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In re Probate of

Decided: March 29, 1966.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF CHARLES F. SEABROOK, DECEASED


Wick, J.s.c.

Wick

This matter is presently before the court on an application for a declaratory judgment declaring that the caveators in this will contest and the charitable beneficiaries named in the alleged will of Charles F. Seabrook have the right to resolve their differences amicably with the approval of the court, even though plaintiffs, the named executors and trustees under said will and codicil, object.

On October 20, 1964 Charles F. Seabrook died, leaving an alleged will dated December 2, 1958 and an alleged codicil dated July 2, 1959 wherein he appointed the plaintiffs his executors and trustees. On October 30, 1964 caveats against the probate of any writing purporting to be the last will of Charles F. Seabrook were filed in the Cumberland County Surrogate's office by decedent's sons, John M. Seabrook, C. Courtney Seabrook and Belford L. Seabrook, and decedent's

grandson, Charles F. Seabrook, II. The caveators complain that the alleged will and codicil of decedent is the product of undue influence and fraud and was not executed in accordance with the statutory requirements for the execution of wills. The caveators further allege that decedent, at the time of the execution of the alleged will and codicil, lacked sufficient mental capacity to make a will.

Thereafter, plaintiffs in the present action filed a complaint seeking probate of said will and codicil in this court. Defendants' answers adopted the same positions as set forth in their caveats filed in the surrogate's court.

After much negotiation it has been represented that a compromise has been reached, but the executors and trustees refuse to join in the compromise agreement. Therefore, the present motion has been presented to the court. The charitable beneficiaries have stated that they take no position in the present motion.

Plaintiffs contend that the settlement, as advanced, is uncertain. This court is of the opinion that a specific settlement has not yet been presented to it. The aim of the present motion is to determine whether the caveators and beneficiaries have the right to compromise the will contest over the objections of the executors and trustees named in the will and codicil. If this court determines that the consent of the trustees and executors is not necessary, the compromise will be examined by the court before approval is given. This does not mean that the caveators are given blanket authority to compromise the action. The merits of any compromise will be closely scrutinized before approval is given.

Plaintiffs contend that until a specific compromise is presented to the court for approval the matter is not ripe for declaratory relief. It is true that the Declaratory Judgments Act cannot be used to decide or declare the rights or status of parties upon a state of facts which are future, contingent and uncertain. The act is not to be used to obtain advisory opinions. Lucky Calendar Co. v. Cohen, 20 N.J. 451 (1956). The settled policy of the law is to refuse an [90 NJSuper Page 558] advisory opinion and to refrain from functioning in the abstract in a declaratory judgment action. Wagner v. Ligham, 37 N.J. Super. 430 (App. Div. 1955). However, the Declaratory Judgments Act is remedial in nature and should be liberally construed. N.J.S. 2A:16-51; New Jersey Bankers Ass'n v. Van Riper, 1 N.J. 193 (1948). The decision whether to award declaratory relief is ordinarily a matter resting in judicial discretion. Utility Blade and Razor Co. v. Donovan, 33 N.J. Super. 566 (App. Div. 1955). In the instant case this court cannot disregard the fact that the amount the charitable beneficiaries will realize under the alleged will is subject to the discretion of the trustees, who were given broad powers to alter the proportions of the charitable trusts allocated to the charities, even to the extent of terminating the trusts and allocating the corpus to any qualified New Jersey charity. This court is not so naive that it fails to realize the real possibility that the charitable beneficiaries have apprehensions about joining in the present motion until it is determined that a compromise may be reached without the approval of the trustees. This court can believe that the charitable beneficiaries have a genuine fear that in joining the compromise over the objection of the trustees they may incur the wrath of the trustees, who have such wide discretion in administering the trust to which they are beneficiaries, and that should the court find that the executors and trustees are necessary parties to the settlement, the hard feeling engendered by their joining in the compromise could affect the exercise of discretion by the trustees. This may not be true. Perhaps the fact that the charitable beneficiaries join in the proposed compromise will not affect the trustees' exercise of discretion, but this court feels that a genuine fear of this possibility is the reason why the charitable beneficiaries have stated that they take no position in the present motion. Accordingly, this court, in the exercise of its discretion feels that the matter is appropriate for declaratory relief. Certainly, if a compromise is reached and approved, there will never be a need for trial and the controversy

will be terminated. Settlement of litigation ranks high in public policy. Liguori v. Allstate Ins. Co., 76 N.J. Super. 204 (Ch. Div. 1962); Jannarone v. W.T. Co., 65 N.J. Super. 472 (App. Div. 1961); Judson v. Peoples Bank and Trust Co., 25 N.J. 17 (1957). An agreement made to forestall pending litigation and a family dispute has a goal which is considered with high favor by the courts. De Caro v. De Caro, 13 N.J. 36 (1953); Michalski v. Michalski, 20 N.J. Super. 258 (Ch. Div. 1952).

Plaintiffs argue that to allow the caveators to prevail will result in a waste of time in a matter that has already been delayed too long, for the fact remains that no agreement exists. This court does not share plaintiffs' pessimism, for it feels that a compromise has been reached, but due to the fear of the charitable beneficiaries of incurring the wrath of the trustees they have not joined in the present motion, and for this reason the agreement has not been presented to the court. This court would not change its position even if it felt that no agreement had yet been reached. It must be borne in mind that approximately 15 attorneys are involved in this will contest. This court appreciates the difficulties in scheduling settlement conferences and the time that has been consumed in finding times at which the various attorneys could sit down and attempt to compromise the controversy. This court can think of nothing that would be a greater waste of time than to have the parties discuss and agree to a compromise, only to have this court refuse to approve it because the trustees and executors refuse to join in the compromise. Accordingly, this court finds that the matter is ripe for declaratory relief. This court disagrees with plaintiffs' interpretation of the case of First Camden National Bank & Trust Co. v. Hiram Lodge No. 81, 134 N.J. Eq. ...


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