On appeal from the Superior Court, Chancery Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J.
This is an appeal taken to the Appellate Division, but certified here on our own motion, from a judgment of the Superior Court, Chancery Division, Camden County, with respect to the title of a one-half interest in property located in Camden County.
Plaintiff is the widow of Major Ralph C. Alburger who died March 8, 1945, a resident of Camden County. By the terms of his will she was named executrix and his chief beneficiary. The defendant Helyn A. Crane is Major Alburger's sister and co-executrix with him of the estate of their mother, Lena Alburger, who died March 11, 1940. The defendant Charles Furbush Montague, Jr., is the son of the defendant Helyn A. Crane. The plaintiff married Major Alburger in 1925 but separated from him in 1934.
Lena Alburger by her last will devised all her property, including the real estate here in question, to her two children, Major Alburger and the defendant Helyn A. Crane, share and share alike and appointed them executor and executrix respectively. The will specifically provided: "Said executor and executrix or the survivor of them, to have power to sell at public or private sale all or any part of any personal property or real estate in which I may have any interest, and to execute bills of sale, deed or deeds therefor, and to do all
other lawful things to carry out this my last will and testament and to serve without giving bond."
On several occasions Major Alburger, who was residing out of the State, wrote to the defendant expressing his desire to renounce any interest in the estate in order to prevent his wife from acquiring any right thereto and so that his sister and her son would have the sole title to the real estate in question. He renounced his executorship August 8, 1940.
Under date of August 28, 1940, the defendant, as executrix of her mother's estate, conveyed the premises to one Alfred W. Roberts, an admitted straw man, who, at the same time, reconveyed the premises to her as "trustee" for her son who was at that time a minor. The transfers were by ordinary bargain and sale deeds and the transactions were admittedly gratuitous, no monetary consideration passing.
A reconciliation between Major Alburger and his wife was effected in September, 1944, which continued until the time of his death.
This action was instituted by plaintiff as executrix of her husband's estate and in her own right for the purpose, inter alia, of having set aside the conveyance made by Helyn A. Crane to Roberts and by him back to her as "trustee" of the title to the one-half interest of the property which had been left to the defendant and the plaintiff's husband.
The court below refused to set aside the conveyances but ordered an accounting of the rents and profits of the property from the date of Major Alburger's death and held the lands in question subject to the plaintiff's dower interest. It is from the denial of her claim to any interest in the property other than dower that a reversal of the judgment below is sought.
The argument made by appellant is that the conveyances were legally invalid and void, and that the power of sale contained in the mother's will did not ...