Maas v. Leblanc

• Citation: 137 A. 318,101 N.J.Eq. 167
• Decision Date: 29 April 1927
• Court: New Jersey Court of Chancery
• Parties: CARRIE A. MAAS, complainant, v. JOSEPH LEBLANC and ALBERT HOLLANDER, defendants

137 A. 318

MAAS

v. LEBLANC et al.

Court of Chancery of New Jersey.

May 5, 1927.

(Syllabus by the Court.)

Suit by Carrie A. Maas against Joseph Leblanc and another for specific performance.Decree for complainant.

Charles F. Sexton, of Long Branch, for complainant.

Leber & Ruback, of Newark, for defendants.

BERRY, Vice Chancellor.The complainant, as vendor, seeks the specific performance of a contract for the sale of land to the defendants, as vendees.The sole defense to this action is the alleged unmarket-ability of the title to said land.The alleged defect is that a deed from a substituted trustee under a foreign will to complainant's predecessor in title was executed, delivered, and recorded prior to the filing and recording of an exemplified copy of said will in the office of the surrogate of the county wherein the land lies.The claim of the defendants is that this is an absolute nullity because the recording of such exemplified copy is a prerequisite under our law to any conveyance of lands of the testator in this state.

Jeremiah Curtis died a resident of the state of New York in 1883, seized of lands in this state which are the subject of said contract.His will was duly admitted to probate on April 18, 1883.The executors and trustees appointed by the will were given full power of sale of real estate.On January 30, 1889, Tracy H. Harris was duly appointed by the New York court as substituted trustee under said will, the order of appointment providing that:

"He shall be vested with all the powers which he would have possessed, and shall be required to perform all the duties to which he would have been subject, had he been named sole executor of and trustee under said last will and testament."

On February 28, 1901, Harris, as substituted trustee, executed and acknowledged a deed conveying the said lands to Gustavus Maas.This deed was recorded in the Monmouth county clerk's office on March 4, 1901.A copy of the Curtis will and the order appointing Harris as substituted trustee were exemplified by the surrogate of New York on March 6, 1901, and on March 9, 1901, duly filed and recorded in the office of the surrogate of the county of Monmouth.It is this deed to Gustavus Maas, who is the predecessor in title of the complainant, the validity of which is now questioned.

Defendants claim that the substituted trustee should have submitted the sale and conveyance of the lands in question to the orphans' court of the county of Monmouth for its approval, and cites in support of this contention sections 13and14 of "An act concerning executors, and the administration of intestate's estates."2 C. S. 1910, p. 2262.It is admitted that no such approval was had.These sections of the act referred to relate exclusively to administrators c. t. a., and have no application whatever to the matter here in controversy.

In further support of the defendants' contention that the Harris deed is a nullity, defendants cite section 24 of the Orphans' Court Act(3 C. S. 1910, p. 3821);In re Devine, 62 N. J. Eq. 703, 49 A. 138;In re Carter's Estate(N. J. Err. & App.)88 A. 1085;andOcean View Land Co. v. West Jersey Title Co., 71 N. J. Law, 600, 61 A. 83.

Section 24 of the Orphans' Court Act, above referred to, is in the form in which it existed at the date of the conveyance attacked.Since that time this section has been several times amended, the last amendment being in 1915, and the section as it now stands appears in 2 Cum. Supp. to Compiled Statutes, p. 2605.The amendments are here referred to only because it is therein provided that:

"All conveyances of such real estate heretofore or hereafter made by any * * * substituted trustee * * * shall be as valid as if said will had been admitted to probate and letters testamentary * * * had been issued in this state."

It may well be argued that this enactment by the Legislature subsequent to the date of the Harris deed validates that conveyance, if any defect therein existed.But it is not necessary to base this decision on that argument.There is nothing in the Orphans' Court Act which specifically requires the...