Executor should have timely listed house for sale IN THE MATTER OF THE ESTATE OF CLARE M. MCCRINK, DECEASED.

Executor should have timely listed house for sale IN THE MATTER OF THE ESTATE OF CLARE M. MCCRINK, DECEASED.

DOCKET NO. A-2977-13T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 6, 2015
January 12, 2015

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0114-2013.

Keith E. Paterson, attorney for appellant Elaine McCrink.

Respondent Joseph McCrink has not filed a brief.¹

PER CURIAM

        Elaine McCrink, the executrix and one of six surviving children entitled to share in the estate of Elaine's mother, Clare M. McCrink(the "decedent"), appeals from that part of a January 27, 2014 order directing her to sell the decedent's home (the "home") and pay the carrying costs pending the sale. The focus of this appeal is on the executrix's delay in listing the home for sale. We affirm.

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        The decedent died testate in November 2011. The executrix, who had been living in the home, failed to follow the terms of the will and list the property for sale. At the time of death, the home was appraised at $250,000. In May 2013, a year and a half after the death, two of the children (the "other children")² filed a verified complaint and order to show cause seeking to compel the sale.

        In June 2013, the judge ordered the executrix to list the property for sale within ten days. The executrix listed the home for sale at $330,000. In September 2013, the judge ordered the executrix to reduce the listing price to $300,000 effective September 2013, and $270,000 effective October 2013. The judge then scheduled the matter for a hearing.

        In January 2014, the judge conducted the hearing and took testimony from the executrix and the other children. At this time, two years and two months after decedent had died, the executrix still remained in the home, which had not yet been sold. The judge found that the executrix "took too long to act," stating that

[i]t's not reasonable . . . to do really nothing, particularly when you're in this conflicted situation. . . . [I]t would be different if . . . [the other children were]

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living there. . . . [Y]ou . . . have an obvious benefit, because the longer you stay [in the home] the longer you don't pay any rent, the longer you don't have this cost of living. . . . [A]s a fiduciary [you] have to . . . do something about it [and] act . . . , when [your] siblings . . . are already pressing and saying what's going on here, let's close out this estate.

The judge then entered the order under review.

        On appeal, the executrix argues that (1) the January 27, 2014 order contradicts the language of the will and N.J.S.A. 3B:14-23e(2); (2) she delayed listing the home for sale relying on advice from her counsel and relators; and (3) she complied with the court orders dated June and September 2013 requiring her to list the home.

        After thoroughly reviewing the record, we conclude that the executrix's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by the judge. We add the following brief remarks.

        An appellate court must accord deference to a trial court's factual findings when such findings are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Here, there exists sufficient credible evidence in the record to support the

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judge's findings that the executrix unreasonably delayed her obligation under the will to sell the home.

        Contrary to the executrix's contention, the January 27, 2014 order does not contradict the language of the will. Paragraph four of the will provides:

I hereby give and bequeath the right of first refusal to purchase my [home] unto my children, or child, who shall desire the same, at a price to be determined by a fair market appraisal at the time of my death. If, however, there is a dispute regarding the [home], I direct that the same be sold and the net proceeds therefrom be part of my residuary estate to be distributed [equally].

I further direct that [the executrix] be permitted to reside in the [home] after the date of my death, and until the [home] is sold. I direct that my estate shall be responsible for the payment of real estate taxes, sewer and water expenses, utilities, maintenance, landscaping, and any other related expenses for the upkeep of the [home] until the [sale].

None of the children expressed an interest in purchasing the home. As a result, under the terms of the will and the order, the executrix was obligated to sell the home.

        Here, the will provides that the estate would pay the carrying costs for the property until it was sold. The will did not specify when the sale must occur, therefore, it should be interpreted to require a sale in a reasonable time. See In re Estate of Bayles, 108 N.J. Super. 446, 454 (App. Div. 1970)

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(holding that an executor "may be held liable for loss if he retains [assets of the estate] beyond a reasonable time for sale"). The judge found that the executrix had not taken steps to sell the property in a reasonable time and properly determined that the executrix should pay the carrying costs for the property, as of January 1, 2013.

        We reject the executrix's contention that the January 27, 2014 order contradicts the language of N.J.S.A. 3B:14-23e(2), which provides:

In the absence of contrary or limiting provisions in the . . . will . . . or in a subsequent court judgment or order, every fiduciary shall, in the exercise of good faith and reasonable discretion, have the power:

. . . .

e. With respect to . . . any real property belonging to the fiduciary's decedent at death[:]

. . . .

(2) To sell the property . . . on terms as in the opinion of the fiduciary shall be most advantageous to those interested therein[.]

[(Emphasis added).]

The language of this statute requires that the executrix exercise reasonable discretion. In issuing the January 2014 order, as well as the June and September 2013 orders, the judge

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complemented, rather than contradicted, this statutory language because the orders impliedly recognize the statutory obligation to act reasonably.

        We also reject as unpersuasive the executrix's assertions that (1) counsel advised her not to list the home for one year from the date of decedent's death; and (2) she was unable to list the home for sale until after she obtained an appropriate tax waiver.

        The judge did not find that counsel advised the executrix to do nothing for a year. Instead, the judge stated that "maybe [the delay] was with the advice of counsel, and maybe it was for other reasons." The judge provided the "other reasons" by acknowledging that the executrix was conflicted about her obligation to sell the home and her desire to remain living there.

        Although the executrix asserts that she could not have put the property on the market until she obtained a tax waiver, she offered no credible explanation for waiting until February 2013 to file an application for the waiver.

        Affirmed.