Jacobson v. Jacobson
| Decision Date | 08 November 1976 |
| Citation | 370 A.2d 65,146 N.J.Super. 491 |
| Parties | Gertrude Ann JACOBSON, Plaintiff, v. Bernard JACOBSON, Defendant. |
| Court | New Jersey Superior Court |
James A. Geller, Caldwell, for plaintiff.
Libby E. Sachar, Plainfield, for defendant.
Pending a divorce action brought by a wife she was killed. Does her death at the hands of the husband abate her claim for equitable distribution of property? This is a novel question presented by the husband's motion to have the divorce action and all her requests for relief abated, contending this court has lost all jurisdiction.
The wife's verified complaint for divorce was based on extreme cruelty. The complaint also prayed for custody, alimony, child support, equitable distribution, counsel fees and costs. There are four children of the marriage; three continue to live in the marital home. The oldest child is in a mental institution. It is nowhere stated whether the commitment was voluntary or involuntary. The papers on file do not indicate that any of the children are emancipated. The husband is in jail charged with the criminal offense.
Divorce, as well as alimony, abates with the death of plaintiff. Sutphen v. Sutphen, 103 N.J.Eq. 203, 142 A. 817 (Ch.1928). These are personal rights and die with her. That part of Sutphen which abated her counsel fees and costs has been overruled by Williams v. Williams, 59 N.J. 229, 234, 281 A.2d 273 (1971). Issues of custody and support of children do not abate, as I will remark upon later. I therefore grant defendant's motion as to the divorce and alimony. I will now speak to the remaining issues.
The parties were married for 24 years. Discovery has not yet been taken. The papers show that, at the least, there is a marital home; a drug store operated by the husband--recently sold with the approval of this court, the net proceeds of which have been ordered held in escrow pending further orders; additional cash amounts, both disclosed and undisclosed, valued in excess of $100,000. The husband does not contend that any of these assets were not acquired during the marriage.
The novel question is whether, by reason of the deceased wife's inability to pursue her divorce action, her estate and her heirs should be deprived of her rightful entitlement to equitable distribution.
The alimony section of the Divorce Act, N.J.S.A. 2A:34--23 provides, among other things:
In all actions Where a judgment of divorce is Entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage. (Emphasis supplied)
The wife's cause of action alleged extreme cruelty. The complaint particularized acts and conduct of the husband which, if true, carried the probability of success if the case had proceeded to final hearing. The complaint was verified. R. 4:79--7 provides that All elements of a claim for divorce or nullity may be proved without corroboration.
Thus, we have before us a verified complaint which presented a Prima facie case for divorce. If the wife had lived and secured her divorce, the court would have dealt with the assets and property of the parties, allocated those in an equitable manner between them and then would have considered the matters of custody, alimony and the rest. This is now impossible, made so by the homicide.
We do not know what will result from the criminal charges presently pending against the husband. If he is found to be innocent of those charges, I would not hesitate to rule that the issue of equitable distribution abated with the death of the wife. The statute, cited above, if paraphrased to read that the court may award equitable distribution Where a divorce is entered would appear to mean that a divorce should be pronounced by the court before equitable distribution is determined. The entry of a divorce is normally the first step taken before equitable distribution comes into play. But, suppose it should develop, in the criminal action against the husband, that the wife's death was not the result of accident or carelessness, but did occur as a result of his intentional act? This disturbs me.
If I were to abate the issue of equitable distribution because the wife is dead, then no equitable distribution takes place because no divorce can be entered. The assets in the name of and held by the husband would remain his, undisturbed. If it should develop that he is responsible for his wife's death, then he would be profiting by his own wrongdoing. The four children of this marriage, the heirs of the wife and the natural objects of her bounty, would thus be deprived of rights which are important property rights to them.
No one should be allowed to profit (from) his own wrong.' This was the law established in this state in Whitney v. Lott, 134 N.J.Eq. 586, 36 A.2d 888 (Ch.1944), announcing the legal principle that the felonious killer of a testator, who inherits under the last will and testament, cannot take; equity impoised a constructive trust on such inheritance in favor of the other rightful heirs. The court invoked the common law principle against permitting one to profit by his own wrong. This ruling was followed in Estate of Kalfus v. Kalfus, 81 N.J.Super. 435, 195 A.2d 903 (Ch. 1963); Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743 (Ch.1967).
In Neiman v. Hurff, 11 N.J. 55, 93 A.2d 345 (1952), the husband had killed his wife and pleaded Non vult to an indictment for second degree murder, for which he was confined. There was an estate by the entirety and jointly held corporate stock. Normally these assets would vest in the survivor. Chief Justice Vanderbilt, speaking for the court, pointed out that the wrongful act of the husband had 'prevented the determination in the natural course of events of whether he or his wife would have survived the wrongdoer.' The husband was estopped from using mortality tables. Equity therefore applied a conclusive presumption, for 'in no other way can complete justice be done and the criminal prevented from profiting through his crime.' This holding was followed in Small v. Rockfield, 66 N.J. 231, 330 A.2d 335 (1974).
It should be noted that if a wrongdoer is convicted of a...
To continue reading
Request your trial
-
Carr v. Carr
...the death of one of the parties. Castonguay v. Castonguay, 166 N.J.Super. 546, 400 A.2d 130 (App.Div.1979); Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65 (Ch.Div.1976); Dunham v. Dunham, 82 N.J.Eq. 395, 89 A. 281 (E. & A.1913). The lower courts held, and the plaintiff concedes, that......
-
B.R.F., In re
...85 N.J.Super. 478, 205 A.2d 316, 322 (N.J.Super.Ct.1964) if the surviving parent is otherwise fit. See Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65, 68 (N.J.Super.Ct.Ch.Div.1976); See also, In Re Elmer's Guardianship, 125 N.J.Eq. 148, 4 A.2d 387, 388 (1939). Moreover, in a child cu......
-
Abrego v. Abrego
...asserting those claims--such statutes are enacted to insulate insurance payments from general creditors.)10 Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65, 65-66 (1976).11 Hirsch v. Hirsch, 519 So.2d 1056, 1056-57 (Fla.Dist.Ct.App.1988).12 Whitman v. Whitman, 430 P.2d 802, 806 (Okla.......
-
C.R. v. J.G.
...208 N.J.Super. 264, 303, 505 A.2d 220 (Law Div.1984). No person should profit by his own wrongdoing. Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65 (Ch.Div.1976). A prerequisite of equitable estoppel is good-faith reliance by one party on the conduct of another to the detriment of th......
-
§ 13.03 Miscellaneous Equitable Distribution Issues
...919 S.W.2d 16 (Mo. App. 1996). [507] Nebraska: Havsen v. Rolenc, 219 Neb. 16, 360 N.W.2d 680 (1985). New Jersey: Jacobsen v. Jacobsen, 146 N.J. Super. 491, 370 A.2d 65 (1976). New York: Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279 (1988); In re Estate of Schwartz, 133 Misc.2d 1064,......