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Matter of Catanio

December 29, 1997

IN THE MATTER OF THE DECLARATION OF TRUST BY ROSE CATANIO, DECEASED


On appeal from Superior Court of New Jersey, Chancery Division, Ocean County.

Before Judges Shebell, A.a. Rodr¡guez and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

Argued October 22, 1997

Rose Catanio intended that upon her death her home would become the property of her sister Pauline DeMaio. To achieve that result, she signed a document entitled "Declaration of Trust" which provided for the transfer. She died shortly thereafter. We are called upon to decide the legal effect of that writing *fn1 and its relation to Rose's earlier executed will. The parties to this dispute are plaintiff Pauline DeMaio and defendants Thomas Catania, Nicholas Catania, Rose Avella, and George LaCorte, who, like Pauline, are beneficiaries under the will.

The Declaration of Trust was testamentary in nature and was executed in accordance with the formalities required by N.J.S.A. 3B:3-2 of the statute of wills. The issue to be resolved is whether Pauline, the proponent of the document, met her burden of proving by a preponderance of the evidence that the document was executed with testamentary intent. See In re Will of Smith, 108 N.J. 257, 262-65 (1987). We are entirely satisfied that she did, and that in so doing, she further demonstrated that the Declaration of Trust was intended to be a codicil to the earlier will.

The facts are not in dispute. In July 1986, Rose Catanio and her husband, Ralph, purchased a home at 191 Liberta Drive, Toms River, for $82,500. Later that year they executed mutual wills. Each left their entire estate to the other, and each provided for the same gifts to the same alternate beneficiaries. Ralph died on June 26, 1995, at age 83, and Rose, then age 81, became the sole owner of the home by operation of law.

Rose and Ralph were a couple of modest circumstances. He had been a clothes presser for a manufacturing company, and Rose had only been educated through grammar school. Rose was able to read and write and was mentally competent in 1995. They had no children. According to Pauline, Rose had said she intended to stay in her home but had also "expressed her desire and intention to leave her home to me after her death." On June 30, 1995, Rose called her friends William and Teresa Lyle and asked them to come over to her house that afternoon. Rose had known the Lyles, who lived nearby, for about nine years. When the Lyles arrived around 2:00 p.m., the house was in good order and Rose was clean, well-dressed, and coherent. After they sat down in the kitchen, Rose said, "I have something here that I'd like you to witness my signing." Rose then signed the document in the presence of the Lyles without identifying its nature. The Lyles immediately signed the document as witnesses. They did not read the contents of the document. However, in court they testified, based on their signatures, that the Declaration of Trust in question was the document they had witnessed for Rose.

On July 13, 1995, Rose was taken to the emergency room of a nearby hospital. In the early evening, Pauline came to visit. Rose told her there was a document which she had placed in an envelope near her black pocketbook, and she wanted Pauline to "look at it." Later that evening, Rose died.

About three days later, Pauline and others went to Rose's house and found the Declaration of Trust and Rose's will together on top of the black pocketbook. They were in a manilla envelope in which Rose customarily kept important papers.

The Declaration of Trust *fn2 describes the house in detail by reference to the prior deed, a filed map, the lot and block on the tax map, and its common address, and includes the following pertinent provisions:

NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that I do hereby acknowledge and declare that I hold and will hold said real property and all right, title and interest in and to said property and all furniture, fixtures and real and personal property situated therein, IN TRUST

1. For the use and benefit of Pauline T. DeMaio (sister) * * * Upon my death, unless the beneficiary shall predecease me. . . my Successor Trustee [later named in the document as Pauline] is hereby directed forthwith to transfer said property and all right, title and interest in and to said property unto the beneficiary absolutely and thereby terminate this trust.

2. I reserve unto myself the power and right (1) to place a mortgage or other lien upon the property, (2) to collect any rental or other income which may accrue from the trust property and, in my sole discretion as trustee, either to accumulate such income as an addition to the trust assets being held hereunder or pay such income to myself as an individual.

3. I reserve unto myself the power and right at any time during my lifetime to amend or revoke in whole or in part the trust hereby created without the necessity of obtaining the consent of the beneficiary and without giving notice to the beneficiary. The sale or other Disposition by me of the whole or any part of the property ...


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