McKay v. Estate of McKay

• Decision Date: 09 November 1984
• Citation: 501 A.2d 610,205 N.J.Super. 609
• Parties: Bernice McKAY, Plaintiff, v. ESTATE OF Louis McKAY, Deceased, Defendant.
• Court: New Jersey Superior Court

Page 609

205 N.J.Super. 609

501 A.2d 610

Bernice McKAY, Plaintiff, v. ESTATE OF Louis McKAY, Deceased, Defendant.

Superior Court of New Jersey, Law Division Camden County.

Decided Nov. 9, 1984.

George L. Seltzer, Pleasantville, for plaintiff (Alten, Valentine, Pleasantville, Seltzer & Shultz, Pleasantville, attorneys).

Morrey Lacktman, Atlantic City, for defendant (Lashman, Miksis & Stillwell, Atlantic City, attorneys).

LARIO, J.T.C., (t/a).

Bernice McKay, the surviving spouse of decedent, Louis McKay, has commenced this action seeking a statutory elective one-third share of the estate against his will as permitted by N.J.S.A. 3A:38A-1(a) ¹, which provided as follows:

If a married person dies domiciled in this State on or after the effective date of this act, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

Defendant denies that plaintiff has a right of election to take an elective share: first on the ground that plaintiff's claim was time-barred; and, second, that plaintiff had not met the conditions of the statute, which allegedly requires as a pre-condition the decedent and the surviving spouse to have not been living separate and apart in different habitations at the time of death.

Plaintiff denies that she is out of time. She also denies that she and decedent were living separate and apart; and, in the event the court should find that they were living separate and apart, she argues in the alternative that separation alone is not sufficient to bar her statutory right of election.

From the stipulations entered into, the pleadings and evidence presented, I find the material facts to be as follows:

Plaintiff and defendant were married on December 28, 1975. No issue was born of this marriage. Mr. McKay died March 10, 1981 at 72 years of age, leaving a will whereby he bequeathed 20% of his estate to plaintiff and the remainder to Louis McKay, III, his son by a previous marriage. Mr. McKay had several prior marriages. Immediately prior to his marriage to plaintiff, he was married to Eleanore Fagan, a well-known professional singer who performed under the name, Billie Holiday. No children were born of this marriage and Billie Holiday predeceased Mr. McKay, leaving to him her entire estate. Mr. McKay's estate consists almost entirely of royalty interests received from various musical compositions written or recorded by Billie Holiday and from her published biography. It was estimated that these royalty interests have averaged upwards of $15,000 to $20,000 annually.

Mr. McKay's will was offered for probate in Atlantic County, where, by judgment of the Atlantic County Surrogage dated April 7, 1981, his attorney, L. Mifflen Hayes, was qualified as executor. More than six months thereafter plaintiff sought to elect against the will pursuant to N.J.S.A. 3A:38A-1(a), supra. Judge Steedle, sitting in the Superior Court, Law Division, Probate Part, Atlantic County ruled that the attempted election was time-barred by reason of the six month limitation fixed by N.J.S.A. 3A:38A-5(a) ². McKay v. McKay's Estate, 184 N.J.Super. 217, 445 A.2d 473 (Law.Div.1982), aff'd o.b. 188 N.J.Super. 44, 455 A.2d 1142 (App.Div.1983).

While plaintiff's appeal was pending to the Appellate Division, a separate action was instituted by her in the Superior Court, Law Division, Probate Part, Atlantic County, which sought a judgment revoking the letters of probate previously issued on the grounds that the Surrogate of Atlantic County lacked jurisdiction, claiming the decedent was not domiciled in Atlantic County at the time of his death, but instead was domiciled in Camden County. This action was tried in Atlantic County before Judge Perskie, who found as follows:

1. Decedent moved to Atlantic County from the marital apartment, located in Camden, Camden County in May 1980.

2. In August 1980 decedent moved substantially all of his clothing and personal belongings from the Camden marital apartment to his residence in Atlantic County.

3. During most of the time between May 1980 and his death, decedent was physically present in the Atlantic County area. During this time the decedent kept in contact with plaintiff and periodically saw her at the Northgate apartment in Camden.

4. Decedent intended to remain in Atlantic County permanently and to reside there with his son, Louis McKay, III.

5. Although decedent was physically present in Atlantic County and intended to remain there permanently, he was not domiciled there as he had not picked out a particular abode where he intended to remain on a permanent basis.

As a result of these findings Judge Perskie entered an order dated August 16, 1983 vacating the judgment of the Atlantic County Surrogate admitting to probate the will of Louis McKay on the "sole ground that decedent was not domiciled in Atlantic County at the time of his death and that the Atlantic County Surrogate was without jurisdiction to probate the will."

Thereafter, upon application made to the Surrogate of Camden County a judgment was entered on November 10, 1983 admitting the will to probate and appointing attorney Hayes as personal representative. On February 14, 1984 the present action was instituted pursuant to N.J.S.A. 3B:8-12, and after notice to interested parties a hearing was held as required by N.J.S.A. 3B:8-13.

Plaintiff and defendant presented testimony detailing decedent's various residences during the last years of his life and also relating to their marital relationship. Plaintiff attempted to establish that she and decedent were not totally separated and that he periodically returned to their marital abode at Northgate in Camden, New Jersey, where they occasionally engaged in marital relations.

Defendant presented contradictory evidence that the parties were in fact separated for approximately ten months; that decedent resided at various addresses in Atlantic County, excepting a short period in Mays Landing; and, that his periodic contact with plaintiff at the Northgate apartment was solely to pick up clothing and other personal papers and belongings, which were extensive.

Based on the facts presented, defendant moves for judgment dismissing the complaint on the two defensive grounds initially pleaded. As to its first defense, defendant claims that since Judge Steedle entered judgment in the prior Atlantic County proceeding whereby he refused to grant plaintiff leave to file an application for an elective share on the basis that it was not filed by October 7, 1981, that plaintiff was now barred from reasserting her claim at this time. In support thereof, defendant contends that Judge Perskie's subsequent order did not declare the granting of Letters Testamentary null and void, but rather vacated those letters as of the date the order was signed, to wit: August 16, 1983. It urges that it would be incongruous to permit plaintiff to do now that which the Superior Court and the Appellate Division held was time-barred by plaintiff's failure to proceed prior to October 7, 1981.

Contrary to defendant's interpretation of the effect of Judge Perskie's order of August 16, 1983, I conclude that since he determined that the Surrogate of Atlantic County lacked jurisdiction, the result necessarily is that the granting of Letters Testamentary were null and void, ab initio, and not as of August 16, 1983, the date the order was signed.

As stated by Judge Conford in State v. Bigley Bros., Inc. 53 N.J.Super. 264, 268, 147 A.2d 52 (App.Div.1958), "There can be no dispute that lack of jurisdiction of a court over subject matter is fatal to any judgment ... State on Complaint of Bruneel v. Bruneel, 14 N.J. 53, 58 (1953)...." [at 268].

"When a judgment is vacated or set aside ... it is entirely destroyed and the rights of the parties are left as though no such judgment had been entered ... the vacation of a judgment vacates all proceedings taken under the judgment." 49 C.J.S., Judgments § 306, at 557-58.

N.J.S.A. 3B:8-12 ³ permits a surviving spouse to elect by filing a complaint in the Superior Court in the county in which the personal representative was appointed within six months after the appointment. Since the Atlantic County judgment appointing a personal representative was void, the sole lawful appointment of a personal representative for the estate of Louis McKay is that which was entered when Mr. Hayes was duly qualified by the Surrogate of Camden County on November 10, 1983. Therefore, plaintiff had until May 10, 1984 to file this complaint. Having filed her complaint in the Superior Court, Camden County on February 14, 1984, plaintiff has complied with the time limitation prescribed.

Defendant's second defense against the plaintiff's election is that Judge Perskie made factual findings in the prior action and that under the doctrine of collateral estoppel, all issues controverted which were determined in the first action between the parties are conclusive in these proceedings. Defendant contends that since Judge Perskie found that plaintiff and decedent were living separate and apart, plaintiff is barred from claiming that she and defendant were cohabitating as man and wife at the time of his death, therefore, it is claimed, as a matter of law, plaintiff does not have a right to elect.

Defendant's demand for the application of the doctrine of collateral estoppel is moot. Since both parties presented, without objection, evidence relative to the residences and marital...