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Cohen v. Cohen

Decided: February 25, 1963.


Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.


Plaintiff Ethel Cohen initiated proceedings in the Superior Court, Chancery Division, to compel a reconveyance to her of certain real estate which she and her husband, Jacob Cohen (now deceased), had previously conveyed, as hereafter noted, to two of their sons. The trial court granted the relief sought in the complaint, and the defendants Gilbert Cohen and his wife, Simone, appeal.

The factual complexities in this case reveal a situation that is pathetic, to say the least. We canvassed the complete record and here recite only the details essential to our consideration of the crucial issues.

There were eight members of the Cohen family -- the mother, Ethel; the father, Jacob; four sons and one daughter now living, Gilbert, Morris, Manus, Henry and Anna Germann; and a deceased son, Samuel. Gilbert and Morris were handicapped. The former had been afflicted since early childhood with Pott's disease (a form of spinal tuberculosis with secondary spastic paraplegia). He was confined to bed until reaching the age of 27 years, but is now able to ambulate with the aid of a wheel chair and he has learned to operate an automobile. At the age of 34 years he married Simone. Morris is the victim of poor health; he is "very ill with mental diseases, he has been in and out of Greystone three or four times."

On February 19, 1958 Ethel and her husband Jacob transferred by deeds the following properties:

-- to Gilbert a one-half interest in premises 60 Market Street (Gilbert at the time was a common tenant as to the remaining one-half);

-- to Gilbert and his wife Simone the premises at 201 President Street;

-- to Gilbert and Morris and their respective wives the premises at 222-224 Monroe Street;

-- to Morris and his wife Sharon the premises at 247 Monroe Street.

All of the said properties are situate in Passaic, New Jersey, and the interests conveyed were owned by the grantors as tenants by the entireties except the President Street property, which was in Ethel's name. A life interest in the net income therefrom, in each instance, was retained and reserved by the grantors or the survivor of them. The legal documents to effectuate settlement were drafted, and their execution supervised, by one August C. Michaelis, a member of the New Jersey Bar since 1940. He had known Ethel and Jacob for 10 or 12 years and during that time had represented them in legal matters "approximately seven times." One of the controversial exhibits submitted in evidence was a signed and notarized instrument containing a series of questions he propounded to the grantors and their replies thereto affirming an understanding of the transaction and their voluntariness in its consummation. The explanation of this unusual procedure is best stated in counsel's own words. He testified:

"Q. What was the purpose of it?

A. The purpose of it was to avoid any question in the future, to make definitely sure between ourselves that this was exactly what they wanted to do, and to have a record.

Q. Will you tell the Court what you had in mind?

A. Well, these were elderly people who I may say were very astute and were fully apprised of what was transpiring. In prior discussions with them, I understood the feeling between themselves and some of their children; and to avoid any question of any kind I went through it fully before I even drew the deeds, to make sure in my mind that this is exactly what they wanted; because, if I may say so, four

years prior I drew a will for the two of them, and the property in these deeds went exactly as their will four years prior had indicated. And I wanted to make sure that they knew exactly what they were doing.

Q. Explain to the Court what circumstances there were about this incident in drawing these deeds that was different from any you have had in twenty years at the Bar.

A. Firstly, I knew of the feeling between the children. I also knew from Mr. and Mrs. Cohen of their personal feelings toward certain of their children. We had gone through that many, many times. We had gone through that in 1954 when she did not want to leave a thing to certain of her children because, as she said, one of them had not seen her in five or six years; they did not care whether she lived or died. The only ones she was concerned about were Gilbert and Morris.

Be that as it may, when they came in to my office on the 19th of February, it was their absolute and unequivocal desire to give this property outright, absolutely outright, and I prevailed upon them not to do it. I prevailed upon them to keep a life interest in this property so that they would be independent, so they would not be dependent on any of their children for support and maintenance, and that is why I went through the questions and answers, to make it quite clear in the future that they were reserving unto themselves a life interest and the net income from all of this property. That is why I did it in this particular case." (Emphasis supplied.)

In mentioning the year 1954 Michaelis referred to the time he drafted last wills and testaments for Ethel and Jacob Cohen. His testimony, that the disposition of their real estate by deeds in 1958 was consistent with their testamentary disposition of the same properties to the same parties in 1954, was uncontradicted.

Within a week prior to the execution and delivery of the aforesaid deeds, Ethel had consummated note transactions in the amount of $10,000, representing loans for the benefit of her sons Henry, Manus and Morris, involving the Passaic Paint Service, Inc., a corporation which those three sons controlled. Shortly thereafter (April 14, 1958), Henry obtained a loan of $1,000 from his mother, and Manus on May 13, 1959 negotiated from her a personal loan of $500. It is now claimed by Henry and Manus that plaintiff did not know what she was doing when she signed checks and accepted

notes evidencing the several loans in which they engaged their mother.

At the time of the contested conveyancing (February 19, 1958), Ethel and Jacob were living together in their home at 201 President Street. On May 2, 1958 they went to live with their son Gilbert. Jacob died August 27, 1959 and the mother continued her residence with Gilbert until February 6, 1960, when she was taken to the Miriam Barnert Old Age Home (sometimes referred to as the Daughters of Miriam Home). She stayed there only two days, when her son Manus prevailed upon her to live with him. In less than a month thereafter the present suit was instituted. The complaint was filed March 8, 1960 and at that time plaintiff was 78 years of age.

Depositions of the plaintiff were taken on June 7, 1960. Certain interrogations and answers were most revealing:

"Q. Do you know that you are suing Gilbert?

A. I am suing Gilbert?

Q. Yes.

A. No.

Q. You don't know that you are suing him?

A. No. Yes?

Q. You tell me ...

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