IN THE MATTER OF THE ESTATE OF LEROY BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2639-05T22639-05T2

IN THE MATTER OF

THE ESTATE OF

LEROY BROWN, DECEASED.

 
________________________

Argued October 12, 2006 - Decided

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New

Jersey, Chancery Division, Essex County,

Probate Division, No. CP-0085-2005.

Malcolm Blum argued the cause for appellant

Dana Brown.

Neil J. Dworkin argued the cause for

respondent Nora Brown.

PER CURIAM

Dana Brown appeals from a trial court judgment declaring that she has no interest in property located at 137 Alexander Street, Newark, New Jersey. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Dana Brown is the daughter of Leroy Brown, who died intestate on February 17, 1999. Leroy Brown was married twice; his first marriage, to Dana Brown's mother, ended in divorce in 1981. In 1988, he married Nora Brown and was married to her at the time of his death. At the time of their marriage, Nora Brown owned the property at 137 Alexander Street, having purchased it in 1982. At the time of this initial purchase, title was placed in the name of Nora Brown and her mother, Hattie Barnett. Although Ms. Barnett was obligated on the mortgage, Nora Brown made all of the payments in connection with this property.

In 1995, Nora Brown decided to refinance this mortgage and, at the same time, to place the property in her name and that of her husband, Leroy Brown. In conjunction with that, Nora Brown and Hattie Barnett executed a deed dated February 13, 1995. In that deed, "Nora Long n/k/a Nora Brown & Hattie Barnett" are named as the grantors and they transferred ownership of 137 Alexander Street to "Leroy Brown & Nora Brown formerly Nora Long" as the grantees. The deed was signed by both Ms. Brown and Ms. Barnett; no realty transfer fee was required to record the deed because Mr. Brown executed an affidavit that the transfer was made for a consideration of less than one hundred dollars.

After her father's death in 1999, Dana Brown began proceedings in the Probate Division in which she alleged that her father and Nora Brown held title to the Alexander Street property as tenants in common rather than as tenants by the entirety. She contended that, as a result, she was entitled to a partial interest in the property. After a trial on stipulated facts, the trial court found for Nora Brown. This appeal followed.

In support of her appeal, Dana Brown relies upon N.J.S.A. 46:3-17.2, which provides:

A tenancy by entirety shall be created when:

a. A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife; or

b. A husband and wife become the lessees of real property or personal property under a written instrument containing an option to purchase designating both of their names as husband and wife; or

c. An owner spouse conveys or transfers an interest in real property or personal property to the non-owner spouse and the owner spouse jointly under written instrument designating both of their names as husband and wife.

Language which states "...... and ......., his wife" or "....... and ........, her husband" shall be deemed to create a tenancy by the entirety.

Dana Brown contends that under this statute, the transfer from Nora Brown and Hattie Barnett to Nora Brown and Leroy Brown did not create a tenancy by the entirety because the February 13, 1995, deed did not include the words "husband and wife".

In our judgment, the trial court correctly rejected this argument. The statute does not mandate the use of the words "husband and wife" to create a tenancy by the entirety; it merely specifies that a tenancy by the entirety is created if those words are used.

The argument, moreover, overlooks the clear language of N.J.S.A. 46:3-17.3. This statute states:

No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it was intended to create a tenancy in common or joint tenancy.

Here, nothing within the deed manifests an intent to create a tenancy in common or a joint tenancy for the Alexander Street property. Accordingly, Leroy Brown held his interest in the property as a tenant by the entirety with his wife, Nora Brown. Because he held his interest as a tenant by the entirety, nothing could pass to his daughter by way of intestacy.

The judgment under review is affirmed.

 

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A-2639-05T2

December 14, 2006

December 14