IN THE MATTER OF THE ESTATE OF JERRY ANTHONY SIRACUSA, III Deceased

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4966-16T4

IN THE MATTER OF THE
ESTATE OF JERRY ANTHONY
SIRACUSA, III,

     Deceased.
_______________________________


           Argued May 16, 2018 – Decided June 27, 2018

           Before Judges Manahan and Suter.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Probate Part, Middlesex
           County, Docket No. 251917.

           Mark T. McMenamy argued the cause for
           appellant   Dawn   Marie  Schenck   Coleman
           (Bressler, Amery & Ross, attorneys; Mark T.
           McMenamy, on the brief).

           Amie E. DiCola argued the cause for respondent
           Jerry   Siracusa,   Jr.  (Fusco   &   Macaluso
           Partners, LLC, attorneys; Amie E. DiCola, on
           the brief).

PER CURIAM

     Plaintiff Dawn Marie Schenck Coleman appeals from an order

of the Chancery Division denying her application to substitute her

as the personal representative of the estate of Jerry Anthony
Siracusa, III (decedent) for administration and for prosecution

of a wrongful death action.           Decedent's father, defendant Jerry

Siracusa,    Jr.,   was   appointed    as    personal     representative    upon

application to the Surrogate.1          Plaintiff, the birth mother and

legal guardian to decedent's two children, argues that the court

erred as a matter of law in denying her application.              We agree and

reverse.

     On January 21, 2016, decedent died intestate as a result of

injuries he sustained in a motor vehicle accident.                At the time

of his death, decedent had two sons, D.J.S.,2 born in 2005, and

C.A.S., born in 2008.      As noted, plaintiff is the birth mother of

both children.      Plaintiff raised the children as a single parent

from their births until her 2014 marriage to Ryan Coleman.                   She

and decedent never married.       The children's birth certificates did

not list decedent as the father as he was incarcerated at the time

and was unable to sign a Certificate of Parentage.

     On February 10, 2016, defendant applied to the Middlesex

County     Surrogate's    Court   for       appointment     as   the   personal


1
   We refrain from use of the masculine and feminine forms of an
estate's personal representative as a nuance "not worth
preserving". Bryan A. Garner, Garner's Dictionary of Legal Usage,
810 (3rd ed. 2011).
2
  For purposes of confidentiality, we use initials to protect the
identity of the children.


                                        2                               A-4966-16T4
representative of his son's estate.        The application listed only

defendant, defendant's wife (decedent's mother) and two siblings

as the survivors.      Neither plaintiff nor the children were noticed

of defendant's application or of his appointment.3

     After    his   appointment,    defendant   retained     counsel     to

represent the estate to institute a wrongful death action. Counsel

provided a tort claim notice to relevant public entities.

     The parties dispute how plaintiff came to learn of decedent's

death and the circumstances leading up to defendant's appointment

by the Surrogate.      What is not in dispute is that when plaintiff

became aware of decedent's death, she sought to confirm his

paternity of the children and any entitlement by the children to

social security benefits as survivors.      After decedent's paternity

was confirmed by DNA testing, plaintiff was appointed the legal

guardian of the children's property.

     Thereafter, plaintiff sought to have defendant voluntarily

withdraw as the personal representative of the estate.                 When

defendant    refused    to   withdraw,   plaintiff   filed   a   verified

complaint seeking to discharge defendant and to substitute her as

the personal representative.




3
   Defendant claimed he did not name the children based upon the
uncertainty of decedent's paternity.

                                    3                             A-4966-16T4
     At the conclusion of oral argument, the judge denied the

relief sought by plaintiff.   In doing so, the judge found that

defendant had no beneficial interest in the estate and would not

benefit personally from its administration.    The judge further

found that the sole issue was whether plaintiff or defendant would

control the impending wrongful death action.    Without reference

to controlling law, the judge held that both parties had equal

rights to serve as personal representative of the estate.         As

such, the judge did not remove defendant.      However, the judge

required defendant to keep plaintiff apprised of the status of the

wrongful death action based upon her status as the children's

legal guardian.

     On appeal, plaintiff raises the following argument.

          POINT I

          THE TRIAL COURT ERRED AS A MATTER OF LAW IN
          DENYING   [PLAINTIFF'S]  REQUEST  TO   HAVE
          [DEFENDANT] DISCHARGED FROM CONTINUING TO
          SERVE AS ADMINISTRATOR AND ADMINISTRATOR AD
          PROSEQUENDUM.

     
N.J.S.A. 3B:10-2 provides that if a person dies intestate,

the 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. If not, or if there is no

surviving spouse or domestic partner, the administration shall be



                                4                          A-4966-16T4
granted to the remaining heirs of the intestate, or some of them,

if they or any of them will accept the administration.

       Where there is no widow, administration of the estate is to

be granted to the next of kin unless they are subject to personally

disqualifying objections or decline to accept the administration.

The underlying principle is that administration shall be committed

to those who are the ultimate or residuary beneficiaries; that is,

to those to whom the residue of the estate will go, when the

administration is completed.      See In re Granting Admin., 
117 N.J.

Eq. 256, 257 (Prerog. Ct. 1934); Donahay v. Hall, 
45 N.J. Eq. 720

(Prerog. Ct. 1889).

       "The statutory mandate entitling next of kin to administer

is limited to those next of kin who are heirs of the estate, for

such is the true construction of the statutory words 'next of

kin.'"    In re Estate of Mellett, 
108 N.J. Super. 181, 184 (1969)

(quoting In re Fisher's Estate, 
17 N.J. Super. 207, 209 (Cty. Ct.

1952)). In Mellett, this court held that next of kin to administer

are those next of kin who are distributees of the estate because

"the     right   of   administration       grows   out   of   the   right    of

distribution."

       In pertinent part, 
N.J.S.A. 3B:5-4 provides:

            Any part of the intestate estate not passing
            to the decedent's surviving spouse or domestic
            partner under 
N.J.S.A. 3B:5-3, or the entire

                                       5                              A-4966-16T4
          intestate estate if there is no surviving
          spouse or domestic partner, passes in the
          following order to the individuals designated
          below who survive the decedent: (a) To the
          decedent's descendants by representation; (b)
          If there are no surviving descendants, to the
          decedent's parents equally if both survive,
          or to the surviving parent, except as provided
          in section 4 of P.L. 2009, c.43 (C.3B:5-
          14.1)[.]

     
N.J.S.A. 3B:12-38 provides in pertinent part that "[t]he

appointment   of   a   guardian   of       the   estate   of   a   minor    or    an

incapacitated person vests in [the guardian] title as trustee to

all property of his ward, presently held or thereafter acquired,

including title to any property theretofore held for the ward by

attorneys in fact."     The right to file litigation on behalf of a

minor is also within a guardian's powers.

     When administration is granted by a court without notice to,

and in disregard of the rights of, a person having an interest,

whether such misrepresentation was the result of fraud or of

mistake, this court will reopen the proceeding, on the application

of the person whose rights were disregarded. Where, upon such

reopening, it appears that the latter has a better right to such

administration, this court will revoke the prior appointment.                    See

In re Fischer's Estate, 
118 N.J. Eq. 599 (Prerog. Ct. 1935).4


4
   We note there are two statutes that address the removal of a
fiduciary, 
N.J.S.A. 3B:14-18 (discharge from office of fiduciary)


                                       6                                   A-4966-16T4
     We interpret the law to require the appointment of plaintiff

as the personal representative of the estate in her capacity as

legal guardian of the children who are the next of kin and the

heirs of decedent's estate.   To be sure, had either child attained

the age of majority, it would be indisputable that the child would

qualify to administer the estate.     While there is no basis to

disqualify defendant predicated upon his conduct while serving as

the fiduciary, we hold that plaintiff's guardian status secures

to her a more favored position than defendant to serve in that

role.

     We reverse the order and remand to the Chancery Division for

the entry of an order consistent with our decision.

     Reversed and remanded.




and 
N.J.S.A. 3B:14-21 (removal for cause).     We view the former
statute to encompass requests by a fiduciary for discharge and the
later statute to encompass improper conduct by a fiduciary such
as neglect and embezzlement. Neither one of these scenarios is
present here.

                                 7                          A-4966-16T4