NOT FOR PUBLICATION WITHOUT THE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