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Agisim v. Tillou Realty Co.

Decided: May 13, 1959.


Scherer, J.s.c.


[56 NJSuper Page 19] Plaintiffs, as legal owners of improved real estate known as 52 Milford Avenue, Newark, New Jersey, entered into a contract on December 31, 1958 to sell the property to the defendant for the sum of $10,000, title to close March 31, 1959. Plaintiffs have tendered a

deed, but defendant has refused to take title for reasons which will hereafter appear. Plaintiffs seek a judgment for specific performance of the contract of sale. Defendant claims that the plaintiff Irving Agisim, as testamentary guardian and trustee of Marsha Mona Masoff, cannot legally sell his ward's interest in this property because the will under which he was appointed contains no power of sale. There is the further claim that there is an outstanding curtesy right for which no deed or release has been tendered.

The facts are not in dispute and have been stipulated. Additional facts requested by the court have been submitted by consent in a supplemental affidavit of the guardian. The matter came on for resolution upon the plaintiffs' motion for summary judgment. There being no factual dispute and the problem being one of law only, it is appropriate to dispose of the issue by such a motion. R.R. 4:58-3; Judson v. People's Bank & Trust Co. of Westfield , 17 N.J. 67 (1954); Tanenbaum v. Sylvan Builders, Inc. , 29 N.J. 63, 67 (1959).

The facts are these: Lillian Masoff Krushen died testate December 6, 1954, seized of the lands and premises above mentioned, together with some small amount of personal property. She left surviving a husband, Herman Krushen, and two children by a former marriage, Marsha Mona Masoff and Judith Claire Masoff (hereinafter referred to respectively as "Marsha" and "Judith"). Both children were minors at the time of her death. Judith became of age January 20, 1956. Marsha is presently 17 years of age and is a student at a local high school. The father of these children died November 9, 1949, leaving no estate. After his death the mother married Herman Krushen. Prior to that marriage she and Krushen entered into a prenuptial agreement dated September 4, 1953, in which reference to the property 52 Milford Avenue, Newark, New Jersey, is made and by the terms of which Krushen agreed that, in consideration of the solemnization of the marriage, he waived and relinquished any right which might become vested in

him as husband or widower, either by way of curtesy or otherwise, in said lands and premises. The agreement also provided that upon the request of Lillian Masoff, "or of her heirs, executors, administrators or assigns," he would execute any documents necessary to enable her or them to mortgage or convey said real estate, and it was further stated that any document executed by her or them for the purpose of encumbering or conveying the property would be valid and effectual to pass "a clear and perfect title" to said land and should have the effect of barring his curtesy or any other right which he may have therein. Since the death of Mrs. Krushen, Herman Krushen has remarried and removed himself from the household. His signature on a deed or release of curtesy cannot be obtained.

By paragraph Second of her will, dated March 16, 1954, Mrs. Krushen devised and bequeathed her residuary estate, real, personal or mixed, to her daughters, Judith and Marsha, share and share alike. In paragraph Third she provided that if either daughter should be under the age of 21 years at the time of the testatrix' death, the custody of such daughter during minority should be awarded to the testatrix' nephew, Irving Agisim, whom she named as testamentary guardian and trustee. In the same paragraph she directed the guardian and trustee to use as much of the principal and income of the legacy of either daughter as he should deem advisable for the support of said daughter and, upon the latter attaining the age of 21 years, the balance then remaining was to be paid to her. Mr. Agisim was appointed executor, "with full powers." The testatrix did not give to Mr. Agisim, either as testamentary guardian, trustee or executor, specific power of sale of the real estate.

Mrs. Krushen left a very small personal estate and some insurance. The moneys have been used by the guardian for the support of the children. On January 20, 1956 Judith became of age and the balance remaining in her trust fund was paid over to her. At the present time there is a balance in Marsha's fund of $1,200. This is the only

asset of that trust fund, except Marsha's one-half interest in the Milford Avenue property.

The proof submitted shows that the real property for the last 12 months has been operated at a net loss of about $1,300. In order to prevent criminal action on the part of the Newark Board of Health, repairs must be made soon and these will cost between $1,500 and $1,600. The neighborhood is not a good one and the value of the property will not be increased by the spending of this money. There is no source from which money can be secured for Marsha's share of the cost, except the remaining funds in the guardian's possession.

The guardian believes it to be for the best interests of Marsha that the property be sold, so that money can be secured for her future support and maintenance. The amount required for her annual support is $1,800. She has no income at all, except the sum of $51.30 per month which she is receiving as social security benefits, but this payment will stop on May 31, 1959, when she will become 18 years of age. Both her sister Judith and the guardian have been required to use their personal funds for Marsha's support, and the trust is indebted to the guardian for these advancements in a sum in excess of $600. Marsha desires upon completion of high school this ...

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