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In re Probate of

Decided: March 13, 1987.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF DAVID D. GARDNER, DECEASED


On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Applicants for intervention, Sam Juffe and Irv Cyzner ("applicants"), have appealed from an order of the Law Division, Probate Part, denying them intervention in a will contest proceeding. Applicants are the assignees of the proponent of the will, Michael F. Padula, Jr., the devisee of a 100 acre farm in Hamilton Township, Mercer County. The caveators are Dorothy Van Aller, Priscilla Wilson and Phoebe Black, sisters of the decedent, David D. Gardner.

The applicants, interested in purchasing the farm in order to develop the land, approached Padula who indicated no desire to farm or even invest in the land and who had insufficient

financial ability to defend the then expected will contest action. On June 18, 1984, Padula executed and delivered to the applicants a handwritten assignment of "all my rights in connection with any lawsuits that may arise from my inheritance of a farm . . . in the Township of Hamilton." He further agreed by the document to cooperate with the applicants in the suit so that they could "obtain clear title to said farm" and defend Padula's interests in the farm. The applicants agreed to defend Padula's title interests so that he could convey the farm to them and further promised to advance Padula $3,500 and to rent a new car for him until the title was cleared. There were additional provisions in the agreement concerning the purchase price of the farm, specifically setting a $500 per acre price in the event the estate action were settled by a division of the land. An addendum to the agreement provided that the applicants would attempt to obtain for Padula a caretaker fee of $400 per week from the estate and in any event would pay him up to $150 per week towards the $400 per week fee.

Two weeks later a formal contract of sale was entered into between Padula and the applicants. The purchase price was established at $500,000, with the seller taking back a five-year, nine percent mortgage, with a release provision at $3,500 per acre. The written contract further incorporated the $150 per week payment provided in the earlier handwritten agreement and the lease of the automobile. The parties agreed to select joint counsel to represent their interests in the anticipated will contest proceedings,*fn1 and agreed that applicants had the right "to take any and all appeals" from an adverse probate decision. The purchase price of $500,000 is acknowledged to have been below the market value of the farm at the time of the agreement.

But for purpose of the application to intervene we must assume that both the applicants and Padula agreed to a price that took into account the uncertainty of Padula's ownership and his right to convey his interests, the circumstances of the expected litigation, the weekly support payments, the car rental and other considerations to Padula evident in the agreements of the parties.

After the caveators had completed their discovery, the applicants moved for leave to intervene in the probate proceedings. On June 27, 1985 the trial judge denied the applicants' motions apparently on the grounds that whatever interest, if any, they had in the litigation would be adequately represented by Padula, although these reasons for denial of intervention at that time were not stated on the record.

According to the applicants' certifications to the trial judge, on March 5, 1986 Padula informed the applicants that he

considered himself not bound by the agreements and . . . free to settle the litigation on terms which, though favorable to himself could destroy our rights and interests in the Farm under the terms of the agreement.

The applicants then moved for an order restraining Padula from implementing any settlement, arguing that under their contract Padula had no right to settle ...


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