IN THE MATTER OF THE ESTATE OF JOHN F. MCGRAIL, JR. (CP-0224-2016, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 13, 2018
• Docket: A-4570-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4570-16T1

IN THE MATTER OF THE ESTATE OF JOHN F. MCGRAIL, JR., Deceased. ________________________________

Submitted May 24, 2018 – Decided June 13, 2018

Before Judges Gilson and Mayer.

On appeal from Superior Court of New Jersey, Chancery Division, Camden County, Docket No. CP-0224-2016.

William J. McGrail, Jr., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Petitioner William J. McGrail, Jr.,1 appeals from an April

21, 2017 order finding he gifted a classic automobile to his nephew

John F. McGrail, Jr. We affirm.

1 Because the parties have the same last name, we refer to the parties by their first names. We intend no disrespect by the informality. On August 17, 2016, William filed a claim against John Jr.'s

estate related to the vehicle.2 William claimed to be the owner

of the vehicle. John Jr.'s estate contended the vehicle was gifted

to John Jr., and therefore was an asset of the estate. On October

28, 2016, William filed an order to show cause and verified

complaint seeking to restrain John Jr.'s estate from disposing of

the vehicle. The probate judge conducted a one-day plenary hearing

on April 18, 2017, to determine whether William gifted the

automobile to John Jr.

The judge heard testimony from John Sr., the father of John

Jr. and brother of William. John Jr.'s wife, Marisabel,3 also

testified.

The following facts were adduced during the plenary hearing.

William purchased a new Austin Healy vehicle in 1966. He had

ownership and possession of the vehicle until 2009. In 2009,

William entered a nursing home in Maryland. William purportedly

asked John Jr. to store the vehicle at his home in New Jersey

while William was in the nursing home. William maintained that

Medicaid regulations permitted him to maintain ownership of the

vehicle while he resided in the nursing home.

2 John Jr. died intestate on August 3, 2016. 3 Marisabel is the administrator of John Jr.'s estate.

2 A-4570-16T1 According to Marisabel's testimony, John Jr. drove to

Maryland with her and her father, to retrieve William's vehicle

in 2010. From then until his death, John Jr. repaired, maintained,

stored, and insured the vehicle in New Jersey.

After hearing the testimony and assessing the credibility of

the witnesses, the judge issued a written opinion, dated April 25,

2017, finding the vehicle was a gift from William to John Jr. The

judge determined the testimony of John Sr. was not credible. The

judge relied on the testimony of Marisabel, which the court found

to be credible.

The judge concluded the vehicle was a gift because all three

elements establishing donative intent were satisfied. First, the

judge found unequivocal notice of donative intent on the part of

William. One of the exhibits marked as evidence during the plenary

hearing was a 2013 certificate of title issued to John Jr. for a

1966 Austin Healy. In addition, William left the car in John

Jr.'s possession since 2010 without seeking its return or

contributing to the upkeep, storage, or insurance for the vehicle.

Second, the judge determined the vehicle was delivered to

John Jr. Because the vehicle was inoperable as of 2010, John Jr.

physically transported the vehicle from Maryland to New Jersey on

a flatbed truck. No one requested the return of the vehicle until

after John Jr.'s death.

3 A-4570-16T1 Third, the judge concluded there was absolute and irrevocable

relinquishment of ownership of the vehicle by William because the

car was in John Jr.'s possession since 2010. William never drove

the car after 2010, and never contributed money for upkeep, repair,

or insurance on the car.4 Only after John Jr.'s death did John

Sr. offer to pay the reasonable value of the storage for the

vehicle and demand Marisabel return the car.

Based on the facts presented at the plenary hearing, the

judge held the vehicle was a gift and therefore an asset of John

Jr.'s estate.

A trial court's findings of fact are binding on appeal if

supported by "adequate, substantial and credible evidence." Rova

Farms Resort, Inc. v. In'vrs Ins. Co. of Am., 65 N.J. 474, 484

(1974). Such findings made by a judge in a bench trial "should

not be disturbed unless . . . they are so wholly insupportable as

to result in a denial of justice." Id. at 483-84 (alteration in

original) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436,

444 (App. Div.), aff'd. o.b., 33 N.J. 78 (1960)). Factual findings

that "are substantially influenced by [the judge's] opportunity

to hear and see the witnesses and to have the 'feel' of the case"

4 According to Marisabel's testimony, John Jr. paid for removal of rust from the car, repaired the seats, and replaced the carpet.

4 A-4570-16T1 enjoy deference on appeal. State v. Johnson, 42 N.J. 146, 161

(1964).

We are mindful of our limited scope of review. Post-trial

fact findings "are entitled to great weight [on appeal] since the

trial court had the opportunity of seeing and hearing the witnesses

and forming an opinion as to the credibility of their testimony."

In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992)

(quoting Gellert v. Livingston, 5 N.J. 65, 78 (1950)). Unless the

trial judge's findings are "manifestly unsupported or inconsistent

with the competent, reasonably credible evidence," the factual

conclusions should not be disturbed. Id. at 524 (citing Leimgruber

v. Claridge Assocs., 73 N.J. 450, 456 (1977)).

The elements required to prove a gift are: "(1) an unequivocal

donative intent on the part of the donor; (2) an actual or

symbolic[] delivery of the subject matter of the gift; and (3) an

absolute and irrevocable relinquishment by the donor of ownership

and dominion over the subject matter of the gift." In re Dodge,

50 N.J. 192, 216 (1967). "Proof of each of these elements . . .

must be 'clear, cogent, and persuasive.'" Lebitz-Freeman v.

Lebitz, 353 N.J. Super. 432, 437 (App. Div. 2002) (quoting Czoch

v. Freeman, 317 N.J. Super. 273, 284 (App. Div. 1999)).

Having reviewed the record, we conclude the judge's findings

are supported by substantial credible evidence. All three elements

5 A-4570-16T1 of a gift were established such that William gifted the 1966 Austin

Healy to John Jr. and the vehicle is an asset of John Jr.'s estate.

Affirmed.

6 A-4570-16T1