On appeal from Superior Court of New Jersey, Chancery Division, Camden County, Docket No. CP-108-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and C.L. Miniman.
Appellants James Hope and Dorothy Hope-Delayo (Delayo) appeal from a January 16, 2009, order denying their post-judgment application to remove respondent S. David Brandt as the Administrator Cum Testamento Annexo*fn1 (Administrator CTA) of the Estate of Howard C. Hope, Sr., deceased. This is their second appeal in connection with the administration of this estate. In re Estate of Howard C. Hope, Sr., Deceased, 390 N.J. Super. 533 (App. Div.), certif. denied, 191 N.J. 316 (2007). We now affirm.
Hope and Delayo are two of four adult children of Howard C. Hope, Sr., who died testate on May 7, 2001. Decedent's other children are Carol Hope Pepe and Deborah Hope Duble. All four children are heirs of his estate. In his Last Will and Testament, Howard C. Hope, Sr., named his son as the executor of his will and bequeathed his personal property to him. Id. at 536-37. He bequeathed the remainder of his estate to his four children, "share and share alike." Id. at 537.
In July 2003, Duble filed a complaint in the Probate Part of the Chancery Division seeking to remove Hope as executor of the estate due to a dispute among the siblings over Hope's failure to distribute two pieces of real estate, including a piece of real estate on which Hope resided. On July 20, 2004, the judge entered an order removing Hope as executor and appointing Brandt as the Administrator CTA.
After Brandt was appointed, Hope and Delayo filed a verified complaint and sought a ruling that Brandt was required to distribute in kind the larger piece of real estate, known as 1500 New Brooklyn Road in Gloucester Township. We described that larger parcel and its development potential in our prior opinion as follows:
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. [Ibid.]
The Chancery judge at the time ultimately entered an order on February 2, 2006, directing Brandt to sell the larger piece of real estate.*fn2 Hope and Delayo filed their first appeal from that order, contending that the property should be distributed in kind, relying on N.J.S.A. 3B:23-1 and -3. Ibid. We concluded that N.J.S.A. 3B:23-1 "d[id] not apply in the given circumstances." Id. at 538. Although we found that N.J.S.A. 3B:23-3 was "applicable to the distribution of the decedent's residuary estate, we disagree[d] that it require[d] distribution in kind under the facts present here." Ibid. This was so because the will did not "direct how the property should be distributed" and the statute only allowed distribution in kind "'if there is no objection to the proposed distribution and it is practicable to distribute undivided interests[;] otherwise[,] those assets shall be converted into cash for distribution.'" Id. at 539 (quoting N.J.S.A. 3B:23-3). Because the siblings of Hope and Delayo objected to in-kind distribution, it was not required; "instead, the mode of distribution is subject to the equitable discretion of the personal representative of the estate, and ultimately, of the court." Id. at 540.
We found no mistaken exercise of discretion by Brandt or the court. Id. at 541. We also noted that in-kind distribution was impracticable because (1) the siblings objected to it; (2) Hope and Delayo never submitted a plan for subdividing the property; and (3) the Ragan report concluded that developing only half the property "would diminish the total development potential, increasing the cost per lot" and "lessen the value of the shares of the residuary estate." Id. at 541-42. This result would be contrary to Brandt's duty to settle and distribute the estate in the best interests of all four siblings. Id. at 542.
Before the appeal was decided, Brandt resumed negotiations on a contract for the sale of the larger piece of property. On June 2, 2006, Brandt wrote to John R. Bennie, counsel for Paparone Housing Co., Inc. (Paparone), explaining that two heirs sought distribution of the estate in kind and two sought cash. He explained that the judge had ruled that the entire property be sold and the cash distributed four ways, but two disgruntled heirs appealed. He then proposed changes to a draft contract, which had earlier been submitted to the Chancery judge as an exhibit to Brandt's January 28, 2005, affidavit in opposition to the motion of Hope and Delayo to compel in-kind distribution.
On August 30, 2006, Brandt sent a final draft of the contract to Bennie, providing copies to all beneficiaries; Barry J. Beran, counsel for Hope and Delayo at the time; and the Chancery judge. On September 1, that counsel acknowledged receipt of the contract and suggested some changes to ¶ 9(h). On September 11, 2006, Brandt executed the contract with Paparone. The contract made the sale contingent on Paparone securing approval for a minimum of sixteen single-family dwelling lots. The purchase price would be $792,000 if Paparone secured approval for twenty-four lots with an ...