Horton v. Horton

• Decision Date: 23 November 1948
• Docket Number: No. 147/10.,147/10.
• Parties: HORTON v. HORTON et al.
• Court: New Jersey Superior Court

62 A.2d 503

HORTON

v.HORTON et al.

No. 147/10.

Superior Court of New JerseyChancery Division.

Nov. 23, 1948.

Syllabus by the Court.

1. Where, two days before his death, decedent and his wife executed an agreement to sell and convey certain real estate, owned by the decedent, and after his death title was conveyed pursuant to the agreement and the grantees paid the consideration, the proceeds of sale became part of decedent's personal estate by virtue of equitable conversion.

2. Courts are disposed to consider legacies and devises as general or demonstrative, if the will admits of such construction.

3. The test of equitable conversion is whether or not the contract is capable of enforcement by specific performance.

4. Where an agreement was contingent upon the ability of the purchaser to procure a mortgage, and subsequently the purchaser secured such mortgage and performed the agreement, it is no argument that the contract was not capable of specific performance, for lack of mutuality.

5. In a contract for the sale of realty, when the contingency or condition is met, the conversion, as between those claiming under the will, relates back to the time of execution of the contract.

Suit by Lester Horton, executor of and trustee under the last will and testament of Harry Horton, deceased, against Hazel Ruth Horton and others for the construction of the deceased's will.

Judgment in accordance with opinion.

Bernard A. Reilly, of Newark, for plaintiff.

Louis P. Brenner, of Jersey City, for defendant, Hazel Ruth Horton.

David Hilowitz, of Bloomfield, for defendant, Judith Horton.

FREUND, Judge.

The complaint was filed by Lester Horton, sole executor and trustee under the last will and testament of Harry Horton, deceased, his father, for construction of decedent's will with respect to three items.

Under Paragraph 2 of the will, the testator devised ‘all my real estate wheresoever situate, and all interest therein, of which I shall die seized and possessed, or to which, at the time of my death, I may be or become entitled, unto my son, Lester Horton, as trustee, to have and to hold the same upon the following trust’: to pay one-half of the net income from the said real estate to his wife, Hazel Ruth Horton, for life, and the other one-half unto his three children in equal shares until the sale of said real estate as provided in said will. Upon the death of his wife, the trustee was to pay all of the income to decedent's children until a sale of the real estate, whereupon the proceeds were to be divided equally among them.

Under the third paragraph of the will, the testator gave, devised and bequeathed his residuary estate to his wife absolutely. The will made provisions for disposition of the estate in the event his wife predeceased him, but these and other provisions are not pertinent.

At the time the testator executed his will, he was the owner of two parcels of real estate, one commonly known as No. 523 Watchung Avenue, Bloomfield, N.J., hereinafter referred to as the Bloomfield property, and the other commonly known as Nos. 231-235 South Street, Newark, N.J. Two days before his death, decedent and his wife executed an agreement to sell and convey the Bloomfield property. After his death, pursuant to the contract, the title was conveyed to the grantees therein named, who paid the consideration to the plaintiff, who now seeks instructions with respect to the disposition of the purchase price as between decedent's widow and his three children.

The question is whether there was an equitable conversion. It is quite clear that the testator made a general devise of his real estate in trust to his trustee and a general bequest of his personal property to his widow. Courts are disposed to consider legacies and devises as general or demonstrative, if the will admits of such construction. In re Cooper, Err. & App.1923, 95 N.J.Eq. 210, 123 A. 45, 30 A.L.R. 673; Patanska v. Kuznia, Ch. 1928, 102 N.J.Eq. 408, 141 A. 88, affirmed Err. & App.1929, 104 N.J.Eq. 203, 145 A. 921; Byrne v. Byrne, Ch.1938, 123 N.J.Eq. 6, 195 A. 848, affirmed Err. & App.1938, 124 N.J.Eq. 273, 1 A.2d 464; First National Bank v. Levy, Ch.1938, 123 N.J.Eq. 21, 195 A. 820; Id., Ch.1939, 126 N.J.Eq. 493, 9 A.2d 789, affirmed Err. & App.1941, 130 N.J.Eq. 220, 21 A.2d 788; Camden Trust Co. v. Cramer, Err. & App.1945, 136 N.J.Eq. 261, 40 A.2d 601.

The settled rule of law is declared in Haughwout v. Murphy, Err. & App.1871, 22 N.J.Eq. 531, as follows: ‘In equity, upon an agreement for the sale of lands, the contract is regarded, for most purposes, as if specifically executed. The purchaser becomes the equitable owner of the lands, and the vendor, of the purchase price. After the contract, the vendor is the trustee of the legal estate for the vendee. * * * Before the contract is executed by conveyance, the lands are devisable by the vendee and descendible to his heirs as real estate; and the personal...