On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. 227988.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Judges A. A. Rodriguez and Grall.
Katherine Kent Ojebuoboh (Katherine) appeals from the June 9, 2010 Probate Part order appointing Ayodele Abosede Anjorin (Ayodele) as Administratrix Ad Prosequendum of the Estate of Kolapo Ojebuoboh (decedent). We affirm and remand.
These facts are undisputed. Katherine and decedent were married on March 31, 1983, in Bronx County, New York. They had no children. In 1996, decedent filed for divorce in Bronx County, New York against Katherine. Katherine contested the action. During the pendency of the action, the court awarded Katherine $500 in monthly spousal support pendente lite. This amount was increased to $1,000 bi-weekly maintenance on February 14, 2001. On February 27, 2006, the court entered a judgment in favor of Katherine and against decedent in the amount of $69,958.38 due to arrearages. Decedent did not pay the judgment or any subsequent spousal support payments. Katherine alleges that at the time of his death, decedent owed her approximately $215,881.18 in support, a figure which includes interest and support due from the date of the $69,958.38 judgment.
In 1997, Ayodele arrived in the United States from Lagos, Nigeria. She settled in New Jersey, where she began living with decedent and conceived a son (Kolapo, Jr.). Although there is no evidence that they were married, they represented themselves as such in federal income tax returns. Decedent and Ayodele lived in Metuchen. He had named Ayodele as the beneficiary of his life insurance policy and listed her as his next of kin in his medical records.
Decedent died intestate on January 19, 2010. Prior to his death he had not finalized the Bronx County divorce action he had commenced. Decedent had no other children besides Kolapo, Jr., who was about ten years old when his father died. At the time of decedent's death, his estate apparently had few or no assets. There was, however, a potential medical malpractice lawsuit arising from decedent's death. The record does not disclose much about the claim for medical malpractice other than the fact that several days before he died, the decedent had executed documents authorizing a law firm and its members to obtain his medical records.
On April 8, 2010, Ayodele filed a verified complaint and order to show cause with the surrogate seeking appointment as administrator of decedent's estate and alleging that Kolapo, Jr., is decedent's sole heir. She asserted that she had appeared at the surrogate's office to be named as administrator on March 2, 2010. On May 21, 2010, Katherine answered and counterclaimed to be appointed as administrator of the estate, including the right to pursue the decedent's malpractice claim. By order dated June 9, 2010, Judge Frank M. Ciuffani appointed Ayodele as "Administratrix Ad Prosequendum." Although the judge's written opinion suggests an intention to appoint Ayodele as the administrator of the estate, the order grants a more limited appointment.
On appeal, Katherine contends that: N.J.S.A. 3B:10-2 unambiguously requires that she be appointed the estate's administratrix; she will best represent the interests of the estate; and the equities do not require appointment of Ayodele as administratrix. We reject these contentions.
N.J.S.A. 3B:10-2 provides:
If any person dies intestate, administration of the intestate's estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept the administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and if none of them will accept the administration, then to any other person as will accept the administration.
If the intestate leaves no heirs justly entitled to the administration of his estate, or if his heirs shall not claim the administration within 40 days after the death of the intestate, the Superior Court or surrogate's court may grant letters of administration to any fit person applying therefor.
The rules codified in the two paragraphs of N.J.S.A. 3B:10-2 have been in place since 1937. See Rev. Stat. 3:7-6 (adopted by L. 1937, c. 188, § 1)*fn1 ; N.J.S.A. 3A:6-4 (codified in Title 3A by L. 1951, c. 345 and subsequently reenacted by L. 1977, c. 412, with only editorial changes, as N.J.S.A. 3B:10-2; see Title 3B, Table 1 "Disposition of Statutes as Amended and Supplemented"). There have been editorial changes - for example, Rev. Stat. 3:7-6 and N.J.S.A. 3A:6-4 used the phrase "next of kin" where N.J.S.A. 3B:10-2 uses the phrase "remaining ...