On appeal from Superior Court, Chancery Division, Hudson County.
Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.
Charlotte Greco, daughter of Angelina Greco, deceased, appeals from a summary judgment entered by the trial judge on his own motion. The judgment ordered a partition sale of premises formerly owned by Angelina Greco, mother of the parties, Charlotte and Joseph Greco. Angelina died testate on October 24, 1973, survived by her two children and her sister, Maria Loiacono. The judgment ordered the net proceeds of sale distributed as follows: (a) to Joseph, 25%, (b) to Maria, 50%, and (3) to Charlotte, 25%. The order also provided for the use and occupancy of the premises pending the sale as well as various charges assessed against the proceeds. Charlotte's counterclaim to restrain her brother from assaulting, striking, threatening and harassing her and for damages for such conduct was also dismissed. The judgment recited also:
ADJUDGED that, upon representation of counsel for plaintiffs, the consent to the action by the Plaintiff, Maria Loiacono, was satisfactory to the Court; and it is further
Ordered that all parties be and they are hereby restrained and enjoined from threatening, harassing or intimidating one another; * * *.
On this appeal appellant contends that it was improper for the trial judge to enter judgment on his own motion on the trial date because issues of fact had been raised as to
the voluntariness of Maria's consent to the partition, Maria being more than 90 years of age at the time, having limited understanding of English and being represented by Joseph's attorney. Maria's ability to consent to the partition and the validity of that consent was an issue specifically expressed in the pretrial order. Appellant also contends that the trial judge erred in ordering a division of the property according to her mother's will since appellant did not consent to the sale.
The pertinent clause in Angelina's will is as follows:
Second: I give, devise and bequeath the property known and designated #266 Chestnut Street, Kearny, New Jersey, unto my children, Charlotte Marie Greco and Joseph Anthony Greco, provided however and upon the condition that my sisters Caterina La Iacono and Maria Lo Iacono and my brother Charles Lo Iacono, who now reside therein shall be permitted to live therein for the rest of their natural lives, and provided further that should my children decide to sell the aforementioned premises, then and in that event one half of the money realized from said sale shall go to the aforementioned Caterina Lo Iacono, Maria Lo Iacono and Charles Lo Iacono or the survivor of them.
In ordering the partition sale the trial judge stated:
I see no issue of fact or law in this case. I am satisfied that a plenary hearing on the merits would only disclose that such differences, disputes and misunderstandings do exist which are not subject to resolution by and between the parties.
It is equally well settled in the law that one co-tenant has an absolute right to partition against the other. Drachenberg v. Drachenberg , 142 N.J. Equity 127. ...