IN THE MATTER OF THE ESTATE OF CHARLES A. HOFFMAN, JR. (P-18-000368, WARREN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3455-19
IN THE MATTER OF THE
ESTATE OF CHARLES A.
HOFFMAN, JR.,
Deceased.
________________________
Submitted February 2, 2021 – Decided March 10, 2021
Before Judges Yannotti, Mawla and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Warren County, Docket No. P-18-
000368.
Stern Kilcullen & Rufolo, LLC, attorneys for appellants
Catherine Oliver Brennan and Fred Oliver, Jr. (Robert
W. Ferguson, of counsel and on the briefs).
Russo, Russo & Light, LLC, attorneys for respondent
Eugene Hoffman, as Executor for the Estate of Charles
A. Hoffman, Jr., (Michael J. Light, II, on the brief).
PER CURIAM
Appellants Catherine Oliver Brennan (Catherine) and Fred Oliver, Jr.
(Fred) appeal from an order of the Chancery Division, Probate Part, dated
February 18, 2020, which found that a specific bequest to them in the Last Will
and Testament of Charles A. Hoffman, Jr. (Charles) adeemed, meaning that the
bequest was lost, disposed of, and no longer available. 1 For the reasons that
follow, we affirm.
I.
We briefly summarize the relevant facts. Charles was married to Marion
Oliver Hoffman (Marion), who died intestate on June 1, 2016. At the time of
her death, Charles and Marion had been married more than fifty years. They
had no children, but apparently had a close relationship with Marion's brother
and his three children, Patricia Oliver, Catherine, and Fred (the Olivers).
Charles was Marion's sole heir and he obtained letters of administration for her
estate. Charles died on April 4, 2018.
On October 1, 2018, Charles's brother Eugene Hoffman (Eugene) filed a
verified complaint in the trial court seeking to have Charles's will admitted to
probate. Charles executed the will on August 2, 2016. In the will, Charles
appointed Eugene to act as executor of his estate and exercise all of the powers
under N.J.S.A. 3B:14-23.
1
For ease of reference, we use first names to identify the decedent and others
involved in this matter.
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Charles also stated that his funeral expenses and the costs of administering
his estate should be paid first out of his estate. He directed that all estate,
transfer, succession, inheritance, and similar taxes, plus any interest and
penalties, should be paid out of his residuary estate as "administration
expenses." Charles then stated that all of his real and personal property shall be
given to his brother Eugene, but if Eugene should predecease him, this property
"should go" to Eugene's surviving children, Elena, Veronica, and Kevin, "per
stirpes."
In the will, Charles also provided for the distribution of the residue of his
estate. He devised "the total sum of monies" from the estate of his deceased
wife, including bank accounts, certificates of deposit, stocks, and bonds , to be
distributed to the Olivers, "per stirpes, as set forth on the attached Schedule A –
(Numbers 2 and 3 only[)]."
In addition, Charles devised "all the rest residue and remainder of [the]
estate," including the other bank accounts noted on Schedule A, to his brother
Eugene. The will provided, however, that if Eugene should predecease Charles,
the "rest residue and remainder" of the estate should be distributed to Eugene's
surviving children "per stirpes." The will states that it was signed, sealed,
published, and declared before two attesting witnesses.
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Schedule A was attached to the will. Among other assets, it lists three
accounts at First Hope Bank (FHB), with current balances of: $80,043.70
(Account #1); $69,254.33 (Account #2); and $213,321.57 (Account #3).
Schedule A also lists two accounts at PNC Bank, with balances of $40,046.79,
and $145,347.85, respectively.
The Chancery Division judge issued an order to show cause dated October
1, 2018, which required, among other things, persons with interests under the
will to show cause why the will should not be admitted to probate and E ugene
appointed personal representative of the estate. Catherine filed an answer to the
complaint on November 21, 2018. She admitted that Charles died on April 4,
2018, but neither admitted nor denied many of the allegations in the complaint.
The judge conducted a preliminary hearing on April 10, 2019, and issued
an order that day, which admitted Charles's will to probate and appointed
Eugene as executor of the estate. The order also required Eugene to file a formal
accounting with the court. Eugene filed the accounting on August 23, 2019,
with an attached letter from counsel identifying the estate's assets, including
certain accounts at FHB.
After he filed the accounting, Eugene asserted that pursuant to the will,
the Olivers were only entitled to the two accounts at FHB, which were
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designated on Schedule A to the will as "Numbers 2 and 3." According to
Eugene, those two accounts were closed at Charles's direction, and these
bequests therefore adeemed.
On February 13, 2020, the judge conducted an evidentiary hearing to
determine whether the bequests to the Olivers were specific and whether they
adeemed. At the hearing, Eugene testified that he had a "very close relationship"
with his brother Charles. He said Charles wanted to leave "some moneys" to
the Olivers in accordance with his wife's wishes.
Eugene explained that the two accounts Charles referred to in his will as
accounts "Numbers 2 and 3" had been transferred to Charles upon Marion's
death. Eugene stated that when Marion died, the accounts had balances of about
$68,000 and $213,000, respectively, but only $16,000 remained in the accounts
at the time Charles died.
Eugene explained that the monies in the accounts had been spent on
Charles's caregivers, hospital bills, and transportation costs, which "roughly
came to about a $100,000 a year . . . ." He stated that money in the accounts
had also been used to provide a bond for a sand and gravel business that was
operated on Eugene's property.
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Eugene said that to free up the monies in Marion's accounts, he had
contacted FHB and arranged for bank employees to visit Charles's home to
transfer ownership of the accounts to Charles. The monies then were deposited
into an account from which Charles could write personal checks.
Eugene testified that Stephanie P. Tettemer, the attorney who drafted
Charles's will, gave Charles permission to "invade the accounts" that had been
in Marion's name to care for himself. He stated that Charles spent most of the
money in FHB accounts "Numbers 2 and 3."
Eugene further testified that Charles would have used one of Marion’s
other accounts to pay his expenses, but the monies were not available. He
explained that the accounts were at PNC Bank, but the officials at that bank
would not visit Charles at his house so that he could sign the papers required to
transfer the accounts to his name. Eugene also stated that monies in Charles’s
personal bank account were on "hold" because Charles's personal funds had been
pledged as security for the restoration bond that Eugene required for his
business.
Tettemer testified that on the day she first met Charles to discuss his will,
he gave her a general description of what he wanted his will to provide. She
stated that as she was leaving Charles's home, Charles tugged on her sleeve and
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whispered for her to come back later that day. Tettemer returned that afternoon,
and Charles told her he wanted to give his wife’s "properties" to Marion's
brother and his children. Tettemer testified that at their next meeting, she was
given a Schedule A that listed various assets including certain bank accounts.
She said Charles had reduced the number of accounts that were going to
go to Marion's nieces and nephew. Tettemer further testified that on the day
Charles was to execute the will, he called her and told her the only change he
wanted to make pertained to "Numbers 2 and 3" on Schedule A. As noted, the
will specifically limited the bequest to the Olivers to those accounts.
Tettemer advised Eugene that although the will provided for the
disposition of the bank accounts, Charles could use the money in any way he
wanted during his lifetime because the accounts were not in a trust. She told
Charles he could call her at any time if he ever wanted to make any additional
changes to the will. He did not contact her again.
Catherine testified that she had a close relationship with her aunt Marion
as they shared numerous interests together. She explained that after Charles
executed his will, he became sick and was bedridden. She stated that at some
point, Charles held up his will and proclaimed, "I've taken care of your family.
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I've taken care of everything. You don't have to worry. You're not going to
have any problems like we went through with Marion's estate."
Vincent Hoyd was a paralegal in Tettemer's office. He said that he met
with Charles at his home four times to discuss his will. After he spoke with
Charles, Hoyd informed Tettemer that Charles stated that he was comfortable at
his home. Tettemer's firm prepared Schedule A to the will, which listed the two
accounts that would be given to Charles's nieces and nephew.
After hearing the testimony, the judge placed his decision on the record.
The judge noted that in the will, Charles identified two bank accounts at FHB,
which were to be transferred to his nieces and nephew upon his death. The judge
noted that Charles and Marion had no children, and Marion probably would have
wanted her money to be given to members of her family.
The judge also noted that the funds in the two accounts at FHB that had
been bequeathed to the Olivers in the will were used to pay Charles's expenses
and funds in those accounts had been spent. The judge noted that the accounts
"were not placed in trust." Rather, Charles had identified the accounts in the
will, and Tettemer had advised Charles that "he could use those funds, if he
wanted to, during his life."
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The judge found that when Charles died, the funds in the two accounts at
FHB, which were identified as "Numbers 2 and 3" in the will, "did not exist."
The funds had been used to pay Charles's expenses. The judge noted that
Charles had required round-the-clock nursing care, and he had incurred medical
bills. In addition, some of the monies in the accounts had been used for a bond
for Eugene's business.
The judge determined that, while Catherine thought she had been treated
unfairly, "the money never really belonged to her" unless it remained in the
designated accounts when Charles died. The judge pointed out, however, that
"[t]he funds were exhausted before that time." The judge found there was no
proof of "undue influence" by anyone, and Charles had the right to dispose of
the funds in the two accounts at FHB "as he saw fit" during his lifetime.
The judge therefore concluded that Charles's will included specific
bequests of the two accounts at FHB, which were "Numbers 2 and 3" on
Schedule A attached to the will. The judge found the specific bequest to the
Olivers adeemed. Therefore, the judge dismissed the claim of those contesting
the disposition of the estate.
The judge memorialized his decision in a judgment dated February 18,
2020. Catherine and Fred appeal.
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II.
Appellants contend the Chancery Division judge erred by finding that the
bequest to them under the will was a specific bequest. They contend that in his
will, Charles provided them a demonstrative bequest. We disagree.
Findings of fact by a judge sitting without a jury will not be disturbed on
appeal unless "they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice[.]" Seidman v. Clifton Savs. Bank, 205 N.J. 150, 169 (2011)
(alteration in original) (quoting In re Trust Created by Agreement Dated Dec.
20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). The judge's findings are
binding on appeal if "supported by adequate, substantial, credible evidence."
Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However, an
appellate court owes no deference to a trial judge's "interpretation of the law and
the legal consequences that flow from established facts . . . ." Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The construction of a will is a function judicial and interpretive in nature
. . . ." Guar. Tr. Co. of N.Y. v. Stevens, 28 N.J. 243, 254 (1958) (citing
Leyendecker v. Leyendecker, 142 N.J. Eq. 449, 453 (E. & A. 1948)). When
construing the provisions of a will, the court's "primary objective" is to
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determine and "give effect to the probable intention of the testator." In re Estate
of Nicol, 152 N.J. Super. 308, 312 (App. Div. 1977) (citing Fidelity Union Tr.
Co. v. Robert, 36 N.J. 561, 564 (1962)). To determine the subjective intent of
the testator,
courts will give primary emphasis to his dominant plan
and purpose as they appear from the entirety of
his will when read and considered in the light of the
surrounding facts and circumstances. . . . So far as the
situation fairly permits, courts will ascribe to the
testator, "those impulses which are common to human
nature, and will construe the will so as to effectuate
those impulses." , , , [T]he court's endeavor is to put
itself in the testator's position insofar as possible in the
effort to accomplish what he would have done had he
"envisioned the present inquiry."
[Ibid. (alterations in original) (quoting Fidelity, 36 N.J.
at 564-66).]
Furthermore, "all rules of interpretation are subordinated to the
requirement that the actual purpose of the testator be sought and effectuated as
far as is consonant with principles of law and public policy." Fidelity, 36 N.J.
at 568 (quoting In re Fabbri’s Will, 2 N.Y.2d 236, 239-40 (1957)); see also
Polliak v. Smith, 19 N.J. Super. 365, 370 (Ch. Div. 1952) (stating that "the
intention of the testatrix will prevail over technical rules and words in their
technical or even ordinary meaning").
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There are three types of testamentary gifts: general, specific, and
demonstrative. Busch v. Plews, 19 N.J. Super. 195, 204 (Ch. Div. 1952), aff'd
21 N.J. Super. 588 (App. Div. 1952), aff'd 12 N.J. 352 (1953). A general legacy
is "a bequest of personal property payable out of the general assets of the
testator's estate rather than from specific property included therein." Plews, 12
N.J. at 356 (citing In re Low, 103 N.J. Eq. 435, 437 (Prerog. Ct. 1928)).
A specific legacy is "a bequest of personal property in specie and
not payable from other assets of the estate." Ibid. (citing Camden Trust Co. v.
Cramer, 136 N.J. Eq. 261, 270 (E. & A. 1945)). A demonstrative legacy is a
"bequest payable primarily out of specified property but chargeable against
other assets of the estate if that property is insufficient . . . ." Ibid. (citing
Cramer, 136 N.J. Eq. at 270).
To render a bequest specific, a testator must have contemplated the subject
of a legacy to be a specific identical thing. Plews, 19 N.J. Super. at 205. Absent
such an intention, "a legacy will be deemed either general or demonstrative,
depending upon whether a fund or particular property is indicated as the primary
source of its payment." Ibid.; see also Cramer, 136 N.J. Eq. at 270 (stating that
"[i]f the subject-matter is not sufficiently individuated, the legacy is treated as
general or demonstrative"). Since specific legacies are subject to ademption and
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thus typically frustrate the testator's donative intent, "courts lean against
construing legacies as specific." Plews, 12 N.J. at 356 (citing Cramer, 136 N.J.
Eq. at 270).
"In deciding whether a legacy is specific or general, the intention of the
testator must control, as it must [control] the decision of every other question
involving the construction of wills." Zorner v. Foth, 124 N.J. Eq. 508, 509 (Ch.
Div. 1938). "There is no technical arbitrary rule requiring the use of particular
words or expressions to make a bequest specific." Ibid. "The words of exclusion
must" furnish "an almost infallible test of the meaning of the testator." Ibid.On appeal, appellants argue Charles's legacy to the Olivers should be
construed as demonstrative rather than specific. They note that in the will,
Charles devised to the Olivers the "total sum of monies" that Charles had
acquired from Marion's estate. They argue that while Charles expressly limited
the gift to the accounts identified in the will, he intended the legacy would be
paid from, but not exclusively from, those accounts.
We are convinced, however, that the record supports the trial court's
conclusion that Charles intended the bequest to the Olivers to be a specific rather
than demonstrative bequest. In the will, Charles stated that he devised to the
Olivers "the total sum of monies" he had acquired from Marion's estate, but
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limited that "sum of monies" to the accounts listed on Schedule A and identified
as "Numbers 2 and 3 only."
The will does not, as appellants claim, grant the Olivers a legacy in a
specific amount, to be payable from the estate. Rather, the will grants the
Olivers monies in two specific accounts and states the gift is made as to those
accounts "only." Thus, the will does not provide for a demonstrative legacy. It
grants the Olivers monies in two specific accounts.
Moreover, Tettemer advised Charles he could use the monies in the
accounts identified in his will during his lifetime. The evidence also showed
that Charles elected to use those funds for his personal expenses because his
other funds were not available. Before he died, Charles could have revised his
will to ensure that the Olivers would receive a "sum of money." He did not do
so, thereby confirming his intention to make a specific rather than demonstrative
gift to the Olivers.
Appellants also argue that the overall structure of Charles's distributive
scheme indicates that the bequests to the Olivers were demonstrative rather than
specific. They assert that the limitation in the will to two specific accounts
confirms that Charles intended to grant the Olivers a "total sum of monies"
which Charles had acquired from Marion's estate. This contention is unavailing.
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The phrase "total sum of monies" is defined not by a specific amount, but
by reference to two accounts at FHB, which were identified as "Numbers 2 and
3" in the will and on Schedule A. The will states that Charles's bequest to the
Olivers was "only" the amounts in these accounts, not a general bequest of a
specific amount of money that would be paid from the estate.
Appellants further contend that Charles's handwritten reference to
accounts "Numbers 2 and 3" shows he intended a demonstrative gift because he
wrote in those references next to the current account balances for the two
accounts, rather than the account numbers. Charles's placement of his
handwritten references to "2" and "3" on Schedule A does not, however, warrant
the conclusion that he intended to make a demonstrative gift of the balances in
the accounts at the time he executed the will.
In the body of the will, Charles stated that he was devising to the Olivers
a "total sum of monies" he had acquired from Marion's estate, but the devise was
expressly limited to the accounts identified on Schedule A as "Numbers 2 and 3
only." Thus, Charles made abundantly clear that he intended to gift the Olivers
the accounts identified on Schedule A as "Numbers 2 and 3 only."
Appellants further argue that the bequest to the Olivers should be deemed
demonstrative because the will does not include language indicating that Charles
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specifically intended that the gift be limited to the accounts identified. In
support of this argument, appellants cite Zorner, 124 N.J. Eq. at 509. In that
case, the will provided that "[a]ll the aforementioned bequests [of sums of
money] to be paid . . . out of an existing bank account held in my name in the
Rutherford National Bank . . . ." Id. at 509.
At the time of the testator's death, the amount of money in the bank was
less than the aggregate of the bequests in the will, and the estate was insufficient
to pay the bequests in full. Id. at 509. The legatees petitioned the court for the
sale of certain properties to make up for the shortfall, contending that the
bequests to them were general and therefore chargeable to the entire estate. Id.
at 509. The court denied the request and held that the bequests were specific.
Id. at 510.
The court noted that the language in the will, which "specifically provides
that these bequests shall be paid out of a certain specified existing bank
account[,]" was intended as a limitation of the fund out of which payment of the
bequests were to be made. Id. at 510. The court also stated that "[t]he contention
of the complainants would require that this clause be considered an utter
nullity." Id. at 510.
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Appellants' reliance on Zorner is misplaced. Here, Charles's will states
that the bequest to the Olivers is to be paid from specified bank accounts only.
Had Charles intended to gift the Olivers a specific sum of money from the estate,
he could have included such a provision in the will. He chose instead to give to
the Olivers a sum of money on deposit in specific bank accounts. As the trial
court held, the gift to the Olivers was specific, not demonstrative.
Appellants also rely upon Patanska v. Kuznia, 102 N.J. Eq. 408 (Ch. Div.
1928), aff'd, 104 N.J. Eq. 204 (E. & A. 1929). In Patanska, the testator
bequeathed sums of money in various bank accounts to several legatees. Id. at
411. Before his death, the testator entered into a contract for the purchase of a
building and made a deposit for the purchase. Id. at 409. The testator then
became ill and was unable to complete the purchase of the building. Ibid.
Thereafter, he executed his will in which he bequeathed sums of monies
in several bank accounts to several persons. Ibid. The will was drafted by a
person who was not adept in the use of English or experienced in the preparation
of such an instrument. Id. at 412. The testator later recovered from his illness
and completed the purchase of the building. Id. at 410.
He thereafter withdrew more funds from the bank accounts, which he
applied to reduce the mortgage on the building. Ibid. Consequently, there was
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an insufficient amount of money in his bank accounts to pay the legacies
provided under his will. Ibid.
The court considered the circumstances surrounding the will and found
that when the testator executed the will, he was contemplating death. Id. at 412.
Due to the serious nature of his illness, the testator also contemplated that he
must forfeit the contract for the purchase of the building, leaving an estate which
consisted almost entirely of money on deposit in a bank. Ibid. The testator's
thoughts were focused on the natural objects of his bounty. Ibid.
The court found that there was no indication in the will or elsewhere that
the testator intended the bequests in his will would adeem if he withdrew money
from the bank and used it to purchase the apartment building. Id. at 412-13.
The court found that by referring to the specific bank accounts in the will, the
testator "intended to indicate [that] such funds [were] the primary source from
which his bequests could be paid . . . ." Ibid.
The court decided that the testator "did not intend that such portion of his
estate as should be found on deposit in banks at his death should be th e only
source for the payment of legacies." Id. at 413. The court held that the bequests
were general legacies and thus not subject to ademption. Ibid.
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Here, however, the language of the will and the circumstances are
substantially different from those in Patanska. The will was drafted by
Tettemer, an attorney, and the will specifically identified the two accounts from
which the bequest to the Olivers would be paid. Moreover, there is no indication
Charles intended that other assets of the estate would be used to pay the Olivers
a specific sum of money if the amounts on deposit in the accounts identified on
Schedule A were insufficient to pay that amount. As we have explained, in his
will, Charles made clear that the bequests to the Olivers were of specific
accounts "only."
III.
Appellants further argue the trial court erred by finding that the bequest
to the Olivers adeemed. Again, we disagree.
Specific bequests are unique because unlike general and demonstrative
bequests, they are subject to ademption. Cramer, 136 N.J. Eq. at 270. In New
Jersey, "[t]he test of ademption of a specific legacy . . . is whether the subject is
'lost, destroyed, or subsequently disposed of by testator, or so altered in form,
by testator's subsequent acts, as to indicate a change of testamentary intent on
his part.'" In re Estate of Hall, 60 N.J. Super. 597, 600 (quoting Chase Nat'l
Bank v. Deichmiller, 107 N.J. Eq. 379, 382 (Ch. 1930)).
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On the other hand, there is no ademption in the event the subject,
"although somewhat changed in form, [is] not sufficiently changed to indicate
change of testamentary intent . . . ." Ibid. (quoting Chase Nat'l Bank, 107 N.J.
Eq. at 382). Furthermore, "[t]he rule that the non-existence of the subject of a
legacy evidences its ademption is but a rule of evidence, rebuttable by other
evidence indicating that ademption was not intended." White v. White, 105 N.J.
Super. 184, 188 (Ch. Div. 1969) (quoting Donath v. Shaw, 132 N.J. Eq. 545,
549 (Ch. 1942)).
Thus, the "probable intent of the testator is the determining factor" in
determining ademption. Id. at 187. However, the testator's intention is relevant
"only when [the testator's] actions with reference to the subject matter of the
bequest give rise to the inquiry as to whether there has been an ademption."
Wyckoff v. YWCA, 37 N.J. Super. 274, 278 (Ch. Div. 1955).
Here, appellants argue that the overwhelming evidence presented at trial
shows that Charles did not intend to disinherit the Olivers. They assert the
witnesses at the hearing agreed that Charles wanted the money he acquired from
Marion's estate to "go" to her "side" of the family. They assert that while Charles
withdrew monies from the two accounts at FHB after he executed the will, he
did not intend for the gift to the Olivers to adeem.
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We are convinced, however, that the evidence supports the trial court's
determination that the bequests to the Olivers adeemed. It is undisputed that
when Charles executed his will, monies he had acquired from Marion's estate
were on deposit in two accounts at FHB, and Charles intended to give the monies
in those accounts to the Olivers upon his death. Even so, Tettemer advised that
the monies in the accounts were not in a trust, and Charles could spend those
monies, as he saw fit, during his lifetime.
The record shows that Charles did, in fact, spend almost all the monies in
the two accounts he had intended to give the Olivers. Tettemer also told Charles
he could contact her at any time if he wanted to change the terms of the will.
Charles never contacted Tettemer and he did not revise the will, although he was
apparently aware that he had used substantially all the monies in the two
accounts at FHB to pay for his caretakers and other expenses.
Thus, the evidence does not support the conclusion that Charles did not
intend the legacy to the Olivers to adeem. Indeed, the record shows that, to the
extent he spent the monies in the two accounts at FHB during his lifetime, this
is precisely what Charles intended.
Affirmed.
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