Gaulkin, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Plaintiffs Samuel E. Casternovia and Dominick Casternovia (brothers) appeal from a summary judgment against them entered by the Chancery Division of the Superior Court. Their suit was against a brother, Joseph Casternovia, and his wife Mary, and Irene Casternovia, mother of the three brothers.
Plaintiffs, by their original complaint, aver that their brother and his wife unduly influenced their mother to convey to them (Joseph and Mary) premises known as 266 and 268 Morris Avenue, Springfield, New Jersey. They contend the transfer was contrary to a previous indication by their mother, and father during his lifetime, that their estates would be ultimately divided equally among the three children. It is charged that Joseph and Mary prejudicially influenced Irene Casternovia by repeating to her scandalous,
false and malicious tales concerning personal and family affairs of Samuel and Dominick. The complaint seeks to set aside the conveyance and to impress the property with a trust for the benefit of the three sons.
On defendants' motion for summary judgment, the court had before it the pleadings and depositions, together with affidavits of all principal parties, and the additional supporting affidavits hereafter mentioned, from which it appears:
The subject property had been owned by Irene Casternovia and her husband as tenants by the entireties. Upon her husband's death in 1947, she became sole owner of the fee simple title. Joseph had been taking care of his mother, and he apparently was her favorite son.
On January 26, 1961, at which time Irene Casternovia was 82 years of age, she conveyed said lands and premises, valued at $75,000, to her son Joseph and his wife Mary for a consideration of $35,000. The latter sum was evidenced and secured by a ten-year non-interest bearing purchase money mortgage, payable in $100 monthly installments. Also, the mother reserved the right to live in a four-room apartment in the premises "free as long as the mortgage was there." The grantor was not impoverished by said conveyance since she had bank deposits of approximately $9,000 in addition to the aforesaid mortgage asset. In consummating the transaction she had the benefit of the professional advice and services of Joseph L. Magrino, Esq., a member of the New Jersey Bar, who speaks her native language and who represented her and various members of the Casternovia family in legal matters since 1936.
When plaintiffs were informed about the conveyance, they attempted to persuade their mother to nullify the transaction, and, when their efforts proved fruitless, they engaged counsel. Magrino, upon receiving a letter from plaintiffs' attorney indicating the probability of litigation, arranged with Joseph and his mother for a meeting in his office on November 28, 1961, at which time the son was asked if he would reconvey the property if his mother requested it. He replied, "Yes, if
she wants the property back, I want my mother to stay happy and I don't want her to die over anything that might happen here." There was present at the conference Humbert Berardi, an official court interpreter of the Italian language, who questioned the mother. In his affidavit relative to the interview, he stated:
"* * * I was amazed at her sharp and alert mind and memory. I then showed her a deed of conveyance to Joseph Casternovia and Mary Ann Casternovia, his wife, dated July 26, 1961, and asked her if she had signed it, to which she answered affirmatively. I then proceeded to read the instrument and to translate it to Irene Casternovia in Italian. I did the same with the bond and mortgage for $35,000.00 which had been executed by Joseph Casternovia and Mary Ann Casternovia, his wife, to Irene Casternovia, on July 26, 1961. When I had completed this, I asked Irene Casternovia if my translation of the papers contained everything she had requested of her attorney, Mr. Magrino, to which her answer was in the affirmative. Then I asked her if she wished to make any changes at this time, to which she answered 'No.' Then I asked her if she wanted to cancel and rescind the papers and take her property back from Joseph Casternovia and his wife and cancel the mortgage on said property, and her answer was definitely and positively 'No.' * * *
It is my observation that Irene Casternovia is a person of sound and alert mental faculties, who knows how to transact her business intelligently, and I am particularly and definitely satisfied that her transactions with her attorney on July 26, 1961 were completely understood, and that they were not made under duress with any ...