Telis v. Telis

• Decision Date: 14 May 1942
• Docket Number: No. 231.,231.
• Citation: 26 A.2d 249,132 N.J.Eq. 25
• Parties: TELIS v. TELIS et al.
• Court: New Jersey Supreme Court

26 A.2d 249

132 N.J.Eq. 25

TELIS

v. TELIS et al.

No. 231.

Court of Errors and Appeals of New Jersey.

May 14, 1942.

Appeal from Court of Chancery.

Suit by Sophie Telis against Jacob Telis and Telise's Bargain Store to attach an inchoate right of dower to real estate held by corporate defendant. From an adverse decree, complainant appeals.

Reversed and remanded.

Altman & Backer, of Atlantic City, for appellant.

William Charlton, of Atlantic City, for respondents.

PERSKIE, Justice.

The question for decision in this cause, between husband and wife, is whether the Advisory Master erred in advising a decree dismissing that part of the wife's bill which sought to attach an inchoate right of dower to certain real estate, legal title to which was in a corporation formed by the husband for the alleged purpose of defrauding the wife and depriving her of her right of dower in and to the realty.

The bill of complaint filed by the wife sets forth two causes of action. The first cause of action was for support and maintenance. After hearing, an order was entered directing the payment by the husband of $15 a week to the wife. This order is not here challenged.

The second cause of action was predicated upon allegations that the husband caused real estate located at 223 South Connecticut Avenue, in Atlantic City, to be purchased in the name of a corporation owned and wholly controlled by him, solely for the purpose of defrauding his wife of her dower right in and to that real estate. Although at the hearing the husband offered to convey the property to his wife, he apparently suffered a change of heart and refused to carry out his promise. The Advisory Master then advised a decree dismissing this cause of action upon the ground that the proofs failed to disclose that any fraud was perpetrated. The wife has appealed from this decree.

Notwithstanding that there is considerable dispute over the legal effect of the proofs, the basic facts are, in the main, uncontradicted. The parties were married in New York in 1921. Two children were born of the marriage, a boy now nineteen years old and a girl now twelve years of age. The former is an invalid as a result of paralysis. Shortly after the marriage, the husband commenced periodically to disappear, on several occasions taking European trips. The husband deserted his wife in New York in 1933 and did not reappear until April of 1937 when he called upon her to take her to Atlantic City to show her a store he was operating there. During the interval of his desertion, he failed to provide for his wife and children. From 1937, he contributed $40 a month for their support during the winter months. In the summer months they lived in one room, provided by the husband, in a rooming house in Atlantic City. They largely depended for sustenance, raiment and medical care upon the efforts of the wife and the charity of her friends and relatives.

On March 20, 1939, the husband formed a corporation called Telise's Bargain Store and thereafter operated his business under that corporate name. The certificate of incorporation was filed in the county clerk's office on March 22, 1939 but it does not appear when, if ever, the certificate was filed with the Secretary of State. One hundred shares of stock were purportedly issued, 98 to the husband, one to his son and one to Sarah Steinmetz. These shares, however, were never delivered to the owners but were retained by the husband, respondent herein. Approximately eight months later, on November 6, 1939, the corporation entered into an agreement to purchase the aforesaid property, and on December 28, 1939 a deed to this property was delivered to the corporation. The purchase price was $4,400 of which sum respondent paid in cash $1,331.41, the balance, exclusive of settlement charges, being secured by a purchase money mortgage apparently executed by the corporation. It is against this property in the name of "Telise's Bargain Store" that the wife sought to attach her inchoate right of dower. It appears that the corporation is about to sell this property but the parties have stipulated that in the event of sale the proceeds will be left in escrow pending the outcome of this appeal.

We mark, at the outset, that under certain circumstances, chancery has secured to a wife her inchoate right of dower in lands held by another to the use of her husband. Thus, for example, where a husband purchased property with his own funds, but took title in the name of his brother solely for the purpose of depriving his wife of her inchoate dower interest, it has been held that the wife may, by bill, secure her inchoate right of dower in order to prevent the legal title to the realty from passing to an innocent purchaser for value free and clear of that right. Brown v. Brown, 82 N.J.Eq. 40, 88 A. 186. And our courts have afforded a wife similar relief where a husband by fraud, and in furtherance of his desire to deprive his wife of her dower right, procured his wife's signature on a conveyance to a corporation. Nemeth v. Nemeth, 104 N.J.Eq. 603, 146 A. 470. The foundation for this relief lies in the provisions of our dower statute (N. J.S.A. 3:37-1) which entitled a wife to dower under certain circumstances, in real estate, "whereof her husband, or another to his use", was seized of an "estate of inheritance". (Italics...