Everett v. Gunther , 107 N.J. Eq. 591 ( 1931 )

The children and heirs-at-law of Peter Everett, deceased intestate, conveyed to his widow their interests in a piece of land and building which he had owned in his lifetime, and she held the full title thereto until her death. She left a will, which was duly proved, and whereby she devised this real estate to two of her children, recognizing the others only to the extent of legacies of $100 and $50 each. The complainants, who are three of the sons of Peter and his wife, to whom no interest in the land was devised, filed the bill in this cause alleging that the deed to their mother had been made as a matter of convenience in the management of the property, and upon her express oral agreement to devise it to all the children or their representatives in equal shares upon her death. The bill was in the nature of a bill for specific performance of this alleged oral agreement, and to charge the devisees with a trust in favor of all the children.

The vice-chancellor dismissed the bill, deciding the case orally at the conclusion of the hearing. He held, in substance, that apart from questions of the statute of frauds, and of parol evidence to vary a writing, such a case as that alleged in the bill should be proved by clear and convincing evidence, and that the evidence produced in the case did not by any means measure up to those requirements. Our examination of the case and briefs leads us to concur fully in this view of the matter, and the decree appealed from will accordingly be affirmed.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.

For reversal — None.