A defendant has a constitutional right to assert his or her innocence and put the State to its proofs, and a court cannot impose a "trial penalty" on a defendant who chooses to invoke that constitutional right State v Vargas

A defendant has a constitutional right to assert his or her innocence and put the State to its proofs, and a court cannot impose a "trial penalty" on a defendant who chooses to invoke that constitutional right

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANTOS L. VARGAS, a/k/a VARGAS

PABON SANTOS, LOPEZ SANTOS, 

PABON SANTOS and PABON VARGAS,

Defendant-Appellant.

______________________________

September 26, 2017

Submitted September 12, 2017 – Decided 

Before Judges Reisner and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 15-03-0194.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

PER CURIAM

Defendant Santos L. Vargas was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1, and was sentenced to a discretionary extended term of thirteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm defendant's conviction. However, we remand for resentencing. 

The State's principal trial evidence consisted of testimony from the victim, identifying defendant as the man who grabbed her purse and stole her cell phone. The State also presented testimony from an eyewitness, Mr. Anagbo, who heard the victim's screams and then saw defendant walking away from the victim, stuffing items in his pockets. Anagbo followed defendant from the robbery scene to a gas station a short distance away. As he followed defendant, Anagbo called 911 and reported the crime and a description of the perpetrator. While Anagbo was still talking to the 911 operator, the police arrived, and he pointed out defendant to them as the robber. A few minutes later, the police brought the victim to the gas station for a show-up identification procedure, and she immediately identified defendant as the man who robbed her. The State also introduced a video from a security camera, which recorded the robbery as it occurred.

Defendant's appeal of his conviction is limited to the denial of his pre-trial Wade¹ motion. He also challenges his sentence. Defendant presents the following points of argument for our consideration:

POINT I: THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE SHOWUP IDENTIFICATION TO BE USED AT TRIAL BECAUSE IT DID NOT SATISFY CONSTITUTIONAL STANDARDS OF RELIABILITY UNDER STATE v. HENDERSON AND STATE v. JONES. 

A. The Police Failed To Keep Adequate Records Of The Showup Procedure, As Required By State v. Delgado.

B. The Judge's Reliability Deter-mination Failed To Clearly Account For All Of The Estimator Variables That May Bias A Showup Identi-fication As Required By State v. Henderson, And Improperly Considered Background Knowledge That Anagbo Had Followed Mr. Vargas.

POINT II: THE COURT IMPROPERLY DENIED MR. VARGAS'S APPLICATION TO DRUG COURT AND IMPOSED AN EXCESSIVE SENTENCE.

A. The Court Improperly Denied Mr. Vargas The Opportunity To Participate In Drug Court After Failing To Give Full And Fair Consideration To His Application And Incorrectly Using His Prior Drug Court Involvement As A Basis For Rejection.

1. That Mr. Vargas Applied To Drug Court After He Was Convicted At Trial Not Only Fails To Preclude Entry Into Drug Court, But Is Assumed By Special Probation To Be An Option. 

2. The Judge Improperly Weighed Mr. Vargas's Non-Existent Record Of Violent Offenses.

3. That Mr. Vargas Had Been Sentenced To Drug Court But Had His Probation Revoked Was Irrelevant To Whether Mr. Vargas Currently Qualifies For Admission To Drug Court.

B. Mr. Vargas's Sentence Was Excessive.

We begin by addressing the Wade issue.² The identification took place ten to fifteen minutes after the robbery occurred. According to Officer Munoz, who drove the victim from the crime scene to the gas station, she spoke Spanish and he communicated with her entirely in Spanish. During the short drive to the gas station, Munoz told the victim that the police had detained a "possible suspect," but he did not tell her that the individual was the robber or that she had to make an identification. Officer Munoz testified that, as soon as the victim saw defendant, she immediately and definitively identified him as the robber. Munoz did not have a packet of standard on-scene identification forms in the patrol car.  See State v. Delgado, 188 N.J. 48 (2006). However, he and the victim filled out the forms at the police station the day after the robbery.³

In her hearing testimony, the victim confirmed that Munoz told her that the police had detained someone and he was taking her to see "if that was the person that had mugged me." Munoz did not tell her that the person was the mugger and did not tell her that she had to make an identification. According to the victim, she identified defendant by the gray color of the jacket he was wearing and by his light skin color. She testified that she told Munoz she was "99 percent" certain of her identification of defendant.

In an oral opinion issued September 23, 2015, the motion judge found the victim and Officer Munoz to be credible witnesses. He was convinced that the victim's identification of defendant was reliable and was a product of her perceptions at the time of the robbery. The judge found that the identification occurred in close proximity to the location of the robbery and within a few minutes after the crime occurred, and concluded that the police did not unfairly influence the identification. The judge found no need for a further hearing to explore the additional factors set forth in State v. Henderson, 208 N.J. 208 (2011). 

Having reviewed the record, we find no basis to disturb the judge's factual findings and credibility determinations.  See State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). The judge appropriately ended the hearing after listening to the credible testimony of Munoz and the victim. "[T]he court can end the hearing at any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless."  Henderson, supra, 208 N.J. at 289. "[T]he ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification." Ibid. The Wade hearing evidence did not come close to satisfying that burden. 

Contrary to defendant's argument, we do not read the judge's opinion as relying on Anagbo's identification of defendant as bolstering the reliability of the victim's identification.  See State v. Jones, 224 N.J. 70, 89 (2016) ("[E]xtrinsic evidence of guilt plays no role in assessing whether a suggestive eyewitness identification was nonetheless inherently reliable."). Defendant's remaining arguments on this point are without sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(2). We affirm defendant's conviction. 

Turning to defendant's sentencing arguments, we agree with defendant that in rejecting defendant's Drug Court application, the trial court mistakenly considered as a negative factor defendant's insistence on going to trial. Drug Court probation is a post-conviction sentencing alternative, which may be imposed "whenever a drug or alcohol dependent person . . . is convicted of . . . an offense" and satisfies the other relevant provisions of the statute.  See N.J.S.A. 2C:35-14(a). In fact, in deciding whether to sentence a convicted offender to Drug Court, the judge "shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings . . . ."  N.J.S.A. 2C:35-14 (emphasis added). 

A defendant has a constitutional right to assert his or her innocence and put the State to its proofs, and a court cannot impose a "trial penalty" on a defendant who chooses to invoke that constitutional right.  See N.J.S.A. 2C:44-1(c)(1); State v. Jimenez, 266 N.J. Super. 560, 570 (App. Div.), certif. denied, 134 N.J. 559 (1993). Because the trial court gave negative weight to defendant's constitutionally-protected choice in this case, we are constrained to remand this matter for a new sentencing hearing. At the time of the resentencing hearing, the court shall consider defendant's individual situation "as he stands before the court on that day," including any changed circumstances.  See State v. Randolph, 210 N.J. 330, 354 (2012). To ensure a meaningful re-hearing, defendant shall be given a TASC evaluation prior to the hearing. 

In light of the remand, it would be premature to address defendant's additional arguments concerning his sentence. 

Affirmed in part, remanded in part. We do not retain jurisdiction.

1  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967). 

2  In the trial court, the State conceded that because the victim first identified defendant to the police in the context of a show-up procedure, there was sufficient evidence of suggestibility to require a Wade hearing. 

3  Defendant has not provided us with the forms, and we therefore cannot engage in meaningful appellate review of his argument that the forms were completed improperly.  See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).

No evidence of undue influence IN THE MATTER OF THE ESTATE OF CHARLES W. WINTER, JR., DECEASED.

No evidence of undue influence IN THE MATTER OF THE

ESTATE OF CHARLES W. 

WINTER, JR., DECEASED.

_______________________

September 27, 2017

Argued May 17, 2017 – Decided

Before Judges Fuentes, Simonelli and Carroll. 

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. P-1610-2013.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

PER CURIAM 

In this will contest, plaintiffs Michelle DiPaolo, Mary Beth Daly, Angelo Giudice, JoAnn Giudice, Philip Giudice, and Domenick Giudice (collectively plaintiffs), were cousins of the decedent, Charles W. Winter, Jr., and were named as residuary beneficiaries under his Last Will and Testament executed in 1999. Defendant Lorraine Belmont, Winter's cousin and residuary beneficiary under his will, shared a close family and personal relationship with him for more than sixty years until he died on June 13, 2013. Defendant Mira Morrison was Winter's girlfriend of more than thirty years until he died. Defendant Howard Steinberg was Winter's best friend since childhood and the two men worked together for many years.¹

Winter executed a new will on February 7, 2013, which named Belmont, Morrison, and their family members and Steinberg as sole beneficiaries of his estate (the Will). Plaintiffs sought to invalidate the Will based on defendants' alleged undue influence over Winter. Plaintiffs appeal from two July 31, 2015 Chancery Division orders, granting summary judgment to defendants and dismissing the complaint with prejudice, and denying plaintiffs' motion for leave to file an amended complaint to add additional claims. For the following reasons, we affirm both orders.

I.

This Chancery case began in December 2013. There was extensive discovery over an eighteen-month period, which included numerous depositions, answers to interrogatories, and document production. We derive the following facts from that discovery as well as certifications and admissions in plaintiffs' response to Belmont's statement of facts. 

Winter never married and had no children. In 1999, he executed a will designating his parents as beneficiaries of his estate and his thirteen cousins as residuary beneficiaries, including plaintiffs, Belmont, and Belmont's sister, JoAnn Belmont (JoAnn B.). Winter's parents died, leaving his cousins as the residuary beneficiaries under his will. After Winter's parents died, he discussed changing his will with his long-time friend and attorney, John J. Delaney, Jr., Esq. However, he did not change his will at that time. 

In December 2012, Winter, then sixty-five years old, was hospitalized for what he believed was pneumonia. Defendants and JoAnn B. visited him in the hospital. 

In January 2013, Winter learned his condition was not pneumonia, but rather terminal stage four lung cancer. He was hospitalized periodically throughout the beginning of 2013, and defendants visited him in the hospital and helped him with his medical, personal, and financial needs. Plaintiffs never visited Winter in the hospital or assisted him in any way. They visited him only once in March 2013, at his home. 

Winter was seriously ill and hospitalized on February 3, 2013. Defendants and JoAnn B. were present when Winter and Morrison called Delaney and asked him to come to the hospital to prepare a new will for Winter. Delaney was deposed and submitted a certification. He testified that he spoke directly with Winter on the telephone. Except for plaintiffs' self-serving assertions, there is no evidence supporting their statement in their merits brief that "[Morrison] was in a panic to call the lawyer" on February 3, 2013. In addition, plaintiffs do not support by reference to the record their statement that "as [Winter] appeared to be close to death, it was [Morrison] who started the mantra 'call the lawyer, call the lawyer.'"  See R. 2:6-2(2)(5). To the contrary, when asked at his deposition whether he saw anyone suggest to Winter that he call Delaney, Steinberg testified: "No. [Winter] was in control. [Winter] was -- you know, you had to know [Winter. Winter] was the boss. [Winter] wanted things done the way he wanted them done. It was his decision [to call Delaney]."

Delaney arrived at the hospital shortly after the call and saw that although Winter was in poor physical shape, he had all his mental faculties about him and understood perfectly what he was doing and was quite certain about the manner in which he wished to dispose of his assets. Delaney explained that Winter was not in a good way physically due to oxygen issues, but was lucid. 

Defendants and JoAnn B. were present when Delaney arrived at the hospital, but Steinberg left when he arrived. Delaney knew Steinberg and Morrison, but had never before met Belmont. Delaney described Belmont as "a very aggressive cousin." Explaining what he meant by "aggressive," Delaney testified that Belmont 

was a very caring cousin. She was there. She was at the hospital, and probably no different than me or anyone else, but she -- I didn't use it in the pejorative sense, but certainly she was very active. . . . And by the way I would use that word for myself as well. I would use it for my sisters as well. . . . Just she was very active. 

Winter told Delaney that he wanted a will and directed Delaney to prepare a new will to include Belmont, Morrison, and their respective family members as beneficiaries. Winter also stated he wished to bequeath his antique cars, parts, and tools to plaintiffs Angelo and Philip Giudice. Winter directed Belmont and Morrison to prepare and provide to Delaney a list of family members he wanted included in the will, which they wrote in Winter's and Delaney's presence. Delaney handwrote the will, which included the bequests to Angelo and Philip Giudice, showed it to Winter, and also read to him the list of names Belmont and Morrison had prepared. Winter acknowledged each name by verbally saying "yes." 

Winter named Belmont as executrix. He told Delaney he had trust in Belmont and was confident in her abilities to carry out his wishes. Winter spoke very glowingly to Delaney about Belmont and Morrison, and trusted them to take care of his finances. Winter executed the handwritten will on February 3, 2013, and Belmont and Morrison witnessed his execution. 

On the morning of February 4, 2013, Delaney had the handwritten will reduced to a formal will that reflected precisely what Winter had requested and was substantively identical to the handwritten will. Delaney returned to the hospital that morning to have Winter execute the formal will, but saw that Winter was "in bad shape" and in no position to execute any documents. However, when Delaney returned to the hospital that evening, Winter had "miraculously" recovered, so Delaney discussed the formal will and list of beneficiaries with him and he executed the will, with Belmont and Morrison again witnessing the execution. The will expressly revoked all prior wills and codicils. 

Within a day after executing the will, Winter realized that he forgot to include Steinberg as a beneficiary. Winter told Belmont and Delaney that he wanted to add Steinberg as a beneficiary, and instructed Delaney to prepare a new will. Delaney prepared the Will and returned to the hospital on February 7, 2013. Defendants were with Winter at the hospital when Delaney arrived, and he asked them to leave the room. Delaney spoke privately with Winter to ensure he intended to make the bequests stated in the Will and fully understood the document. Delaney explained the Will to Winter and told him that Steinberg was added as a beneficiary. Delaney saw that Winter "clearly was in a condition where he could execute the document, unlike . . . on February the 4th." Upon being completely satisfied the Will reflected Winter's intention and that Winter fully understood it, Delaney had Winter execute it in the presence of his wife and Morrison. The Will expressly revoked all prior wills and codicils. Delaney sent or gave the Will to Winter, and they later talked about it when Winter went to Delaney's home on March 16, 2013. 

Regarding Winter's testamentary capacity, Delaney certified: "There is no doubt in my mind that [Winter] was of sound mind at the time he executed his Will, knew what he was signing, knew who his beneficiaries were, and that the Will he asked me to draft clearly reflected his intent and his wishes." Delaney testified at deposition: "I've dealt with people enough to know whether someone is lucid and competent. [Winter] clearly was in a condition where he could execute the document, unlike when I went there on February [4, 2013]." 

Plaintiffs admitted Steinberg was not aware of Winter's 1999 will or that Winter had executed the three wills in February 2013. They also admitted Steinberg had no input into the Will, made no recommendations concerning its content, and did not learn he was a beneficiary under the Will until late May 2013. 

Winter recovered, was released from the hospital in late February 2013, and received outpatient chemotherapy. He resumed his normal activities, including shopping and driving, and also had "very extensive" involvement in a complicated real estate transaction. When plaintiff JoAnn Giudice visited Winter at his home in March 2013, she saw he was physically weak, but did not appear to have any mental or cognitive deficiencies. 

Winter had instructed Delaney to prepare a power of attorney naming Morrison and Steinberg as power of attorney, and made very clear to Delaney that he wanted them to have power of attorney. Winter also instructed Delaney to prepare an advance directive for health care naming Belmont and JoAnn B. as his health care proxies. 

Delaney prepared the documents and Winter signed them at Delaney's home on March 16, 2013. Delaney testified that Winter had "made a miraculous comeback" and "was fully competent and conversant, and knew exactly and precisely what he wanted to do at that time. [Belmont] was not even present at the time. . . . [Winter] was lucid and of sound mind when these documents were executed on March 16, 2013." Delaney specifically asked Winter if he wanted to make any changes to the Will, and Winter said he did not. Delaney certified that:

Had [Winter] wished to change his Will after it was executed in the hospital on February 7, 2013, and during the more than four months between that time and his death in June of that year, he most assuredly would have done so, either before or after the March 16, 2013 visit when he had me prepare the Power of Attorney and Health Care Proxy. This simply did not occur.

Delaney testified that "in March it was clear and unambiguous that [Winter] was satisfied with his Will." He also testified that although Lorraine told him Winter wanted to make changes to the Will, and there was a "piece of paper" to that effect, which was lost, Winter never confirmed this or contacted him to make any changes to the Will. 

Defendants spent almost every day with Winter from the time he became ill, and cared for him until he died. In mid-April 2013, Winter suffered a significant setback in his health and was hospitalized in late May 2013. He died on June 13, 2013.

Plaintiffs challenged the Will based on undue influence. On January 12, 2015, the court ordered plaintiffs to serve expert reports by March 30, 2015, and extended discovery to April 15, 2015. Discovery had long-ended when, on June 3, 2015, plaintiffs filed a motion to amend the complaint to add claims of mistake, lack of testamentary capacity, and "Forgery With Respect to [Winter's] Pension[,]" and on June 5 and 18, 2105, they served expert reports. Defendants then filed motions for summary judgment and to strike the expert reports, and plaintiffs filed a cross-motion, seeking to shift the burden of proof to defendants on the issue of undue influence. 

The motion judge denied plaintiffs' motion to amend the complaint, finding no evidence that Winter lacked testamentary capacity at the time he executed the Will, and no evidence of mistake or fraud. After making these findings, the judge advised the parties that during the year 2000, he was a partner at the law firm of Cooper, Rose & English, where Delaney was also a partner. Delaney was associated with a different law firm at the time Winter executed the Will. The judge afforded the parties the opportunity to object, but no one objected. 

The judge then addressed the summary judgment motions. The judge found there was no confidential relationship between Winter and defendants and nothing to suggest there were suspicious circumstances. The judge determined the uncontroverted facts established that Winter was competent when he executed the Will; had resumed his normal life and engaged in business transactions after executing the Will; and never sought to change the Will. The judge concluded that Winter was not under any undue influence when he executed the Will and even if he was, he ratified the Will by his conduct thereafter. 

II.

Plaintiffs first contend the judge abused his discretion in not granting leave to amend the complaint. We disagree.

"Rule 4:9-1 requires that motions for leave to amend be granted liberally" and that "the granting of a motion to file an amended complaint always rests in the court's sound discretion."  Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). The exercise of discretion requires a two-step process: whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile.  Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). "Courts are thus free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law."  Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997) (quoting Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)). "It is well settled that an exercise of that discretion will be sustained where the trial court refuses to permit new claims and new parties to be added late in the litigation and at a point at which the rights of other parties to a modicum of expedition will be prejudicially affected."  Murray v. Plainfield Rescue Squad, 418 N.J. Super. 574, 591 (App. Div. 2011) (citation omitted), rev'd on other grounds, 210 N.J. 581 (2012). We discern no abuse of discretion in the denial of plaintiffs' motion to amend the complaint.

Plaintiffs filed their motion to amend late in the litigation, and well after the close of discovery. To support their lack of testamentary capacity claim, they relied on expert reports that were not properly before the court, as the reports were served in violation of the January 12, 2015 order, and plaintiffs never moved to extend discovery to permit late service. In any event, the experts did not opine that Winter lacked testamentary capacity at the time he signed the Will; they merely opined he "had diminished capacity and was subject to undue influence due to his severe disabilities." Because there was no evidence that Winter lacked testamentary capacity at the time he executed the Will, plaintiffs' lack of testamentary capacity claim was not factually or legally sustainable.

Plaintiffs' mistake claim lacks factual and legal support as well. Plaintiffs alleged there was a mistake in the content of the Will. A mistake concerning the content of a will is known as "probable intent." "The doctrine permits the reformation of a will in light of a testator's probable intent by 'searching out the probable meaning intended by the words and phrases in the will.'"  In re Estate of Flood, 417 N.J. Super. 378, 381 (App. Div. 2010) (quoting Engle v. Siegel, 74 N.J. 287, 291 (1977)), certif. denied, 206 N.J. 64 (2011). "[E]xtrinsic evidence may be offered not only to show an ambiguity in a will but also, if an ambiguity exists, 'to shed light on the testator's actual intent.'"  Ibid. (quoting Wilson v. Flowers, 58 N.J. 250, 263 (1971)). "Where the doctrine has been used it has been done only with caution and to clarify ambiguities in a will[.]"  In re Estate of Gabrellian, 372 N.J. Super. 432, 442 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005). 

There are no ambiguities in the Will. The Will is clear and unambiguous as to Winter's beneficiaries, and there is no competent extrinsic evidence that would render its terms ambiguous. Winter directed preparation of the list of beneficiaries, the list was read to him, and he acknowledged each name by verbally saying "yes." After executing the Will, Winter was fully competent. He stated he wished to make no changes to his Will, and never contacted Delaney to change the beneficiaries. The record does not support plaintiffs' claim that Winter made a mistake in his beneficiary designations.

Plaintiffs' "Forgery With Respect to Pension" claim also lacks factual and legal support. Plaintiffs asserted that someone forged a State of New Jersey, Division of Pensions and Benefit designation of beneficiary form for Winter's pension, which named Morrison as the beneficiary of Winter's pension. However, Morrison was not designated as the beneficiary of Winter's pension; she was designated as the beneficiary of his life insurance, and did not receive Winter's pension benefits. More importantly, there is no evidence of a forgery. That Morrison could not confirm it was Winter's signature on the form does not prove forgery. 

III.

Plaintiffs next challenge the judge's grant of summary judgment. They argue there was a confidential relationship between Winter and defendants and suspicious circumstances, and the judge erred in failing to shift the burden of proof to defendants. 

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court.  Templo FuenteDe Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citation omitted). Thus, we consider, as the trial judge did, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."  Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Templo Fuente, supra, 224 N.J. at 199 (quoting R. 4:46-2(c)). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted). Applying the above standard, we discern no reason to reverse the grant of summary judgment.

"[I]t is generally presumed that 'the testator [is] of sound mind'" to execute a will.  Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981) (quoting Geller v. Livingston, 5 N.J. 65, 71 (1950)). That presumption can be overcome, however, upon a showing of undue influence.  Id. at 176. "[U]ndue influence is a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets[.]"  In re Estate of Folcher, 224 N.J. 496, 512 (2016) (alteration in original) (quoting In re Estate of Stockdale, 196 N.J. 275, 302-03 (2008)). As we have held:

Undue influence is exerted where a testator is coerced to do that which he would not have done if left to himself, or where there is importunity which cannot be resisted and is yielded to for the sake of peace. . . . The clarifying test of the matter . . . is whether the testator's mind, when he made the will, was such that, had he expressed it, he would have said: "This is not my wish, but I must do it." 

[In re Estate of Weeks, 29 N.J. Super. 533, 542 (App. Div. 1954) (citations omitted).]

The will challenger normally bears the burden of establishing undue influence in execution of a will.  Ibid. However, "[w]hen there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption." Folcher, supra, 224 N.J. at 512 (alteration in original) (quoting Stockdale, supra, 196 N.J. at 303). The party defending the will overcomes the presumption of undue influence by demonstrating that the preponderance of the evidence reveals undue influence did not taint the will.  Ibid.

A confidential relationship "generally 'encompasses all relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.'"  Ibid. (quoting Pascale v. Pascale, 113 N.J. 20, 34 (1988)). "In general, there is a confidential relationship if the testator, 'by reason of . . . weakness or dependence, reposes trust in the particular beneficiary, or if the parties occupied a relation[ship] in which reliance [was] naturally inspired or in fact exist[ed].'"  Stockdale,supra, 196 N.J. at 303 (alteration in original) (quoting In re Hopper, 9 N.J. 280, 282 (1952)). A "confidential relationship" exists when circumstances make it certain that the parties do not deal on equal terms, but on one side there is an overmastering influence, or, on the other, weakness, dependence or trust justifiably reposed.  In re Estate of Hopper, 9 N.J. 280, 282 (1952). 

"Suspicious circumstances" are those circumstances that "require explanation."  Haynes, supra, 87 N.J. at 176 (quoting In re Rittenhouse's Will, 19 N.J. 376, 379 (1955)). "Suspicious circumstances . . . need only be slight." Stockdale, supra, 196 N.J. at 303 (citation omitted).

We disagree there was no confidential relationship between Winter and defendants. Defendants had close familial and personal relationships with Winter, and he trusted them and depended on them during his illness to assist with his medical, personal, and financial affairs. This was sufficient to establish a confidential relationship.

Arguably, there were suspicious circumstances, as defendants were present when Winter called Delaney to the hospital to prepare a new will. However, there was no evidence of coercion or mental, moral, or physical exertion of any kind by defendants that destroyed Winter's free will to follow the dictates of his own mind as it related to the disposition of his assets. Winter was lucid when he executed the Will and the decision to do so was his and his alone. The Will reflected Winter's intent as to the disposition of his assets, and there is no evidence to the contrary. The preponderance of the evidence reveals undue influence did not taint the Will. Accordingly, summary judgment was properly granted.

IV.

Lastly, plaintiffs argue the judge should have drawn an adverse inference against defendants; Winter revoked the Will or prepared a holographic codicil; and the judge should have recused himself because of the appearance of impropriety. We have considered these arguments in light of the record and applicable legal principles, and conclude they are without sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E). However, we make the following brief comments.

Plaintiffs never moved before the judge for his recusal.  See Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990) (requiring a motion to "be made to the judge sought to be disqualified") (citing R. 1:12-2; N.J.S.A. 2A:15-49). Because plaintiffs never moved for recusal, the issue is waived and not preserved for appeal. 

Affirmed.

1  We shall sometimes collectively refer to Belmont, Morrison, and Steinberg as defendants.

Legal fees for estate deemed too high IN THE MATTER OF THE ESTATE OF JAMES E. MELLODGE, DECEASED.

Legal fees for estate deemed too high IN THE MATTER OF THE ESTATE

OF JAMES E. MELLODGE, DECEASED.

_________________________________________________

September 26, 2017

Argued September 19, 2017 – Decided 

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hunterdon County, Docket No. 047164.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

PER CURIAM

James E. Mellodge died in 2013. He disposed of his property by way of a last will and testament and through the creation of certain bank accounts payable on death (POD accounts). His youngest surviving child, Joyce Sealtiel, qualified as executrix of the estate; she was also a beneficiary of a few POD accounts.¹ The last will and testament made specific monetary requests to one daughter and one son, while the other four children, including Joyce, were bequeathed equal shares of the residuary estate.

In an earlier probate action involving this estate, Joan Bozan,² the decedent's oldest daughter, asserted that undue influence was the cause of decedent's designation of Joyce, the youngest daughter, as a beneficiary of POD accounts totaling approximately $139,000. Joan's complaint also alleged that Joyce had failed to account for $800,000 in assets – a claim soon abandoned. After a two-day trial, the judge rejected Joan's claim that any POD account was the product of undue influence.

Joyce then filed a verified complaint. As is the practice, R. 4:87-1(a), the surrogate entered an order requiring, on the return date, that any interested parties show cause why Joyce's final accounting should not be approved and why the estate should not bear certain fees incurred in the prior undue-influence suit. On the return date, the judge heard Joyce's testimony as well as the testimony of the estate's prior attorney. Requiring further amplification, the judge later accepted additional submissions and documents from the parties before rendering his March 28, 2016 written decision.

In relying on what was provided in response to the order to show cause, as well as his own familiarity with the proceedings as a result of presiding over the undue-influence trial, the judge determined that the counsel-fee requests of Saul Ewing, a law firm which represented both Joyce and the estate, and Stark & Stark, which represented Joan, were "breathtakingly excessive" due to their "scorched-earth" approach; the judge held that if permitted, a full award of their fees – both firms sought awards of approximately $200,000 each, and the probate assets totaled $650,000 – "would swallow more than half of the probate estate." The judge found that Saul Ewing, in its role as the estate's litigation counsel, was entitled to a $25,000 fee and, in its role as Joyce's counsel in defending her right to benefit from the POD accounts, was entitled to a $40,000 fee. And, because the estate had already paid Saul Ewing slightly in excess of $200,000, the judge found Saul Ewing obligated to reimburse the estate; Joyce was also obligated to return funds to the estate, insofar as Saul Ewing had been paid from the estate for fees due to Saul Ewing from her individually. The April 21, 2016 judgment disposed of all other issues concerning the accounting and the fees sought.

Joyce and Saul Ewing appeal, arguing:

I. THE COURT ABUSED ITS DISCRETION IN HOLDING A FORMAL TRIAL ON THE RETURN DATE OF THE ORDER TO SHOW CAUSE WITHOUT PROVIDING PROPER NOTICE TO THE PARTIES.

II. THE COURT ABUSED ITS DISCRETION IN LIMITING THE AWARD OF COUNSEL FEES INCURRED BY THE ESTATE IN THE UNDERLYING LITIGATION AND ACCOUNTING ACTION TO $25,000.

III. THE COURT ABUSED ITS DISCRETION IN SEEKING TO BIND THE EXECUTRIX TO REIMBURSE THE ESTATE FOR ANY ADDITIONAL FEES PROPERLY AWARDED TO SAUL EWING AFTER APPEAL. 

IV. THE COURT ABUSED ITS DISCRETION IN GRANTING EXCEPTIONS TO THE EXECUTRIX'S ACCOUNT FOR WORK SHE ACTUALLY PERFORMED ON BEHALF OF THE ESTATE.

We find insufficient merit in Points I, II and IV to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm the disposition of the counsel-fee requests substantially for the reasons set forth by Judge William M. D'Annunzio in his thorough and well-reasoned written decision. The judge was imbued with considerable discretion in ascertaining the appropriate fee awards. The written decision reveals that the judge thoroughly assessed the nature of the claims and the parties' "scorched-earth" efforts in seeking vindication of their positions; the experienced judge then employed his considerable discretion in fixing a reasonable fee in these circumstances. We agree with the judge that this case presented no particular difficulties other than those generated by an "antagonism" between Joan and Joyce that ventured well "beyond sibling rivalry." Joyce and Saul Ewing have presented no principled reason for either second-guessing the experienced trial judge's view of the matter or his determination of what constituted a reasonable fee in such a case.

We add only a few brief comments about Point I. Joyce and Saul Ewing argue they were deprived of due process because the judge elicited testimony on the return date despite a contrary direction contained in the order to show cause. That is, the order to show cause stated that testimony would not be taken on the return date unless the parties were otherwise advised three days before the return date. Because they were not so notified, Joyce and Saul Ewing claim surprise and prejudice in what occurred on the return date. We reject this because Joyce and Saul Ewing were not prejudiced. Even now they have not shown how their causes were hampered or limited because of the manner in which the case proceeded. Indeed, the issues on appeal concern counsel fees, and the judge did not permit testimony in that regard – let alone on the return date – deciding instead to consider the fee dispute by examining the certifications that had been submitted and his familiarity and understanding of the case – a sound approach. Moreover, the record was not closed on the return date, and the parties were given the opportunity to provide additional submissions prior to the judge's disposition of the pending issues.

Finally, we have no reason to reach Point III because it contains Joyce and Saul Ewing's argument about a portion of the judgment – a direction that if Saul Ewing, "as the result of an appeal, is not required to fully reimburse the estate, . . . then Joyce . . . is surcharged in the amount due to the estate" – which has not been triggered here.

Affirmed

1  Decedent's other children were beneficiaries of other POD accounts.

2  Two other siblings – James Mellodge and Judy Newman – were also plaintiffs but withdrew from the matter soon after its commencement.

Removal of executor reversed IN THE MATTER OF THE ESTATE OF DOLORES M. PIERCE, DECEASED. September 22, 2017

Removal of executor reversed IN THE MATTER OF THE

ESTATE OF DOLORES M. PIERCE,

DECEASED.

September 22, 2017

Argued August 30, 2017 – Decided

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-0391-15.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

PER CURIAM

Dolores M. Pierce died December 9, 2014. Her son, Michael A. Pierce was named executor in his late mother's Will. Pierce's sister Marilyn Cromwell, a South Carolina resident, initially and unsuccessfully objected to the appointment. A third sibling is not a party to the litigation. Pierce's letters testamentary issued on May 20, 2015. 

On March 29, 2016, Cromwell applied for relief a second time and successfully removed Pierce. John G. Hoyle III, Esquire, was named the substitute Administrator Cum Testamento Annexo (Administrator CTA). We now reverse, finding that the statutory standard for removal was not met, and reinstate Pierce.¹

Decedent's assets appeared to include three parcels of real estate: a 122-acre farm that Pierce had worked on for over forty years (the farm), a single-family dwelling that had an underground storage tank (the Pine Tree property), and a parcel where Pierce lived and maintained his business (the Ramshorn property). A fourth parcel of unimproved real estate had been deeded to Pierce and his wife prior to decedent's death. For reasons not disclosed on the record, the deed was not recorded until the day after decedent's death. Cromwell initially included the fourth parcel as part of decedent's assets, but the court excluded the parcel in its January 29, 2016 decision. The decedent's February 4, 2010 will instructed that the real estate "be sold as soon as practicable."

On November 16, 2015, Cromwell filed her first verified complaint seeking Pierce's removal. She alleged that Pierce had not fulfilled his statutory obligations because he failed to pay any New Jersey Estate Tax, exposing the estate to interest and penalties; did not sell decedent's real property; did not properly inventory, appraise or distribute decedent's personal property; and refused to allow Cromwell access to decedent's real and personal property. 

Pierce submitted a thirteen-page certification with eleven exhibits in opposition to the complaint, responding that estate taxes had not been paid because the estate had no cash assets. He had obtained appraisals, but admitted that no inventory had been provided to Cromwell, because none was yet necessary. Along with the exhibits, the certification outlined Pierce's efforts to obtain appraisals of the farm and the Pine Tree properties. The certification also highlighted Pierce's efforts in managing the properties, knowing they were assets which needed to be sold.

According to the certification, during the appraisal process, an underground tank was discovered on the Pine Tree property. Nonetheless, Pierce located a buyer willing to pay a $250,000 purchase price. Pierce also stated he wished to buy the Ramshorn property, which was in foreclosure by the time Pierce was appointed executor. He loaned the estate over $20,000 to pay real estate taxes. Pierce supplied an October 6, 2015 letter from a realtor declining to list the farm property because it included significant wetlands.

Pierce also certified that he had loaned a total of $49,430.45 to the estate in the months he had served as an executor. By August 18, 2015, he had obtained an appraisal of decedent's jewelry and offered to ship to Cromwell decedent's furniture, china, clothing, costume jewelry, and other items of personal property. On January 29, 2016, Pierce's attorney represented to the court that the contract to sell the Pine Tree property for $250,000 had been signed the previous week, and that Pierce would obtain an appraisal for the Ramshorn property within the next few weeks as he wished to purchase it.

In her decision dismissing Cromwell's first complaint, the judge stated Pierce knew the real properties had to be sold, but had "been sitting around for a year." She "[didn't] buy that argument" that Pierce had needed time to get appraisals. She ordered him to promptly sell the real property, even though she denied Cromwell's request to remove Pierce. The judge observed that, pursuant to the statute, it was "difficult" to demonstrate "clear and definite proof of fraud, gross carelessness, or indifference." She found that Pierce had acted in good faith, but was "hanging on by a thread[.]" 

The judge directed Pierce to provide Cromwell with the Pine Tree property sales agreement. The order also stated: "If the sale does not close by March 1, 2016, [Pierce] shall within ten (10) days sign a multiple listing agreement" and "notify [Cromwell] of all sales activity and offers to purchase the property no less frequently than every thirty (30) days after entering the multiple listing agreement." Additionally, Pierce was required to sign a multiple listing agreement for the farm property within ten days at "a price which may be higher than but shall not be less than the appraised value reported by Gagliano Appraisal[.]" 

Finally, Pierce was ordered to obtain an appraisal of the farm property within twenty days. Excepting his home, Pierce was to allow Cromwell access to the interior and exterior of all of decedent's real estate within ten days. The judge dismissed the count within the complaint seeking to void decedent's transfer of the fourth parcel to Pierce and his wife.

By letter dated February 26, 2016, Pierce's attorney on behalf of the buyer asked Cromwell's attorney for a one-week extension of the March 1, 2016 closing date for the Pine Tree property. He attached the buyer's email request to his letter. The underground storage tank had to be removed prior to closing, and the delay would ensure the removal would be complete before title was transferred. Cromwell's attorney refused to consent. Accordingly, the closing took place on March 2, 2016. 

On that same day, Cromwell filed a notice of motion for reconsideration of the February 12, 2016 order that dismissed her first complaint to remove Pierce. She again sought his removal and submitted a certification from her attorney regarding the delay of the Pine Tree property closing date. The attorney certified that "[a]s of this date, there has been no communication from [Pierce] as to the status of the sale of [the Pine Tree property]." 

In opposition, Pierce filed a letter brief explaining that the Pine Tree closing had occurred on March 2, and otherwise describing his efforts to comply with the order. Cromwell had never contacted Pierce to arrange a time to inspect the real estate. Pierce's response also included an itemization of decedent's personal property, copies of which had been previously sent to Cromwell's attorney. The letter brief related a conversation in which Cromwell's attorney was informed that the decedent's personal property had been moved to a storage facility in Clifton. 

A copy of an agreement listing the farm for sale at $2.8 million was provided, and Pierce attached correspondence to that document explaining that the asking price had been suggested by the realtor, despite an earlier appraisal assessing the property at only $830,000.

Cromwell in turn disputed the jewelry appraisal provided by Pierce, stating that Pierce had years prior given her an appraisal establishing a higher value. She also claimed that several items were missing. Cromwell did not attach a copy of the earlier appraisal.

At the March 24, 2016 hearing on Cromwell's application for reconsideration, Cromwell contended that the January 2016 hearing was necessitated by Pierce's failure to act to settle the estate. She further argued that the $2.8 million listing was effectively "a decision not to sell the property" since it was significantly higher than the appraised value. 

Pierce reiterated that the broker suggested the asking price, but that it would be relisted at the lower price if ordered by the court. The judge refused Pierce's request that he be allowed to testify regarding the circumstances of the listing price of the farm property. Cromwell agreed that if the personal property Pierce provided on a list were confirmed upon inspection, then they would be "done with that."

At the outset of the hearing, the judge said that she was "very, very disconcerted" by the repeated filing of Cromwell's application, but she was not sure if Pierce had violated his statutory obligations. There was "tremendous animosity" between the parties, but animosity alone is "not really a reason to remove an executor[.]" Nevertheless, the judge ultimately found that Pierce "neglected and refused to perform or obey [the order of] judgment within the times fixed by the [c]ourt." The judge considered Pierce's listing of the farm property for three times the original appraised value to establish that he did not "really want to sell it." 

The judge opined that Pierce should have been aware of the underground tank problem that delayed the Pine Tree property closing, acknowledging that it was not delayed "much." Furthermore, the judge considered Pierce's relocation of personal items to a new facility to mean he was not "cooperating." The court granted Cromwell's application and appointed a substitute Administrator CTA. She further ordered Pierce to submit a formal accounting within sixty days. 

On May 2, 2016, Pierce filed a notice of motion for reconsideration along with a certification detailing his efforts to list the farm property and the reason he had disagreed with the $830,000 appraisal price. He noted that he had thirty-six years of consulting experience as a licensed professional engineer, licensed architect, and licensed professional planner. Among Pierce's supporting documents was a certification from the appraiser explaining his valuation.

Pierce further certified that he had been making payments from his personal funds towards the loan against the property, preventing a foreclosure. The personal property had been moved into a storage facility in Clifton because his wife did not want Cromwell to come to her place of business in order to examine it. 

During the reconsideration hearing on May 20, 2016, Pierce contended it was improper to remove an executor without a plenary hearing. Among other things, he argued that if the court intended to proceed summarily, it should have treated Cromwell's application as one for summary judgment. Since the Pine Tree property had been sold on March 2, Pierce argued that he was for all intents and purposes in compliance with the judge's original order. Cromwell responded that no hearing was necessary regarding the removal because Pierce had not disputed material facts and only submitted a brief in opposition to the application. 

The court denied the motion for reconsideration, stating that it "had entered another order that [the] Pine Tree property was to be sold by a certain date, and it really wasn't sold by that date." She found fault with Pierce's decision to move the personal property to Clifton, knowing that Cromwell lived in South Carolina. The judge reiterated her concern that Pierce listed the farm property for three times the appraisal price and, therefore, affirmed her earlier decision. She refused to stay the order pending appeal.

We owe no deference to the trial court's interpretation of the law, or the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). As to mixed questions of law and fact, we give deference to factual findings of the trial court, but review de novo the court's application of legal rules to such factual findings. Patel v. Karnavati Am., LLC, 437 N.J. Super. 415, 423 (App. Div. 2014). Ordinarily, we do not disturb factual findings "unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice."  Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citing Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1961)). Our review of factual findings is deferential because only the trial judge has the opportunity to observe the demeanor of witnesses.  N.J. Div. of Youth & Family Serv's. v. G.M., 198 N.J. 382, 396 (2009). But where the judge's fact finding results from a review of allegations untested by cross-examination, review will not be deferential.  Ibid. 

"Moreover, it has long been the practice in reviewing chancery decrees for appellate courts 'to make an independent investigation of the facts.'"  In re Estate of Mosery, 349 N.J. Super. 515, 522 (App. Div. 2002)(citations omitted) certif. denied, 174 N.J. 191 (2002). That same standard of review applies to an order removing an executor or administrator.  See In re Breckwoldt, 22 N.J. 271(1956) (independently examining the record in an appeal of an order removing an executor). 

A fiduciary, acting as executor, has broad statutory powers to administer the estate "in the exercise of good faith and reasonable discretion[.]"  N.J.S.A. 3B:14-23. With regard to real property, a fiduciary is empowered to take possession, pay taxes and other charges, sell, lease, mortgage, or grant easements.  See N.J.S.A. 3B:14-23(e). In our view, Pierce's conduct did not fall outside of the obligations imposed by the statute. 

A fiduciary may be removed for cause, pursuant to N.J.S.A. 3B:14-21, when: 

a. After due notice of an order or judgment of the court so directing, neglects or refuses, within the time fixed by the court, to file an inventory, render an account, or give security or additional security;

b. After due notice of any other order or judgment of the court made under its proper authority, neglects or refuses to perform or obey the order or judgment within the time fixed by the court;

c. Embezzles, wastes, or misapplies any part of the estate for which the fiduciary is responsible, or abuses the trust and confidence reposed in the fiduciary;

d. No longer resides nor has an office in the State and neglects or refuses to proceed with the administration of the estate and perform the duties required;

e. Is incapacitated for the transaction of business; or

f. Neglects or refuses, as one of two or more fiduciaries, to perform the required duties or to join with the other fiduciary or fiduciaries in the administration of the estate for which they are responsible whereby the proper administration and settlement of the estate is or may be hindered or prevented.

Almost all of the evidence attached to Cromwell's motions for reconsideration and in aid of litigant's rights pertained to the Pine Tree property, which was sold by the time of Pierce's removal. The only new information and ground provided by Cromwell as a possible basis for removal in her second application was the sentence in the March 2, 2016 certification from her attorney that she had "no communication" from Pierce as to the status of the sale of the Pine Tree property. However, on February 26, 2016, Pierce's attorney asked Cromwell's counsel for a one-week extension for the closing at the buyer's request. Counsel refused the request the same day she filed her second application. Moreover, no part of the certification from Cromwell's counsel or any other evidence, for that matter, alleged facts that demonstrated an actual violation of the court's February 12, 2016 order. 

The judge's order did not require Pierce to sell the Pine Tree property by March 1. Even if it had imposed that obligation, the delay was initiated by the buyer and inconsequential. 

Cromwell did not dispute the fact that she never attempted to arrange a time for viewing any property, real or personal, regardless of location. Pierce's removal was unwarranted on that basis. 

It is not at all clear that Pierce's decision to list the farm property at three times the appraised value, at the realtor's suggestion, was a violation of the judge's order. He listed the property as the order required, albeit at a different price than the appraisal. If the issue for the court was the amount of the listing price, as opposed to compliance with the obligation to publicly offer the property for sale, Pierce should have been extended the opportunity to explain his decision.

The judge misapprehended Pierce's conduct, which on this record, did not appear to violate her order. A proper exercise of discretion rests upon a more complete understanding of the facts.  See Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360 (App. Div. 1985). And there were significant disputes of fact that should have been resolved in some fashion before Pierce was removed as executor. The statute requires it. 

Courts should be "reluctant to remove an executor as trustee without clear and definite proof of fraud, gross carelessness or indifference." In re Estate of Hazeltine, 119 N.J. Eq. 308, 314 (Prerog. Ct.) aff'd, 121 N.J. Eq. 49 (E. & A. 1936). An executor should be removed when his or her conduct shows bad faith, or jeopardizes the value of the estate's assets.  Bramen v. Cent. Hanover Bank & Trust Co., 138 N.J. Eq. 165, 197 (Ch. 1946). Based on our review of the record, Pierce did not engage in misconduct that approximated the extremes in the statute. See ibid.

Pierce did not fail to comply with the judge's orders or otherwise fail to comply with the statutory duties delineated in N.J.S.A. 3B:14-21. The removal was unwarranted.

Reversed.

1  We were told at oral argument the real estate was sold. Cromwell could have filed a motion to dismiss the appeal on that basis, or Pierce could have dismissed the appeal. Neither step was taken, so we must assume the issues raised in the appeal are not moot.