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Pitale v. Leroy Holding Co.

Decided: January 30, 1961.

MARIE PITALE, PLAINTIFF,
v.
LEROY HOLDING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT, THIRD-PARTY PLAINTIFF, V. ANTHONY TOMASELLO, IND. AND AS EXECUTOR OF THE ESTATE OF PETER PITALE, DECEASED, THIRD-PARTY DEFENDANT



Wick, J.s.c.

Wick

This matter comes before the court upon a written stipulation of facts filed by all parties in lieu of the presentation of formal evidence.

The stipulation contains the following recital of facts. The plaintiff and one Peter Pitale were married on October 26, 1927 and remained married until the death of Peter Pitale on July 1, 1957, even though for some time they had not lived together. Prior to his death Peter Pitale was seized of certain real property in Atlantic County, and on May 21, 1956 conveyed this property to the defendant (hereafter referred to as the third-party plaintiff). The plaintiff did not join in this conveyance. Immediately prior to this conveyance Peter Pitale executed an affidavit in which he said:

"Deponent says that he is a single man, never having been married; that he is over 21 and has full right and competency to convey said premises and deponent further says that the foregoing fully and truly states all of the knowledge, information and belief of the deponent upon the subjects mentioned, this affidavit being made to induce Leroy Holding Company to accept a deed to said premises, upon paying the consideration therefor, and to induce Bleakly, Stockwell and Zink to make settlement thereunder, knowing that they rely upon the truth of the statements herein made." (Emphasis added)

In reliance upon this affidavit, the defendant, third-party plaintiff, paid a valuable consideration to Peter Pitale for the deed to these premises. Peter Pitale died testate on July 1, 1957.

Anthony Tomasello, who was the executor named in the will, commenced his duties as executor on July 24, 1957. The entire estate was distributed to the creditors who were preferred under N.J.S. 3 A:24-2, with the exception of $300 distributed to general creditors and $301.26 distributed to each of the two specific legatees named in the will. The executor did not secure an order barring creditors or an order for distribution, but did take back refunding bonds and releases from both of the legatees.

In December 1959 the plaintiff brought this action against the defendant, the third-party plaintiff, seeking admeasurement of her dower in the property which Peter Pitale had conveyed to it. Under the provisions of R.R. 4:14 the defendant, the third-party plaintiff, has impleaded Anthony Tomasello, individually and as executor of the estate of Peter Pitale, as a third-party defendant. All parties have agreed that the plaintiff is entitled to the admeasurement of her dower against the defendant, the third-party plaintiff.

The only issue remaining for consideration is whether the third-party defendant, after having distributed the estate of Peter Pitale without obtaining an order limiting creditors, is liable to the third-party plaintiff for any part of the plaintiff's claim against the third-party plaintiff.

There seems to be no question that the third-party plaintiff would have a right of action against Peter Pitale if he were still alive today, for only because of his fraudulent misrepresentation of his marital status has the third-party plaintiff incurred any liability to the plaintiff. Such a cause of action survives against the executor of the estate of Peter Pitale under N.J.S. 2 A:15-4, which states:

"Where any testator or intestate shall, in his lifetime, have taken or carried away or converted to his use, the goods chattels of any person, or shall, in his lifetime, have committed any trespass to the person or property, real or personal, of any person, such person, his executors or administrators, shall have and may maintain the same action against the executors or administrators of such testator or intestate as he or they might have had or maintained against the testator or intestate, and shall have the like remedy and process for the damages recovered in such actions as are now had and allowed in other actions against executors or administrators."

The case of Tichenor v. Hayes , 41 N.J.L. 193 (Sup. Ct. 1879), in interpreting a substantially similar survival statute, held that the word "trespass" should be liberally interpreted so that actions for deceits and neglects will survive the decease of the wrongdoer. In view of ...


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