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Minogue v. Lipman

Decided: March 27, 1953.


Ewart, J.s.c.


[25 NJSuper Page 379] By this suit plaintiffs seek to establish that Warren E. Emley, Sr. and Mary L. W. Emley, his wife, now both deceased, executed on December 22, 1950 mutual, reciprocal, and irrevocable wills in accordance with an agreement between them by which they disposed of their combined estates for the benefit of one another and ultimately to their respective children in certain proportions; adjudging that the provisions of Mrs. Emley's will of December 22, 1950 must be given effect notwithstanding her subsequent revocation thereof; impressing a trust upon certain real property

of which Mrs. Emley died seized; appointing a trustee to control and administer the assets of the estate of Mrs. Emley; and restraining the defendants from selling or otherwise disposing of such assets of Mrs. Emley's estate.

There was little dispute at the trial as to the facts of this case. The dispute rather turns on the inferences to be drawn from the admitted facts and the legal effect thereof.

From the admissions contained in the pleadings, the stipulations made during the trial of the case, and the evidence produced at the trial, I find the following facts:

Warren E. Emley, Sr., a widower, and Mary L. W. Brown, a widow, were married August 18, 1945. Mrs. Brown was a sister of Mr. Emley's first wife. By this earlier marriage, he was the father of the plaintiffs Adelaide E. Minogue and Warren E. Emley, Jr., and by an earlier marriage, Mrs. Brown was the mother of the defendants Mary Ida Lipman, Herbert D. Brown, Betty Ann Brown and John N. Brown.

There were no issue born of the marriage between Mr. Emley and Mrs. Brown.

Mrs. Brown's first husband had been a professor at Rutgers University in New Brunswick, N.J., and Mr. Emley, in his later years, was also a professor of chemistry at Rutgers.

At the time of the marriage in 1945 Mrs. Brown was and had been the owner in her own name of land and a cottage located on a lake in the Catskill Mountains, at Roscoe, New York, particularly described in paragraph 4 of the complaint.

In the month of October 1946, following their marriage in August 1945, Mr. and Mrs. Emley purchased a home at No. 11 Cleveland Avenue, Highland Park, N.J. (sometimes erroneously referred to as the New Brunswick property), and had title thereto taken in their joint names as tenants by the entirety. That property is particularly described in paragraph 5 of the complaint.

Mr. Emley was a person of methodical habits and appears to have kept meticulous accounts of his financial transactions, including the making up on January 1 of each year of a statement of his assets, liabilities and net worth, which practice he followed for many years, and after his second

marriage in 1945 he also kept the same sort of a record of his wife's assets, liabilities and net worth.

After the marriage in 1945 considerable sums of money were expended by both Mr. and Mrs. Emley in improvements on the Roscoe, New York, property. They occupied the Roscoe cottage during the summer season and it appears that their respective children, and the children's families, also used the Roscoe, New York, cottage as a place for summer vacations.

And after acquisition of the Highland Park property in 1946 Mr. and Mrs. Emley also expended considerable sums of money in alterations and improvements on that property.

A memo in Mr. Emley's handwriting dated September 26, 1949 (Exhibit P-10) indicates with reference to the Roscoe, New York, property that the total investment in that property had been some $14,467.30, of which total Mrs. Emley had invested $11,652.38 and Mr. Emley the sum of $2,814.92, or roughly 80% by Mrs. Emley and 20% by Mr. Emley. And the same memo with reference to the Highland Park property indicates a total investment of $25,391.10, of which Mrs. Emley invested $7,748.51 and Mr. Emley $17,642.59, roughly 30% by her and 70% by him.

At the trial 26 cancelled checks made by Mr. Emley, aggregating the sum of $14,480.99, were produced, marked Exhibit P-3, and four cancelled checks made by Mrs. Emley, aggregating $1,550, were produced and marked Exhibit D-1, and it was stipulated by counsel for the respective parties that all of the 26 checks marked Exhibit P-3, aggregating $14,480.99, represented expenditures by Mr. Emley in the acquisition and improvement of the Highland Park property; that the four cancelled checks of Mrs. Emley, aggregating $1,550, plus an additional sum of $6,000 for which no check was produced, making a total of $7,550, represented investments by Mrs. Emley in the acquisition and improvement of the Highland Park property.

Counsel further stipulated at the trial that after the 1945 marriage both Mr. and Mrs. Emley contributed to the improvements of the Roscoe, New York, property, but the

amount contributed by each, or the total, was not stipulated, nor was other proof offered as to the amount of the contributions by each of them, other than the memo in Mr. Emley's handwriting marked Exhibit P-10 and referred to above.

Mr. Emley died suddenly and unexpectedly on June 5, 1951, at the approximate age of 65 years. His wife, who was a few years younger than he, died February 1, 1952.

Mr. and Mrs. Emley cohabited as man and wife from the date of their marriage in 1945 until his death in 1951. In December of 1950 and prior thereto Mr. Emley, although older than his wife, appeared to be in good health and his death on June 5, 1951 was not anticipated. On the other hand, Mrs. Emley was known to be suffering from cancer and it was stipulated by counsel that both Mr. and Mrs. Emley in December of 1950 contemplated that she would die before he.

In the situation disclosed by the foregoing recitals, Mr. and Mrs. Emley appeared together on December 22, 1950 at the New Brunswick office of George R. Morrison, Esquire, who had been practicing law in New Brunswick for some 35 years, and Mr. Emley announced in the presence of his wife that they wanted to execute wills. In fact, Mr. Morrison knew the purpose of their visit because Mr. Emley had telephoned him a day or two before and had made an appointment with Mr. Morrison for December 22 to have the wills prepared.

Mr. Morrison, in his office on December 22, 1950, prepared separate wills for Mr. and Mrs. Emley, which were drawn and executed by each of them on that date.

The attorney, Mr. Morrison, had represented Mr. Brown, the first husband of Mrs. Emley, for a period of some 18 or 20 years; he knew of the cottage in Roscoe, New York, and that Mrs. Emley had title thereto; he represented the Emleys in the purchase of the Highland Park property in October of 1946 and knew that they held title as tenants by the entirety, and, indeed, Mr. Morrison has acted as attorney for both the executors of Mr. Emley's estate and for the executors of Mrs. Emley's estate since their respective deaths. [25 NJSuper Page 383] At the conference in Mr. Morrison's office on December 22, 1950, prior to the preparation and execution of the respective wills, Mr. Emley did the talking, in the presence of Mrs. Emley, and gave instructions for the preparation of the two wills. Mrs. Emley, who was suffering from cancer, was in visible pain and had little to say. However, after receiving instructions from Mr. Emley as to the contents of the two wills, attorney Morrison inquired of Mrs. Emley whether that was the way she wanted it and she responded: "That's the way he wants it, so what can I do?" However, after Mr. Morrison had prepared the two wills, he had Mrs. Emley read over her will before signing it; he said she was perfectly willing to execute it; that she did sign and publish it to be her will, and duly executed it; and that he, Morrison, would not have permitted her to execute it had she been unwilling so to do. In addition thereto, Mr. and Mrs. Emley, a few days after the execution of the will, and during the 1950 Christmas vacation period, visited overnight with Mrs. Adelaide Emley at the latter's home in Ocean City, N.J. She was the widow of Mr. Emley's deceased brother. On this occasion, immediately upon the arrival of Mr. and Mrs. Emley at the home of Adelaide Emley in Ocean City, and even before Mary L. W. Emley had an opportunity to remove her coat and hat, she announced to the Mrs. Emley whom she was visiting that they (she and her husband) had just been to a lawyer; had made out their wills; said they had each appointed as executors one of the children from each of the families so that there would be no trouble; and Mrs. Mary L. W. Emley seemed quite jubilant and happy about it. Mr. Emley said little about the matter except, with reference to the wills, that it was all fixed. On that occasion Mr. and Mrs. Emley remained overnight with Mrs. Adelaide Emley at Ocean City, but there was no further conversation about the will nor did they tell Mrs. Adelaide Emley, nor did she inquire, anything about the contents of the wills other than the fact that they had named as executors one person from each side of the family.

Mr. Emley's will, a copy whereof is annexed to the complaint, which was duly probated after his death on June 5, 1951, was prepared by attorney Morrison in accordance with the instructions given him by Mr. Emley and acquiesced in by Mrs. Emily. The first clause of his will directs the payment of debts. The second and third clauses of his will deal with the Roscoe, New York, property and the Highland Park property, as more fully discussed hereafter. By the fourth clause of his will he gives, devises and bequeaths all of the rest, residue and remainder of his estate, both real and personal, and of every nature and description, to his wife, Mary L. W. Emley, for and during the term of her natural life and on her death or remarriage, the remainder is given outright to his two children, Adelaide E. Minogue and Warren E. Emley, Jr., share and share alike. By the fifth clause of his will he nominates and appoints his son, Warren E. Emley, Jr., and his stepson, Herbert D. Brown, executors. By the sixth clause of the will he confers upon his executors power to sell real estate. And by the seventh clause of his will he revokes all prior wills.

The portions of his will out of which this litigation arises are the second and third clauses, which read as follows:

"SECOND I give, devise and bequeath the interest in the property which I own at Tennanah Lake, Sullivan County, Roscoe, New York, to my children and step-children in the following proportions:

A 20% part thereof to my children, ADELAIDE E. MINOGUE and WARREN E. EMLEY, JR.

An 80% part thereof to my step-children, HERBERT D. BROWN, MARY IDA LIPMAN, JOHN W. ...

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