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Matter of Estate of Margow

Decided: August 7, 1978.

IN THE MATTER OF THE ESTATE OF HELENE MARGOW, DECEASED


On certification to the Superior Court, Appellate Division, whose opinion is reported at 149 N.J. Super. 249 (1977).

For reversal and reinstatement -- Chief Justice Hughes, and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Clifford, J.

Clifford

[77 NJ Page 318] The fundamental issue raised by this case is whether Muriel Kabot, the proponent and executrix named

in the will of Helene Margow, should be barred because of her unauthorized practice of law from serving as executrix of Helene Margow's estate. Testatrix's nephew, Donald Peiffer, the residuary legatee and primary beneficiary under the will, mounted a challenge by filing a caveat against Mrs. Kabot's serving as executrix. The will arguably gives the executrix vast powers over Peiffer's bequest. The trial court upheld the challenge but the Appellate Division reversed, holding that although proponent had engaged in the unauthorized practice of law in violation of N.J.S.A. 2A:170-78 and N.J.S.A. 2A:170-80 by actively assisting in the drafting of Mrs. Margow's will, she was nevertheless entitled to reap the benefits of this unlawful conduct by serving as executrix. In re Estate of Margow, 149 N.J. Super. 249, 253-54 (App. Div. 1977). In recognition of both our obligation to protect the public "against the often drastic and far-reaching consequences of * * * inexpert legal advice", In re Baker, 8 N.J. 321, 339 (1951), and the long-standing equitable maxim that one should not be allowed to enjoy the benefits of one's unlawful action, we have determined that proponent should not be permitted to serve as executrix of Mrs. Margow's estate. Accordingly, we reverse.

I

The factual background reveals that Helene Margow first met Muriel Kabot in 1962 when the latter was employed as a legal secretary to one Emil Wulster, an attorney-at-law of this state. Mrs. Margow had initially sought Wulster's advice in connection with the administration of her late husband's estate. At first the relationship between Mrs. Margow and Mrs. Kabot was a purely business one, growing out of Kabot's assistance to Wulster in the administration of the estate. After Mrs. Margow's will was probated, Kabot accompanied Wulster on several business trips to Mrs. Margow's apartment. As Wulster's secretary, Kabot had

typed a will for Margow in 1967 and had witnessed its execution. She did the same with respect to a 1968 codicil to the will. This was the extent of proponent's dealings with Margow between 1962 and 1973.

In 1973 proponent terminated her employment with attorney Wulster. Shortly thereafter Wulster was scheduled to call upon Mrs. Margow at her apartment on a business matter and he requested that proponent, then his former employee, accompany him. She refused. Margow then communicated directly with proponent, who explained that she was no longer employed by Wulster. At that point Margow, 78 years of age and in declining health, told Kabot that she was lonely and asked her to visit. The affirmative response signaled the beginning of their friendship.

Between 1973 and 1974, as Margow's health deteriorated rapidly, the friendship blossomed. During the course of one of the many visits proponent made to Margow's apartment, the latter expressed her dissatisfaction with her current will. Specifically, she was distraught over the fact that the lawyer (not Wulster) who had prepared her previous will of December 1974 had apparently named himself as executor without consulting her. As the two discussed the prospects of Margow preparing a new will, Kabot informed Margow, whose general distrust of lawyers was well-known to (and perhaps even fueled by) proponent, that there was no legal obstacle to her preparing a new will without the assistance of an attorney. Proponent, with 27 years of experience as a legal secretary, much of which with a firm engaged in an estate practice, was apparently perceived by Margow to be as competent as the attorneys with whom she had dealt in the past. Whether this perception was attributable to Margow's declining mental capabilities or a calculated attempt by proponent to play upon the fears of this lonely, vulnerable woman is unclear from the record.

Eventually Mrs. Margow asked Mrs. Kabot whether she would prepare a new will for her. Proponent initially informed Margow that she should consult an attorney on this

matter; however, this momentary acknowledgement of what she apparently knew to be the proper response quickly faded. She agreed to prepare the will.

In January 1975, proponent assisted Margow in the drafting of a new will. The procedure employed was that Margow, using proponent's will as a basic form, dictated the provisions of the will to Kabot, who transcribed the words -- making "automatic changes" where she deemed appropriate -- in shorthand form. Proponent subsequently typed the will from her shorthand notes, which she did not retain. Under this will, executed January 16, 1975, proponent was named sole executor and Donald Peiffer, principal beneficiary of a trust established under the previous will, now received the bulk of the estate outright. Although proponent claims that she offered to perform her services without compensation, she asserts also that Margow insisted she be compensated, and her nomination as executrix was more likely than not intended to serve as compensation for her services.

Following the execution of the will Margow developed a concern that proponent had been given too much discretion under the will to vote as she pleased the stock of Marmac Oil and Supply Co., a family concern, the sizeable assets of which constituted the bulk of the estate. Margow's position was that Donald Peiffer, her nephew, should control the Marmac stock, inasmuch as he had guided Marmac Oil since her husband's death. She therefore requested proponent to change the January will to meet this concern. Proponent drafted the necessary language, which was subsequently approved by Margow, whereupon a new will was executed on June 3, 1975, adding the following language to the January will:

SEVENTH: I hereby authorize my Executrix herein named to sell, exchange, mortgage and lease any and all of my estate, real and person [sic], in her discretion, at such time and in such manner and on such terms and conditions as she may deem best; to make, execute and deliver any and all papers necessary and proper for the sale, exchange, transfer, conveyance, mortgage and lease thereof,

and to do any and all acts in her discretion expedient or necessary to the full execution of this, ...


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