On appeal from the Superior Court of New Jersey, Chancery Division, Cumberland County, #9197.
Before Judges Keefe, Eichen and Weissbard.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
After the death of her husband, Frank H. Wheaton, Jr., Mary B. Wheaton commenced an action in the Chancery Division seeking a judgment permitting the sale of three pieces of real property Mr. Wheaton had owned at the time of his death (the properties).*fn1
The complaint also requested the court "calculate the value of her dower or other interest [in the properties] on the basis of the net proceeds of sale." Mrs. Wheaton died before the properties were sold. The primary issue presented by this appeal is whether Mrs. Wheaton's dower interest was sufficiently vested at the time of her death to permit her estate (plaintiff) to recover a gross sum of money in lieu of dower from the sale of the properties after her death. Mr. Wheaton's estate (defendant) contends that because the properties had not been sold at the time of her death, the action abated when she died, and Mr. Wheaton's estate is entitled to the properties free of any claims by Mrs. Wheaton's estate.*fn2
The Chancery Division judge sitting in the Probate Part determined the action could continue on behalf of Mrs. Wheaton's estate notwithstanding that the properties had not been sold at the time of Mrs. Wheaton's death. The judge also concluded that defendant was estopped from challenging plaintiff's entitlement to assert Mrs. Wheaton's dower claim because defendant had caused a delay in the court proceedings. Subsequently, the judge established the value of Mrs. Wheaton's dower interest to be 13.919% of the proceeds of sale of the properties.*fn3 In a letter opinion issued on January 5, 2000, the judge reasoned:
In a case where an action for the admeasurement of dower had been commenced prior to the death of the wife and particularly when there had been a postponement of the hearing at which the dower interest would have been evaluated and the wife dies prior to the rescheduled date, there is a preserving of her right pending the conclusion of the action and the Court so holds.
On appeal, the estate of Frank Wheaton raises the following arguments:
THE TRIAL JUDGE ERRED IN RULING THAT MRS. WHEATON'S DOWER INTEREST WAS NOT TERMINATED BY HER DEATH WHERE SHE DIED PENDING HER ACTION FOR AN ASSIGNMENT OF DOWER, WHERE SHE DID NOT SEEK A GROSS SUM IN LIEU OF DOWER IN HER PLEADINGS*fn4 AND WHERE SHE DIED BEFORE ANY OF THE SUBJECT PROPERTIES HAD GONE UNDER CONTRACT OR WERE OTHERWISE SOLD.
THE TRIAL JUDGE ERRED IN FAILING TO MAKE INQUIRY INTO OR TO OTHERWISE ADDRESS THE ISSUE OF MRS. WHEATON'S HEALTH IN HIS CALCULATION OF HER GROSS SUM IN LIEU OF DOWER.
We reverse. We hold that the widow's dower abated because the properties of her deceased husband had not been sold at the time of the widow's death; therefore, the gross sum in lieu of dower was not "capable of ascertainment." Filing an action prior to the widow's death to have her interest calculated and paid from the proceeds of sale of her deceased husband's properties alone was not sufficient to vest her dower interest. Mary Bainbridge Wheaton was born on August 8, 1916. She married Frank H. Wheaton, Jr. on October 24, 1935; it was the first and only marriage for both. Four children were born of the marriage. During the course of the marriage, Mr. Wheaton acquired title to the properties solely in his own name. Mr. Wheaton died testate on July 21, 1998. In September 1998, Mrs. Wheaton's health began to fail and she entered a nursing home. On October 7, 1998, Mrs. Wheaton, through her ...