Jayne, Stanton and Hall. The opinion of the court was delivered by Stanton, J.A.D.
[31 NJSuper Page 498] The plaintiffs are the personal representatives of Ethel Reiss who died testate and the trustees who held title to certain lands for her benefit. The defendant and counterclaimant is her husband and he appeals from
those parts of the judgment below which were adverse to him. It was held that an alleged gift causa mortis was invalid, that he had no curtesy in certain lands of which the deceased was seized during coverture and that he was liable for the expenses of her last illness.
These facts appear from admissions in the pretrial order and from undisputed proofs: Mr. and Mrs. Reiss were married on March 28, 1940; each had a child or children of prior marriages; they separated in 1946 and at that time they held two parcels of land by the entirety, he held two others and she one other in severalty; on August 7, 1946 they signed, sealed and acknowledged a separation agreement which, among other things, provided for the division of the real estate held by the entirety and the conveyance of that and the realty held in severalty to their respective nominees or trustees; pursuant to this and on the same day they conveyed to her daughter and son-in-law, the plaintiffs Julia E. Foster and Leslie Foster, as trustees for her, the parcel of which she was seized in severalty and one of the two parcels held by the entirety; the agreement contained reciprocal release clauses and the one releasing her is as follows:
"9. The said party of the second part does hereby release and discharge, for himself, his heirs, executors and administrators the said party of the first part, her heirs, executors and administrators, of and from all debts, dues, sums of money, accounts, agreements, promises, damages, judgments, executions, claims and demands whatsoever, either in law or in equity, against the party of the first part, which he, the party of the second part, now has or which he ever had, or which he or his heirs, executors or administrators can, shall or may have, in, upon or by reason of any matter, cause or thing whatsoever, by virtue of she being his wife or otherwise.";
the couple were reconciled in 1948 and thereafter cohabited until her death; she entered a hospital in the city of her residence on April 30th, underwent major surgery on May 4th and died at the age of 66 years on May 13, 1951; her will, executed in the year of her marriage, was duly probated; in it she directed the payment of her just debts and funeral expenses, gave $1 to her husband and the residue to her
children and grandchild; at her death the Fosters still held title to the aforesaid real estate upon a naked trust for her benefit.
Shortly before the decedent went to the operating room and while her hair was being dressed by Agnes Tekowitz, a friend of many years, a patient and roommate at the moment, she asked the latter for pencil and paper. She then wrote a letter to her husband in her native language, the translation of which is as follows:
In the kitchen, in the bottom of the cabinet, where the blue frying pan is, under the wine bottle, there is one hundred dollars. Along side the bed in my bedroom, in the rear drawer of the small table, in the corner of the drawer, where my stockings are, you will find about seventy-five dollars. In my purse there is six dollars, where the coats are. Where the coats are, in a round tin box, on the floor, where the shoes are, there is two hundred dollars. This is Dianna's. Please put it in the bank for her. This is for her schooling.
The Building Loan book is yours, and the Bank book, and also the money that is here. In the red book is my son's and sister's and my brothers address. In the letter box is also my bank book.
Give Margaret my sewing machine and anything else she may want; she deserves it, as she was good to me.
God be with you. God shall watch your steps. Please look out for yourself that you do not go on on a bad road. I cannot stay with you. My will is in the office of the former Lawyer Anekstein, and his successor has it. There you will find out everything.
Your Kissing, loving wife,