On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, 98-00119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Waugh.
Wesley Ray Bolton, Betty D. Washington and Patricia A. Christmas appeal from the final judgment of the Chancery Division, Probate Part interpreting the will of their mother, Norfleet Bolton (the testator). At issue was the interpretation of the phrase "my surviving children" in connection with the thirteenth paragraph of the will, which directed the disposition of the proceeds from the sale of decedent's home, which sale was not to take place until five years following an event that had not yet occurred when the will was written. The specific issue was whether "my surviving children" spoke to the time of the testator's death or the time of the later distribution of the sale proceeds.
The issue arose because one of the testator's children, Kenneth Bolton, survived his mother, but passed away between the date of her death and the date the house was sold. The trial judge decided the case in a summary fashion, under R. 4:67, and determined that the interest of each of the testator's children vested at the time of her death. We affirm.
The testator executed her will on January 11, 1998. She died eleven days later on January 22, 1998. She was survived by four children, the three appellants and her son Kenneth, now represented by his estate. The will was duly admitted to probate by the Surrogate of Somerset County.
The will contained five paragraphs leaving specific assets to the four children, who were individually named in each paragraph. There were other provisions leaving specific assets to individually named grandchildren and others. The eleventh paragraph left "[a]ll the rest, residue and remainder of my estate, both real and personal" to the four children, by name, "in equal shares and portions, absolutely and forever." (Emphasis added). The twelfth paragraph appointed one of the testator's granddaughters, Stacey Brunson, as executor.
The thirteenth paragraph, which is the one at issue in this case, provides as follows:
I further direct that my executrix, Stacey Brunson, shall sell the premises owned by me and known as 315 West Point Avenue, Somerset, N.J., and distribute the proceeds of said sale to my surviving children equally. However, my executrix shall not sell said premises until five (5) years after my son, Wesley Ray Bolton, has returned.[*fn1 ] In the meantime, my executrix shall permit the premises to be occupied by my daughters, Betty D. Washington and Patricia A. Christmas, provided my daughters pay real estate taxes, homeowners' insurance, all utilities, repairs and maintenance of the property. The property may be sold at an earlier date if all of the parties are agreeable.
Although Kenneth survived his mother, he died on March 1, 2004, six years later. He was survived by a wife and five children. It appears from the record that there may have been some estrangement between Kenneth, and perhaps his mother and siblings, and his wife.
The executor initiated suit through a verified complaint and order to show cause filed on March 2, 2007. The verified complaint asked the Probate Part to interpret the provision of the will concerning the distribution to the "surviving children" and to instruct the executor concerning the distribution of the proceeds of the sale of the residence. The executor took no position with respect to how the will should be interpreted.
The April 23, 2007 return date of the order to show cause was adjourned and converted to a case management conference, held on May 10, 2007. The trial judge entered a briefing schedule and set an argument date of July 24, 2007.
Appellants filed a brief and certifications in support of their position that the phrase "my surviving children" spoke of the time of distribution, arguing that their mother intended the proceeds of the sale of her home to be distributed only among those of her children living at the time of ...