Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
The defendant Mary Lebid appeals from a judgment of the Superior Court, Chancery Division, Essex County.
Upon the consolidated trial of the above actions, the Chancery Division resolved the dispute among the parties as to the ownership of premises at 151 Fleming Avenue, Newark, New Jersey. It held that the plaintiff Anthony Balazinski was entitled to an undivided one-half interest therein, as the son and sole heir of Wlady (also known as Wladyslawa) Doczylo, who died intestate in New Jersey on June 29, 1951; the defendant Mary Lebid was entitled, subject to the dower therein next mentioned, to an undivided one-half interest therein, as devisee of the property under
the last will and testament of Andrew Doczylo, who died testate in New Jersey on July 30, 1954; and the plaintiff Efrosinia Ilkovna Dochilo, as the lawful wife and widow of Andrew Doczylo, was entitled to dower in the one-half interest that passed to Mary Lebid.
For brevity, but with due respect, we shall refer to the parties hereinafter by their first names.
The correctness of the Chancery Division decision depends upon the marital status of Andrew and Wlady, when the property was conveyed to them on July 31, 1928. If they were then lawfully husband and wife, they took as tenants by the entirety, there having been no qualifying words in the deed to the contrary. Danes v. Smith , 30 N.J. Super. 292, 304 (App. Div. 1954). If there was a tenancy by the entirety, Andrew would have been vested with the whole fee upon the death of Wlady in 1951, the title having remained unchanged in their names since the conveyance to them. Central Trust Co. v. Street , 95 N.J. Eq. 278 (E. & A. 1923). In such case, the defendant Mary Lebid would have been entitled to the whole fee, as devisee of Andrew who died in 1954. Hence, she would be justifiably aggrieved by the ruling of the Chancery Division.
On the other hand, a conveyance of real estate to a man and woman, who are not lawfully husband and wife at the time of the conveyance, cannot create a tenancy by the entirety. As Judge Jayne aptly put it in Danes v. Smith, supra , 30 N.J. Super. , at p. 305:
"A tenancy by the entirety without coverture is as unimaginable as a tree without a root."
See, too, Wyckoff v. Young Women's Christian Ass'n , 37 N.J. Super. 274, 281 (Ch. Div. 1955); Polombo v. Polombo , 48 N.J. Super. 13 (Ch. Div. 1957). Under modern real property law, a conveyance of real estate to two persons, who are not husband and wife, creates a tenancy in common, in the absence of qualifying words creating a joint tenancy. In a tenancy in common, there is no right of survivorship,
but in a joint tenancy or tenancy by the entirety there is. There having been no qualifying words in the 1928 deed to Andrew and Wlady, they took as tenants in common, if they were not then lawfully husband and wife. The trial court found that they were not legally married at the time of this conveyance, because Andrew's former wife, Efrosinia, whom he had married in 1901, prior to the alleged marriage to Wlady, was still living; and that prior marriage had never been dissolved. If that finding was correct, then the court's conclusions as to ownership were proper.
The defendant Mary Lebid does not question the soundness of the trial court's determination as to the ownership of the property, if its finding of Andrew's marital status is supported by competent evidence. But she argues that the finding is based upon inadmissible and insufficient evidence. She also contends that the judgment in her favor by the Essex County Court, Probate Division, admitting Andrew's will to probate, after a contest, makes the issue of ownership of the property res adjudicata , because the property was devised to her by that will.
Clearly, the County Court judgment in the will contest did not make the present title dispute res adjudicata. The County Court trial of the issues of fraud, undue influence, and testamentary capacity related to the validity of Andrew's will, executed nine days before he died, and was not concerned with and did not decide the ownership of the property or the validity of the marriage between Andrew and Wlady. The plaintiff herein, Anthony, who was the caveator in the County Court, was not obliged to litigate marital status in the will contest or title questions and, not having done so, is not precluded by any doctrine of waiver or res adjudicata. Nor are the plaintiffs herein bound by the fact that the County Court judgment of May 21, 1956, settling Mary's account as ...