In re Lamb , 1924 N.J. Ch. LEXIS 16 ( 1924 )

Ingersoll, V. C.

The special master found and reported the following facts, all of which are sustained by the evidence taken:

“That it is true, as set forth in the petition, that the land sought to he sold under the application is technically owned by the petitioner in her own right, having come to her from her brother’s estate, and was not acquired by gift through or from her husband, Eugene A. Lamb.

“That the petitioner was married to her husband, the said Eugene A. Lamb, July 27th, 1890, and that he deserted her on February 15th, 1902, since which time she has continuously lived in a state of separation from him; that during the time last alioresaid, petitioner's said husband has continuously neglected and refused, and still neglects and refuses, to support her.

“That the portion of the property described in the complainant's’ bill, and against which relief was claimed at this time, is worth, at least, the sum of $10,000.

“That the property described in the petition in this cause, together with other land formerly forming a part thereof, on December 29th, 1881, was conveyed by Robert Bradberry and Rebecca-, his wife, to Thomas V. Bradberry, who was the brother of petitioner; that Thomas V. Bradberry, after becoming seized of the fee-simple title to said premises, departed this life without leaving any children, or children of deceased children, and without leaving any widow him to survive, but leaving him to survive a,s his only heir-at-law, the petitioner; that the said Thomas V. Bradberry was a resident of the city and county of Philadelphia, in the State of Pennsylvania, and left a last will and testament, which was proven in that jurisdiction, but Avhich is not provable in this jurisdiction, because of the fact that the attestation clause attached thereto is not in accordance with the laws of the State of New Jersey, and because of the death of the-witnesses to the said will, and the inability of the parties in interest to establish the same by other evidence; that the said Thomas Y. Bradberry died December 19th, 1885, before the marriage of petitioner; that by the will of the said Thomas Y. Bradberry the property described in the petition in this cause was devised to the mother, Rebecca A. Brad-berry; that on March 21st, 1892, the mother, by reason of the said will and believing in its efficacy, conveyed all of the said property to John Jacob Mezger; that a portion of the property afterwards became vested in one Rosa Wandell and the petitioner, on January 14th, 1920, attempted to confirm the same in her, without her husband joining in the said deed, and that the application is one to perfect a defective title.

“That after the marriage of the petitioner to Eugene A. Lamb, two children were horn to them, both of whom are still alive, so that the said Eugene A. Lamb has a vested, contingent remainder in the premises described in the complainant's bill, which will become effective in the event of him surviving his wife, the said petitioner.

“That it’ is not quite clear from the testimony in the case that the said petitioner is a resident of the State of New Jersey, although she testified she considered it to be such.”

He concludes as follows: “I also certify and report that, because of the fact that the husband has a vested interest in the premises by reason of the birth of issue born alive, the petitioner should not be allowed to make a sale without her said husband joining in the said conveyance, and that the petition should be dismissed.”

The special master was apparently guided by In re Riva, 83 N. J. Eq. 200, in making his report. In that case the court exercised its discretion, and dismissed the petition. It is unnecessary to determine what interest the husband now has in the land in question, or whether this is a “proper ease” by -which the wife can divest him of that right. Bucci v. Popovich. 93 N. J. Eq. 121 (at p. 128); affirmed by per curiam opinion. Ibid. 511.

I am of the opinion that the relief should be granted in this case.

The only apparent purpose of this sale is to legally divest the wife of her interest in the premises for which she made and executed her deed many years ago to the present holder of the paper title.

Without doubt, both the petitioner and her mother believed that the mother, Rebecca A. Bradberry, had the power to convey, when she, Mrs Bradberry, on March 21st, 1892, executed her deed to John Jacob Mezger. Upon the discovery that petitioners had an interest in the lands* she, on January 14tli, 1910, conveyed to Rose Wandeil, the then holder of the paper title.

In that deed, and the acknowledgment thereof, the petitioner was declared to be a widow. If she was a widow at that time, there is no necessity for the present proceedings. If not, her deed, without her husband joining therein, was not effective.

The testimony is that he has not been heard from for more than twenty years. It is unnecessary to cite cases, that he is presumed to be dead.

The reasons given by the court in In re Riva, Ibid., for refusing the relief, are reasons for granting the relief in the. present case.

The petitioner desires that she be now divested of that interest, which was supposed to have been conveyed by her deed of confirmation.

' It might be said that the interest may he purchased by another than the present holder at the sale, but that is an unlikely contingency; under the existing situation, no one other than he would desire to bid therefor.

.This might be a valid objection to the sale, were it not the fact that the petitioner does not expect any financial return from the sale.

She has no equitable claim upon the premises, and makes none. She evidently does no desire to endeavor to secure a divorce, as suggested by the court in Bucci v. Popovich, supra, as being a method of divesting the husband's rights (if her husband is still living).

Considering the entire situation, I am constrained to believe that the relief prayed for should be allowed, and I will advise a decree sustaining the exception and granting the prayer of the petition.