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In re Estate of Luxembourg

Superior Court of New Jersey, Appellate Division

July 16, 2013

IN THE MATTER OF THE ESTATE OF MORTON LUXEMBOURG, Deceased.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 30, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-411-10.

John L. Pritchard argued the cause for appellant Jacqueline Pasternak Mazur.

John G. Hoyle, III, argued the cause for respondent Henry Waldron, Successor Executor of the Estate of Morton Luxembourg (Hoyle Law, LLC, attorneys; Mr. Hoyle, of counsel and on the brief).

Jonathan B. Peitz, Deputy Attorney General argued the cause for respondent State of New Jersey, Acting as Protector of the Public Interest in Charitable Gifts (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Peitz, on the brief).

Before Judges Grall, Simonelli and Accurso.

PER CURIAM

Appellant Jacqueline Pasternak Mazur, a beneficiary under decedent Morton Luxembourg's will, appeals from an April 4, 2012 final judgment against Laura J. Luxemburg (Luxemburg), the executor named in the will, which, among other things, denied appellant's request to make her award of attorney's fees an administration expense payable by the estate. Because the fee issue is moot and appellant's remaining issues utterly without merit, we affirm.

Two months after Morton Luxembourg's death, letters testamentary were issued to Luxemburg, a California resident. Although Luxemburg timely filed the estate tax return, she made no distributions to beneficiaries. Dissatisfied with the pace of the administration, appellant filed an action to force Luxemburg to perform her fiduciary duties. Henry Waldron, also a beneficiary, and identified in the will as the executor in the event Luxemburg failed to serve, sent a letter to the court in response. Although noting that the administration had not proceeded as quickly as he expected, Waldron declined to express an opinion as to Luxemburg's performance, not being familiar with the details of the administration. He provided an account of his dealings with Luxemburg and his understanding of her actions on behalf of the estate. Waldron expressed his willingness and ability to serve as successor executor should the court determine to remove Luxemburg at appellant's request. Finally, Waldron expressed his concern about the legal expenses appellant would incur by the action and her apparent desire that they be borne by the estate. Waldron asked the court to consider whether appellant was serving the interests of the estate by her filing, and if not, that any legal costs be borne by appellant and Luxemburg and not by the estate.

Judge Del Bueno Cleary issued an order directing Luxemburg to account, list the real estate (a condominium) for sale, and make an interim distribution. Luxemburg promptly listed and sold the condominium and made an interim distribution to beneficiaries. She did not, however, file an accounting. On appellant's further motion, the judge again ordered Luxemburg to account and removed her as executor, appointing Waldron in her stead and ordering Luxemburg to turn over the estate's assets and records to him. The judge awarded appellant attorney's fees of $2, 183.83 to be paid personally by Luxemburg upon distribution.

Upon appointment, Waldron began to do all that was required to responsibly administer the estate, including filing a pro se motion to compel Luxemburg to turn over all estate assets and records when Luxemburg failed to deliver them as promised. Even though Waldron had advised appellant's counsel of his intention to file the motion against Luxemburg, appellant filed her own motion seeking the same relief and also a default against Luxemburg for her failure to account as ordered. The court entered orders granting the relief requested by both the estate and appellant. After communicating with Waldron, Luxemburg wired $235, 000 into the estate account. She did not, however, tender the remaining assets.

Appellant thereafter filed a motion for the entry of a default judgment against Luxemburg and to recover attorney's fees from the estate. While supporting some of the requested relief, Waldron opposed appellant's efforts to surcharge Luxemburg for her failure to promptly sell the condominium, and to compel the estate to pay appellant's legal fees and expenses, including those of an appraiser to value the condominium.

Although noting his fiduciary obligation to maximize the value of the estate for the named beneficiaries and being critical of Luxemburg's delay in winding up the administration, Waldron advised the court he could not support appellant's efforts to value the condominium at more than the $300, 000 price for which it was sold. Waldron explained that the appraisal offered by appellant exceeded the listing proposals Luxemburg obtained from local realtors in 2008. Further, despite numerous listings for condominiums in decedent's building, several offered for less than $400, 000, no unit comparable to decedent's was sold in the eighteen months ...


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