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Matter of Estate of Max Yablick

Decided: June 9, 1987.

IN THE MATTER OF THE ESTATE OF MAX YABLICK


On appeal from Superior Court, Law Division, Union County.

Petrella, Gaynor and Scalera. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

[218 NJSuper Page 93] The issue on this appeal is the adequacy of notice and extent of participation by the Attorney General in litigation involving

charitable bequests, and the effect of the subsequent approval in 1986 of the first intermediate accounting on the Attorney General's attempt to reopen a settlement of prior litigation. The Attorney General challenges the trial judge's denial of his motion which sought alternatively to reopen a 1984 settlement of litigation between the coexecutors, or to enforce the settlement and to stay the judgment allowing the first intermediate accounting. We affirm.

Max Yablick (Testator) died on November 6, 1983 leaving an estate valued at over $800,000. His will was admitted to probate before the Union County Surrogate on November 17, 1983. Among other things, his will directed his executors to divide the balance of his residuary estate between any "religious, educational or charitable" organizations chosen by the executors in their discretion. Article Fourth of the will made a series of specific bequests and, if the Testator was predeceased by his sister, made the following bequest:

The remaining balance [of the residuary estate] to my Executors or Trustees to be distributed by them to religious, educational or charitable organizations as they shall determine and which are qualified as tax except (sic) [exempt] organizations pursuant to ยง 501(c)(3) [of the Internal Revenue Code], with the proviso that not more than twenty (20%) percent of the remaining balance be distributed to any one organization or charity.

Article Eighth of the will named Rabbi Alvin M. Marcus and Lenore Golden as coexecutors. Article Tenth provided that if, for any reason, one of the executors had to resign his office he could then designate his successor.

On December 23, 1983 a copy of the will was forwarded to the Attorney General by the attorney for the estate pursuant to R. 4:80-8. On January 9, 1984 a Deputy Attorney General wrote to the attorney for the estate stating that pursuant to R. 4:80-8 and R. 4:28-4(b) he was required to "advise this office of all subsequent developments in the administration of this estate which bear upon the rights of the charitable beneficiaries named" so that the Attorney General could insure that "proper protection is afforded to the rights of charitable beneficiaries."

In January 1984 the estate's attorney, acting for Rabbi Marcus, filed an action to remove Golden as coexecutor challenging her position that prior to his death Testator had given her permission to have the cash on deposit in a money market fund in a New York bank totaling approximately $50,000. After Testator's death Golden was told not to cash the certified check she had apparently received from the bank and to allow the funds to be distributed through the estate. Golden apparently ignored these instructions and cashed the check some two weeks after Testator's death. The complaint sought return of the $50,000 and the removal of Golden as coexecutor. Golden responded by denying any impropriety and filing a counterclaim to remove Marcus as coexecutor.

The estate's attorney informed the Attorney General's office of the filing of the lawsuit in a January 17, 1984 letter. The same Deputy Attorney General who previously corresponded with the attorney responded in a letter stating that he could not appear in court when the matter was to be heard, but would appreciate being advised of the outcome of the proceedings. On February 6, 1984, after a January 27, 1984 hearing on the complaint, the estate's attorney sent copies of all pleadings to the Deputy Attorney General and further informed him that the trial judge had put the matter on the contested calendar and had set a date for a pretrial conference. The Attorney General admittedly received notice of the institution of the lawsuit, but did not intervene pursuant to R. 4:28-4(d) and was not a party to the subsequent settlement of the lawsuit.

At an April 2, 1984 hearing the attorneys for the estate and Golden advised the trial judge that the disputes embraced in the cross-complaints for removal had been settled and the matter would be dismissed. Under the settlement Golden would return the $50,000 to the estate which would then pay that amount to her as a claim against the estate. The estate would not dispute the "gift status" of the $50,000 and, in return, Golden would waive all ...


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