Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[75 NJSuper Page 43] Plaintiff, executrix and principal beneficiary under the last will and testament of her late father, Stanley Pulek, appeals from a judgment of the Chancery Division holding that a certain bond in the sum of $200,000, dated January 5, 1960, and the securing real estate and chattel mortgages of even amount of the
same date, running in favor of the decedent, Stanley Pulek, and the defendant, Isabella Pulek, who was his wife, passed upon the death of Stanley Pulek on September 10, 1960 to the wife, Isabella Pulek, as surviving joint tenant, pursuant to N.J.S.A. 46:2D-1.
The judgment under review also determined that the defendant, Isabella Pulek, was entitled to be reimbursed from decedent's estate in the sum of $927.48 for an insurance premium paid by her, and the further sum of $23,799.04 advanced by her to satisfy a real estate mortgage on the business premises; and that she was entitled to be indemnified from the decedent's estate for any income tax claim that may be established against her in connection with the sale of the business. While the appeal is "from the whole of the final judgment" entered on November 8, 1961, the three points advanced by plaintiff in her brief and at oral argument for a reversal of the judgment relate only to plaintiff's alleged rights in the aforesaid bond and mortgages. Accordingly, we consider only that phase of the judgment.
The factual and legal issues involved herein have been comprehensively set forth in the opinion of the Chancery Division, reported in 70 N.J. Super. 63 (Ch. Div. 1961). We need not repeat them in extenso here. Our task is to determine whether the trial court's fact findings have adequate evidentiary support and whether proper legal conclusions have been drawn therefrom. While we may, and should when the record so warrants, make new or amended findings of fact in a case such as this, tried without a jury, having given due regard to the opportunity of the trial court to judge of the credibility of the witnesses, R.R. 1:5-4(b), we have been advised by our Supreme Court that "great care must be exercised not to transfer the proceeding into a completely de novo examination of the proof. * * * When the facts and inferences arising from them are not in dispute, there is rarely room for differences in their evaluation at the trial or appellate level.
But when the result of the contest must turn on the truthfulness of the witnesses, the superior advantage of the trial judge in seeing and hearing and appraising the disputants must ordinarily be regarded as the fulcrum on which the issue should be resolved." Abeles v. Adams Engineering Co., Inc. , 35 N.J. 411, 423-424 (1961). Thus, where credibility is the important factor "the conscientious conclusion of the trier of the facts as to which witnesses were more worthy of belief must be given great weight and accepted by the appellate tribunal unless clearly lacking reasonable support." Abeles, supra , 35 N.J. , at p. 427. With these mandates in mind, we have made our own independent review of the record.
We adopt as true the following basic facts which appear in the trial court's findings. The late Stanley Pulek and the defendant, Isabella Pulek, were married in May 1952 and remained as husband and wife until Stanley's death. Each had been previously married, and the plaintiff is Stanley's daughter by a prior marriage. Before his marriage to the defendant, Stanley operated a tavern and restaurant known as Stanley's Anchor Inn, at 105 Hawthorne Avenue, Newark, New Jersey. Upon their marriage the defendant took an active interest in the operation of the business, which subsequently prospered. In November 1953 Stanley and Isabella, his wife, acquired the stock interest in Peddie Realty Company, the corporation which owned the real estate upon which the business was conducted, and which subsequently acquired an adjoining parcel. The Peddie Realty Company stock was equally distributed between Stanley and the defendant. In 1955 the tavern license was issued in the names of both Stanley and Isabella and they overtly operated the business thereafter as partners.
The marriage between Stanley and Isabella "was a rocky one," according to the finding of the trial judge. On July 16, 1954 they entered into a separation agreement prepared by Michael L. Mango, who essentially was Mr. Pulek's attorney but on occasion represented both of them
in connection with their marital and business affairs. The defendant returned to her husband in December 1954, and thereafter they worked together in the tavern and restaurant business.
In December 1959 the decedent was anxious to sell the business, and ultimately the defendant wife concurred. An agreement of sale was entered into under date of December 8, 1959 with John Peterson and William Speros as buyers. This agreement provided for the sale of all the issued shares of stock of the Peddie Realty Company and all the right and title of Stanley and his wife Isabella in the tavern and restaurant business, including the liquor license, for the sum of $240,000. There was a down payment made of $40,000. Title was closed on January 5, 1960. Pursuant to the contract there were delivered to Stanley Pulek and his wife Isabella at the closing, the following instruments which are the subject of this litigation:
(a) Bond -- Peddie Realty Company to Stanley Pulek and Isabella Pulek in the principal sum of $200,000 with interest at 5%, said principal and interest payable in monthly installments of $1,283.44 for a 21-year period.
(b) Real estate mortgage from Peddie Realty Company to Stanley Pulek and Isabella Pulek in the principal sum of $200,000, providing for the same monthly payments as prescribed in the bond.
(c) Chattel mortgage from Stanley's Anchor Inn Corp. to Stanley Pulek and Isabella Pulek covering the fixtures and equipment in the tavern and restaurant premises, likewise in the principal sum of $200,000 and providing for the same monthly payments.
The aforesaid bond and mortgages, running to Stanley Pulek and Isabella Pulek, did not specify on their face the manner in which Stanley and his wife had title thereto, thus giving rise to the issue to be resolved as to whether they held title as joint tenants under N.J.S.A. 46:2D-1, with a right of survivorship, or as tenants by the copartnership, or as tenants in common without a right of survivorship.
N.J.S.A. 46:2D-1, effective in its present form since July 13, 1951, provides:
"When any mortgage, covering real estate or chattels or both, shall hereafter be made and executed to, or assigned to, any husband and wife, such mortgage shall be held by such husband and wife as joint tenants and not as tenants in common, both as to the legal estate and the ...