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Bartholdi v. Dumbeky

Decided: October 21, 1955.

ALBERT BARTHOLDI, PLAINTIFF-APPELLANT,
v.
JULIENNE L. DUMBEKY, NEE JULIENNE L. MEHL, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF MARIE PERKINS BARTHOLDI, ALSO KNOWN AS MARIE BARTHOLDI, AND LEO ROBERT MEHL, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

[37 NJSuper Page 420] On March 7, 1952 Leo Robert Mehl, by Julienne L. Mehl, now Julienne L. Dumbeky, his daughter and attorney, the defendant herein, filed a complaint alleging that Marie Bartholdi died intestate on October 20, 1951, seized of certain real estate and personal property, leaving her surviving her husband, Albert Bartholdi, and her illegitimate son, Leo Robert Mehl. The complaint further alleged that upon the death of Marie Bartholdi her son became the owner of her real estate and two-thirds of her personal property, for which judgment was sought, and, in addition, the

appointment of a receiver, and an accounting by the surviving husband of the rents, issues and profits of the real estate.

Pending trial the defendant Albert Bartholdi, the plaintiff herein, on April 12, 1952 entered into a written agreement of settlement with Julienne L. Mehl, as attorney for Leo Robert Mehl, wherein it was recited that a dispute had arisen over the ownership of the real and personal property of the decedent and it was agreed that the real estate described in the complaint was

"owned by Leo Robert Mehl, the illegitimate son of Marie Bartholdi, deceased, and is now vested in fee simple, subject only to the curtesy right of Albert Bartholdi."

It was also agreed that certain bank accounts representing moneys of the decedent were to be divided between Albert Bartholdi and Julienne L. Mehl, and that any papers or checks necessary to carry out the agreement would be executed by Albert Bartholdi. Thereafter, on December 19, 1952 the court on its own motion dismissed the complaint for lack of prosecution.

On February 9, 1953 the same parties entered into another written agreement slightly modifying the provisions of the original agreement as to the disposition of the personal property. Simultaneously with the execution of the second agreement, Albert Bartholdi, the plaintiff herein, executed and delivered to Julienne L. Mehl individually a general release and to Julienne L. Mehl as administratrix of the estate of Marie Bartholdi, deceased, a release and refunding bond in the amount of $5,287.

More than a year later, on April 20, 1954, Albert Bartholdi instituted the present action naming Julienne L. Dumbeky, individually and as administratrix of the estate of Marie Bartholdi, and Leo Robert Mehl as defendants, seeking to reform the deed to Marie Bartholdi to show as grantees "Marie Bartholdi and Albert Bartholdi, her husband" as tenants by the entirety, and to impress a trust thereon in his favor. The complaint further sought to have

declared null and void the purported settlement agreements of April 12, 1952 and February 9, 1953, a determination of the rights of the parties as to the personal property, an accounting, a restraint against distribution of the decedent's property and the appointment of a receiver. In their answer, the defendants set up as an affirmative defense that the two agreements of settlement and the two releases barred the plaintiff from further litigation of the issues raised in the prior proceedings.

The plaintiff moved for summary judgment which was denied. Albert Bartholdi having died on October 11, 1954, when the case came on for trial on November 8, 1954 an order was entered substituting as plaintiff Bellida Funston, administratrix c.t.a. of his estate. After final hearing judgment was entered for the defendants on the ground that Leo Robert Mehl had been proved to be the illegitimate son of Marie Bartholdi.

The plaintiff appeals, arguing that the defendants did not prove Leo Robert Mehl the illegitimate son of Marie Bartholdi, deceased, or, in the alternative, that "illegitimate children do not inherit from their mother when she dies intestate leaving a husband, but no lawful issue of her marriage."

The respondents argue that the settlement agreements and releases preclude the plaintiff's recovery. We agree. As the Supreme Court said in ...


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