On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. P-204941.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 26, 2010 - Decided Before Judges Wefing, Baxter and Koblitz.
Plaintiff Alfonso M. Jiggetts appeals the denial of his application to set aside the will of Oliver T. Robinson (decedent) after a bench trial based on the claim that plaintiff is the biological son of decedent. Plaintiff argues that the trial judge erred in finding that his probate action was time-barred, in alternatively finding that he submitted insufficient evidence to prove paternity and in precluding him from exhuming decedent's body after the conclusion of testimony. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Decedent, who was born and raised in Virginia, passed away on February 12, 2004, in Middlesex County, New Jersey. On March 25, 2004, three of his siblings presented a January 8, 2004, will to the Surrogate for probate and sought to be named executors. They named as heirs decedent's mother, Lucy Robinson and his eight siblings. His estranged daughter, Sharon, was named as next of kin. They did not include plaintiff as an heir or next of kin and did not serve notice upon plaintiff. The will directed that all of decedent's property be equally divided among his siblings and his mother. Neither his estranged daughter, Sharon, nor plaintiff were mentioned in the will, which was admitted to probate by the Surrogate on March 26, 2004.
Plaintiff testified that he first heard of decedent's death about four weeks after the burial. On February 27, 2007, more than three years after the death, plaintiff went to the Mecklenburg County Circuit Court in Virginia to claim, as the sole heir, thirty-nine acres of decedent's property located across the street from the courthouse. Plaintiff presented the Virginia court with a death certificate for decedent that plaintiff obtained from New Jersey. On July 13, 2007, after being probated in New Jersey, an authenticated and exemplified copy of the will was presented to the Virginia circuit court for probate. In August 2007, Lucy Robinson, decedent's mother, died.
Although plaintiff testified that he first heard of decedent's death about four weeks after the burial, he did not file a complaint until four years later, on March 28, 2008, in the Middlesex County Chancery Division, Probate Part. He sought, among other remedies, to establish paternity and claim a share of decedent's estate. The Estate of Oliver T. Robinson (Estate) set forth various separate defenses, including statute of limitations and laches.
Initially, the Estate objected to exhuming decedent. After plaintiff had a Y-Chromosome Short Tandem Repeat DNA test performed that demonstrated that plaintiff and one of decedent's brothers shared a common male ancestor, the Estate agreed to allow plaintiff to exhume the body to perform a definitive DNA test. On December 12, 2008, the trial judge signed a consent order allowing either party to exhume decedent. The court's order set February 28, 2009, as the discovery deadline for the paternity action, which was to be tried first. Neither party chose to exhume the body.
The matter was tried on April 29, April 30 and May 1, 2009. Plaintiff testified that he was born in May 1957, to unmarried, sixteen-year-old Mary Jiggetts in Palmer Springs, Virginia. His birth certificate, however, reflected his birth year as 1958 and his mother's age as twenty-one. Plaintiff's birth certificate did not identify his father. Plaintiff said that Lucy Robinson, decedent's mother, told him when he was six years old that her eldest son, Oliver, was his father. He said his maternal grandparents confirmed this information. Plaintiff said his mother also told him that decedent was his father. He said Lucy Robinson kept in contact with him regularly over the years, and plaintiff often visited her at her home when her other children were present. Plaintiff said that many paternal relatives acknowledged that decedent was his father. He said that he first met decedent in 2000*fn1 when decedent returned down South for a visit after moving to New Jersey in 1963, shortly after graduating from high school. Plaintiff said that at that meeting decedent indicated that plaintiff might be his son, because he had dated plaintiff's mother.
When decedent's father died on August 7, 2000, plaintiff said he went to the house to pay a sympathy call, and Lucy
Robinson introduced him to her granddaughter, decedent's daughter Sharon. Plaintiff's mother, Mary Jiggetts, died on February 11, 2001, and plaintiff introduced into evidence sympathy cards from the Robinson family to demonstrate that the Robinsons considered plaintiff to be part of their family.
The Robinsons testified to the contrary. They testified that they were a close-knit family, and neither decedent nor any of his siblings ever acknowledged plaintiff to be decedent's son. They testified that they never saw plaintiff playing at their house as plaintiff testified, and that Sharon was not present at the family home after their father died so plaintiff could not have been introduced to her at that time.
Plaintiff raises the following issues on appeal:
I. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF DID NOT TIMELY FILE HIS ...