This is a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.
The facts, as presented by the complaint, are as follows: The plaintiff met John E. Gilbert in 1949 and, after some acquaintance with him, he sought to persuade her to marry him, but she refused to do so unless he would make a suitable property settlement on her prior to the marriage. He thus offered to provide her with a home of her own and a housekeeper and plaintiff accepted this offer with the proviso that the agreement be reduced to writing and signed by them. They fixed September 10, 1949 as the date of the marriage. On August 27, 1949, she having become insistent that she would not marry him unless a written agreement was executed, he, in order to further induce the marriage, executed a will (a copy of which is attached to the complaint) in which he left her certain real property, a Buick automobile and one-third of whatever
cash he had in the bank. In reliance on the provisions of the will for her benefit and his representations that it would be his last will, she entered into the marriage on September 10, 1949. In October or November of 1949 he made a further will which, as she is advised and believes, left her his entire estate. On October 27, 1950 he executed a further will leaving his entire estate to his children, Margaret E. Gilbert and John E. Gilbert, Jr. This is the last will he left on his death on March 1, 1960. She has filed a caveat with the Surrogate of Burlington County against the probate of that will and the admissibility of that will to probate has not yet been adjudicated.
She seeks judgment that the execution of that will by him was a breach of their antenuptial agreement and a fraud; the probate of that will would constitute a breach of the antenuptial agreement and perpetrate a fraud on her; the will of August 27, 1949 was irrevocable without her consent except by a will more favorable to her and is valid and entitled to probate; she is the owner of the property that was to be left to her under either the will of August 27, 1949, or that of October or November, 1949; the probate of the will of October 27, 1950 would create a cloud on her title to the real and personal property which is hers under the earlier two wills. She would further have the probate of the October 27, 1950 will restrained.
The plaintiff asserts a second cause of action relating to the 1949 automobile mentioned above. She says that she purchased it with her funds on August 10, 1949 and, to promote relationships of harmony and confidence between herself and her intended husband, allowed the title to be placed in his name. She would have it adjudged that the transfer of the automobile was not a gift, but was in trust and that she is its owner.
The will of October 27, 1950 makes John E. Gilbert, Jr., Margaret E. Gilbert, and Alexander Denbo executors. They have been made defendants as the prospective executors of that will and John and Margaret also as the prospective
devisees and legatees under that will. John's wife, Elizabeth, is also made a party defendant evidently as the prospective holder of an inchoate right of dower in the real property passing to her husband under that will.
It might be noted that the first cause of action comprehends two related agreements. One is to provide the plaintiff with a home of her own and a housekeeper coupled with the promise that this agreement would be reduced to writing. The other is the promise or representation by John E. Gilbert, Sr. that he would not change the will of August 27, 1950. (It should be noted that we are not now concerned with the question of whether the second agreement constituted a vacation of the first.) The complaint demonstrates no consideration for either other than the marriage and neither is evidenced by any written memorandum. The defendants thus raise the defense of the statute of frauds as it relates to agreements made upon consideration of marriage. They make no reference to the statute as it relates to contracts concerning real estate, but such would also appear to be applicable to this agreement insofar as it concerns the transfer of real property. R.S. 25:1-5. The plaintiff counters that the breach of the antenuptial agreements constitutes a fraud and the statute of frauds may not be raised to shield a fraud.
The breach of an antenuptial agreement is not such a fraud as will prevent the application of the statute of frauds. Herr v. Herr , 13 N.J. 79 (1953), and cases therein cited. It has also been decided that mere breach of the further agreement to reduce the antenuptial agreement to writing is not such a fraud as will prevent the application of the statute. In Alexander v. Alexander , 96 N.J. Eq. 10 (Ch. 1924) it is stated by Leaming, V.C., as follows:
"Fraud, alone, will deny the intervention of the statute. Equity at all times will lend its aid to defeat a fraud, notwithstanding the statute of frauds. But the fraud against which equity will relieve in this class of cases, notwithstanding the statute, is not the mere moral wrong of repudiating a contract actually entered into, which, by reason of the statute, a party is not bound to perform for want
of its being in writing. Bro. Stat. Fr. § 439; Manning v. Riley, supra. The fraud must be inherent in the transaction, such as a false representation that a contemplated written agreement has been executed pursuant to the parol agreement, or other similar artifices. The authorities do not appear to support the dictum of Mr. Justice Wells, in Glass v. Hulbert , 102 Mass. 24, as contained on page 39 of the reported case, to the effect that the assurance that a settlement would be executed, will remove the case from the bar of the statute. 2 Story Eq. Jur. (13 th ed.), Sec. 768; Montacute v. Maxwell , 1 P. Wms. 618; S.C., Pr. Ch. 526; Eq. Cas. Abr. 19. In the counterclaim here presented no written agreement or settlement was contemplated by the parties, and no fraud appears."
This statement is evidently based primarily on the noted citation to Story Eq. Jur. In the eighth edition, Sec. 768 and in the ...