On appeal from Superior Court, Chancery Division, Essex County.
Matthews, Seidman and Horn.
Defendant appeals from a judgment impressing a constructive trust upon certain real estate he had inherited as the sole heir of his wife, who died intestate in 1973. This lawsuit, seeking such relief, had been instituted by decedent's brothers and sisters, who alleged that she had intended the property to go to them upon her death, but that the absence of a will accomplishing that purpose was because of defendant's undue influence and her mistake. We reverse.
Until her marriage to defendant in 1960 decedent, who was then approximately 45 years of age and the eldest of six children, lived with her parents in the family residence in Newark. Four years later, following the death of her father, she and her husband moved into the family home in order to live with and look after her mother. In 1969 the mother, terminally ill and hospitalized, executed a will, apparently at Matilda's request, leaving to her the residuary estate, consisting
essentially of the residence, and providing that if Matilda predeceased her, the estate would be divided equally among the surviving children.
According to the testimony of Edythe Massa, one of decedent's sisters, the property had become the subject of discussion among the brothers and sisters after their mother's death. Some of them were upset because of the mother's will, but she professed to have complete faith that Matilda would return the property to them. The others wanted Matilda to draw up a will to insure that result. Mrs. Massa recalled a conversation between one of her brothers and decedent a few months before the latter's death in which, in response to his inquiry as to when she was going to make a will, Matilda said she did not need one.
Another sister, Anne Fuccello, testified that after the execution of her mother's will, she, her sister Genevieve Golden, and the latter's husband confronted Matilda and announced their intention to contest the will. Mrs. Fuccello said that Matilda told them, "Why get so excited? * * * The house belongs to you kids." She said further that defendant commented, "I don't want the house, what am I going to do with it?" This version of what occurred was substantially corroborated by Mrs. Golden, who added that on several occasions thereafter, when she suggested that Matilda should make a will, her sister told her not to worry, "[t]he house is yours."
Further testimony was given by decedent's aunt and her brother Romeo that Matilda has stated she did not need a will because the house was going back to her brothers and sisters. Laddie Ciafarone, the other brother, related that he talked with defendant about the disposition of the property after his sister's death and that he was offered $5,000 for the interest in the house of the brothers and sisters, an offer they refused to accept.
Defendant testified that he never had any discussion with his wife about a will, and he did not know when she died whether she had a will. He denied discussing the subject of
a will with his wife's brothers and sisters, but admitted offering ...