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In re Probate of

Decided: August 26, 1985.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF GERARD ARANEO, DECEASED


Wefing, J.s.c.

Wefing

This case raises a matter of apparent first impression in New Jersey, the construction of N.J.S.A. 3B:5-16(b). This statute provides:

If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.

The issue arises in the following context. Gerard Araneo died intestate on November 5, 1984, a resident of Hudson County. His will, which was executed on March 2, 1981, bequeathed his entire estate to his nieces Alycia Craft and Helene Ackerman. The will itself was typed on a blank will form and it contained no indication whatever on its face that the decedent had any children.

The suit was brought by Gerard Araneo's two daughters, Constance Iscaro and Marilyn Anderson who, in reliance on the above statute, seek to overturn the judgment of the surrogate admitting this will to probate. Gerard Araneo was married at one point to Virginia Araneo and two children, plaintiffs herein,

were born of this marriage. In or about 1950, Mrs. Araneo packed up the two children and moved out-of-state with a new companion. She relocated in Idaho and eventually settled in Illinois. At the time of this move Constance was eight- or nine-years of age and Marilyn four or five. Mr. Araneo did, at least while the girls were in Idaho, forward child support payments but these eventually ceased completely. The girls' mother led them to understand that their father was dead and they had no contact with him at all from the time of the original move from New Jersey until August 1984. Mrs. Araneo at some point married one Iscaro and changed the children's names; they were, however never adopted. She later divorced Iscaro and married another individual.

Plaintiffs remembered having lived in New Jersey as children and in the summer of 1984 began to try to locate relatives here. After a series of phone calls, in August they contacted Michael Araneo, brother of Gerard. After expressing shock at hearing from them, he told plaintiffs that their father was a patient in St. Francis Hospital in Jersey City.

The two women drove to New Jersey from Illinois that weekend and visited Mr. Araneo in the hospital. When they first entered his room he did not recognize them and told them they were in the wrong room. When they identified themselves he expressed great shock and said, "My God, I thought you disappeared off the face of the earth." The women visited with him at length over the weekend, filling in what happened to them in the years since 1950. It is evident from a nine-page letter written by plaintiff Connie Iscaro to Michael Araneo sometime after the visit, that the reunion did not provide the emotional comfort and solace that she and her sister had sought.

During this visit the women invited Mr. Araneo to move to Illinois to live with them and he expressed the desire that they all live together in their old residence in Dumont. However, unbeknownst to either Gerard Araneo or his daughters, he had

cancer and his doctors' prognosis was that he had only several months to live. The doctors had communicated this to Michael Araneo, but he, in turn, did not disclose it to his brother or his nieces.

Plaintiffs returned to Illinois, planning another visit at Thanksgiving. They did not, however, see their father again for he died on November 5, 1984. Because he refused to have a telephone in his room at the hospital they were also unable to call him after their departure. (The testimony was unrefuted that for some years Mr. Araneo would not have a ...


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