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In re Estate of Napoleon

July 7, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. C-158656.

Per curiam.


Argued March 17, 2010

Before Judges Axelrad, Fisher and Espinosa.

The estate's sole beneficiary, Anthony J. Napoleon, Jr. (Anthony), moved for leave to appeal an order that compelled the sale of a condominium unit owned by the estate; the order was intended to provide the illiquid estate with funds to address various obligations. We granted leave to appeal and consolidated the matter with an appeal filed by a former co-administrator seeking review of orders that enjoined disbursements and imposed sanctions. We affirm the orders regarding the sale of the condominium unit and affirm in part and reverse in part the orders concerning the injunction.


Anthony J. Napoleon (decedent) was murdered, along with Josephine O'Brien, at their home in Toms River on May 7, 2004. Decedent's Last Will and Testament left certain specific real estate and property interests to Josephine. Because Josephine was murdered at the same time, bequests made to her became part of the remainder, and that remainder, which decedent directed be placed in a credit-shelter trust, likely passed equally to Josephine's son, Peter O'Brien (O'Brien), and Anthony. O'Brien, however, was charged with the murder of both his mother and decedent, and later waived his interest in decedent's estate.*fn1

See, e.g., N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 298 (App. Div. 2008); Estate of Kalfas v. Kalfas, 81 N.J. Super. 435, 437-39 (Ch. Div. 1963). As a result, Anthony became the sole beneficiary of the estate.

The record reveals that the estate's administration has been fraught with inconstancy. William Moscatello, Esq., who was named in the Will as executor, qualified and held that position for a while. However, he successfully petitioned for relief from that position on February 18, 2005. The judge handling the matter at the time replaced the executor with James J. Curry, Jr., Esq., over Anthony's objection; that appointment was followed by conflicts between Curry and Anthony.

In April 2006, Curry agreed to step aside in favor of Anthony, but the judge insisted an attorney act with Anthony and, as a result, on May 25, 2006, appointed Ronald P. Colicchio, Esq., and Anthony as co-administrators. Curry, however, with the consent of the substitute co-administrators, continued to represent the estate in other suits then and still pending.

By order entered on July 25, 2008, the judge discharged Colicchio and Anthony as substitute co-administrators; in their stead, the judge appointed Frank J. Dupignac, Jr., Esq. as successor substitute administrator. Dupignac continues to hold that office.

As can be seen, numerous attorneys have been involved in the administration of this estate to date. In addition, some of the attorney-administrators also retained their own counsel. And the record also reflects the occasional appearances of other attorneys whose involvement in this case we have no way of understanding from the record on appeal. Considerable attorneys' fees have been generated as a result.

The record also provides an incomplete picture of the estate's assets and their current status. The estate has been involved in various lawsuits regarding assets or interests that decedent may or may not have held at the time of death. The record on appeal, however, does not contain certain pleadings or other relevant materials from these lawsuits, thereby precluding a complete understanding of their nature or impact on the administration of the estate. While the estate has been extensively involved in one suit in which it would appear to have no great interest,*fn2 the record also suggests a general disregard for decedent's Florida home, which has fallen into default and faces foreclosure.

The current substitute administrator has asserted that the estate has insufficient funds to bring the Florida mortgage current or to pay taxes or other obligations on two Hoboken condominium units. As summarized by the current administrator in a certification filed in the trial court:

When turned over to me the [e]state account had a negative balance and the mortgage on the Florida home owned by the decedent was in default. There were judgments for [c]court ordered fees in excess of $500,000.00. The [e]state was involved in four separate law suits in two counties. There were condominium fees and real estate taxes due. While the [e]state had assets, it had no funds to meet those expenses.

In addition, despite these and other circumstances, the record reveals that Anthony has resided in one of the Hoboken condominium units without paying rent and, by occupying the unit, has prevented the estate from raising income through a rental to a third person.*fn3

We, thus, examine the orders in question with the understanding that the estate, once with a gross estimated value of $2,517,434, as reflected in an estate tax return, has been troubled by numerous changes in representatives, plagued by the claims of attorneys for the payment of fees that seem to have been incurred at least in part without any ostensible benefit for the estate, and burdened by multiple lawsuits. And, despite the estate's lack of liquid assets, it appears that interim disbursements were made to the beneficiary. In short, the estate has ...

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