Nazzaro v. Neeld, A--7

• Decision Date: 05 February 1952
• Docket Number: No. A--7,A--7
• Citation: 18 N.J.Super. 56,86 A.2d 688
• Parties: NAZZARO et al. v. NEELD. In re NAZZARO'S ESTATE.
• Court: New Jersey Superior Court — Appellate Division

Page 56

18 N.J.Super. 56

86 A.2d 688

NAZZARO et al. v. NEELD In re NAZZARO'S ESTATE.

No. A--7.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 14, 1952.

Decided Feb. 5, 1952.

Paul Rittenberg, Paterson, argued the cause for appellants (Shavick, Rittenberg & Shavick, Paterson, attorneys).

William A. Moore, Deputy Atty. Gen., argued the cause for respondent (Theodore D. Parsons, Atty, Gen., of New Jersey).

Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

One Domenico Antonio Nazzaro, more generally known as Anthony Nazzaro, a resident of Little Falls, in the County of Passaic, died testate on June 1, 1949, at the age of 68 years. He was survived by a widow, sons, daughters and grandchildren, and also by a former wife from whom he was divorced on April 28, 1933. The decree of divorce embodied provisions by way of alimony for the former wife's support and maintenance.

On April 8, 1941, the decedent executed a trust indenture which contains the following introductory recitals:

'Whereas, certain orders heretofore entered in the Court of Chancery of New Jersey on the 28th day of April, 1933, and the 23rd day of April, 1938, provide for the payment of alimony by the party of the second part to the party of the first part, and provide for security for the payment of the said alimony as more fully set forth in said orders; and

'Whereas, it was agreed that the said orders be modified in accordance with the terms and provisions of a proposed order about to be entered in the Court of Chancery of New Jersey, a copy of which order is annexed hereto and made a part hereof 'Now, Therefore, for and in consideration of the sum of One ($1.00) Dollar, and other good and valuable consideration, and pursuant to the provisions of the order hereinabove described, the parties hereto do hereby agree as follows.'

The parties to the agreement were the decedent and his divorced wife, Eugenia DeGise Nazzaro. A quotation of certain selected paragraphs of the agreement will exhibit the characteristics of the trust which are of present pertinency:

'First: The party of the second part agrees to make payment to the party of the first part of the sum of Five Hundred fifty ($550.00) Dollars per month, payable on or before the 10th day of each and every month, commencing with the 10th day of April, 1941, as provided in said proposed order.

'Second: The parties hereto do hereby agree to carry out the terms and provisions of said proposed order and of this agreement, which makes said proposed order a part hereof.

'Fourth: It is understood and agreed by and between the parties hereto, that the said Domenico Antonio Nazzaro and the Trustees appointed pursuant to an agreement dated April 23, 1938, shall transfer and convey to the said Eugenia DeGise Nazzaro, in fee simple, the property known as the 'Anthony Nazzaro Homestead,' at #478 Doremus Avenue, in the Borough of Glen Rock, in the County of Bergen and State of New Jersey; and that the said Domenico Antonio Nazzaro shall transfer all, his right, title and interest in and to the household furniture, fixtures and personal property in and about the said premises above described to the said Eugenia DeGise Nazzaro, her heirs, executors, administrators and assigns.

'Fifth: It is understood and agreed that in the event of the death of the said Domenico Antonio Nazzaro, the said Trustees or the survivor or survivors of them, shall pay to Eugenia DeGise Nazzaro, out of the said trust, as aforesaid, the sum of Five hundred fifty ($550.00) Dollars per month.'

The decedent transferred and assigned to the trustees a Corpus of three mortgages having a face value of $26,000, and a parcel of real estate appraised at $75,000, under the following terms:

'(a) That the income and interest on said mortgages, totalling Twenty-six thousand ($26,000.00) Dollars, as aforesaid, and the income and profits from the aforesaid real estate, shall be paid over to the said Domenico Antonio Nazzaro, the party of the second part herein provided that he carries out the terms and provisions of the aforesaid proposed order and pays to the said Eugenia DeGise Nazzaro the sum of Five Hundred fifty ($550.00) Dollars per month during the term of her natural life.

'(b) That upon the death of the said Eugenia DeGise Nazzaro, the Petitioner herein, the Trust aforesaid, consisting of the said mortgages or such other substituted securities, together with said real estate, shall be liquidated and converted into cash in such manner as the said Trustees, or the survivor or survivors of them, in their opinion decide is the most beneficial method of liquidation, and that the proceeds thereof and the said Trust shall be divided and distributed in the following manner.'

The beneficiaries of the remainder of the trust are children and grandchildren of the dissolved marriage. The terms of the trust agreement were incorporated in a consent order dated April 9, 1941, and filed in the matrimonial action in the Court of Chancery.

It is acknowledged that the decedent thereafter paid the stipulated alimony and received the entire income from all of the Corpus of the trust, appropriating also the sum of $18,572.56 which constituted payments made in reduction of the principal of the three mortgages.

The Deputy Director, acting as the Director of the Division of Taxation, Department of the Treasury, resolved that the transfer...