Clapp, Smalley and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Plaintiff and defendants appeal and cross-appeal from a judgment of the Superior Court, Chancery Division.
The complaint is in four counts. Counts 1 and 3 related to property located on Norfolk Street and counts 2 and 4
related to property located on Tuxedo Parkway -- both in Newark. In the first count plaintiff, a widow, alleges that her decedent husband and his sons by a prior marriage fraudulently conspired to defraud her of her dower rights in a piece of property located on Norfolk Street, Newark. In the third count, substantially the same as the first count, plaintiff additionally alleges that she entered into the marriage in reliance on decedent's representation before marriage that he was the owner of the Norfolk Street property. In the second count plaintiff alleges that in 1942 she was under duress, coercion and mentally disturbed and that the consideration of $1,750 for the release of her dower rights in and for the conveyance of her interests in decedent's home, 9 Tuxedo Parkway, Newark was inadequate. In the fourth count plaintiff alleges that the Tuxedo Parkway property was held by defendant corporation to the use of the decedent; that decedent had an estate of inheritance and that, therefore, plaintiff was entitled to dower.
The trial court dismissed the first and third counts at the end of plaintiff's case on the ground that plaintiff had failed to sustain her burden of proof of establishing fraud. The court dismissed the second count at the end of the case and rendered a judgment for plaintiff of dower on the fourth count.
Plaintiff appeals from the dismissal of the first and third counts; defendants appeal from that part of the judgment awarding dower on the fourth count.
Plaintiff and decedent met in 1936 while plaintiff was an officer in the Salvation Army stationed in Newark, New Jersey. Decedent was a prosperous businessman engaged in the roofing business in Newark. Plaintiff during 1936 was transferred to Portland, Maine, and returned to Newark in the early part of 1939. Plaintiff testified that during this period she made frequent trips to Newark and on numerous occasions decedent conducted her to the real property owned by him on Norfolk Street which was rented in part to various tenants and in part was used by decedent in his roofing business. Plaintiff and decedent were engaged on
April 13, 1939 and were married on June 15, 1939. At that time plaintiff was 36 years old and decedent was 66 years.
On April 26, 1939 decedent formed the defendant corporation and had 20 shares of stock issued to himself and 20 shares to each of his two sons, the individual defendants. On June 7, 1939 decedent conveyed the Norfolk Street property to the defendant corporation. Decedent and his sons entered into an agreement under which decedent was to be employed as general manager of the corporation at a salary of at least $50 per week and decedent was to receive all profits of the corporation during his lifetime irrespective of whether or not he devoted all his time to the corporation.
Plaintiff and decedent resided in the Tuxedo Parkway property from date of marriage until marital difficulties arose. These difficulties resulted in a separation agreement on May 18, 1942. The agreement provided for payment in lieu of future support of $3,250; for release of her dower rights in the "only one piece of real estate * * * located at 9 Tuxedo Parkway, Newark, New Jersey" owned by decedent for $1,750. Concurrently she executed and acknowledged a release of her dower in the Tuxedo Parkway property and executed and acknowledged together with her husband a deed of the property to decedent's son, Charles Hampton, defendant. Plaintiff was represented by independent counsel.
The deed was retained by decedent and recorded in 1946 just prior to the recording of a deed from Charles and his wife to the defendant corporation. No consideration was received by Charles or his wife. The deed to the corporation contained provisions that the premises were conveyed subject to a life estate in favor of decedent ...