On appeal from the Chancery Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
From a judgment of the Chancery Division of the Superior Court holding that the tavern and apartment at 1371 Springfield Avenue, Irvington, standing in the name of the defendant corporation are subject to the plaintiff's consummate right of dower, the defendants appealed to the Appellate Division of the Superior Court. We certified the appeal on our own motion.
The premises in question were acquired by Joseph Frank, Sr., on December 1, 1926, subject to a mortgage then held by the Perfection Building and Loan Association. In March, 1934, he had an automobile accident which led to the institution of suit against him on August 10, 1934, by Conrad Mahr. On December 15, 1934, Frank formed a corporation known as Joe's Hill Top Tavern, Inc., the stated purposes of which were to engage in the tavern business and to acquire real estate. To it Frank transferred the stock and fixtures of the tavern which he had been conducting on the premises in question and an old automobile in return for seven shares of stock of the corporation. The other incorporators were his son, Anthony Frank, who received one share, and one John Lieb, who held five shares of stock in the corporation. On May 23, 1935, Mahr obtained a judgment against Frank for $6,000, and in October of that year Frank filed a voluntary petition in bankruptcy. In due course he was adjudicated a bankrupt. Among the creditors he listed were Mahr and the building and loan association. In 1936 the building and loan association started foreclosure proceedings against Frank and bid in the mortgaged property at the foreclosure sale. On March 31, 1937, the building and loan association and Joe's Hill Top Tavern, Inc., entered into a contract whereby the building and loan association agreed to sell and Joe's Hill Top Tavern, Inc., agreed to buy the premises in
question for $24,949.81. On April 23, 1937, Frank was discharged in bankruptcy. Frank's marriage to the plaintiff did not take place until September 14, 1938.
On October 4, 1938, $4,949.81 having been paid on account of the contract price pursuant to the terms of the contract, the building and loan association delivered its deed to the premises to Joe's Hill Top Tavern, Inc., simultaneously with the execution and delivery to the building and loan association of a purchase money bond and mortgage for $20,000 executed by the corporation and the individual stockholders. Prior to the delivery of the deed Frank, having acquired all of the outstanding stock of the corporation, transferred one share each to his son, Anthony Frank (now known as Joseph Frank, Jr.), his son Michael Frank and his son-in-law Edward Becker to enable them to qualify as directors. The license to operate the tavern business had always been in the name of Joseph Frank and was owned by him individually until his death in 1950, when it was transferred to the corporation.
In February, 1950, Frank was disabled by a heart attack. He thereupon entered into a contract with his two sons whereby in consideration of his giving them full control of the tavern business and of their assuming all of its obligations and agreeing to support him for the rest of his life, he transferred his stock to them and resigned from the corporation. At this time the name of the corporation was changed to Frank's Inc. The actual transfer of the shares of stock to the sons, however, did not take place until August, 1950, after a judgment had been entered in the Chancery Division of the Superior Court in an action brought by the plaintiff for separate maintenance and after it had been affirmed on appeal, Frank v. Frank, 10 N.J. Super. 73 (App. Div., 1950). The judgment held that Frank had neither abandoned nor separated himself from his wife nor refused or neglected to support her.
Frank died on November 24, 1950. Thereafter the plaintiff brought this action seeking a judgment declaring the
existence of a right of dower in the premises owned by the defendant corporation. The first question litigated in the trial court was whether the plaintiff was in fact the widow of the decedent, the plaintiff before her marriage to the decedent having been the common-law wife of one Albert Minichella, from whom it was believed she had never obtained a divorce. The trial court held that the unexplained absence of Minichella for over ten years prior to her marriage to the decedent led to the presumption of Minichella's death and that therefore the plaintiff's subsequent marriage to Frank was valid. This question as to the plaintiff's status as the decedent's widow has been rendered moot on this appeal because of the fact that following the entry of judgment in the trial court it was discovered that the plaintiff had been divorced from Minichella in 1934 in an action brought by him against her on the grounds of desertion.
The sole question now remaining on this appeal is whether or not the decedent as the plaintiff's husband or another to his use was seized of an estate of inheritance at any time during coverture in the property in question, R.S. 3:37-1, i.e., whether or not the premises in question owned by the defendant corporation are subject to a right of dower in the plaintiff. The trial court entertained doubts as to the plaintiff's right to recover, but believing itself bound by Telis v. Telis, 132 N.J. Eq. 25 (E. & A. 1942), it held that since the corporation was solely owned by Frank in the equitable sense the corporation was a fraudulent attempt on his part to deprive his wife of her right of dower in the property and that therefore the premises were subject to her right of dower.
The case at bar, however, is distinguishable on the facts from the Telis case in several significant respects. In the Telis case the wife asserted an inchoate right of dower in her husband's lifetime; here the widow seeks consummate dower after her husband's death in premises in which she never claimed an interest during his lifetime. Indeed, at one stage of her action for ...