For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
[13 NJ Page 38] The defendant appeals, pursuant to certification granted by this court (11 N.J. 332 (1953)), from the
Appellate Division's reversal of the trial court's judgment denying specific performance of a settlement agreement between the parties. See De Caro v. De Caro, 22 N.J. Super. 463 (1952).
Anna De Caro died on April 18, 1950 and was survived by her three children Thomas, Mary and Jean and her husband Frank. She had been employed during many years of her married life and at her death was living apart from her husband. On February 28, 1944 she had executed a last will and testament naming her husband as sole beneficiary and executor. On the second day following her death her children filed a caveat against the probate of the will. They were represented by Mr. Pashman, an attorney-at-law. The husband was represented by Mr. La Rosa, an attorney-at-law who had drawn and witnessed the execution of the decedent's will. Thereafter extended negotiations were had for settlement of the dispute between the children on the one hand and the husband on the other. The estate included nine accounts totaling approximately $5,400 in banks and savings and loan associations. Five of these totaling approximately $2,900 were in the name of the decedent and one or another of her children. The children claimed absolute ownership of these accounts. In addition, they apparently made claim that an account of the decedent in the Rutherford Trust Company rightly belonged to Thomas and that an account of the decedent in the Peoples Trust Company was a transferred account, formerly in the name of the decedent in trust for Jean, and was the property of Jean. These accounts totaled over $1,300. The assets of the estate, excluding the nine accounts, were insubstantial; indeed, the entire estate including the accounts was $5,911.31 and the funeral bill was $1,130.25.
On May 8, 1950 Mr. Pashman submitted a proposed settlement agreement but it was rejected and after further negotiation Mr. La Rosa prepared a proposed agreement. This likewise was not executed and on May 23, 1950 both attorneys and their clients met at Mr. La Rosa's office. After a conference which lasted the better part of the day there was a
mutual accord which was embodied in a formal written agreement dated May 23, 1950 and bearing the signatures of the children and the husband as parties and the attorneys as witnesses. Under the agreement the seven accounts claimed by the children went to them and they agreed to withdraw the caveat which they had filed against the probate of the will. Following the execution of the agreement the children signed a withdrawal of their caveat and delivered it to Mr. Pashman who in turn sent it to Mr. La Rosa. In the meantime the husband had apparently become dissatisfied with his agreement and had consulted others; nevertheless he and his attorney Mr. La Rosa went to the office of the Bergen County Surrogate on June 20, 1950, filed the withdrawal of the caveat, and probated the will. Thereafter the husband declined to perform in accordance with the agreement despite appropriate demands.
On April 2, 1951 the children as plaintiffs filed their action in the Chancery Division against the husband as defendant seeking specific performance of the agreement of May 23, 1950. After trial the court declined to grant the relief sought on the ground that its consideration was "neither fair, reasonable nor just." In reaching this conclusion it expressed the opinion that if the plaintiffs had actually set aside the will the defendant would have received about $1,600, whereas under the settlement he was left with less than $600. The main infirmity with this calculation would seem to be that it included as part of the decedent's general estate the accounts claimed by the children. If the five accounts which bore their names were excluded then the defendant's interest on intestacy would be slightly over $600; if all seven accounts claimed by them were excluded it would be under $200. In reversing the trial court's judgment the Appellate Division found that the alleged inadequacy of the consideration did not constitute any valid basis for not enforcing the agreement in accordance with its terms. Before this court the defendant-appellant urges various grounds of error which will be considered seriatim.
The appellant's first contention is that the Appellate Division improperly considered the matter without having presented to it by the plaintiffs an appendix embodying the entire record of the trial in the Chancery Division. We assume that in preparing their appendix in the Appellate Division the plaintiffs included such parts of the record as they in good faith deemed essential to the proper consideration of the issues and which they desired the court to read. See Rule 1:3-2(f). If the defendant desired that the court read additional parts of the record he was at liberty to embody them in his filed appendix, and we understand that he actually did so. See Rule 1:3-3(f). Thus, in full conformity with the rules, the Appellate Division was furnished with the essential materials for a just determination of the cause without the unnecessary burden and expense of the printing and examination of the entire trial record. The defendant's reference to State v. Marchione, 5 N.J. 340 (1950) is inapt. There the appellant failed to submit an appendix and filed an inadequate brief. The court, on its own motion, struck the cause from the argument list and directed the appellant to file an appendix and a new brief.
The appellant next contends that the Appellate Division improperly declined to consider the charge that the agreement was the result of fraud or mutual mistake. This charge was not embodied in the answer or in the pretrial order. However, at the trial the court said, "I will allow you to prove fraud or mistake if you can prove it. The pretrial order will be amended accordingly." The trial court undoubtedly had power to amend the pretrial order during the trial (Rule 3:16-42; Binder v. Green, 8 N.J. Super. 88, 93 (App. Div. 1950)), although it would have been better practice to have then required ...