On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 174370.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Carchman and Simonelli
Appellant Patricia A. Sweeney (Sweeney) appeals from the April 21, 2008 order of a Chancery Part judge removing her as executrix of the Estate of John H. Hnat (the decedent). We reverse.
The decedent and Sweeney, a quadriplegic, lived together for almost fifteen years. They would have married if not for the potentially adverse impact marriage would have on Sweeney's medical benefits. During the last ten years of the decedent's life, his son, plaintiff John J. Hnat (Hnat), and his daughters, Bonnie Myszka (Myszka) and Wendy Wildman (Wildman), had little contact with him.
The decedent appointed Sweeney as executrix of his Last Will and Testament (the Will). Among other things, the decedent bequeathed to Sweeney a life estate in the home where they lived. After her death or her permanent inability to live in the home, the property would be liquidated and the net proceeds divided equally between the children. The decedent also bequeathed to Sweeney $50,000 to be used to pay the expenses associated with the disposition of the estate. Once all of the estate's obligations were fulfilled, the children would equally divide the remainder of the $50,000. Also, the decedent bequeathed to Hnat a 1929 Ford, Haulmark trailer, and his antique guns and tools; to Wildman his 1931 Ford; and to Myszka his funeral plots located in the St. Josephs Cemetery. Decedent bequeathed the remainder of his estate, including personal property, to Sweeney and the children in equal shares.
The decedent died on September 26, 2007, at age seventy-three. On or about October 26, 2007, Sweeney was appointed executrix of the estate. She immediately retained counsel to assist her in administering the estate.*fn1 Thereafter, among other things, Sweeney opened an estate account, closed the decedent's checking, savings and credit card accounts, submitted insurance claims for all policies the decedent held, and contacted Smith Barney regarding the decedent's IRA accounts. She also instructed her then attorney to prepare a draft of the inheritance tax return, which was not due until May 2008.
On January 10, 2008, Sweeney was hospitalized for respiratory failure following pneumonia. Following her hospitalization, she spent time in a rehabilitation facility. Sweeney has returned home and lives alone. There is no evidence of any further illnesses or hospitalization. In late January 2008, Sweeney directed her then attorney to obtain an appraisal of the home for inclusion in the inheritance tax return.
Hnat does not deny that during Sweeney's hospitalization, he entered the home without her knowledge or authorization, videotaped its contents, removed a dog that she and the decedent jointly owned, and removed many of the decedent's personal items, including the keys to the cars bequeathed to him and Wildman. Hnat also changed the locks, depriving Sweeney of access to her medical equipment.
On February 27, 2008, Hnat filed a verified complaint and order to show cause seeking Sweeney's removal as executrix solely on the grounds that she was unfit and unable to serve due to her medical condition and hospitalizations. He also sought his appointment as executor of the estate, despite the fact that the Will designated Wildman as alternate executrix.
The parties appeared before a Chancery judge on April 7, 2008, the return date of the order to show cause. Sweeney attended, but no plenary hearing occurred. Hnat argued that Sweeney was unable to fulfill her duties in a timely manner due to her physical limitations and recent illness. Hnat raised no friction or hostility claim. Nevertheless, based upon oral argument alone, the judge summarily removed Sweeney as executrix and appointed an independent third party as administrator of the estate, concluding that "it would be inappropriate for the parties who cannot cooperate with one another to proceed further. It would inevitably entail further avoidable counsel fees, time, energy and expense."
We review a trial judge's removal of a trustee, executor/executrix or fiduciary under the abuse of discretion standard. We will not disturb the judge's exercise of discretion in removing a trustee absent "manifest abuse." Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360 (App. Div. 1985) (citing 2 Scott on Trusts, 3d Ed. 1967). Whether the trial judge properly exercised his or her discretion "implies conscientious judgment and not arbitrary action." Id. at 363 (citing In re Koretzky, 8 N.J. 506, 535 (1951)).
Further, such discretionary action requires the trial judge to take account of the law applicable to the particular circumstances of the case under consideration. Should that judge misconceive the applicable law or misapply it to the factual complex, the result is an impermissible ...