Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Plaintiffs sought partition in the Chancery Division as to real estate commonly known as Number 483-485 11th Street, Newark, N.J. The trial court decided that the plaintiffs had no rights by way of ownership or otherwise in the subject property and entered judgment in favor of the defendants. Plaintiffs appeal.
Plaintiffs Nicholas and Louis Darpino are grandsons of Angelo D'Arpino, who died on July 9, 1952 seized of the premises in issue. Their father, Emilio Darpino, predeceased his father, Angelo. Coplaintiffs Rafaelle and Carolina are the respective wives of Nicholas and Louis. Angelo D'Arpino left him surviving as his next of kin and heirs at law, in addition to plaintiff grandsons, four children, namely, Philip D'Arpino, a widower; Dominick D'Arpino, whose wife's name is Gemma D'Arpino; Peter D'Arpino, who is married to Julia D'Arpino, and Concetta Tetta whose husband's name is Amedeo Tetta. Plaintiff grandsons contended that their grandfather died intestate as to the property in question and that by virtue thereof each of them is entitled to an undivided one-tenth interest therein, subject to the inchoate right of dower of his respective wife.
Angelo D'Arpino left a last will and testament dated July 3, 1942, which was duly probated on February 3, 1953. The following clauses therein are pertinent to the issue:
"Second: I give and bequeath unto my two grandchildren, Louis D'Arpino and Nicholas D'Arpino, children of my deceased son, Emilio D'Arpino, the sum of Two Hundred ($200.00) Dollars, each.
Third: I give, devise and bequeath unto my beloved wife, Liberata D'Arpino, all my property, real, personal or mixed, which shall belong to me or be owned by me at the time of my death.
Fourth: In the event my wife and I should die of a common disaster, then in that event, I give, devise and bequeath unto my beloved children, Dominick D'Arpino, Philip D'Arpino, Peter D'Arpino and Concetta Tetta, all of my property, real, personal or mixed, which shall belong to me or be owned by me at the time of my death, in the manner and amounts as follows: viz:
To my three sons, Dominick D'Arpino, Philip D'Arpino and Peter D'Arpino, Seven Twenty-fourths (7/24ths) interest each in and to my property. To my daughter, Concetta Tetta, One-eighth (1/8th) interest in and to my property."
On December 15, 1953 the four children and their spouses conveyed the property to the son Dominick D'Arpino and to his son Dominick D'Arpino, Jr., who is married to Nina D'Arpino.
Liberata D'Arpino, the wife of Angelo, predeceased him, having died on January 10, 1949, and not as the result of any common disaster. Plaintiffs contend that since the condition in the Fourth paragraph of the decedent's will did not occur, the disposition in favor of the four children did not become legally effective, and therefore, since the testator made no other provision in his will disposing of the real estate in issue in the event that his wife should predecease him, he is deemed to have died intestate in relation thereto, and by reason thereof the grandsons share a one-fifth interest in the property. The position of defendants, which view was adopted by Judge Herbert in the Chancery Division, is that the testator intended the four children to inherit his property if his wife should not survive him, whether she died in a common disaster or by predeceasing him. Thus, we are confronted with these opposite views for resolution.
Testimony at the trial disclosed that the deceased son, Emilio, had been living with his wife and two children on the first floor of the premises, paying rent to his parents who lived on the third floor, when Emilio was injured about 1930. The injury prevented his working, so that he paid no rent thereafter, and his parents, brothers and sister helped to support him and his family. Emilio died about 1933. After his death, his wife and children remained
in their apartment rent-free. She worked a little, but not enough to support herself and the children, who were then about three and six years of age. Emilio's parents, brothers and sister continued their support of Emilio's wife and children for about two or three years after Emilio died, and then Emilio's wife and children went to live with her stepmother.
The trial court received testimony, over objection of plaintiffs' attorney, as to certain declarations made by Angelo D'Arpino, the testator. Thus, the defendant Gemma D'Arpino was allowed to testify that the decedent said to her that "he would leave the children [sons of Emilio] $200 apiece in memory of the father, because he had done enough for the father while he was alive." Defendant Dominick D'Arpino testified that he was with his father at the lawyer's office when the will was executed and that his father had told him that "he wasn't going to give nothing to the boys at all and to my brother, either -- nothing to Emilio. * * * He said because he spent too much money on the father when he was living." This witness testified further that he told his father "to leave them something, just for remembrance." He asserted that his father told Mr. Solimine, the lawyer who prepared the will and witnessed it, that he didn't want to give anything to these boys, because he had given enough to the father. Concetta Tetta, the daughter, also testified that "about a couple of years" before her father made his will "he said that he had done enough for my ...