Plaintiff, co-executor and co-trustee under the will of Donato Megaro, deceased, seeks a construction of the will and an accounting. Although the right to partition was not included as a legal issue in the pretrial order, it was presented in the amended complaint, in plaintiff's factual contentions in the pretrial order, and was argued at the trial. In view thereof, the pretrial order will be deemed amended to include such issue. R. 4:9-2. At the conclusion of the trial an accounting was directed to be filed by plaintiff and defendant Lewis D. Megaro as co-executors and co-trustees. Decision was reserved with respect to the matters hereinafter determined.
The testator executed his will on January 25, 1952. He died on August 18, 1965 and his will was admitted to probate on October 18, 1965. The will was prepared by Martin
Simon, a New Jersey attorney engaged in the general practice of law. At the time of its execution testator's wife Nevicella was alive, but his son James Megaro, Sr. had already died. Nevicella pre-deceased the testator by several years. But notwithstanding this fact, testator never revised his will. At the time of his death he was survived by his daughter, plaintiff Victoria Megaro Ierrobino, his son, defendant Lewis D. Megaro, who is married and has three children, and by three children of his deceased son James Megaro, Sr., all of whom are named defendants.
[The court here reviewed the provisions of the will and determined that plaintiff and defendant Lewis D. Megaro each acquired an undivided one-third interest in fee in all of testator's realty and an undivided one-third absolute ownership in his personalty. The remaining undivided one-third interest in the personalty and realty passed to plaintiff and defendant Lewis D. Megaro in trust to use the whole or any part thereof for the benefit of any of the issue of testator which they may, in their sole and unqualified discretion, deem advisable. The term "issue" was held to include the children of testator's deceased son James. If the trust property is not distributed in full by January 1, 1977, the trustees are to divide the trust property remaining in their hands equally between themselves or turn the same over to the survivor, thereby terminating the trust.]
Testator at the time of his death owned seven parcels of realty and four cemetery plots. The realty consists of multi-family dwellings, commercial properties consisting of stores and apartments, and vacant lots. Since the respective improved properties are not physically divisible and the vacant lots realistically are not physically partible, plaintiff contends that she is entitled to a partition through sale. N.J.S.A. 2A:56-2. Defendant Lewis D. Megaro opposes the demand for partition, contending that testator indicated his intention in paragraphs Fourth (e) and Fifth (a) that his realty not be sold until his youngest grandchild
living at the time of his death attains the age of 21 or until January 1, 1985, which ever event first occurs.
I am satisfied from a reading of the will and the oral testimony presented that testator was opposed to the sale of his real estate. He was advised by Simon that he could not restrain alienation, so he endeavored to limit the term of the restraint in the hope that such a limited restriction might be valid. But while the testator's intent is plainly expressed, it is settled law that an unlimited power of alienation is an inseparable incident of an estate in fee simple and that such estate cannot be restrained by any provision or condition whatever. The reasonableness of a restraint is immaterial. Any restraint is invalid even, if limited in duration, since such attempted restriction is repugnant to the nature of a fee simple. White v. White , 105 N.J. Super. 184, 190-192 (Ch. Div. 1969); Krueger v. Frederick , 88 N.J. Eq. 258 (Ch. 1917); Wrubel Realty Corp. v. Wrubel , 138 N.J. Eq. 466 (Ch. 1946). This State adheres to the policy of favoring alienation of property and its ready marketability. Highway Holding Co. v. Yara Engineering Corp. , 22 N.J. 119, 133 (1956). However, it is equally clear that reasonable restraints against the alienation of trust property are not against public policy and are valid. 4 Restatement, Property , § 405 (1944): 6 N.J. Practice (Clapp, Wills and Administration) , § 667, at 221 (1962). A testator may require the trustees to retain the original trust property in his hands for the duration of the trust. 6 American Law of Property , § 26.13, at 427 (1952).
Testator's direction that his properties not be sold for a certain period of time is a valid restraint upon the undivided one-third of all the properties held in trust, but is invalid as to the undivided two-thirds interest devised in fee. His intent, to the extent it is consistent with the law, should be effectuated. However, it is unrealistic to order a sale of the undivided two-thirds fee interest in each property. A sale of such interests would not attract
bidders, and the interested parties would be severely prejudiced by any such ...