On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, MRS-P-2111-98.
Before Judges Pressler, Kestin and Ciancia.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal in a probate action. Appellant Gloria Gregovich, formerly Gloria Parisi, the daughter of testatrix Jennie Tateo, brought this proceeding for a determination of her rights under her mother's last will and testament. She appeals from an order of the trial court dismissing her complaint. She challenges the court's conclusions first, that her bequest of $50,000 had abated by reason of there being insufficient funds in the estate to pay it and second, that the real property devised by the will to her brother Peter was a specific devise passing to him free of any claim by her. We reverse. We are of the view that the court's decision was contrary to the decedent's probable intent and that appropriate application of the doctrine of probable intent requires that appellant's bequest be deemed to be a charge against the real property inherited by her brother.
Trial of the cause was based solely on the papers submitted to the court which consisted of decedent's prior wills, the will submitted to probate, and affidavits and certifications that were largely undisputed.*fn1 Consequently, the court treated the matter essentially as if there had been cross motions for summary judgment. We are satisfied that the absence of a genuine factual dispute permitted disposition in that manner. Our review of the trial court's determination, however, is based on the same standard as that governing the trial court. See, e.g., Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). Applying that standard, we reach a contrary conclusion.
Decedent, Jennie Tateo, died on October 14, 1998, at the age of 86 survived by her two children, Gloria Gregovich and Peter Tateo, and by two grandchildren, a child of Gloria's and a child of Peter's. Her last will, executed in April 1991, made these basic dispositions in the following order: $50,000 was left to Gloria; $5,000 was left to each grandchild; "all real estate which I may own at the time of my death" was left to Peter with a gift over to Gloria in the event Peter did not survive his mother; the residuary estate was left to Gloria and Peter equally; and joint bank accounts in the names of Peter and decedent were left to Peter. Peter was named the executor and Gloria the successor executrix.
At the time of her death, decedent's real property consisted of a three-family house in Boonton which was then free and clear of any mortgage or lien and had an assessed value of $168,000 and a market value reported by Peter, as executor, of $217,000. She never owned any other real estate. Decedent was then living in one of the units with Peter, who had moved in with her in 1991 after the failure of his marriage. The second apartment was occupied by the widow of decedent's brother, Attilio Amari. The widow died in January 1999, apparently then freeing that apartment for arms- length rental. We note in this regard that decedent had a very close relationship with her brother, who died in 1996, and she had directed in her 1991 will that he be permitted to remain in occupancy during his lifetime at "a reasonable rent ... which rent shall not increase by more than 10% per year." The third apartment was leased to unrelated tenants. The house had been in the family for many years, and in addition to Peter's return to his mother's apartment after his marriage failed, Gloria had also lived with her mother in 1989 and 1990 when her first marriage broke up, and then took occupancy of one of the rental apartments, where she lived between 1990 and 1995, when she remarried. She paid a modest rent of $300 monthly. Gloria had also occupied one of the rental units with her first husband between 1971 and 1983.
The only other assets of the estate, other than personal effects of minimal value, were two bank accounts jointly held by Peter and decedent, having a total date of death value of about $20,780. The record does not indicate whether these accounts were titled as joint accounts with the right of survivorship. In any event, about $11,000 was disbursed by Peter by way of administration expenses, and he distributed the sum of $9,500 to himself. If the bank accounts were titled with the right of survivorship, then obviously they passed outside the will and Gloria would have no claim thereto. If not, the excess of administration expenses should, just as obviously, have been distributed to her in partial satisfaction of her bequest. In any event, Peter advised Gloria that, in effect, her bequest had abated because there were no funds with which to pay it, and this action ensued.
There are additional relevant facts. First, there is no doubt, as attested to by Gloria's affidavit and those of several people close to decedent, that decedent enjoyed a close and loving relationship with both her children. Although Gloria maintained her own home during her mother's last years, she visited her daily, took her shopping monthly, and had her to dinner every Sunday. The whole family typically celebrated holidays together. Decedent expressed to others her love for and pride in both her children and grandchildren and had also told several people close to her during her last years that she had cash of about $40,000 and that both her children would be provided for upon her death.
Finally, there is the evidence of decedent's previous wills. The earliest of these, executed in 1975, had left Gloria $10,000, her then only grandchild $5,000, and the entire residuary estate to Peter with a gift over to Gloria if Peter did not survive. A 1980 codicil to that will increased Gloria's bequest to $20,000. Her 1987 will was substantially the same as her 1991 will, that is, Gloria was left $50,000, Peter was left the real property, and the residuary estate was left to them equally. The only material difference between the 1987 will and the 1991 will was the addition of a $5,000 bequest for the then born second grandchild.
In reviewing the foregoing facts, the trial judge found that the gift of real estate to Peter was a specific devise and the gift of cash to Gloria was a general bequest. Applying the customary and statutory rules of construction, the judge concluded that since Gloria's gift was general, it alone was subject to abatement and its payment was not a charge upon the specific real estate devise. N.J.S.A. 3B:23-12. With respect to decedent's intent, the judge concluded as follows:
The fact also is that she seems over the years to have expressed an uneven giving plan in favor of Peter. It is, of course, possible that if Jennie Tateo had realized that her daughter was going to get virtually nothing under the will, she may have altered somewhat the provisions of her will. However, we have no solid way of knowing that she would have changed the provisions of her will, and, of course, we have no solid way of knowing what any change she might have made would be. On the other hand, we do have the actual language and provisions of the will which Jennie Tateo signed and they indicate, in my judgment, a clear intention that Peter Tateo should receive the real estate at 127 Boonton Avenue.
We are persuaded, however, that the trial judge gave insufficient consideration to the doctrine of probable intent and that proper consideration thereof impels a different result irrespective of whether the technical specific-general ...