On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket Number P-393-02.
Before Judges Petrella, Lintner and Yannotti.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2004
In this estate and family dispute between a son, Mark Gabrellian (appellant or Mark), and his mother, Siran Gabrellian (respondent or Siran), Mark appeals from the grant of summary judgment dismissing his verified complaint. His claim for declaratory judgment was based on an assertion of the probable intent of the testator, Sarkis Gabrellian (testator), his father, regarding continuation of the testator's substantial real estate development businesses. In his 1983 Will, the testator named Siran and Mark as co-executors and his wife as his primary beneficiary.
After his father's death in 1998, Mark instituted an action in the Chancery Division to probate the testator's 1983 Will together with a separate writing (Writing) signed by the testator and witnessed by his close friend and Siran. The Writing indicated that certain payments were to be made to a number of charitable beneficiaries and to his two grandchildren. A dispute arose over the funding of these gifts, which amounted to about $25 million as set forth in the Writing. A settlement was reached between Mark and Siran with court orders entered on July 29, 1999, May 6, 2002, and September 18, 2002. The first probate action was dismissed with prejudice, and the terms of the settlement were memorialized. Pursuant to the latter order, the testator's Will, along with the Writing, which had been proffered for probate by Mark in his verified complaint, were admitted to probate. The September 18, 2002 order also confirmed the appointments of Siran and Mark as co-executors.
On October 4, 2002, Mark initiated a second probate action, which sought a declaration that the testator's probable intent required the co-executors to continue to operate the testator's businesses with Mark as manager until Mark and his mother agreed to sell it.*fn1 Siran's sole right to the net income derived from the continued operation of the businesses was not contested. The complaint also sought a declaration that upon Siran's death the ownership of the remaining business entities would be transferred to Mark. In the meantime, it sought declarations that Mark had continuing authority to do whatever was necessary in the operation of the testator's businesses and that the Will was intended to create a trust with Mark and Siran as trustees to hold the assets constituting what had been his father's businesses to accomplish the foregoing. The Chancery Judge rejected all of these claims on various grounds.
On appeal from the dismissal of his second probate action Mark argues the judge erred: (1) in granting Siran's motion for summary judgment because there were material fact issues concerning the testator's probable intent regarding his businesses; (2) in concluding the Will is"clear on its face"; (3) by misapplying the standard for considering the doctrine of probable intent and failing to consider extrinsic evidence; (4) in construing the Will as if it were a commercial contract; (5) in applying equitable principles to bar his second cause of action; and (6) in applying concepts such as the entire controversy doctrine, res judicata and judicial estoppel.
The testator was apparently diagnosed with terminal lymphoma around 1992. Mark went to law school in California, obtaining his J.D. degree in 1983, and practiced law there for a short time before moving to Washington, D.C. He was also admitted to the practice of law in New Jersey and moved here in 1996, assertedly to assist in running his father's successful real estate development business consisting of various limited partnerships and corporations, including a mall in Paramus. Mark began to take a more active part in the operation of the businesses as his father's illness progressed.
The testator died on September 16, 1998. Under the testator's 1983 Will his wife, Siran, was given all non-business tangible property, and if Siran predeceased Mark, then everything would pass to Mark. The Will then divided the residuary estate into two parts and bequeathed the amount exempt from the United States federal estate tax, $625,000 at the time of testator's death, to Mark and the entire remaining residuary estate, consisting essentially of the business assets then valued at well over one hundred million dollars, to his wife.
Article Ninth of the Will addresses the continuation of testator's businesses as follows:
If at the time of my death, I am the owner of any business, whether as a sole proprietor, partner, or holder of more than ten (10%) per cent of the outstanding stock, I hereby authorize my Executors and Trustees to exercise all powers with respect to such business which I could exercise if present and acting. This shall include but not by way of limitation, the power to name or change officers, directors or employees, to act as an officer, director or employee themselves, and the power to expend [sic], limit, alter or reconstitute such business in any way they deem advisable. I hope it will be possible for my Executors and Trustees to continue any business, which I am engaged in, but such decision shall rest in their sole and absolute discretion. If any business which I am engaged in at the time of my death is retained or continued by my Executors and Trustees, they shall in no way be liable for any loss resulting from such retention and continuance, or from the operation of such business, except where such loss is the result of misconduct or gross negligence.
In addition to the Will, the Writing, which is said to have been dictated by Sarkis to his close friend, Harold Azmelian, was signed by Sarkis and witnessed by his wife and Azmelian on September 13, 1998. The Writing listed various charitable distributions aggregating some $19 million and gifts to his two grandchildren amounting to several million dollars payable at ages 25, 30 and 35. The Writing makes no mention of Mark and includes statements directing"Everything to Siran" and"Sell all holdings immediately."
Whether the Writing could qualify as a codicil to the 1983 Will was never decided. By the settlement, the parties gave effect to the Writing and it was subsequently probated with the Will as part of the settlement.
Following his father's death and through the first probate action, Mark continued to run the businesses. At some point he took the position that despite his mother being a co-executor and owning all of the stock of the businesses, the estate remains open in a sense because he claims to be entitled to continue running the businesses, presumably as the other co-executor with his mother. This is notwithstanding Mark's continued acknowledgements that all of the assets after paying him the ...