Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
Charles Metzdorf died on January 1, 1957, owning a tract of property situate in the Borough of Rumson, and measuring about 1,000 feet in depth and about 100 feet in width. The property fronts on River Road and runs to the North Shrewsbury River. By paragraph Tenth of his will, Metzdorf devised, by metes and bounds, the northerly half of the tract to defendants Arthur and Brita Ericson and their daughter, Barbara; the southerly portion passed, under a residuary clause, subject to minor specific bequests and costs of administration, to plaintiff William J. Metzdorf. Located on the southerly portion of the tract are a two-story dwelling, a garage containing living quarters, a garage without living quarters, and a tool shed; on the northerly portion is a boat house, which contains living quarters.
The issue herein is whether these devises are, as the borough avers, null and void, because the lots created thereby violate Rumson's existing zoning laws prescribing minimum frontage and lot dimensions and prohibiting the use of accessory buildings for residential purposes other than the housing of domestic servants or employees of the principal building. Neither of the parcels carved out by the testator
conforms with the ordinance requirement of 200 ft. minimum lot frontage and 1 1/2 acres minimum area in an R-1 zone (in which the subject property is concededly located).
Plaintiff, both individually and as administrator of Charles' estate, brought this action in the Chancery Division against the borough and the Ericsons for declaratory and injunctive relief. The complaint set forth that plaintiff had found it necessary, due to the estate's inability to meet all of its expenses, to sell the residuary portion of the land; that he had executed a contract for sale of the property to one Richard P. Egan; and that he was unable to fulfill the contract because of the continuous threat of the borough, through its attorney, "to prosecute any and all persons" residing on the testator's original tract, "if and when the so-called boat house property and the two-story cottage structure were occupied simultaneously." Plaintiff asked for a declaration as to the right of occupancy of the northerly and southerly portions and for a permanent injunction against the borough from prosecuting the owners for simultaneous occupancy of the aforementioned two structures; in the alternative, if the property were held not to be separable for residence purposes, he requested an order that it be sold in its entirety and the parties' respective interests in the proceeds adjudicated.
Defendant Ericson filed an answer and also cross-claimed against the borough, demanding in the latter pleading substantially the same relief as had plaintiff. The borough's answer reaffirmed the applicability of the ordinance in all respects, clarifying the municipality's position by the annexation of a letter which had been sent to all interested parties prior to the institution of the litigation. The letter notified the parties that "any subdivision of the tract formerly occupied by the aforesaid decedent is in violation of the provisions of 'The Revised Building Zone Ordinance of the Borough of Rumson' and * * * any use and occupancy of said tract as two separate lots or as lots under different ownership is also in violation of said Ordinance."
By stipulation of counsel at the time of trial it was agreed that the sole issues to be determined therein were (1) whether Charles Metzdorf's will effectively conveyed title to the premises to the respective parties; and (2) if so, whether plaintiff and the Ericsons might occupy their respective parcels without violating the zoning ordinance. The complaint and cross-claim were supplemented to conform them to these issues.
The Chancery Division judge held that the public policy favoring the unfettered right to dispose of one's property was of paramount importance. The judge accordingly ruled that the zoning ordinance did not create an intestacy, and that the division of the property by will "in violation of the zoning ordinance" was valid. He added, however, that "the devisees take subject to the zoning ordinance." Judgment was entered granting plaintiff and cross-claimants only so much of their requested relief as was declarative of ownership. The borough alone brings this appeal.
The position of the borough, essentially, is that the testator's division of the premises, establishing two separate tracts whose size and usage violate the municipal zoning ordinance, is opposed to public policy and therefore must fail entirely as a testamentary disposition. Plaintiff and cross-claimants concede that their use of the property is subject to the municipal zoning laws, but maintain that their respective proprietary interests in the premises, as created by the testator's devise, are not affected by laws relating to the socially beneficial utilization of realty.
Both parties rely upon the definition section of the 1953 Municipal Planning Act, N.J.S.A. 40:55-1.1 et seq. They note that the act, N.J.S.A. 40:55-1.2, as well as the Land Subdivision Ordinance of the borough, adopted June 10, 1954, defines "subdivision" to mean:
"the division of a lot, tract, or parcel of land into two or more lots, sites or other divisions of land for the purpose, whether immediate or future, of sale or building development; except that the following ...