June 26, 2008
IN THE MATTER OF THE ESTATE OF CECIL C. MASSEY, SR., DECEASED.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Salem County, Docket No. CP-12-2003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2008
Before Judges Cuff and King.
This is an appeal from an order of Judge Bowen, now retired, of June 7, 2007 removing the co-executor, Carol Ann Sickler, and ruling on the nature of certain assets comprising the estate. The judge issued a detailed eleven-page written opinion on May 17, 2006.
On this appeal Carol Ann Sickler, the co-executor, raises these two objections to the judge's ruling:
There were no legal grounds to remove Appellant from her position as Co- Executrix and said removal was contrary to Decedent's Will.
All Exhibits marked for identification by Defendant-Counterclaimant should have been admitted into evidence.
We conclude that the appeal is without merit and affirm for the reasons expressed by Judge Bowen in his written opinion which was supported by his sound findings of facts and conclusions of law and his justified exercise of discretion with respect to his evidentiary rulings.
We review two specific claims: the removal of Carol as co- executor and her claim for credits against any purchase by her from the estate. We first conclude that Carol's removal was sustainable, certainly in view of the judge's ultimate findings as to the lack of validity of Carol's claims with respect to the property in the estate. The judge relied on N.J.S.A. 3B:14- 21(f) (Removal for Cause), i.e., neglect or refusal to perform duties which may hinder or prevent the administration of the estate. The judge's findings to this effect are clear and supported by the version of the evidence which he found credible.
The judge said with respect to Carol's conduct and her conflicts:
Carol Ann Sickler's insistence that the above real estate is not part of the estate of Cecil Massey, nor the personalty located on it, to be distributed to the residual beneficiaries, after the distribution of the 15 acre portion described in paragraph FOURTH, and after sale to her at the price of the date of death value should she exercise that right, is, clearly refusing to perform her duties.
Her refusal to co-operate to pay for the necessary survey to convey the fifteen acre parcel, her refusal to co-operate to inventory and marshal the personalty, obviously in pursuit of her own agenda that the real and personal property are hers outright or at a price for which she claims a partial credit, has hindered the settlement of the estate. In fact, her pursuit of her own interest opposed to the interests of the beneficiaries of the estate as a whole, compels Carol Ann Sickler's removal as co-executor pursuant to paragraph f. of N.J.S.A. 3B:14-21.
These findings of facts are fully supported by the record and are binding upon us. See State v. Locurto, 157 N.J. 463, 470, 474 (1999); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
As to the testamentary disposition, we think Judge Bowen's findings and conclusions were also on the mark. As to this issue, the judge found that
[t]he second question is whether Carol Ann became the owner of the personalty owned by the deceased prior to his death as a result of a gift or other transfer from him?
In reaching the answer to these questions, it is necessary to consider the admissibility of two kinds of documents proffered by Carol Ann Sickler in support of her contentions: (1) photocopies of 3 purported contracts of sale with the deceased, two dated before the making of his last will and one subsequent to it; (2) original notarized statements of the deceased, all dated in 1995, more than three years after the making of his last will.
All the documents, if admitted and followed will nullify the effectiveness of Mr. Massey's will. It would remove his major asset, his farm, from his testamentary estate, and it would destroy his carefully crafted mechanism of bestowing his estate equally among his six children, making any bequest of real estate a charge against the recipient's equal residual share, and making a child indebted to him account in the apportioning of the reside for that loan.
The judge rejected the offer of these documents into evidence under N.J.R.E. 804(b)(6) regarding trustworthy statements by deceased declarants if "made in good faith upon declarant's personal knowledge in circumstances indicating that is trustworthy."
The judge, in rejecting the offer of these documents in evidence made these very specific findings and conclusions:
All of these documents are statements not under circumstances indicating they are trustworthy. They are in conflict with Mr. Massey's testamentary document made in private with his lawyer and attested to as being his free and voluntary testamentary disposition, all in accordance with the Wills Act. The testimony of the attorney who held the consultation, drew the document, sent it for review, and later witnessed, with others, its signature, confirms this.
Nothing is known about the circumstances of the making of the purported agreements of sale or notarized statements, the only witness testifying concerning them was the one person financially affected by her testimony about them, that is, who had a beneficial interest in the documents being admitted. These are hardly circumstances indicating the documents are trustworthy.
In light of the suspect circumstances of these documents' contradiction to the known testamentary document of the deceased, the copies are, for both reasons of hearsay and as copies, excluded.
We are satisfied by the record that the result reached by Judge Bowen is in accord with the decedent's testamentary scheme and affirm for the reasons stated in his thorough written opinion.
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