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October 27, 1952

115.128 ACRES OF LAND, MORE OR LESS, IN NEWARK, N.J., et al. Claim of WARD

The opinion of the court was delivered by: FAKE

Issue is joined here as to the proper distribution of certain funds arising in the above entitled condemnation proceedings. The City of Newark claims that it was the owner in fee of a certain parcel of land when taken by the United States, and the claimant, Marjorie Ward, contends that she was a tenant in common, holding a one-fourth interest, with the City in the said parcel.

The pertinent facts bearing upon the record title are as follows:

 The father of the claimant, one Frederic W. Ward, died on April 6, 1899, the sole owner of a tract of land containing 11.29 acres. We are here concerned primarily with 3.11 acres carved out of the original tract. He left surviving, his widow, and four children, the youngest, Marjorie, being the claimant herein. The said Frederic Ward left a last will and testament under the terms of which he devised and bequeathed his entire estate to his widow and appointed her the sole executrix thereof. The will was dated December 31, 1897, and the claimant Marjorie, was born thereafter on September 2, 1898. Her claim here is that her father dies intestate, so far as she was concerned, and by virtue of the statutory and case law on the subject, she became seized of a one-fourth interest in the parcel in question upon her father's death. By stipulation between the parties, the value of said interest is fixed at $ 19,332.

 The law as it was at the time of Ward's death is considered in an opinion by the late Vice-Chancellor Pitney, in Van Wickle v. Van Wickle, 59 N.J.eq. 317, 44 A. 877. He quotes from 3 Gen.St.p. 3760, Sec. 19 (now N.J.S. 3A:3-11), as follows:

 'That if a testator having a child or children born at the time of making and publishing his last will and testament, shall at his death, leave a child or children born after the making and publishing of his said last will and testament, * * * the child or children so after-born, * * * if neither provided for by any settlement nor disinherited by the said testator, shall succeed to the same portion of the father's estate, as such child or children or descendants as aforesaid would have been entitled to, if the father had died intestate; * * * .'

 The will of Frederic W. Ward was probated on April 17, 1899.

 On October 6, the widow, Jessie O. Ward, purported to convey the entire parcel, above mentioned, in fee to one James Smith, Jr. Apparently, upon the face of this transaction, the estate of the after-born child, Marjorie, was completely overlooked.

 Thereafter, on February 28, 1903, the executrix, Jessie O. Ward, petitioned the Essex County Orphans Court to have the estate of the said Frederic W. Ward declared insolvent. Upon an accounting and a proper showing, a decree of insolvency was entered on May 18, 1903. Following due notice to all parties in interest, except the claimant herein, a decree was entered showing assets of $ 19,727.44, and liabilities of $ 50,014.29. No exceptions were taken to the accounting. The decree then provided for the sale of lands to pay decedent's debts. In her final account, the executrix shows that some 8 parcels of land were left by decedent at his death, only 7 of which were sold, however, pursuant to the authority to sell to pay debts. She accounts for the premises in question, being the tract sold to Smith, not by an authorized sale, but by turning in the net consideration price she had received from her sale of the same to Smith; to wit, $ 1,874.38.

 It is noted that during all these proceedings, the claimant, Marjorie Ward, was an infant. No notice to her, either actual or constructive, is shown, and no guardian was appointed to represent her. She did not become 21 years of age until September 2, 1919.

 Nothing in the foregoing probate proceedings, however, resulted in divesting the title which came to her upon her father's death. Nor, can these proceedings be collaterally attacked, or opened up to take claimant's estate for the creditors. The lapse of time and statutory limitations prevent this.

 In December, 1911, the City of Newark instituted condemnation proceedings against the premises in question, together with other property. In these proceedings, Smith was made a party and dealt with as though he was the owner in severalty of the tract mentioned. Not having been made a party to the condemnation proceedings, the one-fourth interest of the claimant, Marjorie Ward, was not divested.

 Final judgment in the City's condemnation proceedings was entered on April 17, 1912. Eight years were yet to elapse before claimant arrived at 21 years of age.

 On March 3, 1942, title passed to the United States by the filing of a declaration of taking including the disputed property.

 The foregoing would lead to the conclusion that at the time of the taking, in the instant case, Marjorie Ward was a tenant in common with the City of Newark, owning a one-fourth interest in the property described in the Smith deed, unless she had lost her title or her right to ...

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