IN THE MATTER OF THE ESTATE OF JASON MARLES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3549-10T3

IN THE MATTER OF THE ESTATE

OF JASON MARLES.

_______________________________________

October 24, 2011

Argued September 27, 2011 Decided

Before Judges Messano and Yannotti.

On appeal from the Superior Court of New Jersey, Ocean County, Chancery Division, Probate Part, Docket No. 188999.

Abbott S. Brown argued the cause for appellant Virginia Marles (Bendit Weinstock, P.A., attorneys; Erica A. LaPlante, on the brief).

Kevin N. Starkey argued the cause for respondent Patricia Engrassia (Starkey, Kelly, Bauer, Kenneally & Cunningham, attorneys; Mr. Starkey, on the brief).

PER CURIAM

Virginia Marles (Virginia) appeals from an order entered on March 14, 2011 by the Probate Part of the Chancery Division, which denied her motion to remove Patricia Engrassia (Patricia) as administratrix ad prosequendum for the Estate of Jason Marles (Jason). We affirm.

This appeal arises from the following facts. Virginia and Jason Marles were married on July 1, 2008. They had two children. One child was born in 2005, and the other was born in 2006. Virginia filed a complaint for divorce on June 22, 2009. Virginia and Jason were represented by counsel in the divorce proceedings.

On December 15, 2009, the Family Part entered a dual judgment of divorce which dissolved Virginia's and Jason's marriage. The judgment incorporated a marital settlement agreement, which provided among other things, that

each party waives and relinquishes any and all rights they may have now or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other party as a result of the marital relationship, including, without limitation, dower, courtesy, statutory allowance, widow's allowance, homestead rights, rights to intestacy, right to take against the will of the other, and the right to act as administratrix or executor of the other's estate; and each party will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect the mutual waiver and relinquishment of all interest, rights and claims.

On November 25, 2010, Jason was involved in an automobile accident which resulted in his death. At the time, Jason was living with Virginia and their two children at the former marital home in Point Pleasant. According to Virginia, she and Jason had reconciled and were planning to get remarried.

Jason died without a will. After his death, his mother Patricia, stepfather Joseph Engrassia (Joseph), and Virginia met with attorney Bradley D. Billhimer (Billhimer). They asked Billhimer to handle a civil lawsuit on behalf of Jason's estate against the driver allegedly responsible for his death. Billhimer enlisted William V. Kelly (Kelly), a certified civil trial attorney, to assist in the handling of the case.

Billhimer and Kelly met with Virginia on December 7, 2010. According to Billhimer, Virginia agreed that he and Kelly would handle the wrongful death action. Billhimer and Kelly informed Virginia that Patricia wanted to be appointed as administratrix ad prosequendum for the estate. Virginia agreed and executed a document addressed to the surrogate in which she stated that she renounced "all right and claim" to the appointment and requested that Patricia be designated administratrix of the estate and administratrix ad prosequendum.

On December 9, 2010, the Ocean County surrogate issued letters appointing Patricia as administratrix of the estate and its administratrix ad prosequendum. It appears that shortly thereafter, Virginia had an argument with Patricia and Joseph, after which Virginia retained her own attorney. According to Billhimer, Virginia stated that she intended to fight Patricia on "everything."

On January 3, 2011, Virginia filed an order to show cause and a verified complaint in the trial court seeking, among other things, her appointment as administratrix ad prosequendum. The court entered an order on January 14, 2011, requiring Patricia to show cause why the relief sought in Virginia's verified complaint should not be granted.

On February 7, 2011, at Virginia's request, the Ocean County surrogate issued letters designating Virginia as administratrix and administratrix ad prosequendum of Jason's estate. The surrogate also designated Virginia as guardian of the property of her two minor children. On February 21, 2011, Patricia filed a motion in the trial court seeking an order permitting her to continue as administratrix of the estate and administratrix ad prosequendum, and dismissing Virginia's complaint.

The trial court considered the matter on February 28, 2011. Before the court, Virginia disclaimed any further interest in serving as administratrix of the estate, but argued that she should be permitted to serve as administratrix ad prosequendum for the wrongful death action because Virginia's and Jason's two children were the sole heirs of the estate and, therefore, the sole beneficiaries of any judgment that might be recovered in that case.

The court placed its decision on the record. The court found that Virginia's application to continue as administratrix ad prosequendum was contrary to the provision in the marital settlement agreement in which she voluntarily waived and relinquished any interest she might have in Jason's estate, including the right to act as the estate's administratrix. The court determined that this provision of the agreement precluded Virginia from serving as administratrix ad prosequendum. The court concluded that Patricia should continue to serve in that capacity. The court entered an order dated March 14, 2011, memorializing its decision. This appeal followed.

Virginia argues that the trial court erred by finding that the divorce settlement agreement bars her from serving as administratrix ad prosequendum of the wrongful death action. She contends that, while the agreement precludes her from serving as administratrix of the estate, the agreement does not preclude her from serving as administratrix ad prosequendum. Virginia additionally argues that, as guardian for the children, she is the person best suited to serve as administratrix ad prosequendum for the wrongful death action. We find no merit in these arguments.

Here, the trial court ruled that Patricia should continue to serve as administratrix ad prosequendum for the wrongful death action. The surrogate had appointed Patricia to act as administratrix of Jason's estate pursuant to N.J.S.A. 3B:10-2, which provides in pertinent part that if a person dies intestate, administration of the estate:

shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept the administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any other person as will accept the administration.

Because Virginia's marriage to Jason had been dissolved, and she had relinquished any claim to his estate, their children are presently Jason's sole heirs. N.J.S.A. 3B:5-4(a). The children are minors and, therefore, are legally incapable of acting as administratrix of the estate. Under the circumstances, the trial court was authorized by N.J.S.A. 3B:10-2 to allow Patricia to continue as administratrix of the estate.

Moreover, N.J.S.A. 3B:10-11 provides that the surrogate's court or the Superior Court "may grant letters of administration ad prosequendum to the person entitled by law to general administration." Patricia is the person entitled to serve as general administratrix of the estate. Accordingly, the trial court's determination that Patricia should continue to serve as administratrix ad prosequendum was consistent with N.J.S.A. 3B:10-11.

Virginia argues that the trial court erred by interpreting the marital settlement agreement as precluding her from serving as administratrix ad prosequendum for the estate's wrongful death action. We agree that the agreement does not expressly preclude Virginia's appointment as administratrix ad prosequendum. However, as we have explained, Patricia was validly authorized to act as general administratrix for the estate, and consequently, the surrogate's court and the Superior Court were empowered by N.J.S.A. 3B:10-11 to grant letters of administration to Patricia to serve as administratrix ad prosequendum for the wrongful death action.

We note that N.J.S.A. 3B:10-11 does not require the surrogate or the Superior Court to designate the estate's administrator as administratrix ad prosequendum. The matter is committed to the sound discretion of the surrogate or the Superior Court, as the case may be. There is nothing in the statute that requires the surrogate or the court to appoint the former spouse of the intestate decedent as administratrix ad prosequendum where, as here, the former spouse is the mother and guardian of the decedent's two minor children.

Virginia further argues that she is the person best situated to act as administratrix ad prosequendum for the wrongful death action. Virginia contends that she has direct knowledge of the children's financial needs and the pecuniary losses they have sustained as a result of Jason's death. Virginia also says that she is the best person to make judgments as to whether to settle the lawsuit and on what terms.

Virginia's status as guardian of the heirs does not, however, give her a right to appointment as administratrix ad prosequendum. Despite her claim that she is better suited than Patricia to act as administratrix ad prosequendum, we are satisfied that the trial court's decision to allow Patricia to continue to serve in that capacity was an appropriate exercise of its discretion under N.J.S.A. 3B:10-11.

Here, the trial court found that it would be inappropriate to appoint Virginia as administratrix ad prosequendum because she was considering asserting a per quod claim against the individual allegedly responsible for Jason's death. At argument in the trial court, Virginia's attorney noted that generally a former spouse does not have the right to bring such a claim, but he said that the claim might be asserted on the grounds that Virginia had resumed living with Jason after the divorce and they were planning to remarry. We express no view as to the merits of such claim. Suffice it to say, the trial court correctly found that such a claim, if asserted, might give rise to a conflict between Virginia's interest and the interests of the children, or an appearance of a conflict.

The trial court also found that there was no potential conflict on Patricia's part in serving as administratrix ad prosequendum because she had agreed on the record that she had no interest in the proceeds of Jason's life insurance policies, and those monies would be paid for the benefit of the children, as contemplated by the marital settlement agreement.

The court additionally noted that Patricia had retained a capable attorney to handle the wrongful death action, and appointment of Virginia and a new attorney would lead to duplication of efforts. In our view, the record supports the court's findings.

In support of her contention that the trial court should have allowed her to serve as administratrix ad prosequendum, Virginia relies upon In re Stewart's Estate, 117 N.J. Eq. 256 (Prerog. Ct. 1934). In that case, the decedent's only heir was a six-year old child, who was in the custody of his mother, the decedent's former wife. Id. at 256. A dispute arose between the mother and the decedent's father as to who would serve as administratrix of the estate. Ibid. The court stated that the "right of administration grows out of the right to distribution" and, therefore, those who are entitled to distribution of a decedent who dies intestate "have an exclusive primary right to administration." Id. at 257. The court held that the decedent's former wife should serve as administratrix of the estate because she had custody of the decedent's sole heir and the decedent's father had no interest in the estate. Ibid.

Virginia's reliance upon Stewart's Estate is misplaced. As we have explained, Virginia waived and relinquished any interest in Jason's estate, including the right to act as the estate's administratrix. Patricia was duly designated the estate's administratrix and, as such, she was properly designated administratrix ad prosequendum for the wrongful death action. The fact that Virginia is guardian of the estate's heirs does not, in our view, give her "an exclusive primary right" to act as administratrix ad prosequendum of the wrongful death action.

Affirmed.