As to the Norfolk Street tract, the gravamen of the action is a premarital conveyance to the defendant corporation designed to defeat plaintiff's expectation of dower by the fulfillment of their engagement to marry, and thus in fraud of an essential property right. And it is alleged that at the time of his death the deceased had the equitable ownership of the Tuxedo Parkway property within the intendment of R.S. 3:37--1, now N.J.S. 3A:35--1, N.J.S.A.. In the Chancery Division of the Superior Court, the complaint was sustained as to the Tuxedo Parkway premises, but otherwise dismissed for failure of proof of fraud. The dower interest in that property was assessed at $4,094.96. On cross-appeals, the Appellate Division affirmed the dismissal in respect of the Norfolk Street lands as a claim barred by laches, but directed a dismissal also as to the Tuxedo Parkway property as involving an interest relinquished by a release in due form of law. 31 N.J.Super. 80, 106 A.2d 20 (1954).

The case is here by certification at the instance of plaintiff.

I.

Norflk Street:

The contention here is that a voluntary conveyance of real property by one 'who contemplates marriage, made without the knowledge or consent of his intended wife,' is Prima facie a 'fraud against her dower right' in the lands, and the burden is cast on the grantee to 'establish the validity of the deed.' These cases are cited, among others from outside jurisdictions: Smith v. Smith, 6 N.J.Eq. 515 (Ch.1847); Wildeman v. Wildeman, 98 N.J.Eq. 109, 130 A. 717 (Ch.1925). Compare Chandler v. Hollings-worth, 3 Del.Ch. 99 (Ch.1867), distinguishing between actual fraud, such as a representation of ownership made to the intended spouse followed by a secret conveyance, and 'constructive' fraud involving mere nondisclosure of ownership.

The insistence is that in the case at hand there was neither a legal nor an equitable duty owing to the grantee serving to rebut the presumption of fraud upon the betrothed's marital rights; and so the intent to defraud is deducible from the conveyance itself. E.g. Willams v. Carle, 10 N.J.Eq. 543 (E. & A.1856); Champlin v. Champlin, 16 R.I. 314, 15 A. 85 (Sup.Ct.1888); Ward v. Ward, 63 Ohio St. 125, 57 N.E. 1095, 51 L.R.A. 858 (Sup.Ct.1900); Dunbar v. Dunbar, 254 Ill. 281, 98 N.E. 563 (Sup.Ct.1912).

The Chancery Division resolved the issue of fraud against plaintiff. It was there found that 'the reason for the transfer was to give' the grantor Hampton's 'sons the property which was created by virtue of the efforts of the three,' and there was no ground for holding that 'it was done in fraud'; the corporation 'was not formed for the purpose of defrauding plaintiff of dower' in the premises, nor was the conveyance to the corporation made 'for the purpose of depriving' her of dower; and the judgment is defended as well founded in fact and in law. Recourse is had to the general rule that an antenuptial conveyance 'made in good faith' will defeat dower. Frank v. Frank's Inc., 9 N.J. 218, 87 A.2d 724, 32 A.L.R.2d 700 (1952), is deemed apposite. And it is urged that, at all events, relief is barred by laches, the ground taken by the Appellate Division.

The essence of the plea of laches is that plaintiff is chargeable with undue delay in undertaking enforcement of her claim for dower, prejudicial to defendants on the merits; and we shall now consider the reasoning in the context of the factual background offered in support of the plea of inexcusable delay.

The marriage was celebrated June 15, 1939, following an engagement made the prior April 13. Hampton was then 66 or 67 years of age, and his wife, 37. On the intervening April 26 Hampton and his two sons, Robert F. and Charles J., formed the defendant corporation, each taking 20 shares of the capital stock, and on June 7 following the conveyance of the Norfolk Street premises was made to the corporation. It is said that Hampton thereby designed to 'reward' his sons, helpers in his long-established roofing business, 'for their efforts' in establishing a 'successful enterprise,' 'which enabled him to accumulate his estate.' The property thus conveyed was used in part for the operation of the roofing business.

On May 18, 1942 Hampton and his wife entered into articles of separation whereby they 'mutually' waived, released and barred 'themselves of all right of dower or curtesy in and to any and all real property that either now owns or may hereafter own or acquire,' and agreed to execute and deliver good and sufficient releases of dower or curtesy, each to the other, on request, and to join in the execution of 'any deed of any real property now or hereafter owned or acquired by either.' Hampton made an expres 'representation,' 'for the purposes of this agreement,' that 'he now owns only one piece of real estate and that is the home in which both parties presently reside, located at 9 Tuxedo Parkway,' in Newark, 'which premises are free and clear and for which premises' Martha 'will simultaneously with the execution of this agreement release her dower' and execute 'any other instrument in connection with the transfer or conveyance' of the premises as her husband should require. Martha agreed to accept $1,750 'for the release of her dower,' and $3,250 'as a satisfactory, reasonable and just compensation for her future support and maintenance'; and Robert undertook to pay Martha's counsel a fee of $250 for his services in her behalf. The agreement recites that Robert was ready and willing to 'support and maintain' Martha 'as long as she remained his wife,' and he was able, but that Martha had voiced 'her desire' for 'a lump sum of money for her future support and maintenance as well as for her release in dower, and receiving advice of able counsel in her behalf,' they had agreed 'upon what is a reasonable provision' for her support and maintenance. The payments thus provided for were made; and Martha concurrently therewith executed, acknowledged and delivered to her husband a release of her dower interest in the Tuxedo Parkway lands, and joined him in a deed of conveyance of the lands to his son Charles J., who on December 5, 1946, his wife joining, conveyed the premises to the corporation. Martha was represented throughout the proceedings by counsel of her own choosing, of unquestionable capacity, skill and repute.

Robert and Martha lived apart until December 1950, when they became reconciled; and thereafter they cohabited at the Tuxedo Parkway residence until Robert's death on May 29, 1952. This action for dower was brought shortly thereafter. It was alleged that the Norfolk Street conveyance was in fraud of dower, and the release of dower in the Tuxedo Parkway premises was had by duress, coercion and intimidation practiced by her husband and for an inadequate consideration, and the property was held 'to his use,' and so the rightful subject of dower under R.S. 3:37--1. This attack on the validity of the release is not pressed here, a concession that it has no support in the proofs.

The point of undue and prejudicial delay proceeds on the assumption that the separation agreement indicates Martha then had knowledge of the conveyance of the Norfolk Street property, and that on her own admission of knowledge either in January of 1951 or 'the beginning of 1952,' and consultation with counsel at the time, she took no action until after her husband's death. The argument is that 'While plaintiff delayed, decedent died,' and thereby defendants 'lost indispensable evidence to establish a bar--that plaintiff knew of the transfer, when she married decedent, and acquiesced therein.' The principle of Wilkinson v. Sherman, 45 N.J.Eq. 413, 18 A. 228 (Ch.1889), affirmed sub nom. Wilkinson v. Scudder, 47 N.J.Eq. 324, 21 A. 955 (E. & A.1890), is invoked.

But while action during her husband's lifetime would be necessary to preclude the intervening rights of an innocent purchaser for value without notice, Martha had no right of action for dower until the death of her husband. Inchoate dower is an ancient legal attribute of the marriage relation; it arises from a concurrence of beneficial seisin and coverture. R.S. 3:37--1, now N.J.S. 3A:35--1, N.J.S.A. Inchoate right of dower in New Jersey is a 'present fixed and vested valuable interest' of a wife in her husband's estate of inheritance in lands, subject to divestiture by the death of the wife in the lifetime of the husband. Katz v. Farber, 4 N.J. 333, 72 A.2d 862 (1950). Inchoate dower does not become consummate and actionable until the husband's death; but it is nevertheless an interest in property within the protective jurisdiction of equity, even where it is decemed to be a 'mere expectancy or possibility.' In re Cropsey Ave. in City of New York, 268 N.Y. 183, 197 N.E. 189, 101 A.L.R. 694 (Ct.App.1935); Higgins v. Higgins, 219 Ill. 146, 76 N.E. 86 (Sup.Ct.1905). A wife has an action to set aside conveyances made by her husband to defeat her expectation of dower, although not yet vested even as an inchoate right. Bookout v. Bookout, 150 Ind. 63, 49 N.E. 824 (Sup.Ct.1898); Collins v. Collins, 98 Md. 473, 57 A. 597 (Ct.App.1904); Cranson v. Cranson, 4 Mich. 230 (Sup.Ct.1856); Beechley v. Beechley, 134 Iowa 75, 108 N.W. 762, 9 L.R.A.,N.S., 955 (Sup.Ct.1906). See 17 Am.Jur. 764. The...