                     NOT FOR PUBLICATION WITHOUT THE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-4434-16T3


IN THE MATTER OF
THE ESTATE OF EDWARD
J. VALENTINE, SR.



           Argued April 23, 2018 – Decided June 27, 2018

           Before Judges Ostrer and Rose.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Bergen County, Docket No.
           P-000041-17.

           Clara S. Licata argued the cause for appellant
           (The Law Office of Clara S. Licata, attorneys;
           Clara S. Licata, on the briefs).

           Brian J. Halligan argued the cause for
           respondent (Crawford & Halligan, attorneys;
           Brian J. Halligan, on the brief).

PER CURIAM

     In this probate matter, Eileen Valentine, a daughter of

decedent Edward J. Valentine, Sr., appeals from a May 4, 2017

order   granting     the   executor's      application      to   prepare        the

decedent's house for sale, and dismissing her counterclaim to
purchase the house.     Eileen1 also claims the trial court erred in

summarily granting the executor's order to show cause without

holding a hearing.     For the reasons that follow, we affirm.

                                      I.

    We derive the salient facts from the record.                  Having died

testate in December 2011, decedent was survived by five adult

children with his predeceased wife:              John P. Valentine, Anne

Valentine, Edward J. Valentine, Jr., Mary Catherine Jasper, and

Eileen.    At the time of his death, Edward Sr. resided in the family

home in Waldwick.

    In January 2012, decedent's Last Will and Testament was

admitted to probate.        After providing for the payment of debts,

funeral    expenses   and    taxes,   decedent   divided    his    "residuary

estate" among his five children as follows:              fifteen percent to

John; twenty percent to Anne; fifteen percent to Edward, Jr;

twenty-five percent to Mary Catherine and twenty-five percent to

Eileen.     With   respect    to   Eileen's   bequest,    decedent    further

directed

            that a portion of her said bequest shall
            consist of the devise of my house, realty, and
            furniture and furnishings in my said house
            . . . [in] Waldwick . . . the value of which
            shall be credited toward her said bequest.

1
  Because the interested parties bear the same last name, we use
first names after their full names have been identified. We mean
no disrespect in doing so.

                                      2                               A-4434-16T3
               In the unlikely event that my total net
          estate shall, at the time of my death, be
          inadequate to enable my said daughter, EILEEN
          A. VALENTINE, to receive this property as a
          portion of her 25% bequest, then I direct that
          this realty be sold on the open market and the
          proceeds distributed among my children in the
          percentages indicated.      However, my said
          daughter shall be given the option and
          opportunity to purchase said property, as a
          right of first refusal, before it is conveyed
          to any third party.

     At the time of decedent's death, the estimated net value of

the probate estate was $430,396 including the family home, which

then appraised for $182,500.   Because Eileen's bequest was twenty-

five percent of the residuary estate, her share was $107,599.

     After decedent's death, Eileen's siblings permitted her to

reside in the family home until it was sold, provided she paid

expenses, insurance, and property taxes.      In Fall 2015, after

several siblings requested sale of the family home, Eileen failed

to pay the fourth-quarter property taxes.     On October 1, 2016,

Eileen voluntarily vacated the home, but did not remove all of her

personal property.   Despite repeated requests, she failed to give

the executor a key to the residence.

     Accordingly, in January 2017, the executor commenced the

present summary action, seeking relief that would enable him to

sell the family home.    In his verified complaint, the executor

sought sale of the home, claiming:

                                 3                          A-4434-16T3
          Since the value of the total net estate is
          inadequate to both meet the percentage bequest
          to Eileen and give the other children their
          respective percentage shares of the net
          estate, it is necessary that the house be sold
          and that the net proceeds be distributed to
          the children according to the percentages set
          forth in the will.

     Eileen filed an answer and counterclaim,2 contending she told

the executor shortly after her father's death that she wanted to

purchase the family home, but the sale was "stonewalled" by most

of her siblings.   She contends the executor misinterpreted the

provision of the Will devising the family home.      In particular,

she argues "total net estate" includes probate and non-probate

assets, which would have qualified her to purchase the house

outright at the appraised value.

     In a cogent written statement of reasons, the trial judge

granted the relief sought by the executor, finding "there [were]

no genuine issues of material fact prohibiting final judgment."

In doing so, he found the Will explicitly authorizes the executor

to sell the family home because the total net estate was inadequate

to allow Eileen to receive the house as her share.   The judge also

denied Eileen's request for equitable relief because she waited




2
  Pursuant to Rule 4:67-4(a), leave of court is necessary to file
a counterclaim. Although Eileen did not request leave to file a
counterclaim, the trial court considered her pleading.

                                 4                          A-4434-16T3
more than five years to attempt to purchase the home.             This appeal

followed.

     On    appeal,   Eileen   argues   there    were   disputed    issues    of

material fact that warranted a plenary hearing.               She further

contends the judge erred in excluding non-probate property from

the "total net estate" provision in the Will.           In particular, she

claims she should have received the house because her total

bequest, including probate and non-probate property, was adequate

to cover the appraised value of the house.             As support, Eileen

contends the Will's scrivener agreed with her interpretation.                We

disagree.

                                   II.

     We will not disturb the factual findings and legal conclusions

of a trial judge unless we are convinced that those findings and

conclusions "are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice."              Tractenberg v. Twp. of W.

Orange, 416 N.J. Super. 354, 365 (App. Div. 2010) (quoting Rova

Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484

(1974)).    "However, '[a] trial court's interpretation of the law

and the legal consequences that flow from established facts are

not entitled to any special deference.'"         Ibid. (quoting Manalapan



                                       5                              A-4434-16T3
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995))

(alteration in original).

     Rule 4:83-1 designates that "all actions in the Superior

Court, Chancery Division, Probate Part, shall be brought in a

summary manner by the filing of a complaint and issuance of an

order to show cause pursuant to [Rule] 4:67."             Consequently,

probate   matters   are   specifically   subject   to   Rules   governing

expedited summary actions when in the trial court.          See Courier

News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373,

378 (App. Div. 2003).

     Actions brought in a "summary manner" are distinguishable

from summary judgment actions because in a summary action, the

court makes findings of fact and accords no favorable inferences

to the action's opponent.     O'Connell v. N.J. Mfrs. Ins. Co., 306

N.J. Super. 166, 172 (App. Div. 1997).     If the court is "satisfied

with the sufficiency of the application, [it] shall order defendant

to show cause why final judgment should not be rendered for the

relief sought."     Courier News, 358 N.J. Super. at 378 (alteration

in original) (quoting R. 4:67-2(a)).     Furthermore, summary actions

are specifically designed to be expeditious and avoid plenary

hearings.    Pursuant to Rule 4:67-5,

            The court shall try the action on the return
            day, or on such short day as it fixes.     If
            . . . the affidavits show palpably that there

                                   6                              A-4434-16T3
           is no genuine issue as to any material fact
           the court may try the action on the pleadings
           and affidavits, and render final judgment
           thereon. If any party objects to such a trial
           and there may be a genuine issue as to a
           material fact, the court shall hear the
           evidence as to those matters which may be
           genuinely in issue, and render final judgment.
           At the hearing or on motion at any stage of
           the action, the court for good cause shown may
           order the action to proceed as in a plenary
           action . . . .

     Consequently,        judges     sitting        in     probate     on    summary

proceedings   have   broad      discretion     in    determining       the   genuine

nature of the factual dispute and whether the issue merits a

plenary hearing.     See Tractenberg, 416 N.J. Super. at 365 (holding

that a judge properly utilized a summary proceeding to determine

whether   facts    supported       the   claim      that    the   attorney-client

privilege or attorney work product doctrine protected the release

of certain documents under the Open Public Records Act).

     Here,    we   find   the   trial    judge      reasonably       exercised    his

discretion in determining a plenary hearing was not warranted, and

dismissing the counterclaim.             Importantly, the parties do not

dispute the value of the probate estate or the date-of-death value

of the family home.       We, therefore, agree that no genuine issues

as to any material facts were raised here and, as such, a plenary

hearing was not necessary.          See R. 4:67-5.




                                         7                                   A-4434-16T3
       We also disagree with Eileen that discovery and a plenary

hearing are necessary to determine decedent's intent concerning

her share of the estate and the meaning of "total net estate."

Plenary hearings are required when there are "contested issues of

material fact on the basis of conflicting affidavits."                Conforti

v. Guliadis, 128 N.J. 318, 322-23 (1992).            Here, Eileen's claim

that the scrivener said he agreed with her interpretation of the

Will fails because she did not provide a supporting affidavit

attesting to his alleged representation, and thus constitutes

inadmissible hearsay.

       Although Eileen did not specifically raise the doctrine of

probable intent, we have recently determined that a trial court

may look beyond the plain language of a trust or will and consider

extrinsic evidence of intent to determine whether an ambiguity

exists.    In re Trust of Nelson, ___ N.J. Super. ___, ___ (App.

Div. 2018) (slip op. at 13).               Here, however, Eileen fails to

present any competent extrinsic evidence to contradict the trial

court's interpretation of decedent's Will.

       Specifically,    in   the   first    paragraph,     decedent   directed

payment   of   his   debts   and    funeral    expenses.      In   the    second

paragraph, he directed payment of taxes from his residuary estate.

This   paragraph     specifically    includes    property     in   his    "gross



                                       8                                 A-4434-16T3
estate, whether such property passes under this Will or otherwise."

(Emphasis added).

     Conversely,    in   the   third       paragraph,   decedent   explicitly

referenced his "total net estate" in determining whether Eileen

should receive the family home as part of her twenty-five percent

bequest.   (Emphasis added).     Clearly, unless Eileen exercised her

right of first refusal, the terms of the Will dictated sale of the

home to a third party where, as here, the value of the residence

exceeded Eileen's twenty-five percent share.

     Further eroding Eileen's argument that "total net estate"

includes non-probate property, is the "Estate Summary" listing

decedent's   probate     and   non-probate      property.     This    summary

indicates that Eileen received, as non-probate property, either

20% or 35% of decedent's individual retirement account; 100% of a

Bank of America account; and 100% of a Wells Fargo account.

Eileen's twenty-five percent bequest in the Will is separate and

apart from those non-probate assets.

     Eileen also contends the trial court improperly invoked the

doctrine of laches in dismissing her counterclaim.            Specifically,

she alleges that "although the [e]xecutor interposed a boilerplate

affirmative defense of laches, his counsel did not make a laches

argument to the court [during oral argument]."            Eileen's argument

lacks merit.

                                       9                              A-4434-16T3
     As Eileen concedes, procedurally, the executor pled laches

as an affirmative defense.         R. 4:5-4.    Substantively, the doctrine

of laches bars a party seeking to enforce a known right on the

grounds that the party "engage[d] in an inexcusable and unexplained

delay in exercising that right to the prejudice of the other

party."    Fox v. Millman, 210 N.J. 401, 418 (2012) (quoting Knorr

v. Smeal, 178 N.J. 169, 180-81 (2003)).                    "Laches may only be

enforced when the delaying party had sufficient opportunity to

assert the right in the proper forum and the prejudiced party

acted in good faith believing that the right had been abandoned."

Knorr, 178 N.J. at 181 (citation omitted).                 "The key factors to

be considered in deciding whether to apply the doctrine are the

length of the delay, the reasons for the delay, and the 'changing

conditions of either or both parties during the delay.'"                    Ibid.

(quoting   Lavin   v.   Bd.   of    Educ.,     90   N.J.    145,   152   (1982)).

"[W]hether laches should be applied depends upon the facts of the

particular case and is a matter within the sound discretion of the

trial court." Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2004)

(emphasis added) (internal citation omitted).

     Here, the trial judge properly found, as a court of equity,

that it "[could] not aid [Eileen's] more than five-year long delay

in making her claim."         Rather, he determined, "The appropriate

time for [Eileen] to purchase this Property has long passed, and

                                      10                                  A-4434-16T3
the other beneficiaries, [Eileen's] brothers and sisters, are

entitled to their share of the Estate."                 As the judge aptly

observed,     Eileen's   "claim   runs   afoul    of   the   well-established

equitable maxim, 'Equity aids the vigilant, not those who sleep

on their rights.'"       (citations omitted).      We agree.    See also Kaye

v. Rosefielde, 223 N.J. 218, 231 (2015) ("As a general rule, courts

exercising their equitable powers are charged with formulating

fair    and    practical    remedies     appropriate     to    the   specific

dispute.").     (citations omitted).

       We, therefore, conclude the record contains substantial,

credible evidence to support the findings of the trial judge and

we perceive no basis to disturb them.            We find insufficient merit

in Eileen's remaining arguments to warrant further discussion in

a written opinion.       R. 2:11-3(e)(1)(E).

       Affirmed.




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