Opinion
03-23-1897
THIEFES v. MASON.
Wheaton Berault, for complainant. William W. Benthall, for defendant.
Bill by Emil R. Thiefes, as administrator with the will annexed of the estate of Gertrude Loewendahl, deceased, against Joseph Mason, as executor of the estate of Israel Loewendahl, deceased, to reform a deed. Dismissed.
Wheaton Berault, for complainant.
William W. Benthall, for defendant.
GREY, V. C. This bill is filed by the complainant, as administrator with the will annexed of Gertrude Loewendahl. The decedent died in 1885, leaving surviving her husband, Israel Loewendahl, and her heirs at law, her brothers and sister, who live in Germany. Gertrude left a will, whereof she appointed her husband, Israel Loewendahl, and her brother, Charles Weyers, executors. By this will she made the following devise: "I give to my beloved husband, Israel Loewendahl, for and during his natural life, the use of all that certain piece of property now standing in my name in Cumberland county, state of New Jersey, described in a certain deed, the said deed being recorded in the clerk's office at Bridgeton in the said county on the sixth day of October, A. D. 1868, in Book CV of Deeds, page 652," etc.; "and at the death of my said husband it is my desire, and I do order, that the abovementioned real estate shall be equally divided among my brothers and sister, share and share alike, conveying to them and their heirs an absolute fee simple, to be used and disposed of as to them shall seem best, and to their best interests," etc. The deed referred to in this devise is a deed made by Pardon Gifford and wife, conveying to Israel Loewendahl and Gertrude Loewendahl, his wife, the tract of land described in the complainant's bill. The deed was made October 3, 1868, in stating the parties to the deed in the opening paragraph, the deed is declared to be made to Israel Loewendahl and Gertrude Loewendahl, "and the survivor of them." Gertrude was then Israel's wife. The further parts of the deed conveyed to them a fee-simple estate, with no specification that the estate should be a tenancy in common, and not a joint tenancy. The legal effect of this deed is undoubtedly to pass to Israel and Gertrude, they being husband and wife, the peculiar estate, in the nature of a joint tenancy, which, on the death of either husband or wife, vests an entirety in the survivor.
There are some indications in the proofs submitted that this result was not within the understanding and intent of the grantees, Israel and Gertrude, but I do not pass upon any of the questions involved in the application to reform this deed, for reasons which will be hereinafter stated. Israel Loewendahl died on August 4, 1894. Nothing appears in the case to show whether or not he left any heirs at law, although that is indicated as possible by the terms of his will, whereof he appointed the defendant, Joseph Mason, executor. By this will he devised his real estate to the defendant, Joseph Mason, his executor, in trust to sell it and divide the proceeds among certain named relatives of the testator. The executor sold the property and received the proceeds of sale. Demand was made upon him by or in behalf of the complainant, as administrator with the will annexed of Gertrude, to pay one-half of the amount realized from the sale of the premises in question to the complainant as administrator, etc., which the defendant refused to do.
The only party complainant in this bill is the administrator cum testamento annexo of Gertrude Loewendahl. The only party defendant in the bill is the executor and trustee in the will of Israel Loewendahl. The prayer of the bill is that the deed above referred to should be so reformed that it should be decreed by this court that the grantees hold as tenants in common, and a further decree is asked that the defendant may be ordered to pay to the complainant one-half of the purchase money which the defendant has realized from the sale of the lot conveyed by the deed. If the objects sought by this bill could, as presented, be considered and passed upon when contested, at this late day, 28 years after the deed was made, relief is impossible, as it is now sought, because the bill is so essentially defective, for want of parties, that the court would be unable to make a decree. The bill seeks to reform a deed, but the grantors are not made parties. It seeks to have a decree that the deed conveyed a tenancy in common and not a joint tenancy. The effect of such a decree, if made, would be to vest a fee-simple estate, as tenant in common, in Gertrude Loewendahl, because if the deed mistakenly conveyed the peculiar estate of husband and wife, and if that mistake is corrected, it must be corrected as of the date of the delivery of the deed. The effect of such correction would be, as above stated, to have vested in Gertrude a tenancy in common. This estate would be operated upon by her will, save as it affected any interest of her husband. Consequently, if the deed be reformed as asked, Gertrude by her will devised her undivided share to the use of her husband for life and in fee to her brothers and sister. These brothers and sister, though interested necessarily in such a decree, are not parties to the bill. By the face of the deed, its actual operation was to convey the peculiar estate of husband and wife to Israel and Gertrude. Gertrude dying first, the entirety in the land survived to Israel.By his will he devised the lands to his executor and trustee, directing a sale. This sale has been made, and a deed delivered by the executor and trustee under the power and direction given by Israel's will. By the face of the deeds and record, the title to this land is now in this grantee of the executor of Israel; but this grantee, holding a perfect record title, one-half of whose estate it is proposed shall be taken away by reformation of the older deed, is not made a party to this suit.
The bill also asks that the executor and trustee of Israel shall account for one-half of the money received by him from the proceeds of the sale which he has made of the lands conveyed by this deed to Gertrude and Israel when they were alive. He received this money upon a trust expressed in the will of Israel, and the persons entitled to the distribution of these moneys under the trust are named in Israel's will, and are interested in the event of this suit, but none of them are made parties. It would be difficult to make a decree which should reform the deed, taking from the defendant's grantee one-half of his estate, and at the same time directing the defendant to account for and pay over one-half of the purchase money paid by his grantee for this estate. If the right to a reformation were established, there could be no accounting for purchase money paid for the estate taken away by the reformation. The interests of the parties above referred to would naturally make them all defendants, and, if these were the only criticisms to which the bill was open, the case might possibly stand over, in order that the bill might be amended and they be brought in. But, upon examination of the will of Gertrude Loewendabl, it appears that she devised whatever estate she had in these lands to her brothers and sister as tenants in common, and the proof is that these brothers and sister survived her, so that they received by this devise whatever interest in the land in question Gertrude had. Or, even if this devise of Gertrude was ineffectual, the same parties took as heirs at law a fee simple in whatever lands Gertrude was seised of an estate of inheritance at the time of her death. Either of these modes of passing the title necessarily excludes the complainant from any interest whatever in the land in question. Nothing in Gertrude's will gave any title to her executor, and the administrator with the will annexed has no interest in the testator's real estate, unless there be a special devise to an executor virtute officii upon some unexpected trust which is cast upon the administrator cum testamento who succeeds the executor. The result is that the complainant has no status whatever to come into this court and ask the relief sought, either by reforming the deed, or by recognizing the title made by the executor of Israel, and asking him to account for one-half the purchase money, if such relief could under any circumstances be granted. This defect is irremediable, and the bill must therefore be dismissed, with costs.