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In re Estate of Smith

April 7, 2010

IN THE MATTER OF THE ESTATE OF NORTON D. SMITH, DECEASED.


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-0380-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 10, 2010

Before Judges Graves and Sabatino.

This appeal arises out of efforts by a judgment creditor, Cindy Lou Drastal ("Drastal"), to collect sums owed to her by a judgment debtor, Dennis Smith ("Dennis"), and to attach sums that may be due to Dennis from the estate of his father, Norton D. Smith ("Norton").

Pursuant to a lease signed in or about February 2007, Dennis resided for several months at a house in Atlantic Highlands owned by Drastal and her husband, Henry F. Wolff, III, Esq. ("Wolff")*fn1. Eventually Dennis left the couple's premises after several disputes arose concerning repairs and other matters. Dennis then moved into Norton's former residence, which also was in Atlantic Highlands. Because Dennis was not employed at the time, he apparently did not pay any rent to Norton's estate or pay utilities.

After Dennis ended his tenancy in her residence, Drastal sued Dennis in the Special Civil Part for back rent and other unpaid sums. As the result of a trial before Judge Lisa Thornton, Drastal obtained an award of $15,066, which eventually, with interest, resulted in a judgment of $16,591.30 being entered against Dennis on April 2, 2008.

Norton died on June 11, 2005. The executor of Norton's estate is Daniel Smith ("Daniel"), one of Dennis's siblings. After Norton died, his will was admitted to probate, and no caveats were filed.

The primary asset of the estate was Norton's residence. Daniel arranged for the sale of the house, which had no mortgage. The house sold on April 4, 2008--coincidentally, two days after the entry of Drastal's judgment against Dennis--for $800,000. After disbursing closing costs from the sale proceeds, Daniel then made partial installment payouts to the beneficiaries under Norton's will.

The parties agree that Dennis was a beneficiary under Norton's will, but they differ as to the exact extent of his share. Drastal contends that Dennis was entitled to a one-eleventh share of the estate. However, the estate's Verified Answer states that Dennis's share was one-fourteenth, which is consistent with the fact that fourteen next-of-kin for Norton are listed in the Surrogate's attached printout.*fn2

Suspecting that Dennis was without assets and was judgment proof, Drastal decided to levy upon the estate, which she did on July 2, 2008, in an effort to collect the past due sums from Dennis. However, Dennis represented, in an unsworn letter to the court dated July 29, 2008, that he never received any distributions from the estate because the estate had loaned him money and other consideration. The alleged consideration included the estate allowing Dennis to live in Norton's house rent-free, with the right of repayment. Consequently, the levy was vacated and this litigation ensued.

The estate, through Daniel as its executor, contends in its Verified Answer that, after deductions at the closing of the house sale, there was a total remainder amount in the Estate of $542,060.48. That translates into $38,718.61 owed to each of the apparent fourteen beneficiaries under the will. The Verified Answer further contends that Dennis did not receive any distributions from the estate because he was obligated to pay back the alleged amount of money that he owed to the estate for, among other things, living at the premises for free.

The Verified Answer asserts that, as of February 2009, the balance in the estate's account was $49,513.24, a sum which was "being held to cover any unanticipated expenses of the [e]state and to pay charges of the Executor." According to the Verified Answer, "[t]he remainder will be distributed evenly among the beneficiaries." Although one-fourteenth of $49,513.24 would be $3,536.66, the Verified Answer stresses that Dennis "is owed nothing from any final distribution."

The Verified Answer of the estate also alleges various contentions that would seem to be personal to Dennis, including allegations that Drastal and Wolff breached promises to Dennis to repair their premises for him, and had leased the premises ...


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