[105 NJSuper Page 476] Plaintiff Virginia Hotchkin, the former wife of Robert Francis Hotchkin, institutes this suit for the partition of various securities which are presently held in the joint names of plaintiff and her ex-husband. Based on the testimony and exhibits presented at trial, I find the pertinent facts to be as follows:
Robert and Virginia Hotchkin were married in Urbana, Illinois, in 1938. Mr. Hotchkin is a certified public accountant and is presently an officer and investor in a rapidly growing corporate complex in the field of induction heating appliances of which Inductotherm Corp. is the parent corporation. Apparently Mrs. Hotchkin was not employed during the couple's marriage nor is she presently employed. The Hotchkins have two children who are now emancipated and financially independent.
For several years prior to August 1966 Mr. and Mrs. Hotchkin experienced marital discord and unhappiness. In August 1966, when their separation was imminent, Mr. Hotchkin advised his wife that he was going to establish a "family trust" for the benefit of her and the two Hotchkin children and that she was to select securities with a total value of $60,000 which were to constitute the assets of that trust. He also advised Mrs. Hotchkin to choose the best income-producing securities and made recommendations in this regard. The selection was to be made from a list (Exhibit P-7 in evidence) of all the stocks held in the joint names of Mr. and Mrs. Hotchkin. According to the valuations set forth in the above exhibit, the total value of the jointly held securities was $194,100 as of June 30, 1966. All the stocks included were public stock exchange securities except the Inductotherm Corp. stock, which is a closed corporation issue.
Pursuant to Mr. Hotchkin's proposal an inter vivos trust agreement dated August 12, 1966 was drafted by Mr. Hotchkin (apparently from a form book) wherein he irrevocably assigned the selected stock to his wife and her sister as cotrustees. The terms of the trust (as amended at the request of Mrs. Hotchkin's attorney) provided that Mrs. Hotchkin would receive all the income for her life with the limited power to invade the corpus, and after her death the remaining trust corpus should be divided equally between the two Hotchkin children. On the basis of the values submitted on plaintiff's exhibit P-7, I find the value of the stocks selected
by Mrs. Hotchkin for the trust was $60,050 as of June 30, 1966. The remainder of the jointly held stocks were valued at $34,050, excluding the Inductotherm stock and $134,050 including the Inductotherm stock. All these stocks have been left in joint name and are the basis of this suit. (Meaning stocks not selected by Mrs. Hotchkin.)
On January 17, 1967 the parties completely discontinued cohabitation at their Riverside, New Jersey, home and Mrs. Hotchkin established a temporary residence in an apartment in Collingswood, New Jersey. It was during this time period that Mrs. Hotchkin employed the services of an attorney to advise her with regard to her marital difficulties and the attendant problems. It should be pointed out that at no time prior to the actual trial of this case did Mr. Hotchkin utilize legal counsel to advise him.
Through the negotiating and drafting efforts of Mr. Hotchkin, Mrs. Hotchkin and her attorney, a final separation agreement was executed February 16, 1967. This agreement set forth provisions relating to distribution of property which referred to and were supplementary to the terms of the August 1966 trust agreement. The pertinent provisions of the separation agreement are: paragraph (2), which states that Mr. Hotchkin will pay his wife a monthly support allowance of $600 during the balance of her life or until she remarries; paragraph (3), by which he agrees to execute a new will in which he will provide that one-half of his net estate at his death would be held in trust under the trust agreement of August 1966, and by which he agreed that in the event he made any inter vivos gifts, one-half the amount thereof should be designated for the welfare of his wife; and finally, paragraph (6), wherein the parties agreed as follows:
"* * * that jointly owned stocks and securities shall be returned to joint custody providing each party with access at all times. Any sale or trade shall be made by mutual consent with both parties' signatures, the cash from a sale to be divided equally and new stocks purchased in trade to be registered in the same names as the original stocks * * *".
All the provisions of the separation agreement which related to support payments, property distribution and the restriction on the jointly held securities were incorporated in a judgment of final divorce which was obtained by Mrs. Hotchkin on December 5, 1967 in the State of Nevada.
In March 1968, several months after the judgment of divorce was entered, Mrs. Hotchkin instituted this suit for partition of real estate and the jointly held stock. Subsequently Mr. Hotchkin paid his former wife $14,000 for her interest in the Riverside home, which had been held as tenants by ...