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Tuesday, December 31, 2013

Court has jurisdiction to admit handwritten will Matter of Pace

Court has jurisdiction to admit handwritten will Matter of Pace

November 7, 2013

                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-0576-12T3

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-0093-11.

Gerard D. Pizzillo argued the cause for appellant Albert Pace (Margulies, Wind, P.C., attorneys; Jack Jay Wind, of counsel; Mr. Pizzillo and Mr. Wind, on the briefs).

Shirley B. Whitenack argued the cause for respondent Eric Pace (Schenck, Price, Smith & King, L.L.P., attorneys; Ms. Whitenack, of counsel; Ms. Whitenack and Rahil Darbar, on the brief).

John Pace, respondent pro se.

            Albert Pace appeals from an order entered by the Chancery Division, Probate Part, Monmouth County, on August 17, 2012, denying a motion for approval of a settlement of claims against the Estate of Antonia Pace. The court found it did not have jurisdiction to consider the motion. For the reasons that follow, we reverse and remand the matter to the trial court for further proceedings.
            This appeal arises from the following facts. Antonia Pace and her husband John Pace relocated to the United States from Malta. Antonia and John had five children: Albert, Eric, Anthony, Beatrice and Rosemary. Initially, Antonia and John resided in New York City but they later moved to College Point, New York. In 1980, Antonia and her husband moved to a home they purchased in Middletown, New Jersey.
            In 2006, Antonia and John relocated to an apartment that Albert had constructed at his house in New York State, but they retained ownership of the Middletown, New Jersey property. At the time, John was suffering from various ailments, including Alzheimer's disease. John died in 2006. Antonia continued to reside in the apartment in New York State.
            Antonia died on April 17, 2009, at a hospital in Washingtonville, New York. She was a resident of New York at the time of her death. She was survived by Albert, Eric, Rosemary and Beatrice. Anthony had previously passed away, but he was survived by two children. Beatrice died shortly after Antonia passed away. Beatrice was survived by four children. When Antonia died, she still owned the house in Middletown, New Jersey.
            Albert claimed that, two months after Antonia's death, he found a document, which Albert says is Antonia's handwritten will. The document is in Maltese, and Albert had it translated into English. The latter, certified translation states as follows:
This is my will February 2008; I hope that you can understand my hand writing if not, I am sick to go before a lawyer.

His father and I would like to leave everything to our eldest son Albert, the money, the house, the car, everything and everything.

Only Albert always takes care of us, our other children think only of themselves and also, the un-shameful and disrespectful Eric, hit my sister Stella while she was sick.

  Antonia Pace 

            In December 2010, Eric commenced an action in the Surrogate's Court of the State of New York for the administration of Antonia's estate. On February 4, 2011, Eric filed an application asking the New York Surrogate's Court to issue letters of administration for the estate to him.
            On April 1, 2011, Albert filed a verified complaint in the Chancery Division, Probate Part, Monmouth County. He sought a declaration that the document he found was Antonia's holographic will and asked that it be admitted to probate. Albert also sought the issuance of letters of administration to himself.
            The trial court entered an order dated April 6, 2011, requiring all interested parties to show cause why the relief sought in the complaint should not be granted. Eric filed an answer, disputing Albert's claims. He noted, among other things, that there was a pending action in the Surrogate's Court in Orange County, New York, for the administration of Antonia's estate.
            The trial court considered Albert's application on June 3, 2011. After hearing the arguments of counsel, the court determined that it did not have jurisdiction under N.J.S.A. 3B:3-28 to entertain the complaint. The court entered an order dismissing the complaint with prejudice. On August 2, 2011, Albert filed a notice of appeal from the trial court's order.
            On September 15, 2011, the New York Surrogate's Court issued an order granting temporary letters of administration to Eric. Among other things, the order provided that Eric could seek ancillary letters of administration from the Surrogate's Court in Monmouth County, New Jersey, or other court of competent jurisdiction. The order stated that the temporary letters would expire three months after the date of the order.  
            Thereafter, Albert and Eric entered into a settlement agreement which provided that Eric would remain as administrator of Antonia's estate. Albert and Eric agreed to cooperate in the sale of the property in Middletown, New Jersey. The agreement further provided that the reasonable costs incurred to maintain and sell the property would be deducted from the sale proceeds.
In addition, the agreement stated that $20,000 would be paid to Albert, representing the out-of-pocket costs he incurred in connection with the estate. Albert would receive fifty percent of the remaining proceeds, with the balance paid to Eric and the other beneficiaries of the estate. Eric executed the agreement on April 20, 2012.[1]
            On April 23, 2012, Eric filed a motion in this court for approval of the settlement agreement. Albert joined the motion, and Anthony's sons John and Thomas Pace opposed the application. By order dated May 30, 2012, we transferred the motion to the trial court for decision, and dismissed the appeal without prejudice.
            The trial court considered the motion on August 17, 2012. John and Thomas Pace opposed the application. Beatrice's daughter, Christine Tramontana, appeared and also opposed the application. The court again determined that it did not have jurisdiction and entered an order denying the motion. This appeal followed.
            Albert argues that the trial court erroneously found that it did not have jurisdiction. Albert contends that the exercise of jurisdiction in this case is permitted by N.J.S.A. 3B:3-28, which provides that
            Where the will of any individual not resident in this State at his death has not been admitted to probate in the state, jurisdiction or country in which he then resided and no proceeding is there pending for the probate of the will, and he died owning real estate situate in any county of this State or personal property, or evidence of the ownership thereof, situate therein at the time of probate, the Superior Court or the surrogate's court may admit the will to probate and grant letters thereon. 

            Albert argues that N.J.S.A. 3B:3-28 allows the Superior Court to exercise jurisdiction in this matter because, although Eric had previously commenced a proceeding in New York for administration of Antonia's estate, that was not a proceeding "for the probate of the will." Thus, Albert contends the Superior Court may admit Antonia's alleged will to probate and "grant letters thereto."
            Our goal in interpreting a statute is to ascertain the intent of the Legislature, and "generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). Words in a statute should be given "their ordinary meaning and significance[.]" Ibid. (citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). Furthermore, we must "'construe and apply the statute as enacted.'" Ibid. (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)).
            Here, the trial court interpreted the phrase "proceeding for the probate of the will" to encompass a proceeding for the administration of an estate which does not involve the probate of the will at issue. However, we must apply the statute according to its plain language. Ibid. Furthermore, we may not "'rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.'" Ibid. (alteration in original) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).
            The legislative history of the statute does not compel a different interpretation. The predecessor to N.J.S.A. 3B:3-28 was initially enacted in 1921. In re Estate of Winter, 24 N.J. Misc. 167, 169 (Orphans' Ct. 1946). When the current statute was enacted in 1981, it only permitted the Superior Court to admit a non-resident's will to probate. L. 1981, c. 405. The statute was amended in 1997 to permit the surrogate's court to admit the will to probate. L. 1997, c. 20. In connection with that statutory amendment, the Assembly Judiciary Committee stated:
This bill amends [N.J.S.A.] 38:3-28 to include the surrogate's court as having the authority to admit to probate the will of a person who is not resident in New Jersey at the time of his death but who owns real or personal property in this State, if there is no proceeding pending where he did live at his death. Currently this statute only gives the Superior Court this authority.

            The Committee's statement refers to a "proceeding" but the Legislature did not change the relevant statutory language, which refers to a proceeding "for the probate of the will." That phrase does not encompass a proceeding for the administration of an estate that does not involve the probate of the will which the proponent seeks to admit to probate.
            As we stated previously, there is no pending proceeding in New York for the probate of Antonia's alleged holographic will. It appears that Eric did not seek to have any will admitted to probate in the New York proceeding, since he apparently believes that Antonia died intestate. Furthermore, Albert did not present the alleged holographic will for probate in New York.
            This is understandable because New York permits the admission of holographic wills only if made by
(1) [a] member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged[;]

(2) [a] person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict[; or]

(3) [a] mariner while at sea.

[N.Y. Est. Powers & Trusts Law § 3-2.2(b) (Consol. 2013).]

Thus, even if Albert had presented Antonia's alleged will in the New York estate proceeding, it could not be admitted to probate under New York law.
            Consequently, the trial court had jurisdiction under N.J.S.A. 3B:3-28 to entertain the complaint seeking to probate Antonia's alleged will. Antonia was not a resident of New Jersey at the time of her death. When her alleged will was presented to the New Jersey court for probate, there was no proceeding pending in New York for the probate of that will. Moreover, Antonia owned real property in New Jersey when she died. Thus, all of the criteria for the exercise of jurisdiction under N.J.S.A. 3B:3-28 are present.
Although Eric initially sought approval of the settlement he now argues that we should affirm the trial court's jurisdictional determination. He contends that the trial court properly deferred to the New York estate proceeding. He maintains that the trial court correctly decided that Antonia's New Jersey property should pass by intestate administration, consistent with the letters of administration previously issued in New York and letters of ancillary jurisdiction that might be issued in this state.
We do not agree. N.J.S.A. 3B:3-28 expressly permits the Superior Court to admit a will to probate where, as here, a person who was not a resident of this state, dies owning property situated here, and there is no pending proceeding for the probate of that will in any other jurisdiction. The fact that there is an estate proceeding in another state which does not involve the probate of the alleged will, does not preclude the New Jersey court from exercising jurisdiction under these circumstances.
Our conclusion is consistent with In re Estate of Winter, supra, 24 N.J. Misc. 167. In that case, the testator executed a will that disposed of his property in New Jersey. Id. at 168. He died in Arizona and, while living there, executed a holographic will in which he attempted to revoke the New Jersey will and dispose of all of his property, real and personal. Ibid. The holographic will was admitted to probate in Arizona, but it did not comply with New Jersey's law governing the revocation of wills. Id. at 169.
The court held that the New Jersey will could be admitted to probate pursuant to the prior version of N.J.S.A. 3B:3-28 because there were no pending proceeding for the probate of that will in another state. Id. at 169-71. The court stated that the New Jersey will was the only will affecting realty in this state and there was no reason why it should not be probated here. Id. at 169-70.
The court added that our Legislature could provide for the probate of a New Jersey will even though it "would be invalid at the place of domicile." Id. at 171 (citing In re Dodge's Will, 89 N.J. Eq. 525 (Prerog. Ct. 1918)). The court stated:
These two wills are creatures of state law and owe their validity to the laws of each state so far as each state will recognize them. There is no legal principle to prevent both states from recognizing a testator's intentions so far as he has legally expressed them according to the respective laws of each state concerned, as long as each state keeps within its jurisdiction and within the principle of interstate comity so far as it goes.


We express no view as to whether Antonia's alleged will should be admitted to probate or whether the court should approve the settlement between Eric and Albert. We hold only that the trial court has jurisdiction under N.J.S.A. 3B:3-28 to consider this matter, as it pertains to the disposition of the property Antonia owned in New Jersey at the time of her death, and the pendency of the New York estate proceeding, which does not involve the probate of the alleged holographic will, does not bar the exercise of jurisdiction by the trial court.
Reversed and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

[1] As noted previously, Eric's temporary letters of administration expired three months after the September 15, 2011, order of the Surrogate's Court in New York. The record does not indicate whether the Surrogate's Court authorized the issuance of new letters to Eric.

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