Mcgeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
Plaintiff, Hilda Ratti, appeals from a judgment of the Superior Court, Chancery Division, dismissing her complaint, wherein she sought to set aside the deed and release executed by her to her brother and a mortgage made by him to her, in connection with the settlement of the estate of her father, John Ratti, Sr. We find no error in the Chancery Division's determination.
John Ratti, Sr., died testate in 1937, leaving him surviving three children; Hilda Ratti, John Ratti, Jr., and Irene Ratti. Another daughter, Marion, had predeceased her father. Under the terms of his will dated February 11, 1931, John Ratti, Jr., was named executor thereof and was bequeathed and devised a one-half interest in his estate, his daughters, Hilda Ratti, the plaintiff, and Marion Ratti, each a one-quarter interest therein. The share of Marion, who was unmarried at the time of her death, became vested in Hilda Ratti, John Ratti, Jr., and Irene (hereinafter referred to as Hilda, John and Irene, respectively). As a result of extended negotiations between the parties, a settlement was agreed upon without a formal accounting by defendant as executor, whereby defendant's "Statement of Settlement" was approved and plaintiff and Irene Ratti executed and delivered to John an assignment of their interests in the estate, conveyances for their respective shares in the real estate, and a release discharging him as executor.
Plaintiff contends (1) that the subject of the transfer was trust property under defendant's control as trustee and his acquisition thereof was void; (2) that the alleged conveyances were procured by fraudulent misrepresentations as to the value and extent of the trust estate and the trial court's finding that the defendant did not commit fraud was palpably against the weight of the evidence; and (3) that she did not have independent legal advice "in the specific deal here involved." Defendant disputes plaintiff's allegations.
The only assets comprising decedent's estate were a bank account of $8.84 and two parcels of real estate, one a business property known as 5 West Main Street and the other the
family home known as 20 Hudson Street, both in Freehold, New Jersey. The business property was subject to a mortgage in the sum of $15,000 and the home to a mortgage of $4,000. The mortgage on the business property was in default and under foreclosure proceedings. Defendant's efforts to refinance the mortgage hinged upon settlement of the estate. $35,000 was agreed upon by the parties as the value of all of the real estate and John agreed to buy or sell on that basis. The plaintiff and Irene each agreed to sell and to accept a mortgage on the business property in satisfaction of their distributive shares. The settlement agreement was executed on January 27, 1939, in pursuance of which plaintiff and her sister, Irene, executed an assignment of their distributive shares of the estate, a deed for their interests in the real estate to John, a release and discharge to defendant as executor and an agreement subordinating their mortgages to the mortgage about to be placed for the purpose of refinancing the mortgage under foreclosure. Subsequently, on May 13, 1939, the mortgage was again refinanced and plaintiff, in compliance with her previous agreement, again executed a subordination agreement with respect to her mortgage. Payments were made by John on account of interest on the mortgage held by the plaintiff.
The trial court found that defendant had not misrepresented the value of the estate to the plaintiff; that she had accurate information concerning same; that she had retained an attorney to represent her; that he had apprised her of the facts; that the vital and material facts relied upon by plaintiff were untruthfully related by her and that the defendant did not violate any fiduciary duty or obligation in connection with the settlement agreed upon by the parties and the transactions consummating same.
The controversy also involved the ownership of a retail candy business which plaintiff alleged that John fraudulently claimed as his sole property, but which, she asserted, was owned by testator at his death. Plaintiff failed utterly to support her contention with any competent proof and we concur in the trial court's conclusion that, under the evidence,
John was the sole owner and operator of this business and had been for several years prior to the death of his father. With respect to this phase of the controversy, we quote with approval the trial court's comment: "A more detailed recital upon which this finding is predicated is unnecessary."
The real estate, of which decedent died seized, was devised by him to his children: John Ratti, Jr., Hilda A. Ratti and Marion Ratti. It is a well settled principle of law that title to realty vests in the heirs at law or devisees of decedent upon his death and not in the executor. McTamney v. McTamney , 138 N.J. Eq. 28 (Ch. 1946). We find no merit in plaintiff's contention that the real estate was trust property, and as such, under control of the defendant as executor.
We have carefully examined the record and fail to find any proof of fraud or misrepresentation on the part of the defendant. The questioned transactions represented a family settlement of the estate and the evidence establishes that its consummation was the result of negotiations extending over a lengthy period of time; that during the negotiations plaintiff retained independent counsel to advise her; that she received the statements of accounting and settlement from her brother and notification as to the time fixed for settlement and execution of necessary instruments to effectuate it; that she appeared at the settlement, examined the necessary documents and, after an explanation of the content and purpose thereof, duly executed them. A recital of the following excerpts of ...