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Brown v. Havens

Decided: January 3, 1952.

J. EDGAR BROWN, EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF ALEELAH E. HAVENS, DECEASED, PLAINTIFF,
v.
WILSON HAVENS, JR., INDIVIDUALLY AND AS EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF WILSON HAVENS, DECEASED, DEFENDANT



Schettino, J.s.c.

Schettino

This case has been submitted on pretrial order, stipulation of facts and briefs.

Plaintiff, as executor and trustee, seeks partition of a leasehold estate and an accounting. Defendant claims sole title to the estate both by the terms of the conveyance and by adverse possession.

This litigation arises out of an anomalous situation, apparently peculiar in this State to the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church. The history of the association will be found in Ocean Grove Camp Meeting Association v. Reeves , 79 N.J.L. 334 (Sup. Ct. 1910). As appears therein, the Association executed numerous indentures purporting to lease parcels of land for 99 years, renewable for a like term of years forever.

The lease from the Association here involved is dated July 6, 1895, and in consideration of $375, leases lot No. 1672 to "Richard M. Firguson, his heirs, executors, administrators and assigns," for 99 years "renewable to the said Richard M. Firguson, his heirs and assigns for a like term of years forever." It provides for the payment "as and for a yearly rent for said demised premises not to exceed seven

per centum of the sum of one hundred fifty ($150.00) dollars at such time or times, in each year of said term as the same may be required by the said party of the first part, or their successors or assigns."

By mesne assignments, Firguson's interest was transferred on January 3, 1925, to "Wilson Havens and Aleelah C. Havens, their executors, administrators and assigns." Wilson and Aleelah were husband and wife and were so described in the recital of consideration paid. Aleelah died on June 7, 1936. Plaintiff is executor and trustee under her will. Wilson did not take under her will, but continued in possession of the premises until his death on January 27, 1949. By his will, the defendant was named sole beneficiary and executor. Defendant continued in possession after Wilson's death.

The first issue is whether Wilson and Aleelah held as tenants in common as plaintiff contends, or as tenants by the entirety as is urged by defendant.

Plaintiff argues that our State does not recognize tenancy by the entirety in personal property and that the leasehold interest in question is personal property.

Plaintiff's initial proposition that tenancy by the entirety in personal property is not recognized in New Jersey, is clearly supported by our cases. Aubry v. Schneider , 69 N.J. Eq. 629 (Ch. 1905), affirmed 70 N.J. Eq. 809 (E. & A. 1906); Central Trust Co. v. Street , 95 N.J. Eq. 278 (E. & A. 1923); Franklin National Bank v. Freile , 116 N.J. Eq. 278 (Ch. 1934), affirmed 117 N.J. Eq. 405 (E. & A. 1935). Whelan v. Conroy , 126 N.J. Eq. 607 (Ch. 1940); Able-Old Hickory B. & L. Ass'n. v. Polansky , 138 N.J. Eq. 232 (Ch. 1946).

The pivotal point is the second step in plaintiff's argument, that the interest in the lands here involved is merely personalty within the purview of the foregoing cases. An estate for years is a chattel real. It is an estate in lands but is less than freehold and ordinarily falls in the category of personal property despite its relation ...


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