Relying on this legislative enactment, Tino maintains that, as the surviving spouse, he must be named administrator, and contending that the statute is clear and unambiguous, Gabriel’s application cannot be sustained. In support of this position, he directs the court to the halcyon 1880s and, specifically, In re Administrator of Richard Runyon, 12 N.J.L.J. 15 (Mercer County Orph. Ct. 1889). Of passing interest is the fact that while adultery, as the Runyon court pointed out, could disqualify a spouse from becoming administrator of his/her spouse’s intestate, separation did not, our forefathers apparently taking a dimmer view of extramarital mischief.
Tino further argues, by analogy, that had our Legislature intended to disenfranchise one estranged spouse from serving as administrator of the other’s estate, they could have and would have so stated, no differently than their pronouncement that an estranged spouse is precluded from receiving an elective share. See N.J.S.A. 3B:8-1.
Predecessor statutes to 3B:10-2, which are similarly worded, do not support Tino’s position. See, e.g., In re Messler’s Estate, 16 N.J. Misc. 434 (N.J. Orph. 1938). The applicable statute at that time in pertinent part provided: “If any person dies intestate . . . administration . . . shall be granted to the surviving spouse.” Common Pleas Judge Rosecrans, however, speaking for the Court, opined: “The long and established rule in this and other states has been that while the widow has not the exclusive right to administer[,] she will be preferred.” Id. at 438. (emphasis supplied). Judge Rosecrans further stated:
It cannot be successfully contended that any construction of either the present or prior statute would admit of the proposition that the Court would be deprived of its inherent power to judge as to the qualification and fitness of an applicant for administration. The statute provides a rule of operation, but confers no absolute right without qualification. Id. at 439.
Mr. Messler’s widow was, in fact, disqualified from serving based on Judge Rosecrans’ concerns about her “inharmonious” relationship with her step-daughter (the decedent’s daughter from a prior marriage); and her having “intermeddled” with assets of the estate, having removed an “antique spool bed from the attic of a farm house . . . to a blacksmith” nearer her new residence.
Secondly, the appointment of Tino as administrator of Noreen’s estate creates a toxic conflict of interest. If the matrimonial cause is litigated, would he sit at plaintiff’s counsel table as administrator, or the defense table in his personal capacity? If settlement is explored, how does he as administrator approve the resolution of a claim against himself?
Held: Gabriel is appointed administrator for Noreen’s estate.
� Digested by Steven P. Bann
[The slip opinion is 4 pages long.]
For plaintiffs: Gabriel Fabius � Richard H. Greenberg (Greenberg & Schulman); Noreen Di Bella � Stacey Z. Rodkin (Schoifet & Ramatowski). For defendant Tino Di Bella � Jennifer Lazor and James Mohoney (Riker, Danzig, Scherer, Hyland & Perretti).
