On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Camden County, CP-108-03.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2007
Before Judges Cuff, Winkelstein and Baxter.
Howard Hope died testate, leaving his residuary estate to his four children. The primary asset of the residuary estate is a parcel of real estate located in Gloucester Township, Camden County. Two of the children, appellants James Hope and Dorothy Delayo, challenged the administrator's decision to sell the property and distribute the proceeds among the four heirs equally; they requested that the administrator distribute one-half of the property to them in kind. The Chancery Division judge agreed with the administrator, and ordered the property sold and the proceeds distributed to the beneficiaries in cash.
Appellants assert that the court's order is contrary to the language and intent of N.J.S.A. 3B:23-1 and -3, which address distribution of estate assets in kind. We conclude that under the circumstances, despite the preference for in-kind distribution expressed in the statutes, the trial judge's order that the property be sold and the proceeds be distributed in cash was not an abuse of discretion. Consequently, we affirm.
In Hope's will, which was admitted to probate, he devised his personal property to his son, James Hope, whom he also named as executor. Hope bequeathed the remainder of his estate to his four children, "share and share alike." The court subsequently appointed S. David Brandt as Administrator C.T.A., to replace James Hope as executor.
The primary asset in the residuary estate is a sixteen-acre parcel of land, zoned R-1 Residential for single-family dwellings. To assess the property's value, Brandt retained the Ragan Design Group. According to Ragan's report, "[t]he site is largely wooded with a small wood frame house located [on] the site . . . . The house is dilapidated and is in desperate need of repair." The report questioned "whether the home is habitable" or "meets current code standards for occupancy."
While the report indicates that the property "could conceivably be evenly divided without substantial detriment or significant loss of value to the estate," it concluded, and appellants do not dispute, that developing half of the property, as opposed to developing the entire property, diminishes the total development potential and the concomitant revenue that could be generated from the property. Developing the entire parcel consistent with the R-1 standards would yield eleven lots, while developing half of the parcel would yield five lots. Developing only one-half of the property, as suggested by appellants, would increase the cost per buildable lot.
James Hope has lived in the home on the property for the past fifty years. Neither he nor Delayo presented the trial court with a proposal as to how the property should be subdivided.
Appellants claim that in-kind distribution is required by two provisions of Title 3B of the New Jersey Statutes Annotated, which govern the administration of estates. See N.J.S.A. 3B:1-1 to 29-1. They argue that N.J.S.A. 3B:23-1 and -3, found in chapter 23, Article 1, titled "DISTRIBUTION IN KIND," call for an in-kind distribution of their shares of the residuary estate. First, they claim that the language of N.J.S.A. 3B:23-1 supports their argument that it is "reasonably possible" to distribute the shares of their father's residuary estate in kind. While it may be "reasonably possible" to do as appellants suggest, we conclude that N.J.S.A. 3B:23-1 does not apply in the given circumstances. The statute reads, in pertinent part:
Except where a will authorizes distribution to be made in cash or in kind, the distributable assets of . . . [a] testator's estate shall be distributed in kind to the extent reasonably ...