OF NEW JERSEY DIVISION IN THE MATTER OF THE ESTATE OF OLIVER T ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0363-09T1

IN THE MATTER OF THE

ESTATE OF OLIVER T.

ROBINSON (DECEASED).

________________________________________________________________

December 22, 2010

Argued October 26, 2010 - Decided

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. P-204941.

Mario Apuzzo argued the cause for appellant Alfonso Jiggetts.

Evelyn A. Donegan argued the cause for respondent Estate of Oliver T. Robinson (Rubin, Kaplan & Associates, attorneys; Ms. Donegan, of counsel and on the brief).

PER CURIAM

Plaintiff Alfonso M. Jiggetts appeals the denial of his application to set aside the will of Oliver T. Robinson (decedent) after a bench trial based on the claim that plaintiff is the biological son of decedent. Plaintiff argues that the trial judge erred in finding that his probate action was time-barred, in alternatively finding that he submitted insufficient evidence to prove paternity and in precluding him from exhuming decedent's body after the conclusion of testimony. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Decedent, who was born and raised in Virginia, passed away on February 12, 2004, in Middlesex County, New Jersey. On March 25, 2004, three of his siblings presented a January 8, 2004, will to the Surrogate for probate and sought to be named executors. They named as heirs decedent's mother, Lucy Robinson and his eight siblings. His estranged daughter, Sharon, was named as next of kin. They did not include plaintiff as an heir or next of kin and did not serve notice upon plaintiff. The will directed that all of decedent's property be equally divided among his siblings and his mother. Neither his estranged daughter, Sharon, nor plaintiff were mentioned in the will, which was admitted to probate by the Surrogate on March 26, 2004.

Plaintiff testified that he first heard of decedent's death about four weeks after the burial. On February 27, 2007, more than three years after the death, plaintiff went to the Mecklenburg County Circuit Court in Virginia to claim, as the sole heir, thirty-nine acres of decedent's property located across the street from the courthouse. Plaintiff presented the Virginia court with a death certificate for decedent that plaintiff obtained from New Jersey. On July 13, 2007, after being probated in New Jersey, an authenticated and exemplified copy of the will was presented to the Virginia circuit court for probate. In August 2007, Lucy Robinson, decedent's mother, died.

Although plaintiff testified that he first heard of decedent's death about four weeks after the burial, he did not file a complaint until four years later, on March 28, 2008, in the Middlesex County Chancery Division, Probate Part. He sought, among other remedies, to establish paternity and claim a share of decedent's estate. The Estate of Oliver T. Robinson (Estate) set forth various separate defenses, including statute of limitations and laches.

Initially, the Estate objected to exhuming decedent. After plaintiff had a Y-Chromosome Short Tandem Repeat DNA test performed that demonstrated that plaintiff and one of decedent's brothers shared a common male ancestor, the Estate agreed to allow plaintiff to exhume the body to perform a definitive DNA test. On December 12, 2008, the trial judge signed a consent order allowing either party to exhume decedent. The court's order set February 28, 2009, as the discovery deadline for the paternity action, which was to be tried first. Neither party chose to exhume the body.

The matter was tried on April 29, April 30 and May 1, 2009. Plaintiff testified that he was born in May 1957, to unmarried, sixteen-year-old Mary Jiggetts in Palmer Springs, Virginia. His birth certificate, however, reflected his birth year as 1958 and his mother s age as twenty-one. Plaintiff's birth certificate did not identify his father. Plaintiff said that Lucy Robinson, decedent's mother, told him when he was six years old that her eldest son, Oliver, was his father. He said his maternal grandparents confirmed this information. Plaintiff said his mother also told him that decedent was his father. He said Lucy Robinson kept in contact with him regularly over the years, and plaintiff often visited her at her home when her other children were present. Plaintiff said that many paternal relatives acknowledged that decedent was his father. He said that he first met decedent in 20001 when decedent returned down South for a visit after moving to New Jersey in 1963, shortly after graduating from high school. Plaintiff said that at that meeting decedent indicated that plaintiff might be his son, because he had dated plaintiff's mother.

When decedent's father died on August 7, 2000, plaintiff said he went to the house to pay a sympathy call, and Lucy Robinson introduced him to her granddaughter, decedent's daughter Sharon. Plaintiff's mother, Mary Jiggetts, died on February 11, 2001, and plaintiff introduced into evidence sympathy cards from the Robinson family to demonstrate that the Robinsons considered plaintiff to be part of their family.

The Robinsons testified to the contrary. They testified that they were a close-knit family, and neither decedent nor any of his siblings ever acknowledged plaintiff to be decedent's son. They testified that they never saw plaintiff playing at their house as plaintiff testified, and that Sharon was not present at the family home after their father died so plaintiff could not have been introduced to her at that time.

Plaintiff raises the following issues on appeal:

I. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF DID NOT TIMELY FILE HIS PATERNITY AND PROBATE ACTION

II. EVEN IF PLAINTIFF DID NOT FILE HIS ACTION IN A TIMELY MANNER, THE TRIAL COURT ERRED IN NOT FINDING THAT DEFENDANTS ARE EQUITABLY ESTOPPED FROM RAISING ANY STATUTE OF LIMITATION OR LACHES DEFENSE

III. THE TRIAL COURT ERRED IN NOT FINDING THAT PLAINTIFF PRESENTED SUFFICIENT COMPETENT AND CREDIBLE EVIDENCE TO MEET HIS BURDEN OF PROOF THAT BY A PREPONDERANCE OF THE EVIDENCE OLIVER T. ROBINSON IS PLAINTIFF'S NATURAL FATHER

IV. THE TRIAL COURT ERRED IN PRECLUDING PLAINTIFF FROM DEVELOPING AND INTRODUCING DNA EVIDENCE AT TRIAL WHEN IT REFUSED TO ALLOW PLAINTIFF TO EXHUME THE BODY OF OLIVER T. ROBINSON SO THAT DNA TESTING COULD BE COMPLETED

I

Plaintiff argues in Point I of his brief that the trial judge erred in finding plaintiff s application to be time-barred. Plaintiff argues that although he learned that decedent passed away within a few weeks of his death, he did not know that the will was probated until he found out from the Virginia court in August 2007. Although plaintiff filed his claim based on a paternity action, the Court has decided that the twenty-three year time limitation imposed under the Parentage Act, N.J.S.A. 9:17-45(b), does not apply in a probate action. Wingate v. Estate of Ryan, 149 N.J. 227 (1997). The applicable probate rule, Rule 4:85-1, provides:

If a will has been probated by the Surrogate's Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1 (d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances.

Thus, the Rule requires that plaintiff, as an out-of-state resident, file his complaint within six months of the probate of the will. Rule 4:85-2 allows for only a thirty-day grace period upon the showing of "good cause and the absence of prejudice." Moreover, Rule 4:85-1 provides that if he is relying on the provisions of R. 4:50-1 (d), (e) or (f), his complaint must be filed within a "reasonable time." Plaintiff claims that he filed his complaint "within a reasonable time under the circumstances," given that the Estate did not notify plaintiff of the New Jersey probate action. R. 4:50-1(f). The Estate would be required to notify plaintiff if it knew he was decedent s son. Rule 4:80-6 requires that,

within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all [next of kin], at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request.

The trial judge found that decedent s sibling representatives did not believe that plaintiff was a next of kin and therefore were not required to serve such notice on him.

Plaintiff waited for fifty years to seek a declaration of paternity and then complained that the putative father s siblings did not acknowledge his status as next of kin. Plaintiff may not have known that decedent s will was probated in New Jersey, but he knew of decedent's death shortly thereafter and waited three years before approaching the Virginia court about obtaining decedent's property and four years before filing a complaint in New Jersey. Thus, good cause existed for the trial judge to find that plaintiff s complaint was not filed within a "reasonable time," under Rule 4:50-1(f) and was therefore time-barred. See In re Estate of Schifftner, 385 N.J. Super. 37, 43-44 (App. Div. 2006); In re Small, 85 N.J. Super. 220, 225 (App. Div. 1964). In any event, as we shall discuss further, the judge addressed plaintiff's complaint on the merits, and therefore the judge's finding that the complaint was untimely was not dispositive.

II

Plaintiff argues in Point II of his brief that the Estate is equitably estopped from asserting any time limitation defense because they did not file a pre-trial motion seeking to dismiss the complaint on those grounds. After the conclusion of trial, the judge raised the issue and asked counsel to address it. Generally, a party should timely file a dismissal motion on statute of limitations grounds prior to trial. Knorr v. Smeal, 178 N.J. 169, 176 (2003). Here, the trial judge noted that had such an application been filed, he would have required a hearing to determine whether the Estate knew plaintiff was next of kin. The judge ordered that a hearing to determine parentage, in effect to determine whether plaintiff had standing, precede the hearing on the validity of the will. By not filing a motion to dismiss, the Estate did not cause the matter to proceed to trial as a trial would have been necessary anyway. Thus, the trial judge properly found that the Estate was not estopped from asserting the time limitation defense.

III

In Point III of his brief plaintiff argues that the trial judge erred in finding that plaintiff had not met his burden of proof to demonstrate that decedent was his biological father. Both sides presented testimony from their family members. The trial judge found plaintiff s testimony to be "replete with inconsistencies and discrepancies," while testimony offered on behalf of the Estate was "clear, consistent and credible." For example, the judge found unlikely plaintiff's claim to have met Sharon at decedent's Virginia home a week after Sharon's grandfather's funeral, given that the Estate's witnesses all testified that Sharon was estranged from the family and did not attend her grandfather's funeral. The judge found it unlikely that decedent would not have confided in one of his brothers that he had fathered a child; that decedent's mother, Lucy Robinson, one of the "pillars of her church," would not have insisted that her son take responsibility for his child; and that plaintiff's mother would not have sought child support from decedent, had he fathered plaintiff.

The trial judge also found that plaintiff delayed in bringing his claims until his mother, who had first-hand knowledge of his parentage, had passed away. Plaintiff also did not ask Lucy Robinson, decedent's mother who plaintiff claimed knew that plaintiff was her grandson, to support plaintiff s application prior to her death in August 2007.

When this court reviews the fact-finding of a judge sitting without a jury, such review is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resorts v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

The trial judge reasonably did not find that plaintiff met his burden of proof given his witnesses' lack of credibility, the logical inconsistencies in his proofs and his delay in filing the complaint.

IV

Plaintiff finally argues in Point IV of his brief that the trial judge abused his discretion by not allowing plaintiff, over objection of the Estate, to exhume decedent's body after the trial testimony concluded. "By tradition . . . the law does not favor removal or disturbance of a decedent's remains based upon a private right. Such action may be allowed, however, to satisfy a paramount public right or upon an affirmative showing of good cause and urgent necessity." Camilli v. Immaculate Conception Cemetery, 244 N.J. Super. 709, 712 (Ch. Div. 1990) (citing Perth Amboy Gas Light Co. v. Kilek, 102 N.J. Eq. 588, 590 (E & A 1928); Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290 (Ch. Div. 1951); Guerin v. Cassidy, 38 N.J. Super. 454, 458 (Ch. Div. 1955)). To that end,

the Superior Court possesses equitable jurisdiction, as a general matter, over the dead. This means, without the need for further delineation, that once a body is buried it is deemed to be in the custody of the law and the removal or disturbance of those remains lies, when not otherwise provided by legislation, within the court's equitable powers the invocation of which infrequently occurs.

[Harris v. Borough of Fair Haven, 317 N.J. Super. 226, 232 (Ch. Div. 1998).]

When this court reviews a trial judge's exercise in equity, such a decision will not be reversed unless it constitutes an abuse of the trial judge's discretion. See Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993).

Prior to the end of the discovery period, the Estate agreed to allow the exhumation, but plaintiff failed to take advantage of the opportunity afforded to him. After the trial of paternity concluded, the trial judge again raised the possibility of exhuming the body. The Estate did not consent at this late date, and the trial judge would not order the exhumation over the Estate s objection. The judge s decision not to force this procedure on the family, who had already endured a complete trial on the issue of paternity, was not an abuse of discretion.

Affirmed.

1 Plaintiff initially testified that he first met decedent in 2002 but later corrected himself.