On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P415-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Simonelli.
Appellants Michael Leonard and Ariel Leonard, his niece, appeal from the July 24, 2009 order that denied Michael Leonard's motion seeking to compel Elizabeth Leonard to grant him access to a single-family dwelling located on Upper North Shore Culver Lake in Branchville (the Culver Lake property) to remove items of personalty that belonged to his deceased mother Ada Leonard, and to permit access to the Culver Lake property yearly to inspect for waste. The order also granted Elizabeth Leonard's cross-motion seeking to compel Michael Leonard to reimburse her for his share of 30% of the maintenance costs of the Culver Lake property, and to return a specific item of personalty that Michael Leonard had removed from the Culver Lake residence. Lastly, the order directed Michael Leonard to pay Elizabeth Leonard counsel fees in the amount of $1,519.25. We affirm in part; and reverse in part.*fn1
Decedent Frank Leonard died on December 25, 1991. Prior in life, decedent had been married to Ada Leonard who pre-deceased him. Seven children were born of their marriage: Frank Leonard, Jr., Martina M. Leonard, Michael C. Leonard, Kevin H. Leonard, Brian H. Leonard, Ada Thom Duffy, and Hillary M. Oak. After Ada Leonard's death, decedent married Elizabeth. At the time of his death, decedent was survived by Elizabeth and his children, and left a will dated October 28, 1983, naming Elizabeth as executrix of decedent's estate.
Under paragraph three of the will, decedent bequeathed all of the personal possessions formerly belonging to his wife Ada Leonard to his children. Paragraph five of the will created a testamentary trust to manage and dispose of the Culver Lake property. Paragraph five provided in pertinent part:
My residence at Culver Lake, I give, devise and bequeath to my Trustees, hereinafter mentioned for the following uses and purposes:
(a) For the use and occupancy by my wife, ELIZABETH, for life. I request my wife, ELIZABETH, to permit my children to continue to visit my Culver Lake property as they did during my lifetime. My wife, ELIZABETH, is to have the final decision as to times and conditions of their visits. I direct her to consult with my children, MARTINA and MICHAEL as to timing and length of visits of my children. The wishes of my wife, ELIZABETH, will receive first consideration in deciding on time of occupancy by my children.
(c) It is my wish that my wife and children share the expenses of maintenance, taxes, etc.[,] of the premises as equally as my trustees deem feasible.
(d) If in the opinion of my wife, ELIZABETH, it becomes absolutely necessary that the property be sold, she should consult with my children, MARTINA and MICHAEL, and the decision to sell must be the unanimous decision of ELIZABETH, MARTINA and MICHAEL.
(e) In event the sale is accomplished, I direct that from the proceeds, my trustees reimburse my wife for any monies she disbursed on the property in excess of the disbursements of any one of my children. After payment to my wife, and payment of any other obligations against the property, I direct my trustees to distribute the balance in equal shares to my wife, ELIZABETH, and to my children, FRANK M. JR.; MARTINA M.; MICHAEL C.; KEVIN H.; BRIAN H.; ADA T. and HILARY M. In event any of my children predecease me leaving children, I give, devise and bequeath his or her share to his or her child ...