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In the Matter of the


December 22, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, P-568-09.

Per curiam.


Submitted July 20, 2010

Before Judges R. B. Coleman and C. L. Miniman.

Appellants Dalton Yetter and Rebecca Yetter appeal from a September 1, 2009, order of the Sussex County Probate Part, denying an application by the Executor of the Estate of Frances Marie Ackerson Yetter (Decedent) to treat a devise in the Last Will and Testament (Will) as a class gift. Appellants are the great-grandchildren of the Decedent born after the Will was executed, who assert that they are entitled to share in equal parts with Decedent's great-grandchildren identified in the Article THIRD devise at issue in the Will. Having viewed the record in light of the contentions advanced on appeal, we agree with appellants and therefore, reverse.

Decedent died on June 20, 2007. On July 2, 2007, the Sussex County Surrogate's Court admitted the Will of the Decedent to probate. The Decedent was survived by one son: Phillip Yetter; two adult grandchildren: Brenda McGrane Capuano (Brenda) and Robert P. Yetter (Robert); and four great-grandchildren: Kelly McGrane and Phillip McGrane, children of Brenda, and Dalton Yetter and Rebecca Yetter, children of Robert.

The Will was executed on July 9, 2001. At the time of the execution, the Decedent had only two great-grandchildren, Kelly McGrane and John Phillip McGrane. However, subsequent to the execution of the Will, two additional great-grandchildren were born: Rebecca Yetter, born in 2004, and Dalton Yetter, born in 2006. The Decedent did not update her Will after the birth of these two great-grandchildren, and she died slightly less than one year after Dalton's birth.

At issue in this matter is the devise of Article THIRD of the Will, which reads:

I specifically give, devise and bequeath all of the BANK OF NEW YORK stock, registered in my name only, in equal shares, share and share alike to my great-granddaughter, KELLY McGRANE, and my great-grandson, JOHN PHILLIP McGRANE, or to the survivor of them.

At the time of Decedent's death, she individually owned 17,102 shares of Bank of New York Mellon stock with an estimated value of about $500,000.

All of the interested parties - including Decedent's son, the Executor of the Estate, Decedent's two grandchildren, one of whom is the mother of the two great-grandchildren whose share of the stock would be divided with their younger cousins if the Executor's application was granted; and the guardians ad litem appointed for the McGrane great-grandchildren and the Yetter great-grandchildren - have asserted their belief that the Decedent never would have intended to exclude two of her great-grandchildren. They all urge, therefore, that the Article THIRD devise should be interpreted as a class gift.

Consistent with that uniform assertion that such was the probable intent of Decedent, the Executor of the Will made an application to the court for (1) advice and direction whether the Article THIRD devise may be treated as a class gift and (2) for an order confirming that the Article THIRD devise be treated as a class gift with the Bank of New York stock to be distributed equally to Decedent's four great-grandchildren. The Executor also moved to designate Robert as Co-Trustee to serve with his sister, Brenda, for the trust of each great-grandchild under Article NINTH of the Will.*fn1 Included in the application for advice and direction was a notarized document signed by Philip L. Yetter as Executor of the Estate; Robert P. Yetter, as Guardian of Dalton and Rebecca Yetter; and Brenda Lee (McGrane) Capuano, as Guardian of John Philip and Kelly McGrane, consenting to the treatment of the Article THIRD devise of Bank of New York stock as a class gift to be distributed to Decedent's four great-grandchildren, in equal shares.

Attorney Debra L. Nicholson was appointed as guardian ad litem for the minor great-grandchildren John Phillip McGrane and Kelly McGrane; Attorney Alan Strelzik was appointed as guardian ad litem for the minor great-grandchildren Rebecca Yetter and Dalton Yetter. Both attorneys appeared on behalf of their respective clients at the hearing on July 13, 2009, and each submitted written reports to the court in support of the application to treat the bequest of the Bank of New York stock as a class gift, to be shared equally among all four greatgrandchildren. In her support, Attorney Nicholson indicated that the McGrane children would be financially secure, even if they give up fifty percent of their anticipated gift under the proposal to favor their two younger cousins.

On the return date of the Order to Show Cause, the trial court denied the application to treat the Bank of New York stock as a class gift and to distribute one-fourth in Trust for each of the decedent's four great-grandchildren. On July 17, 2009, Strelzik requested reconsideration of the decision. An order denying the class gift and other relief was issued by the court on September 1, 2009.

On appeal, appellants by their guardian ad litem, contend that the trial court erred by denying the request to treat Article THIRD as a class gift. The Executor, through counsel, advised the court that no responsive pleading would be filed on behalf of the Estate. No brief has been submitted on behalf of the McGrane great-grandchildren. Thus, the appeal is essentially unopposed.

In denying the request, the trial court observed that the Will names two clearly identifiable living persons. The trial court further expressed these reasons for the denial of the requested relief:

[I]t's clear precise language as to who gets -- who gets the Bank of New York stock.

It's the -- it's Kelly and John and if one of them predeceases the other, it all goes to the survivor. It's pretty straightforward. There's nothing here really that requires any interpretations and it's and to -- it can't possibly be in the interest of either o[f] them that this be declared . . . a class gift and they have to share it with other people.

Appellants submit that the trial court, in coming to its conclusion, relied unduly on the literal language of the instrument and failed to give adequate consideration to the rule of probable intent. We agree.

With a careful review of the record, it is clear that Decedent never indicated she intended to omit her after-born great-grandchildren from the Will, and there is no evidence of anything negative about her relationship with these great grandchildren's father that would have caused Decedent to spite those children. Indeed, the Will treated Robert and Brenda, the grandchildren, equally, and no circumstances suggest Decedent did not wish to treat all of her great-grandchildren as fairly and equally. The only reasonable justification for the inclusion of the McGrane great-grandchildren and the exclusion of the Yetter great-grandchildren in the Article THIRD devise is that neither of the Yetter great-grandchildren had been born when Decedent's Will was executed, and Decedent unintentionally failed to revise the Will after their birth. In accordance with the rule of probable intent, we are satisfied that there is sufficient indicia from the circumstances and the overall testamentary scheme of Decedent's Will that she did not intend to omit her after-born great-grandchildren from the bequest of the Bank of New York stock.

We recognize that a trial judge's findings of fact are binding on appeal as long as those findings are supported by adequate, substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1997) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, where the issues are entirely questions of law, this court's review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). If a judge makes a discretionary decision, but acts under a misconception of the applicable law, the appellate court need not give the usual deference. Ibid. The court instead must adjudicate the controversy in light of the applicable law in order that a manifest denial of justice be avoided. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960). In any case, a "trial court's interpretation of the law and the consequences that flow from established fact are not entitled to any special deference." Manalapan Realty, L.P., supra, 140 N.J. at 378.

When interpreting the meaning or effect of a term in a will, deed or trust, or like instrument absolutely transferring property, our search is for the probable intention of the testator or settlor. In re Trust Co. of Morris County, 83 N.J. Super. 411, 416 (App. Div. 1964). The doctrine of probable intent has developed over the years through a series of cases in which courts construed the language of a will in a fashion contrary to its literal, technical, or settled meaning. In re Estate of Branigan, 129 N.J. 324, 332 (1992) (where the Supreme Court held that where circumstances have changed after a will has been executed the language of the will should be construed by placing primary emphasis on the dominant plan or purpose of the testator to effectuate his intent, even if this conflicts with the plain language of the will); see also Bottomley v. Bottomley, 134 N.J. Eq. 279, 291 (Ch. Div. 1944) (recognizing that "[t]he power of this court to effectuate the manifest intent of a testator by inserting omitted words, by altering the collocation of sentences, or even by reading his will directly contrary to its primary signification is well established").

We confine the inquiry to the four corners of the document and the language therein, and then consider the circumstances surrounding its execution and other extrinsic evidence of intention. In re Estate of Payne, 186 N.J. 324, 335 (2006) ("Extrinsic evidence may 'furnish[] information regarding the circumstances surrounding the testator [and] should be admitted to aid in ascertaining [the testator's] probable intent under the will'") (citing Wilson v. Flowers, 58 N.J. 250, 260 (1971)).

The probable intent doctrine perhaps is best expressed in Fid. Union Trust Co. v. Robert, 36 N.J. 561, 564-66 (1962), where the Court stated that in ascertaining the subjective intent of the testator, courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances . . . .

So far as the situation permits, courts will ascribe to the testator "those impulses which are common to human nature and will construe the will so as to effectuate those impulses." [Id. at 564-65 (citations omitted).]

Courts are enjoined to "strain" toward effectuating the testator's probable intent "to accomplish what he would have done had he envisioned the present inquiry." Id. at 564-66.

Recently, the Supreme Court addressed the rule of probable intent in Payne. There, Justice Wallace wrote:

"[W]hen we say we are determining the testator's intent, we mean his probable intent." We continue to adhere to the view of the doctrine of probable intent expressed by Fidelity Union. In that case, the Court stated that in determining the testator's subjective intent, "courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding circumstances."

[Payne, supra, 186 N.J. at 335 (citations omitted).]

Nevertheless, we recognize the traditional presumption that when a devise names several persons as individuals, the bequest is not a class gift even if the persons so named collectively are a class. Security Trust Co. v. Lovett, 78 N.J. Eq. 445, 452 (Ch. 1911) (citing Dildine v. Dildine, 32 N.J. Eq. 78 (Ch. 1880)). However, "[t]he presumption referred to, . . . is but a rule of construction to be used in the ascertainment of the intention of testator; the presumption is not conclusive." Lovett, supra, 78 N.J. Eq. at 452. "The only universal rule for determining whether testamentary gifts to several parties are gifts to them as a class or as individuals, is to ascertain the intention of the testator." Brown v. Fid. Union Trust Co., 134 N.J. Eq. 217, 218 (Ch. 1943).

A gift to a class is defined in this State as:

[A] gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the actual number.

[Rippel v. King, 126 N.J. Eq. 297, 299 (Ch. 1939) aff'd o.b., 128 N.J. Eq. 179 (E. & A. 1940).]

While determining the intention of the testator, the court should consider "the general scope of the will, the general purpose of the testator, the particular language used, the relationship of the parties, and the surrounding circumstances." Brown, supra, 134 N.J. Eq. at 218 (citing Walker v. First Trust and Savings Bank, 12 F.2d 896 (1926)).

An examination of cases has revealed that this court has not been hasty to accept ambiguous or contested language in a devise with regard to class gifts without considering whether "the will as a whole indicates a desire on the testator's part to benefit a group rather than individuals of that group as enumerated . . . ." In re Estate of Heller, 14 N.J. Super. 152, 161 (1951). For example, in Heller, a bequest of personalties was made by the testator in a will to "my nephew, Arthur E. C. Heller, and to my nieces, Frances Heller Blount, Ruth Heller Lowe . . . to be divided equally among them . . . [and] arranged for by my said nephew and nieces among themselves . . . ." Id. at 157. We read this devise as a class gift, making clear that although a testator names a beneficiary as an individual, the bequest may be construed as a class "where the testator appears to have been interested in the welfare of the group to whom he was giving something rather than in the particular individuals in that group." Id. at 159.

In the case at bar, the trial court adhered too closely to a literal reading of the terms of the Will without engaging in an appropriate probable intent analysis. The record indicates that the trial judge overlooked the family's obvious circumstances and the instrument's overall scheme. The trial court was satisfied that the language in the instrument was "precise" and "pretty straightforward," sufficiently so as to warrant no further inquiry into the probable intent behind the instrument. As such, the trial court's view of the matter was unduly narrow. We are convinced that Decedent's probable intent is not represented by a literal interpretation of the language in the Article THIRD provision in the Will.

Circumstantial evidence illustrates Decedent's efforts to provide for her descendants at each level of representation. For example, she attempted to care for and regard her grandchildren, Robert and Brenda, as equals during her lifetime.*fn2

With respect to the residuary estate, her son, Philip, received one-half and the Will treats Brenda and Robert, representative of the next generation, the same, with each receiving one-fourth.*fn3 There is no evidence of familial strain to justify a premeditated act by Decedent to omit Robert's children. Thus, it is reasonable to surmise that Decedent intended to treat her descendants from each generation as equally as possible, evincing an intent to benefit the welfare of her family as a whole, not as individuals. Heller, supra, 14 N.J. Super. at 159.

With this in mind, that Decedent would omit two great-grandchildren without any evidence suggesting an intent to exclude Robert's children yet include Brenda's children, is against the "common human impulses" of a great-grandmother who otherwise always treated her descendants fairly and equally.

Fid. Union, supra, 36 N.J. at 565. The Decedent's great-grandchildren were not born until after the execution of the Will since Rebecca and Dalton Yetter were born more than three and a half and five years later, respectively. Decedent simply did not amend the Will before her death.

Further, there is no express statement anywhere in the Will evincing an intent to exclude the omitted children. Decedent named the great-grandchildren beneficiaries as individuals because she was then unaware of the rest of the class. Applying "common human impulses," the language identifying Brenda's children in Article THIRD was not for exclusion purposes, but rather for identification purposes.

The report submitted by the guardian ad litem for the McGrane great-grandchildren represents that although the McGrane children would be giving up fifty percent of their entitlement to the stock, the McGrane parents have sufficient economic means to provide for the children's future educational and financial stability. The McGrane children's mother also believes that it is in their best interest to be treated the same as her brother's children. The guardian ad litem concluded that "[w]hile my minor clients will be reducing their inheritance by fifty percent, they will be doing so in a fashion that benefits their cousins and with the full belief and understanding of both their mother and grandfather, that this is what their great-grandmother would have desired." Further, the guardian ad litem for the Yetter great-grandchildren, acknowledged his belief that the intent of the bequest was to provide for the children's education. The foregoing extrinsic evidence supports our conclusion that the probable intent of the Decedent was to treat her great-grandchildren equally. Payne, supra, 186 N.J. at 335.

Finally, New Jersey provides for after-born children in N.J.S.A. 3B:5-16 which provides, in pertinent part, that if a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted after-born or after-adopted child receives a share in the estate as follows;

(2) If the testator had one or more children living when he executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator's estate as follows:

(a) the portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator's then-living children under the will.

(b) the omitted after-born or after-adopted child is entitled to receive the share of the testator's estate, as limited in subparagraph (a), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

(c) to the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children under the will.

(d) in satisfying a share provided by this paragraph, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

At oral argument, the trial judge declined to apply the statute since the current case involves great-grandchildren, and not children. Accepting that distinction without deciding the issue, we find the statute illustrative and persuasive in that it codified the Legislature's recognition of the need to protect disinherited children who are born to a parent after the execution of their will. Although not binding authority, the statute represents that the Legislature's presumption that a testator would not wish to treat a class of her descendants unequally, creating a presumption that the disinheritance to the after-born child is unintentional.

In sum, we have carefully reviewed the record in its entirety and accepting the trial judge's findings of fact, we conclude that the court's application of these facts failed to give due consideration to the well-established doctrine of probable intent. A full reading of Decedent's Will shows that the Decedent wished to distribute her property equally, preserve familial harmony, and was group-minded with regard to paragraph THIRD. The trial judge's reading of the Will did not take proper account of the rule of probable intent, especially where all of the interested parties unanimously expressed their strong belief that the Decedent would never have intentionally omitted her youngest great-grandchildren. Treating the devise as a class gift, the McGrane great-grandchildren will still be receiving an estimated $125,000 each and, we accept the representations in the record that they will be adequately provided for financially and in future education. We hold the Yetter great-grandchildren, Dalton and Rebecca, are entitled to participate in the Article THIRD devise as members of the class. Treatment of Article THIRD as a class gift will entitle each of the four great-grandchildren to one-fourth of the Decedent's Bank of New York stock since they collectively form the class of great-grandchildren as determined on Decedent's date of death.

We reverse and remand solely for an entry of the order consistent with the views expressed in this opinion.


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