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In the Matter of the Estate of Gennaro Mecca


September 26, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-174-10.

Per curiam.


Submitted September 13, 2011

Before Judges Payne and Reisner.

In this probate dispute, defendants Helen Mecca and Peggy Ann Mecca appeal from a January 28, 2001 order requiring them to file an informal accounting.*fn1 We affirm.


Helen Mecca, who is Gennaro Mecca's widow, and Peggy Mecca, one of their daughters, are the trustees of three testamentary trusts created under sections 8, 9 and 10 of Gennaro's will. Pursuant to the will, Helen is the income beneficiary of the trusts, and the couple's five children, including Anna Mecca, are the remainder beneficiaries.*fn2 If any of the children predecease Helen, the deceased child's share of the estate will go to his or her descendants. Under the terms of the will, Helen is also entitled to some portion of the trust principal during her lifetime, but no more than five percent per year.

At issue in this appeal is section 15.02 of the will, which excuses the trustees from filing formal accountings with a court, but requires them to render annual informal accountings to the income beneficiaries and the vested remainder beneficiaries ("remaindermen"):

However, the Trustee shall render an annual (or more frequent) account and may, at any other time, including at the time of the death, resignation or removal of any Trustee, render an intermediate account of the Trustee's administration to such of the then current income beneficiaries and vested remaindermen who are of sound mind and not minors at the time of such accounting. The written approval of such accounting by all of such beneficiaries and remaindermen shall bind all persons then having or thereafter acquiring or claiming any interest in any trust .

Gennaro died in December 2001, leaving a very substantial estate.*fn3 His will was admitted to probate in January 2002. On May 17, 2010, Anna filed a complaint alleging that despite her repeated requests, the trustees had never provided the informal accountings required by the will. She sought an accounting of the trusts. She also demanded an accounting of the entire estate, although she ultimately did not pursue that aspect of the complaint. The trustees resisted the complaint, arguing that Anna was not a "vested" remainder beneficiary or a current income beneficiary and was therefore not entitled to an accounting. They also contended that the lawsuit was motivated by friction within the family over issues unrelated to Gennaro's estate, rather than by genuine concern over possible mismanagement of the trust assets.

As part of the pre-trial proceedings, the parties deposed Gilbert Levine, Esq., the scrivener of the will. Levine testified that the purpose of permitting informal accountings was to avoid the expense associated with formal accountings and thereby preserve more estate assets for the beneficiaries. Levine did not recall discussing section 15 of the will with Gennaro or Helen, but stated that his clients were usually concerned with "ensuring the right people end up with the money" and were not concerned with "administrative provisions" such as accountings. Typically, when reviewing such a will with clients, he would simply explain that it did not require a formal accounting.

According to Levine, the accounting provision would require Helen, as trustee, to account to herself and to the "other beneficiaries." Likewise, if Helen were incapacitated and Peggy were acting as sole trustee, Peggy would be required to account to Helen and to her siblings. Levine insisted that "the objective is to not only ensure that the income beneficiary is protected should they not be serving as trustee, but also to ensure that the remaindermen are protected." When asked whether the latter would have to survive the income beneficiary in order to be considered "vested," Levine responded that they would not, because otherwise "the only people who could be vested would be immortals." Levine also explained that the term "income beneficiaries" was standard language that he had used in other wills; it did not imply that no accounting was required if there was only one income beneficiary.

After briefing and oral argument, Judge Contillo issued an oral opinion on the record on January 14, 2011. He rejected defendants' arguments that an accounting was only needed if Helen was not a trustee, and that a remainder beneficiary would have to first survive Helen in order to be considered "vested." He found it unlikely that Gennaro would have intended a different accounting requirement depending on which spouse pre-deceased the other. He characterized defendants' arguments as "very nuanced" and unlikely to comport with the intent of the testator. Instead, the judge construed the plain language of section 15.02 in what he deemed the most straightforward manner, as requiring the trustees to make an informal accounting to both the income beneficiary or beneficiaries, and to the remainder beneficiaries. Using that approach, he found that "Anna is a vested remainderman" and "entitled to an accounting." Implicitly, he accepted the argument of plaintiff's counsel that Anna was vested subject to defeasance, a contention defense counsel conceded was "a good argument."


On this appeal, defendants once again argue that Anna has a contingent rather than vested interest, because her right as a beneficiary is contingent on her surviving Helen. Defendants contend that because the will leaves the remainder, after Helen's death, to Gennaro's children "then living," or to the living descendents of any children then deceased, it is not possible to ascertain with certainty whether Anna will take anything under the will. Therefore, they argue that Anna is not "vested" within the meaning of section 15.02 of the will, and only Helen is entitled to an accounting as a "current income beneficiary."

There is some support for the proposition that identifying remainder beneficiaries with terms such as "children then living" creates a contingent bequest and not a vested interest. See, e.g., Kahn v. Rockhill, 132 N.J. Eq. 188 (Ch. 1942), aff'd, 133 N.J. Eq. 300 (E. & A. 1943). However, we agree with Judge Contillo that in the context of this case, defendants are asserting a hyper-technical construction that does not comport with the testator's likely intent and is inconsistent with the plain language of the will. Section 15.02 requires the trustees to account to the "current income beneficiaries" and the "vested remaindermen." Thus, the will contemplates that those two classes of beneficiaries will be alive at the same time and will both be entitled to the accounting. That is consistent with the testimony of the scrivener concerning what he intended in drafting the will. See In re Trust Created By Agreement Dated December 20, 1961, 194 N.J. 276, 285 (2008) (scrivener's reasons for employing certain language in drafting a will is relevant to its construction); Wilson v. Flowers, 58 N.J. 250, 261 (1971) ("[W]e have looked to the files of the scrivener and the practice of the firm which drew up the will in an effort to learn the testator's probable intent").

Deeming Anna to be a vested remainder beneficiary is also consistent with the long-established rule that "in the construction of wills the courts favor the vesting of estates where it can be done consistently with the language used." Teets v. Weise, 47 N.J.L. 154, 155 (E. & A. 1885). The presumption of vesting is "especially strong" where the testator's children are the remainder beneficiaries. See Cody v. Fitzgerald, 2 N.J. 93, 98 (1949).

We also note that in more recent cases, we have held that a beneficiary in Anna's position is considered vested subject to defeasance. See In re Estate of Stevens, 155 N.J. Super. 575 (App. Div. 1978). In Stevens, we addressed the proper construction of a will "in the customary form of to A for life, remainder to A's children, and if A leaves no children surviving, remainder to B's children." Id. at 578. We observed that "[s]ince, when testator died, A had no children but B did, the essential characteristic of the future interest then created was that while the identity of the presumptive takers of the remainder was then clearly ascertainable, those presumptive takers were uncertain of ever actually taking because of the possibility of the termination of their interest by reason of an intervening event which might or might not occur." Ibid. However, we found that the presumptive takers were nonetheless "vested" remainder beneficiaries:

The rule in this State and generally is that such an interest vests in the presumptive ultimate takers on testator's death. The effect of the uncertainty of the event on the possibility of their actually taking was not to render the interest contingent but rather to result in a vesting subject to complete defeasance. [Id. at 579-80.]

In a later case, we relied on Stevens in holding that the testator's son, a remainder beneficiary, was vested "subject to the widow's life interest" in the asset at issue. Estate of Lustgarten v. Dir., Div. of Tax., 281 N.J. Super. 275, 282 (App. Div. 1995). Although there existed a possibility that the widow might exhaust the trust principal during her lifetime, we held that the son's interest was nonetheless "vested" subject to that possible defeasance. See also Restatement (First) of Property § 157(c), comment p ("When a remainder is vested subject to complete defeasance it is possible to point to a person and to say that such person would take, if all interests including a prior right to a present interest should now end.").

Based on our consideration of the record evidence and the applicable law, we find no basis to disturb Judge Contillo's well-reasoned decision.


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