Lampros v. Tenore, 158/540.

• Decision Date: 21 June 1948
• Docket Number: 158/540.
• Citation: 60 A.2d 80
• Parties: LAMPROS v. TENORE et al.
• Court: New Jersey Court of Chancery

60 A.2d 80

LAMPROS

v.TENORE et al.

158/540.

Court of Chancery of New Jersey.

June 21, 1948.

Suit by Nick Lampros against Louis Tenore and another involving question as to whether defendants were able to convey a marketable title to certain lands. On motion to strike complaint.

Motion denied in accordance with opinion.

Syllabus by the Court

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1. Testator directed that upon termination of a preceding estate, property should be divided among testator's children. And in the event of the death of any of them, his share should be divided among his issue. Held, that the issue take in the event of the death of a child before the termination of the particular estate.

2. Testator's children conveyed to their mother, testator's widow. The life estate does not merge in the remainder so that the contingent interests of the grandchildren are cut off.

3. The widow conveyed to T for a consideration equal to the full value of the land and all interests therein. Thereafter the executors, namely, the widow and two of the children, acting under a power of sale contained in the will, again conveyed to T so as to cut off the contingent remainders. The statement in the executors' deed that the consideration was $1 and other valuable considerations, puts any purchaser to inquiry as to the actual consideration.

4. No consideration was paid for the executors' deed inasmuch as full value had already been paid to the widow. If she holds the purchase price as part of her husband's estate, recognizing that her grandchildren have a contingent interest therein under his will, then the consideration which was paid her supports the executors' deed and the grandchildren's interest in the land is cut off effectively, even though the fund to which their interest has been transferred should hereafter be dissipated.

5. Still T's title is not at present marketable for it rests on facts outside of public record which a vendee might have difficulty in establishing.

Adam J. Rossbach, of Newark, for complainant.

Giuliano & Giuliano, of Newark, for defendants.

BIGELOW, Vice Chancellor.

The question is whether the defendants are able to convey a marketable title to certain lands in East Orange. They trace their title through the will of Morris Guttman, who died in 1925. He gave and devised all his property to his wife for life, or until she shall remarry. Upon her decease or remarriage, the estate shall be divided equally among testator's children, except that those children who shall, at such time, be without lawful issue, shall receive only the income of their shares for life, and at their death their shares shall go to the other children. But if such child shall later have lawful issue, then he shall receive his share. ‘The equal undivided share of any of my children shall, in the event of the death of any of them, be divided in equal shares among his or her surviving lawful issue.’ The executors are given broad power to sell real estate.

By the will, Guttman's children, as as a class, took a vested estate in remainder after the death or remarriage of their mother, but this remainder was subject to divestment by death before the termination of her estate. In the event the child so dying should leave issue, his share will go to the issue. The defendants argue that the clause substituting issue in the place of a child of testator, refers to the death of the child in the lifetime of his father. I am satisfied that this is not the correct interpretation of the will and that the issue take in the event of the death of the child before the termination of the particular estate. Schmieder v. Meyer, 97 N.J.Eq. 335, 127 A. 162.

Testator's children, in 1932, conveyed the premises in question to their mother, testator's widow, by deed of warranty. Mrs. Guttman, under the will...