[114 NJSuper Page 81] There are two matters before the court. The first is an order to show cause why plaintiff should not distribute the remaining corpus of the estate of Daniel Clarenbach in accordance with plaintiff's informal accounting wherein defendant's residuary interest, which qualified for the marital deduction under 26 U.S.C.A. § 2056, was calculated after the deduction of federal taxes. The second is defendant's motion which seeks to compel
plaintiff, as executor of Daniel Clarenbach's estate, to file an inventory and settle an account. Defendant's motion also seeks to order plaintiff to comply with R. 4:88-1 (N.J. Court Rules , 1969) which rule would require an application for commissions on corpus and attorney's fees to be supported by an affidavit of services.
The facts material to a resolution of the issues are neither complex nor essentially conflicting. Plaintiff, who drew the will, is the attorney-proctor of the estate, the nephew and executor under the will of the deceased, Daniel Clarenbach, hereinafter "testator," and is also a substantial beneficiary. At the time testator made his will and at all times prior thereto he was unmarried. The will was executed on November 27, 1966. At some time prior to this event testator had been advised by plaintiff of the advantages of the marital deduction. Presumably this information was supplied so that testator could utilize it in the event he ever married and desired to include such provisions in his estate plan. A codicil to the will was executed on June 2, 1967 but did not change the residuary disposition as set forth in the will. Under the terms of the will and codicil testator made certain specific bequests and devices. The residuary estate was then bequeathed to 20 different persons, each of whom received a stated percentage of the residue. Among the residuary legatees 12 were relatives, 1 was an unnamed college, 2 were male friends, and 5 were what plaintiff described, chivalrously, as testator's "lady friends," of whom defendant Ethel Carnathan, later Clarenbach, was one. Including specific bequests and devices as well as her residuary interest, defendant has less than a 25% interest in the estate, whereas the combined interests of the other lady friends were greater than 25%. The will contained no provision for the payment of taxes.
Several years after the will was executed testator, at the age of 71 and after having had several heart attacks and at least one major operation, married defendant whom he had known for more than 40 years. There is nothing before the
court to indicate testator was of unsound mind at any time, nor is this an issue raised by the pleadings. This marriage appears to be a direct result of a doctor's advice to testator to the effect that it would be medically inadvisable for testator to live alone. Testator died approximately two months after his marriage. During the two-month period between marriage and death testator made several statements that indicated that he wanted to make certain changes in his will. There is nothing before the court that would remotely indicate the nature of the desired will changes. Indeed, testator neither changed his will nor made any arrangements to discuss such changes with his attorney.
On October 15, 1970, approximately two years after the death of testator, plaintiff sent to each beneficiary under the will an informal account. A release and refunding bond accompanied each copy of the account. The account in part stated:
When you sign the refunding bond and release, you release the executor from any further obligation to you in connection with the estate and you agree to return your proportionate share of any monies you have received in the event that the estate has not paid all its bills and does not have sufficient reserve to pay them.
If any beneficiary prefers a formal accounting, please notify me as promptly as possible because in that case, I will have to withhold all payments until the accounting is approved.
Each beneficiary, including defendant, signed and returned to the plaintiff his or her release and refunding bond. Defendant had the instrument for approximately two weeks before she signed and returned it. Subsequent to the execution and return of the instrument, and either because she changed her mind or because she obtained the advice of counsel, defendant requested that plaintiff return the instrument to her. Plaintiff has continually refused to do this.
The question before the court is whether defendant's share of the residuary estate, which qualified for the marital deduction under 26 ...