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Ballard v. Schoenberg

Decided: May 2, 1988.

JOHN J. BALLARD, JR., PLAINTIFF-APPELLANT,
v.
JOANNA SCHOENBERG, DEFENDANT-RESPONDENT, V. JOHN J. BALLARD, JR., EXECUTOR OF THE ESTATE OF JOHN J. BALLARD, SR., THIRD-PARTY DEFENDANT



On appeal from the Superior Court, Law Division, Monmouth County.

Furman, Brody and Long. The opinion of the court was delivered by Furman, P.J.A.D.

Furman

[224 NJSuper Page 663] In an action for possession of a 13 acre farm property, defendant counterclaimed for specific performance of an oral undertaking by decedent John Ballard, Sr. in 1960 that he would devise the farm to her if she did the farm work and carried on the farm business in all its aspects during his remaining lifetime. He died in 1984. From judgment in favor

of defendant, plaintiff appeals in his capacities as executor of his late father's estate and as devisee and legatee under his father's will executed in 1975. We affirm.

Plaintiff advances four arguments on appeal:*fn1

POINT I: THE DEFENDANT FAILED TO MEET THE REQUIRED STANDARD OF PROOF AS TO THE EXISTENCE OF THE PROMISE OR AGREEMENT UPON WHICH SHE ALLEGEDLY RELIED.

POINT II: THE TERMS OF THE ALLEGED AGREEMENT OR PROMISE ITSELF WERE NOT SUFFICIENTLY DEFINITE AND CERTAIN SO AS TO RENDER THE ALLEGED AGREEMENT OR PROMISE ITSELF ENFORCEABLE. HENCE, A REVERSAL IS MANDATED.

POINT III: THE LOWER COURT ERRED IN ORDERING ENFORCEMENT OF THE ALLEGED AGREEMENT OR PROMISE WITHOUT MAKING A FINDING THAT THE ALLEGED CONSIDERATION WAS EXCLUSIVELY REFERABLE TO THE AGREEMENT OR PROMISE.

POINT IV: THE LOWER COURT COMMITTED REVERSIBLE ERROR IN STRIKING THE DEFENDANT'S JURY DEMAND OVER THE PLAINTIFF'S OBJECTION.

We affirm on the first two issues substantially for the reasons stated by Judge Peskoe in her letter opinion of October 28, 1986. Her findings of fact are supported by ample credible and competent evidence in the record and, thus, are binding on appeal; we defer to her evaluation of the respective witnesses' credibility. See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

We add the following with reference to plaintiff's specific arguments in his first two points. Judge Peskoe applied the applicable burden of proof under the Dead Man's Act, N.J.S.A. 2A:81-2, that is, clear and convincing proof. On this record there is no basis to reverse on the law her conclusion that defendant sustained that burden of proof. We agree with Judge Peskoe's delineation of the terms and scope of decedent's oral undertaking: decedent would leave the farm property to

defendant if, without remuneration except room and board, she did what was necessary to manage the farm property during his remaining lifetime, including farm work, animal care, housekeeping, laundry, maintenance and repair of the property, financial transactions and ...


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