IN THE MATTER OF ADMINISTRATION OF THE ESTATE OF KOLAPO OJEBUOBOH Deceased

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5647-09T1

IN THE MATTER OF

ADMINISTRATION OF THE

ESTATE OF KOLAPO OJEBUOBOH,

Deceased.

________________________________________________________________

March 12, 2012

 

Argued March 28, 2011 - Decided

 

Judges A. A. Rodr guez and Grall.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. 227988.

 

Alexander G. Benisatto argued the cause for appellant Katherine Kent Ojebuoboh (Shapiro, Croland, Reiser, Apfel & Di Iorio, attorneys; Mr. Benisatto, on the brief).

 

Francis J. Sweeney argued the cause for respondent Ayodele Abosede Anjorin (Graham Curtin, attorneys; Mr. Sweeney, on the brief).

 

PER CURIAM

Katherine Kent Ojebuoboh (Katherine) appeals from the June 9, 2010 Probate Part order appointing Ayodele Abosede Anjorin (Ayodele) as Administratrix Ad Prosequendum of the Estate of Kolapo Ojebuoboh (decedent). We affirm and remand.

These facts are undisputed. Katherine and decedent were married on March 31, 1983, in Bronx County, New York. They had no children. In 1996, decedent filed for divorce in Bronx County, New York against Katherine. Katherine contested the action. During the pendency of the action, the court awarded Katherine $500 in monthly spousal support pendente lite. This amount was increased to $1,000 bi-weekly maintenance on February 14, 2001. On February 27, 2006, the court entered a judgment in favor of Katherine and against decedent in the amount of $69,958.38 due to arrearages. Decedent did not pay the judgment or any subsequent spousal support payments. Katherine alleges that at the time of his death, decedent owed her approximately $215,881.18 in support, a figure which includes interest and support due from the date of the $69,958.38 judgment.

In 1997, Ayodele arrived in the United States from Lagos, Nigeria. She settled in New Jersey, where she began living with decedent and conceived a son (Kolapo, Jr.). Although there is no evidence that they were married, they represented themselves as such in federal income tax returns. Decedent and Ayodele lived in Metuchen. He had named Ayodele as the beneficiary of his life insurance policy and listed her as his next of kin in his medical records.

Decedent died intestate on January 19, 2010. Prior to his death he had not finalized the Bronx County divorce action he had commenced. Decedent had no other children besides Kolapo, Jr., who was about ten years old when his father died. At the time of decedent's death, his estate apparently had few or no assets. There was, however, a potential medical malpractice lawsuit arising from decedent s death. The record does not disclose much about the claim for medical malpractice other than the fact that several days before he died, the decedent had executed documents authorizing a law firm and its members to obtain his medical records.

On April 8, 2010, Ayodele filed a verified complaint and order to show cause with the surrogate seeking appointment as administrator of decedent's estate and alleging that Kolapo, Jr., is decedent s sole heir. She asserted that she had appeared at the surrogate's office to be named as administrator on March 2, 2010. On May 21, 2010, Katherine answered and counterclaimed to be appointed as administrator of the estate, including the right to pursue the decedent's malpractice claim. By order dated June 9, 2010, Judge Frank M. Ciuffani appointed Ayodele as "Administratrix Ad Prosequendum." Although the judge's written opinion suggests an intention to appoint Ayodele as the administrator of the estate, the order grants a more limited appointment.

On appeal, Katherine contends that: N.J.S.A. 3B:10-2 unambiguously requires that she be appointed the estate's administratrix; she will best represent the interests of the estate; and the equities do not require appointment of Ayodele as administratrix. We reject these contentions.

N.J.S.A. 3B:10-2 provides:

If any person dies intestate, administration of the intestate s 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.

 

If the intestate leaves no heirs justly entitled to the administration of his estate, or if his heirs shall not claim the administration within 40 days after the death of the intestate, the Superior Court or surrogate's court may grant letters of administration to any fit person applying therefor.

 

The rules codified in the two paragraphs of N.J.S.A. 3B:10-2 have been in place since 1937. See Rev. Stat. 3:7-6 (adopted by L. 1937, c. 188, 1)1; N.J.S.A. 3A:6-4 (codified in Title 3A by L. 1951, c. 345 and subsequently reenacted by L. 1977, c. 412, with only editorial changes, as N.J.S.A. 3B:10-2; see Title 3B, Table 1 "Disposition of Statutes as Amended and Supplemented"). There have been editorial changes for example, Rev. Stat. 3:7-6 and N.J.S.A. 3A:6-4 used the phrase "next of kin" where N.J.S.A. 3B:10-2 uses the phrase "remaining heirs," but the only substantive change was the addition of a reference to a surviving "domestic partner" made by L. 2005, c. 331, 23.

We have recited the history of the statute at some length because it is relevant to our reliance on prior judicial decisions construing the earlier codifications of N.J.S.A. 3B:10-2. Where a statute has been left intact through multiple recodifications and amendments, the Legislature's decision to leave the operative language in place without change suggests its agreement with judicial decisions interpreting the original statute and its successors. Quaremba v. Allan, 67 N.J. 1, 14 (1975). For that reason, we rely on the earlier decisions.

Katherine argues that a literal reading of the statute requires her appointment because she is the decedent's surviving spouse. Even if we were to read the first paragraph of N.J.S.A. 3B:10-2 literally, however, she would not be entitled to prevail.

Although the parties have not argued the point, the second paragraph of N.J.S.A. 3B:10-2 makes it clear that the preference for a surviving spouse does not apply unless the spouse claims the right of administration "within 40 days after the death of the intestate . . . ." Where there is no timely claim, "the Superior Court or surrogate's court may grant letters of administration to any fit person applying therefor." Ibid. Construing the second paragraph of N.J.S.A. 3B:10-2's predecessor, N.J.S.A. 3A:6-4, the Supreme Court held: "Inasmuch as none of the next of kin who might have been entitled to apply for letters of administration had done so within the 40 days during which they are entitled to be preferred, [N.J.S.A. 3A:6-4], the [trial] court was justified in granting . . . administration to any fit person applying therefor." In re McFeely's Estate, 10 N.J. 133, 138 (1952).

Here, both the complaint and counterclaim were filed with the surrogate more than forty days after the decedent's death. Even Katherine's informal appearance at the surrogate's office on Tuesday, March 2, 2010, was beyond the forty day period. Thus, the judge was free to "grant letters of administration to any fit person applying therefor." For that reason alone, we reject Katherine's claim that the court had no discretion to designate an administrator other than her.

Even if Katherine had filed a timely claim, it is not at all clear that the trial court would have been required to appoint Katherine. Although the first paragraph of the statute appears to mandate the appointment of an intestate's surviving spouse if that spouse is willing to accept that responsibility, our courts have construed the statute to permit appointment of someone other than an heir when the interests of the surviving spouse are in conflict with the best interests of others entitled to distribution of the estate. See In re Estate of Di Bella, 372 N.J. Super. 350, 352-53 (Ch. Div. 2004) (applying N.J.S.A. 3B:10-2); In re Estate of Messler, 16 N.J. Misc. 434, 434-37 (Orph. Ct. 1938) (applying Rev. Stat. 3:7-6). In both of those cases, the interests of the surviving spouse were adverse to the interests of a child of the decedent who was not a child of the surviving spouse. DiBella, supra, 372 N.J. Super. at 352-53; 16 N.J. Misc. at 437-38. Because Katherine's claim was not filed within forty days of decedent's death, however, we decide this case on different grounds.

The question here is whether the judge abused his discretion in designating Ayodele as a "fit person" applying for letters of administration ad prosequendum. Pursuant to N.J.S.A. 3B:10-11, such letters may be grated to a person "entitled by law to general administration." Thus, N.J.S.A. 3B:10-2 controls, and, due to the absence of a claim within the forty-day period, the judge was free to appoint any fit person applying. McFeely, supra, 10 N.J. at 138. In McFeely, as in DiBella and Messler, conflicts of interests were deemed pertinent. Ibid. In that case, the Court held that alleged "disputes and conflicts of interests" between persons interested in the estate made it "peculiarly appropriate" to "appoint a disinterested person." Ibid. (noting that avoidance of conflicts and disagreements between those entitled to a share of the estate preserves the assets).

Here, we find no abuse of discretion. Katherine's position as a creditor of the estate, who was seeking not only payment of the accrued arrears but also interest on the unpaid spousal support, was clearly adverse to the interest of the decedent's only child. Conceivably, Katherine, as a creditor entitled to take before the heirs, would have reason to settle the malpractice case for an amount sufficient to cover her debt. In contrast, Ayodele, as the person listed as next of kin on the decedent's medical records, was presumably much more familiar with the decedent's condition and care and in a superior position to pursue the malpractice action on behalf of the estate. She had no apparent interest adverse to those entitled to share in the estate or to Katherine's interest in recovering the amount decedent owed her.

T

he June 9, 2010 order is affirmed. However, we remand for clarification of the scope of the order appointing Ayodele administratix ad prosequendum and any such further proceedings as the judge may deem appropriate to designate an administrator of the estate as well.

1 Rev. Stat. 3:7-6, provided:

 

If any person dies intestate, administration of the personal estate of such intestate shall be granted to the surviving spouse of such intestate, if he or she will accept the same, and if there be no such person, then to the next of kin of such intestate, or some of them, if they or any of them will accept the same, and if none of them will accept the same, then to such other proper person as will accept the same.

 

If such intestate leaves no relations justly entitled to the administration of his personal estate, or if his next of kin shall not claim the administration within forty days after the death of such intestate, the ordinary or surrogate may grant letters of administration to any fit person applying therefor.

In re Vealie's Estate, 22 N.J. Misc. 284, 288-89 (N.J. Sur. 1944) (quoting Rev. Stat. 3:7-6).