Case Law Summaries

In re Estate of Donald Goldman, deceased

• Opinion Date: January 4, 2001
• Real Property Law
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ESTATES; DEVISES—Where a will both devises a property and gives the executor power to sell the property, the executor can sell the property and use the proceeds to pay the decedent’s debts if it is the last available estate asset.

The owner of a condominium died testate, leaving three children. He was a widower, and for at least two years prior to his death, he lived with his girlfriend. His last Will and Testament specifically devised his home and furnishings to his girlfriend. In addition, he devised his residuary estate equally among five beneficiaries. He appointed his son as executor. The condominium was purchased in the decedent’s name only because he feared a medical lien would be placed against the condominium if his girlfriend’s name was on the deed due to her high medical expenses. The girlfriend contended that the condominium was purchased with proceeds from the sale of her home and with other of her funds. This was disputed. During their joint-occupancy, the decedent and his girlfriend split the cost of the mortgage and utility bills. The girlfriend also paid for other living expenses, such as repairs and food. Upon the decedent’s death, it was discovered that he had many debts. The Probate Part of the Chancery Division entered an order requiring the girlfriend to show why the condominium should not have been sold with proceeds dedicated toward the decedent’s outstanding obligations. The girlfriend objected, and the estate instituted an action to compel sale of the condominium. The lower court ordered that the property be sold, and that after the decedent’s outstanding debts were satisfied, the remaining balance was to be paid to the girlfriend. She appealed. The Appellate Division agreed with the lower court that the condominium could be sold to satisfy the decedent’s debts. Although the will specifically devised the condominium, it also granted the executor “full power ... to sell and convey” the real property. “Therefore, although [the girlfriend’s] specific devise would be the last estate asset under the abatement statute, N.J.S.A. 3B:22-3, used to satisfy the estate obligations, the testator’s intent under the will must rule.” Both the abatement statute and the will directed the executor to use the estate property to satisfy estate obligations. Therefore, the executor had discretion in doing so. Nonetheless, whether this particular executor used his discretion or not, it was clear that the sale of the condominium was necessary to satisfy the estate obligations. Consequently, the Court held that the lower court did not err in permitting the executor to demand that the condominium be sold.

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