On appeal from the Superior Court, Law Division, Union County.
Shebell, Muir and Matthews. The opinion of the Court was delivered by Shebell, J.A.D.
Plaintiffs appeal the denial of their motion for partial summary judgment and the granting of defendants' motions for judgment at the conclusion of plaintiffs' case.
Plaintiffs brought suit against defendants, John F. Burns and attorney Harvey R. Poe, charging fraud, conversion, breach of fiduciary duty and negligence, alleged to arise out of dealings with the personal assets of Emil E. Bruch, which transpired before and after his death.
Plaintiff Anita M. Albright, the daughter of Etta Burns, is coexecutrix of her mother's estate. The mother, the sister of Emil Bruch, was the residuary legatee under his will. John Burns, the brother of Ms. Albright, was named coexecutor and trustee under the mother's will. The two children were to share equally all property interests Etta was to receive under Emil's will. Plaintiff Henry Farer is the substituted administrator of Bruch's estate pursuant to an order of the Probate Part removing Burns as executor and Poe as attorney for the estate, upon exceptions raised by Ms. Albright.
Plaintiffs maintain defendants participated in the unauthorized sale of 1,100 shares of A.T. & T. stock owned by Bruch prior to his death. It is their contention that because of a collusive arrangement between Burns and Poe, Burns was able to use the proceeds of the stock sale, under the guise of a loan, for his own business ventures, thereby depriving Bruch's estate of its largest asset.
Plaintiffs moved for summary judgment against Poe. The motion was denied. The motion judge was of the opinion there was a factual issue as to whether Poe deviated from the standard of care required of an attorney. The allegations of fraud made by Albright against Poe were dropped during the course of trial.
At the close of plaintiffs' case, defendant Burns consented to a judgment against him in the amount of $89,139.72, being the amount of the loan plus interest. The court dismissed all of the
plaintiffs' remaining claims against both defendants for lack of proof.
The evidence reflects that Bruch's health deteriorated during the last few years of his life and that he required hospitalization on five separate occasions from November of 1978 to his death on December 29, 1980. In December of 1978 while hospitalized with a fractured clavicle he executed a general power of attorney in favor of his nephew, the defendant Burns. According to Burns, the uncle was having difficulty in communicating, and would lose his memory and touch with reality from time to time.
Burns desired to sell his uncle's A.T. & T. stock in order to use the proceeds for his business. He discussed this intention with his uncle, who expressed concern, indicating he might need the money for his own care. Burns assured his uncle he would not need money because he would care for him as he was earning $800 per week. It appears, however, Burns was not receiving any wages but had instituted a law suit to compel their payment. He also represented the money would be used on a short-term basis, and would be repaid in 30 to 60 days. Bruch indicated he did not like the idea, but finally reluctantly consented in March of 1979.
Burns consulted Poe who had represented him in other matters. Poe recognized there was a potential conflict in Burns' use of the power of attorney to sell the stock in order to make a loan of the proceeds to himself. He advised Burns against such action. Burns insisted he had a valid power of attorney, had received permission from Bruch and was therefore going to proceed notwithstanding Poe's advice. Burns obtained the stock certificates from Bruch's safe deposit box and sold the stock.
Burns instructed the broker to make the check payable to Emil Bruch and to forward it to Poe. Poe received the check in early April of 1979. Both Burns and Poe endorsed the check which Poe ...