When Frank Mondelli died on November 26, 1959 he left a will which purported to dispose of four tracts of land. Three were held by the testator and his wife Francesca as tenants by the entirety, and since his wife survived him, he had no estate in them to devise. The tracts in which Mondelli had no devisable interest were the following:
A plot of vacant land on Springfield Avenue, Berkeley Heights, known as Block 116, Lot 39A on the tax assessment map. By the second clause of the will this was purportedly devised to testator's daughter Maria and his son Joseph, the share specified for Maria being 25% and that of Joseph 75%.
Four vacant lots on Plainfield Avenue, Berkeley Heights, purportedly devised to testator's son Michael.
Four other vacant lots on Plainfield Avenue, Berkeley Heights, purportedly devised to the widow.
A fourth parcel, located at the intersection of Springfield and Summit Avenues in Berkeley Heights, was owned by testator alone, subject only to his wife's dower. At the date of death this was the most valuable of all of the properties and was devised by the fifth clause of the will to the widow for life, with remainder to a son Vito and the daughter Maria.
I am satisfied that Mondelli thought all of the real estate was his to dispose of by will, and that his wife and all four of his children thought so too. After recovering, at least to some extent, from the severe illness which had inspired the making of the will on June 10, 1958, he conferred in the summer of 1959 with his attorney about possible testamentary changes. He had in mind a question about changing the second clause to leave what had been designated as Joseph's share to the son of Joseph. Francesca Mondelli participated actively in the discussion and was very insistent that Michael's designated share, which also had come up as the subject of a possible change, should remain just as it was. Both shares, of course, consisted of plots held by the entirety.
Promptly following Mondelli's death his will was probated and his son Joseph qualified as executor. An inheritance tax return was filed in February 1960. In it all the parcels of Mondelli real estate are listed as though owned solely by Mondelli at the time of his death; no tenancies by the entirety are noted.
The parcel specified in the will as Michael's was valued in the return at $300. A similar parcel of four vacant lots, purportedly devised to the widow, was valued at the same figure. The plot purportedly devised to Joseph and Maria was valued at $7,000, and the property at the intersection of Springfield and Summit Avenues, Berkeley Heights, owned in fee by the testator alone, was given a valuation of $19,750.
Mrs. Mondelli never did anything or said anything, either before or after her husband's death, to question the effectiveness of his will. She outlived her husband by two years and
four months, dying intestate in March 1962. While a widow she lived in the premises at the intersection of Springfield and Summit Avenues, thus enjoying the life estate given to her by her husband's will. In June 1961 she executed and delivered to her son Vito a deed describing the four lots purportedly ...