IN THE MATTER OF THE ESTATE OF MARJORIE S. BRYANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4320-06T14320-06T1

IN THE MATTER OF THE

ESTATE OF MARJORIE S. BRYANT.

__________________________________________________

 

Argued November 18, 2008 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Probate Part, Burlington County, Docket No. 2006-0042.

Louis N. Caggiano, Jr. argued the cause for appellant/cross-respondent Joanna Poe.

Samuel Reale, Jr. argued the cause for respondent Estate of Marjorie S. Bryant and Dawn J. Russ, Executrix (Kearns, Vassallo & Kearns, attorneys; Mr. Reale, of counsel and on the brief; Jack L. Weinberg, on the brief).

Emily A. Kaller argued the cause for respondent/cross-appellant Wachovia Bank, N.A. (Greenbaum, Rowe, Smith & Davis, attorneys; Ms. Kaller, on the brief).

PER CURIAM

This case involves a dispute over entitlement to the estate of Marjorie Bryant, which resulted in separate proceedings in New Jersey and Pennsylvania.

The decedent owned a home in Edgewater Park in Burlington County. In the spring of 2005, the decedent was injured in a fall, following which she moved into the home of plaintiff Joanna Poe, located in Willingboro in Burlington County.

In 1999, the decedent gave Poe a power of attorney over her accounts at the Willingboro branch of the defendant Wachovia Bank. The decedent also allegedly designated Poe as the pay-on-death beneficiary of at least one of those accounts.

On July 29, 2005, the decedent executed a will in New Jersey that named Poe as executrix and residuary beneficiary of her estate. This will specifically referred to Poe's designation as the pay-on-death beneficiary of the decedent's savings account at the Wachovia Bank.

Shortly after the execution of this will, Poe notified the decedent's relatives that the decedent had been diagnosed with bone cancer. Several of those relatives, including defendant Dawn Russ, who was a great-niece of the decedent, came to Poe's house on July 31, 2005, gathered the decedent's medications and purse, and brought her to Russ's house in Jacobus, York County, Pennsylvania.

Two days later, on August 2, 2005, the decedent executed a revocation of the power of attorney to Poe. That same day, the decedent executed a new general power of attorney and a specific power of attorney over her Wachovia account to Russ and her companion Lynette Mackey. In addition, the decedent at some point allegedly removed the payable-on-death designation of Poe for her Wachovia account.

On November 17, 2005, the decedent executed a will in Pennsylvania that named Russ as the executrix and beneficiary of one-half of her residuary estate. This will recited that the decedent resided in York County, Pennsylvania.

The decedent died of bone cancer in Pennsylvania on December 26, 2005 at the age of ninety-three.

In early January of 2006, Russ initiated steps to probate the Pennsylvania will, and on January 18, 2006, the Register of Wills, York County Pennsylvania, issued Russ a "short certificate" of letters testamentary. That same day, Russ used this document to go to the local Wachovia Bank in Pennsylvania and have the decedent's accounts disbursed to her as executrix of the estate.

Poe submitted an informal caveat to the Pennsylvania Register of Wills objecting to the probate of the decedent's Pennsylvania will. However, she never filed a formal caveat, and on January 26, 2006, withdrew her informal caveat.

On January 31, 2006, Poe filed an appeal with the Court of Common Pleas in York County, Pennsylvania of the Register of Wills' probate of the decedent's Pennsylvania will.

Meanwhile, on February 6, 2006, Russ again filed for letters testamentary with the Register of Wills, York County, Pennsylvania. The Register of Wills formally admitted the will to probate on February 27, 2006.

On April 27, 2006, Poe filed this action in the Chancery Division seeking in the first count to set aside the probate of the Pennsylvania will and admit the New Jersey will to probate in New Jersey. In a second count, the complaint also asserted a claim against Wachovia Bank for negligence in disbursing the money in the decedent's bank accounts to Russ as executrix, "contrary to the [payable-on-death] designation [of Poe]." Russ moved to dismiss this action on the basis of lack of jurisdiction, and Wachovia moved for summary judgment. The trial court granted Russ's motion, stating in an oral opinion:

It is undisputed that the Register of Wills of York County Pennsylvania made the first judgment in this case as to decedent's domicile by admitting the Will to probate and issuing Letters Testamentary to Defendant Russ in February 2006. Plaintiff may not attempt to collaterally attack the admission of the Will to probate in Pennsylvania via this action in New Jersey.

This Court is satisfied Plaintiff's interests will be sufficiently protected in Pennsylvania, especially since she has retained counsel and appealed the grant of probate and asserted the same arguments in the Pennsylvania Court. This Court will not attempt to circumvent the preclusive res judicata effect of the jurisdiction of the Pennsylvania Court. Plaintiff may raise all the same arguments and objections against the same parties in the pre-existing Pennsylvania matter without suffering any actual prejudice by the dismissal of this action.

The court also concluded that the dismissal of Poe's complaint against Russ mooted Wachovia's motion for summary judgment.

Poe appeals from the orders memorializing these rulings, and Wachovia cross-appeals from the order denying its motion for summary judgment as moot.

During the pendency of this appeal, Poe's appeal of the probate of the decedent's Pennsylvania will was tried in a two-day hearing before the Pennsylvania Court of Common Pleas of York County. This hearing resulted in entry of an order on October 2, 2007, which states:

Hearing on the petition for citation to show cause why appeal from probate should not be sustained began October 1, 2007, at 9:30 a.m. and concluded at 3:02 p.m., October 2, 2007.

After the presentation of evidence was completed, the Court rendered its decision from the bench in the presence of the parties and their respective legal counsel. Pursuant to and in accord with that decision, any and all relief requested by the Petitioner is hereby denied. The Petitioner failed to present clear and convincing evidence of undue influence.

On appeal, Poe argues that the trial court erred in concluding that the admission of the Pennsylvania will to probate in Pennsylvania constituted a "final judgment" that could not be collaterally attacked in this action. However, we have no need to consider this argument because the Pennsylvania Court of Common Pleas adjudicated Poe's challenge to the probate of the Pennsylvania will during the pendency of this appeal and entered a final judgment affirming the admission of the Pennsylvania will to probate. That judgment is entitled to full faith and credit under Article IV, section 1 of the United States Constitution. See Sec. Benefit Life Ins. Co. v. TFS Ins. Agency, Inc., 279 N.J. Super. 419, 423 (App. Div.), certif. denied, 141 N.J. 95 (1995). It is undisputed that the Pennsylvania court had jurisdiction over Poe. In fact, the judgment was entered as a result of Poe's appeal challenging the Register of Wills' admission of the Pennsylvania will to probate, and she participated fully in the proceedings before the Pennsylvania court. Therefore, Poe's claim that the Pennsylvania will was invalid has already been decided adversely to her in the Pennsylvania proceeding, and for that reason we affirm the dismissal of the first count of her complaint.

However, the judgment entered by the Pennsylvania Court of Common Pleas does not bar Poe's claim that Wachovia negligently disbursed the decedent's accounts that named her as the payable-on-death beneficiary. This claim is maintainable even though the validity of the Pennsylvania will has been conclusively adjudicated because the money in such a bank account passes to the named beneficiary outside of probate. N.J.S.A. 17:16I-10; see 5 Clapp, N.J. Practice, Wills & Admin. 28 (1982). The primary issue relevant to this claim is whether the decedent revoked the payable-on-death designation of Poe in her Wachovia account. This issue was not presented to the Pennsylvania Court of Common Pleas. In fact, Wachovia was not even a party to the Pennsylvania proceedings. Therefore, Poe is entitled to have this claim adjudicated in the action she filed in New Jersey.

Wachovia argues in its appellate brief that Poe's claim should be dismissed on the basis of the doctrine of forum non conveniens because it would be entitled to seek reimbursement from Russ of any money improperly disbursed to her but she cannot be made a party to this action. However, this argument was not ruled upon by the trial court. Consequently, we decline to consider it. Wachovia may now pursue this argument before the trial court.

Accordingly, we affirm the dismissal of the first count of Poe's complaint. We reverse the dismissal of the second count and remand the case to the trial court for further proceedings in conformity with this opinion.

 

We were advised at oral argument that Poe did not appeal from this order.

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A-4320-06T1

December 15, 2008