Goldmann, Foley and Fulop. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff brought suit for relief in the nature of specific performance of an oral antenuptial agreement by which her husband, now deceased, had promised that in consideration of plaintiff's marrying him he would execute a will leaving her certain property. Defendant made a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The Chancery Division entered an order dismissing the complaint and filed an opinion which appears at 61 N.J. Super. 476. Plaintiff appeals.
The facts of the case are related in extenso in the reported opinion. Since the issues presented to us are more limited than those presented to the trial court, we restate only the facts necessary to our adjudication of the matter. In 1949 plaintiff became acquainted with John E. Gilbert, father of defendants John E. Gilbert, Jr. and Margaret E. Gilbert.
Shortly thereafter, he proposed marriage to the plaintiff, who agreed to marry him if he would provide her with a home of her own, and with a housekeeper to be paid at his expense. She conditioned her promise to marry upon the proviso that if Mr. Gilbert agreed to these terms, they should be reduced to a writing to be signed by both parties. Mr. Gilbert orally accepted plaintiff's proposal, whereupon they fixed September 10, 1949 as the marriage date.
On August 27, 1949 the written agreement not having been prepared, plaintiff told her intended husband that she would not go through with the marriage unless the written agreement was drawn. He then proposed that in lieu of his aforesaid undertaking, he make a will by which plaintiff would benefit at his death if she survived him, to the extent of a devise to her of his homestead, and bequests of one-third of such money as he might leave in the bank, and the legal title to an automobile which she had put in his name. Plaintiff agreed to the proposal, and on the same date Mr. Gilbert executed a will in accordance with the terms of their understanding. Therein he identified plaintiff as Ada W. Gatter "who will soon be my wife."
The couple were married on September 10, 1949 and lived together as husband and wife until his death on March 1, 1960. In the interim plaintiff was informed that in October or November 1949 Mr. Gilbert had made a new will by which he had left to plaintiff substantially his entire estate. However, plaintiff never saw this will and there was no proof of its existence or contents.
On October 27, 1950 Mr. Gilbert executed a will which made no provision whatever for plaintiff except to "give" her a dower interest in his real property; the remainder of the estate he gave to the defendants John E. Gilbert, Jr. and Margaret E. Gilbert in equal shares, and appointed them and defendant Alexander Denbo executors.
After Mr. Gilbert's death, plaintiff, on the basis of the foregoing facts, instituted the present action in two counts. In the first count she demanded judgment adjudicating
that (1) the will of August 27, 1949 was a valid will entitled to probate, and that it was irrevocable without her consent; (2) the "paper writing" of October 27, 1950 was executed in breach of the agreement of August 27, 1949; if probated, it would constitute a cloud upon the title of plaintiff to the real and personal property devised and bequeathed to her by the will of August 27, 1949 or the supposed will of October or November 1949; and the "paper writing" of October 27, 1950 was a fraud upon her; (3) probate of this instrument be enjoined; (4) plaintiff be declared the owner of the real property of the decedent, and her right, title and interest therein be discharged of any claim thereto by the defendants personally or in a representative capacity; (5) the claims of John E. Gilbert, Jr. and Margaret E. Gilbert to the personalty of decedent be limited to such share therein as they acquired by the will of August 27, 1949, or the supposed will of October or November 1949. In the second count plaintiff alleged ownership of the aforementioned automobile, charging that she had purchased it with her own funds and that decedent's interest in it was that of a trustee; she demanded that defendants be required to execute such instruments as would vest in her the legal title thereto. The disposition of this count by the trial court is not challenged.
The basic dispute, both in the Chancery Division and on appeal, requires a determination of whether the oral agreement of August 27, 1949 is barred by R.S. 25:1-5(c), which provides that no action shall be brought upon an agreement made in consideration of marriage unless such agreement or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith.
Defendant moved to dismiss the complaint alleging, among other grounds, that the agreement upon which plaintiff relied was one made in consideration of marriage, and being oral was in violation of the statute of frauds and therefore "void and unenforceable." R.R. 4:12-2 ...