Kicey v. Kicey

• Decision Date: 27 September 1933
• Docket Number: No. 170.,170.
• Parties: KICEY et al. v. KICEY et al.
• Court: New Jersey Supreme Court

168 A. 424

KICEY et al.

v. KICEY et al.

No. 170.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1933.

Syllabus by the Court.

1. Chapter 41, P. L. 1926 (Comp. St. Supp. § 57—13b), "A Supplement to an act entitled 'An act directing the descent of real estate,' approved March ninth, one thousand eight hundred and seventy seven," approved March 17, 1926, is effective to pass title to real estate of which a deceased spouse died seized, notwithstanding the property was purchased, during coverture, before the passage of the 1926 statute.

2. Chapter 41, P. L. 1926 (Comp. St. Supp. § 57—13b), is neither restricted nor repealed by chapter 68, P. L. 1927 (Comp. St Supp. §§ 63—1, 63—17), relative to dower.

Appeal from Court of Chancery.

Suit by Sam Kicey and others against Theodore Kicey and others. From a decree (112 N. J. Eq. 459, 164 A. 684), dismissing the bill, complainants appeal.

Affirmed.

Samuel Tartalsky, of Jersey City, for appellants.

Benjamin Heyman and Richard J. Tarrant, both of Jersey City, for respondents.

CASE, Justice.

The appeal is from a decree in chancery, advised by Vice Chancellor Buchanan, dismissing the bill for partition on the ground that it disclosed no title in the complainants.

The complainants, Sam Kicey and Annie Kicey Barna, were a brother and a sister, respectively, of Michael, Kicey, who tiled intestate October 25, 1930, survived by his wife, Mary Kicey, but without issue, and seized of the litigated real property which, during coverture but before the passage of chapter 41, P. L. 1926 (Comp. St. Supp. § 57—13b), he had acquired by purchase. The bill was filed by the complainants as two of the heirs at law of Michael Kicey, deceased. The issue is whether the above-named statute was effective to pass the title in question to the surviving spouse; if it was, then, manifestly, the complainants had no case and the bill was properly dismissed. The statute provides: "Hereafter, when any married person shall die seized of any lands, tenements or hereditaments, in his or her right in fee simple without devising the same in due form of law and without leaving lawful issue but leaving a husband or wife, him or her surviving, then and in that case the said person so surviving, whether it be husband or wife, shall take an entire estate in fee simple in the deceased's lands, tenements or hereditaments; provided, however, this act shall only apply to property of which husband or wife may die seized of, which had been purchased by husband or wife during coverture."

The appellants advance the legal proposition that the statute does not affect property purchased before the enactment of the statute and in support rely upon McGoldrick v. Grebenstein, 108 N. J. Eq. 335, 154 A. 844, a comparatively recent case in the Court of Chancery. Our study brings us to the opposite conclusion. Such indeed is the necessary intendment of the decision In Weyer v. Weyer, 106 N. J. Eq. 112, 150 A. 232, and of our affirmance thereof in 107 N. J. Eq. 593, 154 A. 630; Anderson v. Greenleaf, 165 A. 730, 11 N. J. Misc. 330. It is urged that the Weyer opinion, on that subject, is dictum. Not so. The complainant therein sought to redeem a certain premises and to remove a cloud from the title. Against her right to that relief it was asserted that she had no standing in court because her title depended upon the operation of that statute, and that as her deceased husband had acquired the property before the passage of the act, the legislation, because not retroactive, did not apply. The status of the question is plainly stated in the opinion of Vice Chancellor Church. It was essential to the complainant's case that she should have title. And although the conclusion is not specifically expressed its existence is apparent, particularly in the granting of relief in accordance with the prayer of the bill. A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matters directly decided. Trustees of School District No. 28 v: Stocker, 42 N. J. Law, 115.

Appellants, under the same point, argue upon the effect, on the 1926 statute, of the amendment, chapter 68, P. L. 1927 (Comp. St. Supp. §§ 63—1, 63—17), to the act relative to dower. We are uncertain whether the argument is directed solely against the retroactive effect of the 1926 statute or is intended, in addition, to urge that that act was, by implication, repealed in whole or in part by the later; enactment. Nevertheless we state our view, applicable to either contention, that the 1926 statute is in no way affected by chapter 68, P. L. 1927. The descent legislation and the dower and curtesy legislation are neither interdependent nor related. Reese v. Stires, 87 N. J. Eq. 32, 103 A. 679. Chapters 253 and 254, P. Laws 1927 (Comp. St. Supp. § 63— 25a and § 63—34b), are merely declaratory of that which was the law without them. The inherently different legal principles involved are nicely described by Vice Chancellor Buchanan in the opinion below: "Such estates or interests [viz. of dower or curtesy], even though inchoate, are nevertheless vested interests. Reese v. Stires, 87 N. J. Eq. 32, at page 35, 103 A. 679. They cannot be defeated or impaired by conveyance or devise by the owner of the fee; neither can they be enlarged nor diminished by the Legislature. Walker v. Bennett, 107 N. J. Eq. 151, 152 A. 9 (curtesy); Gerhardt v. Sullivan, 107 N. J. Eq. 374, 152 A. 663 (dower). The same...