IN THE MATTER OF THE ESTATE OF FRANK P. WERNER DECEASED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4141-08T34141-08T3

IN THE MATTER OF THE

ESTATE OF FRANK P. WERNER,

DECEASED.

____________________________________________________

 

Argued March 9, 2010 - Decided

Before Judges Skillman, Gilroy and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 192982.

Joseph Hillman, Jr., argued the cause for appellant William C. Werner.

Robert C. Rafano argued the cause for respondent Joseph Kosmo, Jr. (Rafano and Wood, attorneys; Mr. Rafano, on the brief).

PER CURIAM

Appellant William Werner appeals from parts of the final judgment entered on March 24, 2009, and parts of the order for partial summary judgment entered on January 22, 2008. We affirm substantially for the reasons set forth in the January 22, 2008 letter opinion of Judge Waugh and the January 28, 2009 and March 10, 2009 letter opinions of Judge Ciuffani. In addition, we note that the Prudent Investor Act, N.J.S.A. 3B:20-11.1 to

-11.12, upon which appellant relies, only applies to "a fiduciary who invests and manages trust assets." N.J.S.A. 3B:20-11.2(a). Therefore, this statute does not apply to an executor unless a will establishes a testamentary trust and the executor is also the trustee of that trust. See In re Armour's Will, 33 N.J. 517, 524-25 (1960) (discussing the differences in the duties of an executor and a trustee); In re Estate of Bayles, 108 N.J. Super. 446, 453-54 (App. Div. 1970) (same). Notwithstanding enactment of the Prudent Investor Act, an executor continues to be governed by the standard of care set forth in N.J.S.A. 3B:10-26. Appellant's arguments are without sufficient merit to warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-4141-08T3

March 22, 2010