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Herr v. Herr

Decided: June 22, 1953.


On appeal from the Chancery Division of the Superior Court, certified by the Supreme Court on its own motion.

For modification -- Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Heher, J.


[13 NJ Page 82] The appeal is from a judgment dismissing the complaint.

The gravamen of the pleaded cause of action is misrepresentation, fraud, deceit and concealment allegedly practiced by defendant whereby plaintiff was induced to make a "marriage settlement" on defendant which included a conveyance, after marriage, vesting in plaintiff and defendant an estate by the entirety in plaintiff's dwelling house in the Borough of Brielle, New Jersey, and also nondelivery of the deed.

Judge McLean found that plaintiff had not sustained the onus of proof of fraud. He was of the opinion that plaintiff's "testimony standing alone, met with defendant's denials, does not afford the clear and convincing proofs essential to entitle him to the relief he seeks." We certified defendant's appeal on our own motion.

The grounds of appeal challenge the findings made in the Superior Court as not in accordance with the evidence, both as to fraud and delivery; and error is also assigned upon the assessment of a counsel fee against plaintiff.

This is the case made by the complaint: In November 1949, after a brief acquaintance while on vacation in Bermuda, plaintiff, a widower 67 years of age, proposed marriage to defendant, a widow 52 years old, but she demurred "on the ground that such marriage would result in great financial loss and risk to her," representing to plaintiff that she was "the beneficiary for life or until remarriage of the income of a certain trust fund established by the last will and testament of one Gabriel Raphael Hugon of Manchester, England," the deceased father of her deceased husband, amounting in the net to 1,500 pounds sterling per annum, and that by the terms and conditions of the trust "her income would cease entirely and irrevocably if she should remarry," and "she had no property, or income aside from the income from said trust," and "for those reasons she could not afford to remarry without a substantial marriage settlement, adequate to secure her future financial security in lieu of said life annuity." Plaintiff, relying upon the truth of the representations, "promised defendant that if she would accept his offer of marriage he would, in addition to supporting her as his wife, secure her financial future to the extent of his means in the [13 NJ Page 84] event that he should predecease her by transferring to her his entire estate, such transfers to take effect upon his death and to be made in consideration of and partial reimbursement for her loss of income" under the trust. Defendant accepted plaintiff's proposal of marriage "subject to said proposed provision for her future financial security in the event that plaintiff should predecease her." The marriage was solemnized December 3, 1949, at Westfield, New Jersey. Immediately following the marriage, and in reliance upon the truth of the "representations," and to effectuate the "marriage settlement," plaintiff executed "riders to establish defendant as beneficiary of plaintiff's life insurance policies, a last will and testament and (for the purpose of minimizing inheritance taxes) a deed of conveyance" for the lands in suit "intended when delivered to convert plaintiff's estate" in the lands "into an estate by the entirety in plaintiff and defendant." In order that "the transaction might be completed by the delivery of all of the instruments at one time, such time to be arranged after all of them should be executed, plaintiff only executed said deed of conveyance on December 3, 1949 and caused it to be recorded in the Clerk's Office of Monmouth County on December 14, 1949." After recording, the county clerk returned the deed "to plaintiff's attorney as directed"; and the "deed was never delivered to defendant, nor did plaintiff ever intend to make a present delivery of it, nor were any of the other instruments delivered." "On or about December 15, 1949, plaintiff became suspicious of the truthfulness" of defendant's representations "because she refused to send to England for a copy" of the Hugon will, "as she had agreed to do"; and he "thereupon caused an investigation to be made which disclosed" that the deceased Hugon "had not created any trust whatsoever in favor of defendant, by his will or otherwise," and defendant had not been in receipt of an income in any amount from the Hugon family subsequent to the death of Gabriel on October 11, 1939, and "had not been an annuitant under any trust whatsoever."

It is averred that had plaintiff known of the falsity of the "representations," he "would not have agreed to make said settlement."

Plaintiff seeks judgment: (a) voiding the agreement to make the marriage settlement, and (b) decreeing the conveyance to be void or, in the alternative, the rescission of the deed and a reconveyance to plaintiff.

The nonexistence of the asserted trust fund or "life annuity" is conceded; the making of the representation is denied. Indeed, defendant asserts in her answer to the complaint that she "refused several proposals of marriage by the plaintiff, without qualification, and finally accepted tentatively, only on condition that her final answer" be deferred until "opportunity" was had the "better to know each other," and it could be determined whether or not plaintiff's children would "object" and "constitute a hindrance to a happy marriage"; and that the execution of the deed "was purely a voluntary act on plaintiff's part, independent of any agreement, commitment or previous arrangement, which deed she never saw, and of which she knew nothing, excepting that it was executed and recorded as plaintiff told her, because, as his wife he felt she was entitled to it as a gift," and she "has no information" respecting the will, but she denies that its "execution * * * was the result of any arrangements, commitment, promise or agreement prior to the marriage." And defendant's testimony accords with the answer. There had been no discussion whatever before the marriage "about any financial arrangement or money or anything else in connection with impending marriage." Shortly after their meeting in Bermuda, she agreed to the marriage, "but on one condition that" she "should meet his children first and they would agree to the marriage." She first "heard" of the deed in question on December 26, 1949, and it was the plaintiff who spoke of it. He said: "I have seen a friend who is very discreet and I want you to have that property and I may give that property to you on both names and also a will." There had been no prior discussion of a will.

Plaintiff acknowledges that if, "as part of the offer of marriage and uninduced by any fraudulent misrepresentation by the defendant, the proposal had included the promise to make the deed," the deed would be altogether invulnerable; the "sustaining consideration for the deed would be the defendant's performance of her promise to marry." But it is insisted that such is not the situation revealed by the pleadings and the proofs, for under defendant's version of the transaction a promise of a property settlement is "ruled out as a consideration or inducement for the marriage," and the conveyance was a pure gift, induced by love and affection alone, and "not the marriage, for the marriage had already taken place," while the foundation of plaintiff's pleaded cause of action is a promise "collateral to his offer of marriage" induced by defendant's "misrepresentation that her remarriage would result in the loss of ...

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