                              NOT FOR PUBLICATION WITHOUT THE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 i s limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-0655-18T2

IN THE MATTER OF THE
ESTATE OF RUTH L. STUMM,

     Deceased.
______________________________

                Submitted September 9, 2019 – Decided September 24, 2019

                Before Judges Sabatino, Sumners and Geiger.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Passaic County, Docket No. P-
                216841.

                Castano Quigley LLC, attorneys for appellants The
                Presbytery of the Palisades and the Presbyterian Church
                U.S.A. (Gregory Joseph Castano, Jr., on the brief).

                Fraioli & Moore, attorneys for respondent The Estate
                of Ruth L. Stumm (Ronald M. Fraioli, on the brief).

                Randall & Randall, LLC, attorneys for respondents The
                First Presbyterian Church of Moonachie, The United
                Presbyterian Church of Lyndhurst, and The Bergen
                Church Council (Steven Mark Paul, on the brief).

PER CURIAM
      This appeal by The Presbytery of the Palisades and the Presbyterian

Church, U.S.A. Estate (collectively the Presbytery), asks us to determine

whether Judge Thomas J. LaConte, following a bench trial, erred in failing to

apply N.J.S.A. 16:11-23 and ordering that the twelve and one-half percent share

of the residuary estate that decedent Ruth Stumm bequest to the First

Presbyterian Church of Wood-Ridge (Church of Wood-Ridge) or its successor

to "establish an endowment in the name of Gustave Herre[,]" should go to the

Presbytery rather than a local church, the First Presbyterian Church of

Moonachie (Church of Moonachie).

      We affirm because it was appropriate for the judge to determine based

upon his assessment of witnesses' credibility, that it was Stumm's intent that her

bequest go to the Church of Moonachie, which became the place of worship for

congregates of the dissolved Church of Wood-Ridge. We further agree with the

judge that N.J.S.A. 16:11-23, which gives the Presbytery survivorship rights to

the assets of local churches within its denomination, does not apply because the

Church of Wood-Ridge dissolved four years after Stumm's will was written and

two years prior to her death.




                                                                          A-0655-18T2
                                        2
                                      I.

      Stumm was a member of the Church of Wood-Ridge throughout most of

her ninety-six years of life. Her last will and testament, prepared by attorney

Mark T. Janeczko, was executed on December 17, 2010. Relevant to this appeal,

paragraph five, subsection (b), of the residuary clause of her will, provides

"[twelve and one-half percent] (12.5%) unto the [Wood-Ridge church] or its

successor to establish an endowment in the name of Gustave Herre."

      On June 15, 2015, Stumm was declared mentally incapacitated and Scott

Schmidig was appointed as one of her co-guardians. Less than a year later, she

died on April 4, 2016. On April 28, 2016, her last will and testament was

probated and the Bergen County Surrogate issued letters of testamentary to

Schmidig.

      Because the Church of Wood-Ridge had been formally dissolved on April

8, 2014, two years before Stumm's death, Schmidig filed a verified complaint

seeking "instructions from the [c]ourt with regard to the distribution of the

[twelve and one-half percent] of the residuary estate that was to pass to the

[Wood-Ridge church] or its successor under Paragraph [five](b) of the will." In

turn, the Presbytery, the Church of Moonachie, and the United Presbyterian

Church of Lyndhurst (Church of Lyndhurst) claimed they were the successors


                                                                       A-0655-18T2
                                      3
of the Church of Wood-Ridge's assets and, therefore, entitled to the twelve and

one-half percent of the residuary estate bequest to the Church of Wood-Ridge in

Stumm's will.1

       A three-day bench trial followed, in which six witnesses testified,

including Schmidig and Janeczko.2 As an example of Stumm's interest in the

neighboring Wood-Ridge and Moonachie communities, Schmidig stated that

some of the residuary estate went to the Wood-Ridge Memorial Library, due to

Stumm's part-time employment and volunteer service with the library, and the

Wood-Ridge Memorial Foundation, which provides college scholarships to

seniors from Wood-Ridge and Moonachie who graduate from Wood-Ridge High

School.

       As for Stumm's church involvement, Schmidig testified that Stumm

served as a member of the Board of Elders, called the "Session" of the Church

of Wood-Ridge, throughout her adult life, and she attended combined Session

meetings of the South Bergen Larger Parish churches, comprised of the Church



1
   The Office of the Attorney General advised the trial court that it took no
position in the dispute "[b]ecause this case poses a potential conflict between
charities, because all charities are on notice of this proceeding, and because the
[d]ecedent's charitable gift will be made upon direction of this [c]ourt[.]".
2
    Janeczko was a Judge of the Superior Court at the time of his testimony.
                                                                          A-0655-18T2
                                        4
of Wood-Ridge, the Church of Lyndhurst, and the Church of Moonachie.

According to Schmidig: "[Stumm] said to me that if she's giving money to a

church she wanted it to be used as it was supposed to be used for, for mission .

. . for church work, . . . for local help, local members or whether it's the hot

lunch program, something like that . . . she wanted it to be used locally."

Schmidig also claimed that Stumm was agitated in expressing displeasure with

the fact that local churches had to give per capita funds contributed to their

congregation to the Presbytery. In fact, he claimed to have overheard Stumm

tell a neighbor, "I don't want The Presbytery to get any of my money."

      In a similar vein, Janeczko testified that the words "or its successor" in

paragraph five, subsection (b), were chosen to mean a local church because their

members would know who Gustave Herre was. Janeczko stated that Stumm

specifically agreed with his choice of the phrase "or its successor" in the will to

express her intent that the words refer to the local church to which congregants

of a potentially dissolved Church of Wood-Ridge would go to worship; thus, her

residuary estate bequest would follow those congregants. He stressed that

Stumm never mentioned the Presbytery receiving any share of her estate when

he consulted her concerning the drafting of her will.




                                                                           A-0655-18T2
                                        5
      Pastor Samuel Weddington of the Church of Moonachie testified that

some of the congregants of the former Wood-Ridge church transferred to his

church.     Pastor Weddington and his team also visited Stumm and other

"homebound" former Wood-Ridge Church members to provide spiritual support

after their church closed. Pastor Weddington also performed Stumm’s funeral

service.

      The Presbytery contended that under N.J.S.A. 16:11-23, it is entitled to

the Church of Wood-Ridge's share of Stumm's estate because it is the successor

to the dissolved church's assets. The Presbytery maintained further that Stumm

knew it was the successor to the local church and she could have changed her

will after the local church was dissolved if that was her intent.

      After reserving decision, Judge LaConte entered an order supported by a

twenty-page findings of fact and conclusion of law that the Church of

Moonachie was entitled to the twelve and one-half percent share of Stumm's

residuary estate as the successor of the Church of Wood-Ridge. The judge found

that the circumstances and evidence indicated that Stumm's "probable intent is

that [the] endowment [for her late uncle] should go to a local church." The judge

reasoned:

             There is no language in the [w]ill which would indicate
             that Ruth Stumm had the Presbytery in mind with

                                                                         A-0655-18T2
                                        6
            regard to a successor of her local church. Such a change
            would not be allowed for assets governed by the statute.
            The Presbytery argues that Ms. Stumm knew that it was
            'the successor' to the [c]hurch and could have changed
            her [w]ill if it no longer reflected her intent. The [c]ourt
            disagrees with the stated premise and notes that on the
            date of the Certificate of Dissolution, April 8, 2014,
            Ruth Stumm was 94 years of age, one year from when
            she was declared an incapacitated person by the . . .
            [c]ourt . . . on June 15, 2015. This court concludes that
            Ruth Stumm's probable intent is that its successor
            would be a local church.

      In addition, the judge set forth ten reasons why N.J.S.A. 16:11-23 did not

confer the status of successor on the Presbytery to benefit from the dissolution

of the Church of Wood-Ridge. The judge determined:

            The statute does not apply to the inheritance in the
            present case because:

            1. The statute says that it only pertains to assets to
            which the local church had "the right title and interest".
            While it was in existence, the local church did not have
            the 'right, title and interest' to Ruth Stumm's assets.

            2. Paragraph [five] of the Certificate of Dissolution of
            THE TRUSTEES OF FIRST PRESBYTERIAN
            SOCIETY OF WOOD-RIDGE states: "Pursuant to the
            Constitution of the Presbyterian Church (U.S.A.) and
            Title 16 of the New Jersey Statutes, the corporation has
            dissolved and assets and liabilities of the corporation
            have been transferred to the Trustees of the Presbytery
            of the Palisades". . . . According to these records all of
            the assets have already been transferred. Ruth Stumm's
            estate assets were never assets of the Trustees of The
            First Presbyterian Society of Wood-Ridge. They are

                                                                           A-0655-18T2
                                         7
not among the assets that were transferred at the time
that the local church was dissolved. The local church
corporation did not exist after April 8, 2014. Ruth
Stumm continued to live until April 4, 2016.

3. The statute provides that the only property that
transfers from the board of trustees of the local church
or persons or body holding the same in trust for the
particular local church and congregation are the assets
which were "vested in" the board of trustees of the local
church when it was dissolved. None of the assets of
Ruth Stumm's estate were ever "vested in" the board of
the trustees of the local church or any local church
body.

4. The [s]tatute uses the words "shall thereupon vest" to
refer to the time that assets of a local church pass to the
Presbytery. The devise under Paragraph [five] (b) of
Ruth Stumm's will did not exist on April 8, 2014. It
had not yet come into being and could not 'thereupon
vest' in the Presbytery at that time.

5. The property which the statute provides for a transfer
of is limited to: "all the real and personal property of
the particular local church and of the congregation
connected therewith". A future inheritance is not
included within the limited statutory categories of "real
or personal property." Words of bequest in a will are
not real or personal property.

6. The words of the statute refer only to assets in being
at the time of the dissolution of the local church. The
[s]tatute only governs assets that are held by the
particular local church at a fixed time which the
[s]tatute defines as: "When any Presbytery . . . dissolves
any particular local church." The [s]tatute does not
pertain to any future time. The [s]tatute does not refer


                                                              A-0655-18T2
                            8
to a future inheritance from a person who dies two years
after the dissolution of the local church.

7. The [s]tatute refers to assets which are "held by" an
incorporated board of trustees or otherwise of the
particular local church and of the congregation. The
devise under Paragraph [five] (b) of Ruth Stumm's will
was never "held by" the particular Wood-Ridge church
or congregation.

8. The Certificate of Dissolution of The Trustees of
First Presbyterian Society of Wood-Ridge dated April
8, 2014 states: "Pursuant to the Constitution of the
Presbyterian Church (U.S.A.) and Title Sixteen of the
New Jersey Statutes, the Corporation has Dissolved and
assets and liabilities of the Corporation have been
transferred to The Trustees of the Presbytery of the
Palisades as set forth in the Plan of Dissolution
attached". The words "have been transferred" refer to
something that happened in the past, not to a future
interest. The transfers of assets from the local church
corporation to the Presbytery had been concluded by
the April 8, 2014 dissolution.

9. N.J.S.A. 16:11-23 is limited to Presbyteries that are
incorporated only. The statute says that the real and
personal property of the local church when it is closed:
"shall thereupon vest in the trustees of such Presbytery,
provided the trustees are incorporated".             The
application of this statute requires proof that the
Trustees of the Presbytery of the Palisades were
incorporated. There was no testimony at trial regarding
incorporation of the Presbytery. No proof was offered
by the Presbytery to show that its trustees are
incorporated.

10. The Certificate of Dissolution is signed by The
Trustees of the Presbytery of the Palisades "as statutory

                                                            A-0655-18T2
                           9
             successor" to The Trustees of The First Presbyterian
             Society of Wood-Ridge. This means that The Trustees
             of the Presbytery of the Palisades (if incorporated) is
             the "statutory successor" of that local church
             corporation and its assets only and not "statutory
             successor" of any of Ruth Stumm's assets.

                                          II

      Before us, The Presbytery argues that the judge improperly conducted a

trial to determine Stumm's "probable intent" and evaluated extrinsic evidence

rather than reading the plain and unambiguous language of her will. In addition,

it further argues the trial court's decision is inconsistent with N.J.S.A. 16:11-23.

We are unpersuaded.

      Normally, "[t]he intention of a testator as expressed in [the] will controls

the legal effect of . . . dispositions, and the rules of construction . . . shall apply

unless the probable intention of the testator, as indicated by the will and relevant

circumstances, is contrary." N.J.S.A. 3B:3-33.1(a). The doctrine of probable

intent is "a rule of construction or interpretation." In re Estate of Flood, 417

N.J. Super. 378, 382 (App. Div. 2010). The doctrine can take two forms:

interpretation and reformation. In re Trust of Nelson, 454 N.J. Super. 151, 159

(App. Div. 2018). Interpretation, which is the issue here, involves ascertaining

the "meaning of language already in the instrument." Ibid. (quoting Uniform

Trust Code, cmt. § 415 (2000)). In cases of interpretation, the testator's probable

                                                                               A-0655-18T2
                                         10
intent need only be proved by a preponderance of the evidence. Id. at 160.

Where there is an ambiguity in the will, the testator's intent is a fact issue. Id.

at 161 (citing Michaels v. Brookchester, Inc., 26 N.J. 379, 387-88 (1958)).

      Given that the Church of Wood-Ridge did not exist at the time of Stumm's

death, her will is not clear as to who is the successor to "establish an endowment

in the name of Gustave Herre." Thus, there is a question of fact as to the entity

that is entitled to manage the endowment.

      The principles set forth by In re Trust of Nelson, provided that a trial judge

is permitted to look beyond the plain language of a trust in order to ascertain the

decedent's intended meaning. 454 N.J. Super. at 161-63. There, the decedent

left property in a trust to her "grandchildren." Id. at 154. The trustee sought a

declaratory judgment regarding the interpretation of the term "grandchildren" as

it was used in the trust. Ibid. The trustee put forth extrinsic evidence that the

decedent intended only the children of her sons, who followed decedent's

religious beliefs, to share in the trust. Id. at 155. The trustee proffered evidence

indicating that because the decedent had a strained relationship with her

daughter, the decedent did not consider her daughter's children to be her

grandchildren, and thus, did not intend for them to share in the trust. Ibid. The

judge declined to consider the extrinsic evidence, determining that the trust must


                                                                            A-0655-18T2
                                        11
be construed according to its plain, unambiguous terms. Id. at 156. The judge

cited to In re Estate of Gabrellian, 372 N.J. Super. 432, 443 (App. Div. 2004),

which states that the doctrine of probable intent "is not applicable where the

documents are clear on their face and there is no failure of any bequest or

provision." 454 N.J. Super at 156, 163. The judge acknowledged that if he were

permitted to examine evidence beyond the four corners of the document, there

would have been a genuine issue of material fact precluding summary judgment.

Id. at 156.

      In our decision, written by Judge Mitchel Ostrer, we reversed the trial

judge's entry of summary judgment and remanded for a new trial, finding that

the trial court improperly "confined itself to the words found within the four

corners of the trust." Id. at 154. Applying the doctrine of probable intent, we

stated that a trial court may look beyond the apparently plain language of a trust

and consider extrinsic evidence of the decedent's intent in order to discern

whether an ambiguity exists and how to resolve any such ambiguity. Id. at 158-

9. The court explicitly declined to follow In re Estate of Gabrellian, finding that

the trial judge should have considered extrinsic evidence regarding the

decedent's probable intent when it came to the meaning of the term

"grandchildren." Id. at 163. The court determined that the trustee had proffered


                                                                           A-0655-18T2
                                       12
extrinsic evidence that the term "grandchildren," as it was used in the trust, was

ambiguous. Id. at 165. Having established ambiguity, the court remanded the

case so the trustee could present extrinsic evidence to show the trust should be

interpreted to give effect to its meaning of the term "grandchildren." Id. at 166.

      Here, similar to the trustee in In re Trust of Nelson, Schmidig was

uncertain who the successor to the Church of Wood-Ridge was, since it was not

clear in Stumm's will. This ambiguity was borne out from the positions taken

by the Presbytery, the Church of Moonachie and the Church of Lyndhurst to

Schmidig's complaint. Accordingly, it was appropriate and incumbent upon

Judge LaConte to ascertain Stumm's probable intent through the evidence

presented by the parties.

      We must "give deference to the trial court that heard the witnesses, sifted

the competing evidence, and made reasoned conclusions." Griepenburg v. Twp.

of Ocean, 220 N.J. 239, 254 (2015) (citing Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am., 65 N.J. 474, 483-84 (1974)). Reviewing courts "should 'not disturb

the factual findings and legal conclusions of the trial judge' unless convinced

that those findings and conclusions were 'so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice.'" Ibid. (quoting Rova Farms, 65 N.J. at 484).


                                                                          A-0655-18T2
                                       13
Review on appeal "does not consist of weighing evidence anew and making

independent factual findings; rather, our function is to determine whether there

is adequate evidence to support the judgment rendered at trial." Cannuscio v.

Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999) (citing

State v. Johnson, 42 N.J. 146, 161, (1964)).

      Based upon our review of the record, we discern no reason to take issue

with Judge LaConte's credibility determination that it was Stumm's probable

intent that a local church, such as Church of Moonachie, which congregants of

the dissolved Church of Wood-Ridge migrated too, receive the twelve and one-

half share of residuary estate to establish an endowment in Herre's name.

      We, however, owe no deference to the 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) (citations omitted).

We review such decisions de novo. 30 River Court E. Urban Renewal Co. v.

Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, 65

N.J. at 483-84; Manalapan Realty, 140 N.J. at 378).

      As mentioned above, the judge rejected the Presbytery's contention that

N.J.S.A. 16:11-23, directs that when a local Presbyterian Church dissolves, such

as the Church of Wood-Ridge, a bequest to the local church that has not vested


                                                                        A-0655-18T2
                                      14
from an estate, "shall thereupon vest in the trustees of such Presbytery." We

agree with the judge's ruling.

      We begin with a brief discussion of our rules of statutory construction,

which were recently summarized as follows:

            The primary purpose of "statutory interpretation is to
            determine and 'effectuate the Legislature's intent.'"
            State v. Rivastineo, 447 N.J. Super. 526, 529 (App. Div.
            2016) (quoting State v. Shelley, 205 N.J. 320, 323
            (2011)). We initially consider "the plain 'language of
            the statute, giving the terms used therein their ordinary
            and accepted meaning.'" Ibid. "We will not presume
            that the Legislature intended a result different from
            what is indicated by the plain language or add a
            qualification to a statute that the Legislature chose to
            omit." Tumpson v. Farina, 218 N.J. 450, 467-68 (2014)
            (citing DiProspero v. Penn, 183 N.J. 477, 493 (2005)).
            When we do not conclude that the "plain reading of the
            statutory language is ambiguous, . . . or leads to an
            absurd result," we refrain from looking at "extrinsic
            evidence, such as legislative history, committee
            reports, and contemporaneous construction in search of
            the Legislature's intent." Tumpson, 218 N.J. at 468
            (citing DiProspero, 183 N.J. at 492-93).

            [Tasca v. Bd. of Trs., Police & Firemen's Ret. Sys., 458
            N.J. Super. 47, 56 (App. Div. 2019).]

      In pertinent part, N.J.S.A. 16:11-23, provides

            When any presbytery in this State connected with the
            United Presbyterian Church in the United States of
            America heretofore has dissolved or hereafter dissolves
            any particular local church subject to the ecclesiastical
            jurisdiction of such presbytery, pursuant to the

                                                                        A-0655-18T2
                                      15
             constitution, laws, usages or customs of the United
             Presbyterian Church in the United States of America,
             all the real and personal property of the particular local
             church and of the congregation connected therewith,
             whether held by an incorporated board of trustees or
             otherwise, shall thereupon vest in the trustees of such
             presbytery, provided the trustees are incorporated, in
             the same manner as the property was vested in the board
             of trustees or persons or body holding the same in trust
             for the particular local church and congregation.

      The plain reading of N.J.S.A. 16:11-23, provides that all property held by

a local church at the time of its dissolution shall go to the Presbytery. It is silent

concerning a devise to the local church after dissolution.

      Judge LaConte thoroughly outlined ten reasons why the statute did not

apply in this case to entitle the Presbytery to Stumm's residuary estate through

the dissolution of the Church of Wood-Ridge. We take no issue with his

reasoning. In addition, to read the statute to make the Presbytery a successor of

Stumm's residuary estate would produce an unjust result, because as we have

determined, the probable intent of Stumm was to provide the bequest for a local

church, such as the Church of Moonachie.

       While there are no reported decisions specifically interpreting N.J.S.A.

16:11-23, we find support for our conclusion in a century-old Supreme Court

decision in Trs. of Presbytery of Jersey City v. Trs. of First Presbyterian Church,

80 N.J.L. 572, 576 (1910), interpreting the act of April 16th, 1908 (Pamph. L.,

                                                                              A-0655-18T2
                                        16
p. 623), the precursor to N.J.S.A. 16:11-23, in transferring the property of a

dissolving local church to the Presbytery. The Court held that the statute was

not an unconstitutional taking because property rights to the local church never

vested to it such that "the right to enjoyment, present or prospective, has become

the property of some particular person or persons as a present interest." 80

N.J.L. at 577.

      The Court, in turn, determined that parishioners may secede from a local

church but they cannot take with them the church property, even if their action

is unanimous, because the local church property does not belong to the

parishioners but to the church entity. Id. at 579 (citation omitted). The property

therefore vests to the Presbytery "by virtue of its general jurisdiction to create,

alter and dissolve church congregations" and creates a "qualified right of

property in the denomination at large." Id. at 581. The local church's dissolution

severed the connection between the denomination and the church, the continued

existence of which was conditional to the beneficial enjoinment of the

parishioners, thus, they were not direct beneficiaries. Ibid.

      Under the same logic, since the Church of Wood-Ridge never held

equitable title to Stumm's assets because it was not in existence at the time of

Stumm's death, N.J.S.A. 16:11-23 does not convey any part of Stumm's estate


                                                                           A-0655-18T2
                                       17
to the Presbytery that Stumm still possessed when the Church of Wood-Ridge

dissolved.

      Affirmed.




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                                   18
