On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County, Docket No. CP-0011-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Sabatino.
This is a will contest wherein plaintiff Gerard Sica, a surviving grandson claimed that he was entitled to share in the residuary estate of his grandmother Philomena Sica (Philomena). His cousins, defendants Ronald DeVito and Ralph DeVito challenged his claim. The trial judge interpreted the will and concluded that plaintiff shared in the estate. In addition, she awarded defendants certain management fees and improvement costs for managing and improving property that was part of the residuary estate. Defendants appeal and plaintiff cross-appeals. We affirm and dismiss both appeals.
The facts are not in significant dispute. The testator, Philomena died on January 14, 1960, leaving a will dated August 10, 1945. She was survived by nine children: Geraldine Sica, Thomas De Maio, James De Maio, Angelo Sica, Joseph Sica, Nunzio Sica, Anna Sica, Fred Sica and Frank Sica. Her son Sam De Maio had predeceased her leaving five children: Gaetano, Filomena, Geraldine, Leonora and Gloria De Maio, who also survived the testator. Under Article Second of her will, Philomena bequeathed $500 to each such grandchild who survived her. The share of any named grandchild who predeceased her was to be divided equally among the remaining grandchildren. Philomena devised the remainder of her estate under Article Third, which states as follows:
THIRD: I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, to which I may be entitled and over which I have any disposing power, at the time of my death to my daughter, Geraldine Sica, until such time as she marries. In the event of her marriage or upon her death said property is to be divided equally between my said children, Geraldine Sica, Thomas De Maio, James De Maio, Angelo Sica, Joseph Sica, Nunzio Sica, Anna Sica, Fred Sica and Frank Sica. In the event of the death of any of the above mentioned children prior to my death and or prior to the marriage of my said daughter Geraldine Sica, the share of said deceased child is to be devised to his or her child or children, if any, providing said surviving child or children are the natural born child or children of said deceased parent. For the purpose of this devise adopted children are not to be considered natural born children. In the event of the death of any of my above mentioned children without leaving issue their said share is to be devised equally between my said surviving children. [(Emphasis added).]
Article Fourth appointed Geraldine as executrix.
Critically important, Geraldine never married and died on September 29, 2002. The only child of Philomena still alive at the time was Anna DeVito (Anna), who was then appointed substitute administrator. Eight of Philomena's children who survived her predeceased Geraldine. Four of the deceased children left surviving children (grandchildren of the testator) and one also left surviving grandchildren (great-grandchildren of the testator).
As we have noted, Anna was the only one of the testator's children who survived Geraldine. Anna applied to be appointed Substitute Administration, C.T.A. of Philomena's estate naming herself and the five children of Sam DeMaio, who were named on the will, and Frank Sica as the testator's only heirs. Notably, Frank Sica was deceased at that time and some of the other surviving grandchildren were named, including plaintiff. Her designation of only the grandchildren as heirs reflected an interpretation that Anna and her children would be the only heirs under Article Third of the will. No explanation was provided for including Frank Sica who predeceased Geraldine.
On November 19, 2002, Anna conveyed the real property owned by Philomena on North 10th Street (the real estate) to herself. Anna died on March 6, 2003. Her will was probated in Essex County, and in her Will, she devised her entire estate to her children, defendant Ronald DeVito (Ronald), defendant Ralph DeVito and Mary Ann Campenella. As executor of the Estate of Anna, Ronald conveyed, for no consideration, the real property to defendant 10th Group, LLC, of which he and Mary Ann Campenella were principals. Subsequently, defendants gave a mortgage in the amount of $200,000 secured by the real estate.
Gerard*fn1 challenged defendants' interpretation of Article Third. The judge interpreted Article Third so as to include those heirs of children who predeceased Philomena as well as Geraldine. The judge interpreted the will to provide for a division of the residuary estate into five equal shares with one share to each: (1) the heirs of Anna DeVito; (2) the heir of Thomas DeMaio; (3) the heirs of Nunzio Sica; (4) the heir of Alfred Sica; and (5) the heir of Frank Sica. The court imposed a constructive trust "upon the assets of the Estate of Philomena Sica in the hands of the Estate of Anna DeMaio, Ronald DeVito, Ralph DeVito, Maryann Campenella, and the 10th Group, L.L.C[.]"
Following trial, the court entered a final judgment of distribution ordering defendants to reconvey the real estate at 180-182 and 184-186 North Tenth Street, Newark, New Jersey to the Estate of Philomena (the Estate), to be listed for sale and distributed in cash.
At trial, defendants claimed that they expended $57,000 in improvements to the property. The court ruled that they did not have to reimburse the Estate to the extent that they could document such expenditure. At the time of trial, they could verify approximately $37,000. The court further ruled that "the burdens and the benefits should be borne by the Philomena Sica Estate by all the heirs." The court awarded defendants, as constructive trustees of the real estate, a commission fee of five percent of "the gross rents collected for the period of April 15, 2003, through the date of the sale of the real estate." The court found that plaintiff failed to meet his ...