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First Camden National Bank and Trust Co. v. Broadbent

Decided: March 9, 1961.

FIRST CAMDEN NATIONAL BANK AND TRUST COMPANY, TRUSTEE OF THE TRUST CREATED UNDER THE WILL OF GRACE L. BROADBENT, DECEASED, PLAINTIFF,
v.
CHERIE BROADBENT, LINDSEY BROADBENT, JOAN MAHER, CHARLES MAHER, JR., JAMES MAHER, BARBARA MAHER, WILLIAM MAHER AND PATRICIA MAHER, DEFENDANTS



Wick, J.s.c.

Wick

The plaintiff trustee has brought this action for the construction of certain provisions of the will of Grace L. Broadbent, deceased. The defendants are the life beneficiaries of such provisions, who are not represented in this action, and the minor remaindermen who are represented by a guardian ad litem. Both counsel take similar positions in regard to the first three constructions but differ as to the fourth.

Grace L. Broadbent, a resident of Brigantine, New Jersey, died testate on November 20, 1956. Her will dated August 1956 was admitted to probate by order of the Atlantic County Court, Probate Division, on April 24, 1958. The will, obviously drawn by an unschooled layman, provided in part:

" 3rd The property known as Beachcomber Brigantine, N.J.I. devise to be kept intact until such time as it can be sold at a reasonable price -- the income to be divided between Cherie Broadbent

and Linsey [ sic ] Broadbent. If and when it is mutually agreed to sell -- the money be invested in government bonds and held as a trust fund for Cherie as long as she remains unmarried * * *"

The testatrix, at the time the will was executed and at her death, owned a motel located at 1424 West Brigantine Avenue, Brigantine, New Jersey, which was known as the "Beachcomber." Prior to the date of her will the testatrix had signed an agreement for the purchase of two lots adjacent to the motel property to be used in connection with the motel. Title to these lots was to pass when the price, payable in installments, was fully paid. Nine months before the final installment was paid the testatrix died. On April 4, 1959 the motel and the two lots, separately valued, were conveyed by the plaintiff trustee. The plaintiff trustee, desiring to dispose of the money received for the two lots, seeks to determine in this action whether the devise of the "Beachcomber Brigantine, N.J." includes these two lots.

The primary concern of the court in construction of wills is to determine the intention of the testator from the words of the will, aided by the circumstances existing at time of the will's execution. In re Fox , 4 N.J. 587 (1950); In re Armour , 11 N.J. 257 (1953); Bank of New York v. Black , 26 N.J. 276 (1958). An important circumstance to be considered here is that the will being construed obviously was not drawn by one who was learned in the law. See Wunderlich v. Bleyle , 96 N.J. Eq. 135 (Ch. 1924); Crocker v. Crocker , 112 N.J. Eq. 203 (Ch. 1933); Brooks v. Goff , 127 N.J. Eq. 115 (Ch. 1940), wherein such a factor was considered.

This court, upon applying the general principles of will construction, must reach the conclusion that these two additional lots are included in the designation "Beachcomber Brigantine." Under the doctrine of equitable conversion, the fact that the testatrix had not been vested with legal title to the lots at her death becomes irrelevant. The doctrine of equitable conversion converts the interest of one

who dies after having entered into an enforceable contract to purchase realty, into realty. Since the testator had entered into such an agreement in regard to these lots, her interest in the lots must, upon her death, pass as realty to her devisees. See 7 New Jersey Practice (Clapp, Wills and Administration), sec. 903; Haughwout v. Murphy , 22 N.J. Eq. 531 (E. & A. 1871).

Although the lots would be considered to have been acquired by the testatrix upon her death under the doctrine of equitable conversion, they would still pass by a general devise of realty under her will. N.J.S. 3 A:3-9 provides as follows:

"Real property acquired by a testator after making his will shall pass by any general or special devise * * * sufficient to include such real property, had the same been acquired before the making of the will, ...


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