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In the Matter of the

December 22, 2010

IN THE MATTER OF THE ESTATE OF FRANCIS MARIE ACKERSON YETTER, DECEASED.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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