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MacFadden v. MacFadden

Decided: August 28, 1957.

MARY MACFADDEN, PLAINTIFF,
v.
BERNARR MACFADDEN, ET ALS., DEFENDANTS



Freund, J.s.c.

Freund

This is an action for specific performance of a provision in a separation agreement.

On April 7, 1932 Bernarr Macfadden, now deceased, and the plaintiff Mary Macfadden, husband and wife since 1913, entered into a separation agreement which expressly provided that he would supply her with a home during her lifetime by permitting her and their children "to use the home in Englewood, New Jersey; or" by alternative provisions of no present concern. The agreement further provided

that the plaintiff would bear three-tenths of the up-keep and carrying charges of the home. The Macfaddens had lived together in the Englewood home since 1927, but in 1930 Mr. Macfadden left to live elsewhere. Mrs. Macfadden has continued to reside in the home up to the present time. During her occupancy of the premises, until about the year 1953, all taxes and maintenance charges were paid by Macfadden and the defendant, Bernarr Macfadden Foundation, Inc., but they have not been paid since 1953 and are presently in default.

In accordance with the agreement, plaintiff discontinued an action in the Supreme Court of the State of New York in which Macfadden was a party; additionally, she released and surrendered to Macfadden and Macfadden Publications, Inc. certain claims she asserted against them and surrendered certain shares of stock in the corporation which she held by virtue of a deed of trust created by Macfadden.

Macfadden died testate on October 12, 1955. In the present proceedings his executors are made defendants, together with the Bernarr Macfadden Foundation, Inc. and others. The Bernarr Macfadden Foundation, Inc. is a New York membership corporation authorized to transact business in New Jersey. It has held the title to the Englewood property since 1937, and in December 1954 requested plaintiff's permission to use a portion of the home for its offices but she declined. In 1955 it advertised for sale the property. Thereupon plaintiff filed a complaint in the instant proceedings charging the Foundation to be a corporate disguise and the alter ego for Bernarr Macfadden and seeking protection of her right to the use of the premises in accordance with the agreement. She also seeks a declaration of her rights in the property; and an order directing the defendants to pay the arrearages and current taxes and carrying charges against the property and to make all necessary repairs. Pursuant to a preliminary application an interlocutory injunction was granted restraining the disposal of or interference with the plaintiff's occupancy and use of her home. Subsequent to the issuance of the restraint the

Foundation entered into an option agreement giving prospective purchasers the privilege of purchasing the premises occupied by the plaintiff, subject to the restraining order. The option agreement was executed by Bernarr Macfadden, as president of the Foundation.

The executors of Bernarr Macfadden's estate contend that the obligation of the decedent to provide a home for plaintiff during her life was in lieu of alimony and hence that it terminated upon his death. The foundation argues a number of points which fall into two categories; one, the same contention made by the executors; and second, that it is not a stock corporation but was organized for public trust purposes and that therefore the conventional rule pertaining to piercing of the corporate veil is not applicable.

In 1946 Macfadden obtained a divorce from the plaintiff in a Florida court, where consideration was given to the agreement in question. The final decree of that court provided, inter alia , that "support of the wife having been adequately provided for by separate agreement, no adjudication thereon is made," but retained jurisdiction in the event that subsequent developments justified further consideration of support for Mrs. Macfadden. Additionally, the validity of the agreement has been upheld in prior litigation between the parties in the Court of Chancery in this State and in the Supreme Court of the State of New York. City Bank Farmers Trust Co. v. Macfadden , 131 N.Y.S. 2 d 232 (Sup. Ct. 1954). On June 20, 1934 our former Court of Chancery by a final decree, with the consent of Macfadden, ordered that the agreement of the Macfaddens, dated April 7, 1932, "be specifically performed and carried out by the said Bernarr Macfadden, in accordance with its several terms, up to the date of this decree." This court concurs with the express or implicit ruling of these cases that the agreement in question is valid.

The contractual engagement by Macfadden to provide the plaintiff with a home for life in the Englewood property is not alimony. The power of a court to award alimony is purely ...


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