IN THE MATTER OF THE PROBATE OF THE WILL OF NORFLEET BOLTON DECEASED

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0139-07T1

IN THE MATTER OF THE PROBATE

OF THE WILL OF NORFLEET BOLTON,

DECEASED.

 

Argued June 3, 2008 - Decided

Before Judges Fuentes, Grall and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, 98-00119.

Nixon T. Kannah argued the cause for appellants, Wesley Ray Bolton, Betty D. Washington and Patricia A. Christmas

(Charles D. Craig, attorney; Mr. Craig, on the brief).

Patricia Love argued the cause for respondent, Estate of Kenneth Bolton (Hendricks & Hendricks, attorneys; Ms. Love, on the brief).

Willard Geller, attorney for respondent Estate of Norfleet Bolton, has not filed a brief.

PER CURIAM

Wesley Ray Bolton, Betty D. Washington and Patricia A. Christmas appeal from the final judgment of the Chancery Division, Probate Part interpreting the will of their mother, Norfleet Bolton (the testator). At issue was the interpretation of the phrase "my surviving children" in connection with the thirteenth paragraph of the will, which directed the disposition of the proceeds from the sale of decedent's home, which sale was not to take place until five years following an event that had not yet occurred when the will was written. The specific issue was whether "my surviving children" spoke to the time of the testator's death or the time of the later distribution of the sale proceeds.

The issue arose because one of the testator's children, Kenneth Bolton, survived his mother, but passed away between the date of her death and the date the house was sold. The trial judge decided the case in a summary fashion, under R. 4:67, and determined that the interest of each of the testator's children vested at the time of her death. We affirm.

The testator executed her will on January 11, 1998. She died eleven days later on January 22, 1998. She was survived by four children, the three appellants and her son Kenneth, now represented by his estate. The will was duly admitted to probate by the Surrogate of Somerset County.

The will contained five paragraphs leaving specific assets to the four children, who were individually named in each paragraph. There were other provisions leaving specific assets to individually named grandchildren and others. The eleventh paragraph left "[a]ll the rest, residue and remainder of my estate, both real and personal" to the four children, by name, "in equal shares and portions, absolutely and forever." (Emphasis added). The twelfth paragraph appointed one of the testator's granddaughters, Stacey Brunson, as executor.

The thirteenth paragraph, which is the one at issue in this case, provides as follows:

I further direct that my executrix, Stacey Brunson, shall sell the premises owned by me and known as 315 West Point Avenue, Somerset, N.J., and distribute the proceeds of said sale to my surviving children equally. However, my executrix shall not sell said premises until five (5) years after my son, Wesley Ray Bolton, has returned.[] In the meantime, my executrix shall permit the premises to be occupied by my daughters, Betty D. Washington and Patricia A. Christmas, provided my daughters pay real estate taxes, homeowners' insurance, all utilities, repairs and maintenance of the property. The property may be sold at an earlier date if all of the parties are agreeable.

Although Kenneth survived his mother, he died on March 1, 2004, six years later. He was survived by a wife and five children. It appears from the record that there may have been some estrangement between Kenneth, and perhaps his mother and siblings, and his wife.

The executor initiated suit through a verified complaint and order to show cause filed on March 2, 2007. The verified complaint asked the Probate Part to interpret the provision of the will concerning the distribution to the "surviving children" and to instruct the executor concerning the distribution of the proceeds of the sale of the residence. The executor took no position with respect to how the will should be interpreted.

The April 23, 2007 return date of the order to show cause was adjourned and converted to a case management conference, held on May 10, 2007. The trial judge entered a briefing schedule and set an argument date of July 24, 2007.

Appellants filed a brief and certifications in support of their position that the phrase "my surviving children" spoke of the time of distribution, arguing that their mother intended the proceeds of the sale of her home to be distributed only among those of her children living at the time of the distribution. No opposing certifications were filed by Kenneth's estate.

The certifications filed by the testator's daughters Patricia and Betty largely mirror each other. They state that the testator originally did not want to leave anything to Kenneth because of his drug use. Betty also states that her mother referred to Kenneth's financial obligations to reimburse the county board of social services for child support paid on his behalf. Both agree that Patricia convinced their mother to include Kenneth in the will. Both assert (1) that their mother knew that Kenneth was unlikely to live another five years because of various health conditions and (2) that she used the phrase "my surviving children" for that reason.

The testator's sister, Emma Bolton, explained in her certification that she and the testator discussed what they would do with their houses when they passed away. She asserted that the testator had stated an intention to sell her house, but that she had tried to talk her out of doing so because the testator's son Wesley would need a place to live after he returned from prison. Her certification concludes with the following:

Very near to the time of her death, Norfleet told me she agreed with me and had decided to sell her house five years after Wesley returned home and divide the proceeds among her then-living children. We talked about how life is not promised and we did not know who would still be living in five years, but we both knew that the lump on Kenny's face was cancerous and it was likely he wouldn't live five years. She told me at the time that she had left her grandchildren what she wanted them to have in her will.

Apparently relying on the argument held during the May 30, 2007, case management conference, the trial judge issued an order and written decision on July 27, 2007, concluding that the phrase "my surviving children" referred to the children who survived her as of her date of death. Consequently, she ordered that Kenneth's estate share in the proceeds of the subsequent sale of the house.

The trial judge relied in part on a presumption of early vesting of devised estates adopted by the Delaware Court of Chancery in Security Trust Co. v. Irvine, 93 A.2d 528 (Del. Ch. 1953).

The law favors the early vesting of devised estates and will presume that words of survivorship relate to the death of the testator, if fairly capable of that construction. In the absence of a clear and unambiguous indication of an intention to the contrary, the heirs will be determined as of the date of the death of the testator and not at some future date. When the language employed by the testator annexes futurity, clearly indicating his intention to limit his estate to take effect upon a dubious and uncertain event, the vesting is suspended until the time of the occurrence of the event. . . .

[93 A.2d at 530 (citation omitted).]

This case is largely consistent with existing New Jersey law, which favors vested rather than contingent legacies, "unless clearly inconsistent with the intention of the testator." Cody v. Fitzgerald, 2 N.J. 93, 97 (1949); Wendell v. The Hazel Wood Cem., 7 N.J. Super. 117, 122-23 (App. Div.), certif. denied, 5 N.J. 343 (1950). In Cody, the Supreme Court added that "[t]he presumption that favors early vesting is especially strong where the remainder interests are placed in the testator's children." 2 N.J. at 98.

The trial judge also emphasized the fact that the only provision of the will actually devising the testator's real property was the eleventh paragraph, which left the residual estate to her children by name, including Kenneth. She described that provision as a "clause of distribution," as compared to the thirteenth paragraph, which is a "clause of direction," i.e., when to sell the property and distribute the proceeds of the future sale.

The need for different clauses of "distribution" and "direction" in the will before us is explained by the testator's intention that the house be sold and the proceeds given to her children, but that the sale and distribution be deferred so that Wesley would be able to live in the residence for the five-year period following his release from prison. As the Supreme Court explained in Cody, supra,

While it is true that certain terms like "at," "when," "after," "on," etc., often connote the time or event upon which legacies are to vest, Howell, Ex'r, v. Green, Adm'r, 31 N.J.L. 570, 572 (E. & A. 1864), nevertheless it was determined in that case (and repeatedly thereafter) that where it appears from the entire will that the only reason for postponing the enjoyment of a gift is to let in some other interest, the gift is deemed presently vested -- the ownership passes at once though the time of enjoyment is postponed. So it has become the settled rule that a devise of a remainder limited upon a particular precedent estate, determinable on an event which must necessarily happen, will be construed as vesting the remainder estate at the time of the death of the testator unless his will clearly indicates a contrary intention.

[2 N.J. at 97.]

Here, the only reason for postponing the sale of the home and the distribution of the proceeds was to facilitate Wesley's transition from prison to living on his own.

We agree with the trial judge that there is nothing in the text of the will that "clearly indicates a contrary intention," such that the presumption of early vesting would be overcome under Cody or Wendell v. The Hazel Wood Cem., supra, 7 N.J. at 122-23. The use of the phrase "my surviving children" is, at best, ambiguous and hardly provides the sort of clarity required. Indeed, to the extent the phrase makes a temporal reference, it appears to be to the death of the testator rather than the sale of the house. The will does not say, for example, that the proceeds should be distributed to "my children living at the time of the sale," which would have provided the type of clarity required by Cody and Wendell. As the trial judge also observed, the fact that the children could agree to sell the property by mutual consent prior to the expiration of the five-year period suggests that Kenneth was an intended beneficiary.

The question then becomes whether there should have been a plenary hearing to address the certifications filed by the appellants. The trial judge held that the certifications, which dwelled on the testator's concerns about Kenneth, were inconsistent with the provisions of the will that left other assets to Kenneth. She determined that there were no genuine issues of material fact.

Probate actions are normally brought as summary actions pursuant to R. 4:83-1. Clearly, R. 4:67-5, which governs summary actions, permits the trial court to "try the action on the pleadings and affidavits," if "the affidavits show palpably that there is no genuine issue as to any material fact." The question then becomes whether the certifications filed by the appellants, if found to be true by the trial judge, would supply a factual basis to overcome the "policy of the law requires that legacies and devises in all cases, unless clearly inconsistent with the intention of the testator, should be held to be vested rather than contingent." Cody, supra, 2 N.J. at 97 (emphasis added). We conclude that they would not, because, even if true, the facts set forth in those certifications would not supply the required "clear" evidence that application of the presumption of early vesting would be contrary to the testator's intent.

Affirmed.

The language directing that the sale not occur until five years after the "return" of Wesley refers to the fact that he was incarcerated at the time the will was prepared.

If there was a child support lien at the time of Kenneth's death and his interest is found to have vested at his mother's death, her executor will need to determine whether the lien applies to his share of the sale proceeds now being held in escrow. See N.J.S.A. 2A:17-56.23b.

(continued)

(continued)

10

A-0139-07T1

July 18, 2008