Thomas v. Thomas

• Citation: 28 A.2d 540,20 N.J.Misc. 419
• Decision Date: 19 October 1942
• Docket Number: 149/155.
• Parties: THOMAS et al. v. THOMAS et al.
• Court: New Jersey Court of Chancery

28 A.2d 540

20 N.J.Misc. 419

THOMAS et al.

v. THOMAS et al.

149/155.

Court of Chancery of New Jersey.

Oct. 19, 1942.

Suit by Martha Thomas and another against Walter Thomas and others for an accounting and to obtain appointment of substituted administrator in the estate of Emilie Wallen, deceased. On defendants' motion to strike the bill of complaint. Motion granted.

Harvey Bein, of Union City (James Rosen, of Union City, of counsel), for the motion.

Vincent M. Rieman, of Union City (Cyril J. McCauley, of Union City, of counsel), for complainants.

FIELDER, Vice Chancellor.

The bill leaves much to inference and presumption, as well as to imagination. It can be inferred from its allegations that Emilie Wallen died intestate December 2, 1941, leaving as her next of kin her four children, Martha Thomas, Rose Yow, Walter Thomas and Rudolph Thomas (the first two of whom are complainants and the last two are defendants, together with Bertha Thomas, wife of Walter Thomas), and that letters of administration were granted on decedent's estate to said Walter Thomas by the surrogate of Hudson county.

The bill alleges that at her death decedent owned (a) a first mortgage of $3,000 on 62nd St. property, which property was owned by Walter Thomas; (b) a second mortgage of $2,000 on Nelson Ave. property, which property was also owned by Walter Thomas and which mortgage was subject to a first mortgage of $3,500 held by Rudolph Thomas; (c) a claim of $500 against Walter Thomas for money loaned; that Walter and Rudolph Thomas fraudulently obtained from complainants satisfaction of said mortgages and divers other agreements (not named) and renunciation of right to administration, bond, mortgage and deed, with intent to defraud them of their interests in the estate of decedent by promising both complainants on or about December 23, 1941, that Martha Thomas "could live rent free for the rest of her life" in the Nelson Ave. property, if complainants would sign certain papers to effect such purpose, whereupon complainants signed an agreement, a copy of which is annexed to the bill and made part thereof, dated December 23, 1941; that relying on the aforesaid promise made by Walter and Rudolph Thomas, complainants executed (a) renunciations (not mentioned in the agreement) of their right of administration in favor of Walter Thomas; (b) satisfaction dated January 3, 1942, of the $3,000 first mortgage on 62nd St. property; (c) satisfaction of same date of the $2,000 second mortgage on Nelson Ave. property. (Both according to the terms of the agreement).

The complainants do not claim that they executed the agreement or performed acts thereunder without fully understanding what they were doing, or that they were induced to execute the agreement and the documents therein mentioned, by misrepresentation as to their effect on complainants' rights and interests. The sole complaint is that they were induced to execute it because of a certain promise made to them by Walter and Rudolph Thomas. The agreement presumably contains the entire terms concerning the manner of settlement of decedent's estate then agreed on, and it is absolutely silent as to the claimed right of Martha Thomas to live in the Nelson Ave. property rent free for her life. Complainants seek to add, by oral testimony, a further provision or condition to those definitely stated without alleging that such provision was omitted by defendants' fraud or by mistake of the parties.

The agreement provides that Walter Thomas and wife will convey the Nelson Ave. property to Martha Thomas, and it is to be inferred from various allegations of the bill that such conveyance was duly made. If Walter and Rudolph Thomas had theretofore orally promised complainants that Martha Thomas could have free occupancy of that property for her life, and whether or not the promise was enforceable under the statute of frauds (R.S.25:1-1, N.J.S.A. 25:1-1), that conveyance was performance of their promise so far as said defendants could possibly perform, and thereafter whether Martha Thomas occupied said property for her life was dependent solely on her own acts.

The agreement further provides that after Martha Thomas shall have taken title to the Nelson Ave. property, Rudolph Thomas will advance all necessary money required to pay all just debts and expenses of decedent's estate and that Martha Thomas will execute to him a bond and first mortgage thereon in the sum of $3,500, "plus the additional sum of money to be determined, which the said Rudolph Thomas will expend in payment of the debts of decedent." Despite her claim for a life interest in the Nelson Ave. property by virtue of a promise to which Rudolph Thomas was a party, Martha Thomas executed to him a mortgage thereon, dated January 5, 1942, for $4,900 without reservation of her claimed interest in the mortgaged premises. That mortgage was in the nature of an absolute conveyance of her entire interest in said property subject only to her right of redemption.

The bill further alleges that by deed dated January 7, 1942, Martha Thomas conveyed the Nelson Ave. property to Rudolph Thomas free and clear of encumbrances. The agreement annexed to the bill does not call for the execution of such a deed and the reason for its execution, or the circumstances under which it was executed, are not stated in the bill. The next succeeding paragraph thereof contains the allegation that the defendants procured the execution of "said papers" by complainants, by fraud and deceit in that they lied when they said that as a result thereof Martha Thomas would be able to live rent free for the rest of her life in the Nelson Ave. property, and that they have failed to keep such promise. If by "said papers" complainants intend to include the deed from Martha Thomas to Rudolph Thomas, I consider this allegation of a promise to be merely a reiteration of the charge that such promise was made December 23, 1941, because there is no allegation that a new promise was made January 7, 1942, when Martha Thomas by her deed conveyed away her entire interest in the property without reservation. The bill further alleges that complainants are informed and believe that Rudolph Thomas sold the Nelson Ave. property July 8, 1942, to an innocent purchaser for $4,500 cash.

The prayers of the bill are that an account be taken of the amounts due complainants from the estate of decedent and that defendants be decreed to pay such sums; that Walter Thomas be ordered to resign as administrator of the estate in favor of a substituted administrator appointed by this court; that Rudolph Thomas be ordered to pay complainants their share of the proceeds of sale of the Nelson Ave. property; that Walter and Bertha...