IN THE MATTER OF THE ESTATE OF JERRY ANTHONY SIRACUSA, III (251917, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 27, 2018
• Docket: A-4966-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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