141 F.Supp. 404 (1956)
Petition for Naturalization of Patsy FERRO.
No. 2846-P-4438.
United States District Court M. D. Pennsylvania.
May 10, 1956.
*405 Herbert M. Levy, Philadelphia, Pa., for Department of Immigration and Naturalization.
Patsy Ferro, pro se.
JOHN W. MURPHY, Chief Judge.
Patsy Ferro seeks naturalization under § 311 of the Nationality Act of 1940, 54 Stat. 1145, 8 U.S.C.A. § 711 (1940 ed.), now 8 U.S.C.A. § 1430(a).[1] As Patsy Fierra he was on August 27, 1924, while a fugitive from justice, indicted in a Pennsylvania state court for murder. Later apprehended he was on September 13, 1928, found guilty of murder in the second degree and sentenced to "separate and solitary confinement at labor" for not less than ten nor more than twenty years. He was paroled after seven years and finally discharged from parole on September 18, 1948, less than five years prior to filing his petition for naturalization on October 10, 1952.
For reasons hereinafter stated, if the provisions of the Immigration and Nationality Act of 1952, enacted June 27, 1952, but not effective until December 24, 1952,[2] were applicable[3] the petition would have to be denied forthwith. However, § 405(b) thereof requires that this petition be heard and determined under the 1940 Act.[4]
*406 The examiner finds that the petitioner was a model parolee and thereafter led an exemplary life. Resting upon the premise that the law requires no more than a showing of good moral character for two years immediately preceding the filing of the petition and that Congress "undoubtedly intended to provide for the reformation of those who have been guilty of past misdeeds" recommends that the petition be granted. We do not agree.
While § 311(b) reduced the residence requirement it did not lessen the burden on the petitioner of showing good moral character "for at least five years".[5] A number of cases have held that good moral character can be established only where the applicant is a free moral agent having the same liberties and limitations as are common to other residents; not while he is on parole or in prison.[6] Implicit in the examiner's position is that the court is bound to follow that line of cases which hold that in determining whether or not good moral character has been established the court is restricted in its examination to the petitioner's conduct during the five years prior to filing of the petition. The leading case for this view is Petition of Zele, 2 Cir., 1944, 140 F.2d 773, at page 776, "Under the law the burden is on the petitioner to establish good moral character only during the five year period, not earlier. * * * And it has consistently been construed liberally so as to sanction forgiveness after the expiration of five years from the date of the disbarring misdeed." And see Id., 127 F.2d 578, at page 580, "Good behavior during the five year period is the only test of moral fitness provided in the statute",[7],[8] followed in Petition of Sperduti, D.C.M.D.Pa.1949, 81 *407 F.Supp. 833, Watson, C. J. (murder first degree).[9] Application of Murra, 7 Cir., 1950, 178 F.2d 670, at page 672, suggests that any other view would be "contrary to the overwhelming weight of authority", but see Ralich v. United States, 8 Cir., 1950, 185 F.2d 784, at page 787, "* * * the courts seem to be about evenly divided."
In our judgment the weight of authority, reason and principle is in favor of a broader scope of review. "* * * while the statute imposes upon applicants for citizenship the burden of proving five years good character, it does not restrict or limit in point of time, the power of the court to examine petitioner's qualifications for citizenship." In re Balestrieri, D.C., 59 F.Supp. 181, at 182. See, e. g., Molsen v. Young, 5 Cir., 1950, 182 F.2d 480; Ralich v. United States, 8 Cir., 1950, 185 F.2d 784, at page 787; Marcantonio v. United States, 4 Cir., 1950, 185 F.2d 934; Yuen Jung v. Barber, 9 Cir., 1950, 184 F.2d 491, at page 495; In re Ross, C.C.M.D.Pa.1911, 188 F. 685, Witmer, J. (murder second degree) took this position; and see In re Markiewicz, D.C.W.D.Pa.1950, 90 F.Supp. 191, 194.[10] As to Application of Murra, see Ralich v. United States, supra, 185 F.2d at page 787, "In Sodo v. United States, 406 Ill. 484, 94 N.E.2d 325, 327, the Supreme Court of Illinois in referring to * * * Application of Murra * * * said: `There is nothing * * * in the Murra case which indicates that inquiry may not be made as to facts occurring prior to the five-year period for the purpose of elucidation of facts which occurred within the period.'" See and cf. Stevens v. United States, 7 Cir., 1951, 190 F.2d 880, at page 881.
Sometimes hard cases make bad law. A precedent may become hardened into a principle. An examination of the earlier cases, see notes 7 and 8 supra, suggests that the conduct in question was perhaps not sufficient to prevent the granting of citizenship. Instead of treating the problem as one of insufficiency of evidence to establish or prevent establishment of a fact the court placed its decision in effect on the theory of excluding evidence but, by way of statutory interpretation, treating the five-year period as one of limitation of the scope of review. See e. g., Application of Murra, supra, 178 F.2d at page 673, "The wording of the statute itself leaves little room for doubt. If a five year period is a `minimum requirement' * * * it become meaningless. If the time fixed by Congress is `minimum,' then it would seem to follow that the maximum time would be during all of the petitioner's life."[11] A short answer is that the scope of review is a question of evidence limited by the exercise of judicial discretion. See Molsen v. Young, supra, 182 F.2d at page 483, "The statute does not require that the evidence * * *, be confined to the five year period. It merely disqualifies for citizenship those who cannot show the requisite * * * good moral character for at least five years prior to their application, and thereby fixes the minimum requirement as to these statutory qualifications which petitioners for citizenship must meet." *408 United States v. Etheridge, supra, 41 F.2d at page 764, "The statute does not prescribe the evidence which shall be satisfactory to the court, nor that it be confined to the five-year period." To place the discussion of this point in its proper setting, let us first review some general principles.
Naturalization is a matter of grace, not of right. Congress may grant or withhold the privilege upon any grounds or without any reason as it sees fit. Terrace v. Thompson, 1923, 263 U.S. 197, at page 220, 44 S.Ct. 15, 68 L.Ed. 255, and see United States Constitution, Art. I, § 8, Cl. 4. They may establish conditions prerequisite to the grant thereof and procedure for determining whether or not such conditions have been met. No alien has any right to naturalization unless all statutory requirements are complied with. Tutun v. United States, 1926, 270 U.S. 568, 578, 46 S.Ct. 525, 70 L.Ed. 738, "* * * in order to safeguard against admission of those who are unworthy, or who for any reason fail to measure up to required standards, the law puts the burden upon every applicant to show by satisfactory evidence that he has the specified qualifications." United States v. Schwimmer, 1929, 279 U.S. 644, at page 649, 49 S.Ct. 448, at page 449, 73 L.Ed. 889.[12]
Once such rules are prescribed courts are without authority to sanction changes or modifications therein. "* * their duty is rigidly to enforce the legislative will * * *." United States v. Ginsberg, 243 U.S. 472, at page 474, 37 S.Ct. 422, at page 425, 61 L.Ed. 853. "* * * Because of the great value of the privileges conferred * * * the statutes * * * are to be construed with definite purpose to favor and support the government." United States v. Schwimmer, 279 U.S. at page 649, 49 S.Ct. at page 449, supra, "Doubts * * should be resolved * * * against the claimant." United States v. Manzi, 1928, 276 U.S. 463, 467, 48 S.Ct. 328, 329, 72 L.Ed. 654.
Congress has declared that before one is entitled to the privilege of citizenship he must by competent evidence make it appear to the court that he has behaved as a man of good moral character. Good moral character is a fact to be determined.[13] See Spratt v. Spratt, 1830, 4 Pet. 393, at page 408, 29 U.S. 393, at page 408, 7 L.Ed. 897; United States v. Macintosh, 1931, 283 U.S. 605, at pages 616, 617, 51 S.Ct. 570, 75 L.Ed. 1302.[14] A personal attribute to be inferred from all relevant facts and circumstances which tend to reveal petitioner's attitude in that regard. See dissenting opinion, Stone, C. J., Schneiderman v. United States, 320 U.S. 118, at page 182, 63 S.Ct. 1333, 87 L.Ed. 1796; and see and cf. Mr. Justice Murphy speaking for the majority at page 139 of 320 U.S., at page 1343 of 63 S.Ct. By the very generality of the term used it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition.
See 3 Wigmore on Evidence, 3d Ed. § 920, "* * * there may be particular instances of conduct * * * from which is inferable the permanent disposition that has inspired them * * *."[15]
*409 See Id. § 928, suggesting three approaches which have been taken to this problem:
(1) "On principle, the correct solution seems to be that prior character at any time may be admitted, as being relevant to show present character * * *."[16]
(2) "Another solution is that prior character should not be resorted to unless for some reason present character cannot be truly shown * * *."
(3) "A third solution altogether excludes prior character.[17] This is wholly incorrect on principle, because it is founded on a fallacious analysis of the problem. It is objectionable in policy, because it excludes a class of evidence often meritorious in itself and sometimes the sole kind that is available." And see Id. §§ 977, 978.[18]
In our judgment, the proper approach is that of Chief Judge Parker in Marcantonio v. United States, supra, 185 F.2d at page 936, "* * * evidence of offenses committed prior to the five year period * * * could be received and considered with other evidence as a basis for finding that the petitioner had not shown good character within the five year period and at the time of the application * * *." And see Yuen Jung v. Barber, supra, 184 F.2d at page 495, "* * * character in prior periods. * * * is circumstantially relevant as bearing upon petitioner's character during the five year period * * *. But the ultimate fact to be determined * * * is his moral character within the specified period. * * *"
Marcantonio v. United States, supra, 185 F.2d at page 937, "* * * the judge may consider any proper evidence having reasonable tendency to prove or disprove * * * character * * * the fact of petitioner's having committed serious crimes at any time during his life has a bearing on his character * * *"[19]
*410 The test is whether in law and in fact the petition should be granted, the privilege postponed or barred forever. Each case stands upon its own facts.
Yuen Jung v. Barber, supra, 184 F.2d at page 495, suggests that finding prior conduct per se sufficient to preclude citizenship requires a holding "* * * that Congress had enacted a legislative doctrine of predestination and eternal damnation"; that "All modern legislation dealing with crime and punishment proceeds upon the theory that aside from capital cases, no man is beyond redemption. We think a like principle underlies these provisions for naturalization." (Italics supplied.) But see In re Ross, supra, 188 F. at page 686, "* * * if his personal welfare alone was entitled to consideration the conferring * * * rights of citizenship might be considered as proper aid and encouragement. This matter, * * * is not to be determined along such narrow lines. * * *" In re Caroni, supra, 13 F.2d at page 955, "* * * Undoubtedly the interest of society requires the rehabilitation of the criminal * * * but this does not import * * * (bestowal) * * * of * * * citizenship." The liberality shown in the cases in Note 8 supra was as to the offense or conduct which would not preclude awarding citizenship and in allowing reapplication albeit not until five years later.
The view we take more nearly comports with and effectuates the purpose of the naturalization statutes. The contrary view is at variance with the purpose of the statute, nullifies to a certain extent at least, the rule that any doubt must be resolved against the petitioner. See 22 A.L.R.2d at 247; and see Petition of Reginelli, 20 N.J. 266, 119 A.2d 454, at page 456, "We prefer to embrace these latter adjudications as establishing a rule more workable and practical, conducive of sounder and more realistic justice, particularly where, as here, the past may by logical inference illuminate some presently occurring development."
The question is what did Congress intend. In our view the best expression of that intention is indicated by the holding of Marcantonio v. United States, supra. We find additional support for this view in § 316(a) (e) of the 1952 Act, 8 U.S.C.A. § 1427(a, e), "In determining whether the petitioner has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the court shall not be limited to the petitioner's conduct during the five years preceding the filing of the petition, but may take into consideration as a basis for such determination the petitioner's conduct and acts at any time prior to that period." See Commentary, 8 U.S.C.A. p. 79.
And see Id. § 101(f), 8 U.S.C.A. § 1101 (f),
"For the purposes of this chapter
"No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was* * *
"(8) one who at any time has been convicted of the crime of murder * * *" See Legislative History 1952, United States Code, Congressional and Administrative News, Volume 2, p. 1739. Also see In re De Angelis, D.C.E.D.N.Y.1956, 139 F.Supp. 779.
Certainly in the 1952 Act Congress expressed its intention, i. e., that a man who committed murder should not become a citizen of the United States. With the light suggested by that unequivocal declaration of congressional intent and by the teachings of the Supreme Court, we hold that in view of the petitioner's conviction of murder and incidentally the fact that he was on parole during a part of the five-year period, the petitioner has not shown good moral character during the prescribed statutory period. The petition will therefore be denied.
NOTES
[1]  Age fifty-three, a native and national of Italy, lawfully admitted for permanent residence May 3, 1912, a resident of Pennsylvania thereafter. Because of his marriage in 1939 to a native-born American citizen, the residence requirement of five years was reduced to two years. See § 311(b), 307(a), 54 Stat. 1142, 8 U.S.C.A. § 707(a) (e) (1940 ed.), now 8 U.S.C.A. § 1427(a); one child was born in 1939.
[2]  See § 407, 8 U.S.C.A. § 1101, Historical Note; Comment, subd. V, 8 U.S.C.A. p. 18.
[3]  See § 316(a), subsection (e), 64 Stat. 998, 8 U.S.C.A. § 1427(e), and see Commentary, 8 U.S.C.A. p. 1 at p. 79; § 101 (f), 8 U.S.C.A. § 1101(f).
[4]  8 U.S.C.A. § 1101, Historical Note (b), "* * * any petition * * * pending at the time this Act shall take effect shall be heard and determined in accordance with the requirements of law in effect when such petition was filed"; and see Id. as to § 405(a).
[5]  In re Laws, D.C.N.D.Cal.1944, 59 F. Supp. 179; In re Falck, D.C.D.C.1938, 24 F.Supp. 672; In re Taran, D.C.Minn. 1943, 52 F.Supp. 535, at page 539, and see In re Bookschnis, D.C.Or.1945, 61 F. Supp. 751, 752, and note 22 A.L.R.2d 244, 245; but cf. Yuen Jung v. Barber, 9 Cir., 1950, 184 F.2d 491, as to members of the armed forces.
[6]  See note 22 A.L.R.2d 244 at 255; In re Trum, D.C.W.D.Mo.W.D.1912, 199 F. 361; In re McNeil, D.C.N.D.Cal.1936, 14 F.Supp. 394; In re Laws, supra, 59 F.Supp. 179; contra, Petition of Sperduti, D.C.M.D.Pa.1949, 81 F.Supp. 833, Watson, C. J.; Daddona v. United States, 2 Cir., 1948, 170 F.2d 964, even where confined in prison during a large part of the five-year period; the latter two cases agree that moral character is a question of fact.
[7]  For the history of the rule in the Second Circuit, see United States v. Clifford, 2 Cir., 1937, 89 F.2d 184, at page 185, rule assumed; Petition of Schlau, D.C. S.D.N.Y.1941, 41 F.Supp. 161 (perhaps because the conduct in question was not sufficient to negative good moral character), relying upon United States v. Rubia, 5 Cir., 1940, 110 F.2d 92, but cf. Molsen v. Young, 5 Cir., 1950, infra, 182 F.2d 480, the same circuit, contra; Petition of Zele, 127 F.2d 578, at page 580, cites Clifford, Rubia and Schlau; United States v. Francioso, 2 Cir., 1947, 164 F.2d 163, rule applied, petitioner married a niece and had a family, held not to prevent awarding of citizenship; Repouille v. United States, 2 Cir., 1947, 165 F.2d 152, during five-year period, petitioner to prevent further suffering put to death his thirteen year old son by means of chloroform; the court suggests if he had done the act before the five-year period he would have been admitted without question; Daddona v. United States, 2 Cir., 1948, 170 F.2d 964, manslaughter, petition allowed although a large part of the five-year period was spent in prison; and see and cf. In re Aldecoa, D.C.Idaho S.D.1938, 22 F.Supp. 659, 661, also cited.
[8]  As to liberality, the court in 140 F.2d at page 776 cites: In re Trum, D.C.W.D. Mo.1912, 199 F. 361, liquor violation; In re Centi, D.C.W.D.Tenn.1914, 217 F. 833, voted although non-citizen; In re Guliano, D.C.S.D.N.Y.1907, 156 F. 420; United States v. Mirsky, D.C.S.D.N.Y. 1926, 17 F.2d 275; In re Nagy, D.C.S.D. Tex.1924, 3 F.2d 77, liquor violations; Application of Polivka, D.C.W.D.Pa. 1939, 30 F.Supp. 67, spouse divorced petitioner for cruel and barbarous treatment; in each case the petition was denied; must wait five years to be eligible; In re Schlau, 2 Cir., 1943, 136 F.2d 480, petitioner living with second "wife" thought previous rabbinical divorce sufficient; question of intent; and see In re Paoli, D.C.N.D.Cal.S.D.1943, 49 F.Supp. 128, also cited.
[9]  Citizenship awarded although petitioner was on parole during part of the five year period.
[10]  In re Balestrieri, D.C.N.D.Cal.S.D.1945, 59 F.Supp. 181, at page 182 (murder first degree); In re McNeil, supra (embezzlement); In re Laws, supra; In re Caroni, D.C.N.D.Cal.S.D.1926, 13 F.2d 954 (manslaughter); Petition of Gabin, D.C.N.D. Cal.S.D.1945, 60 F.Supp. 750, 751 (engaging in narcotic traffic); In re Spenser, C.C.D.Or.1878, 22 Fed.Cas. page 921, No. 13,234; United States v. Etheridge, D.C. Or.1930, 41 F.2d 762, 763, 764; Petition of John Cristo, Petition No. 733-P-3489, D.C.Ill.1938 (murder first degree) unreported; In re Lipsitz, D.C.D.Md.1948, 79 F.Supp. 954, 956; In re Taran, supra; United States v. Kichin, D.C.E.D.Mo. 1921, 276 F. 818, at page 822.
[11]  Id. "We need not decide that a court is never justified in making inquiry concerning a petitioner previous to the five year period, but what we do think and hold is that even so the facts developed by such an inquiry cannot be used as the basis for disqualification." Id., 178 F.2d at page 673.
[12]  Overruled on other grounds. Girouard v. United States, 1946, 328 U.S. 61, at page 69, 66 S.Ct. 826, 90 L.Ed. 1084.
[13]  As to the competency or weight of the evidence, see United States v. Ness, 1917, 245 U.S. 319, at page 325, 38 S. Ct. 118, 62 L.Ed. 321.
[14]  Id. Note 12 supra.
[15]  (Footnote inserted). Murder committed prior to the five-year period, In re Ross, supra, held that per se barred him from citizenship; In re Caroni, supra, manslaughter, "The moral turpitude involved in any unlawful killing of a human being refutes all evidence of that good character which is a condition precedent to admission to * * * citizenship. The offense is more indicative of the applicant's true character than any amount of precautionary and decorous conduct following hard on the heels of parole."

See In re Taran, D.C.D.Minn.1943, 52 F.Supp. 535, at page 537, and In re Markiewicz, supra, multiple crimes; United States v. Kichin, supra, 276 F. at page 822, "* * * broken every commandment in the decalogue, and * * * committed every crime in the criminal calendar * * * had seen fit to temporarily reform for five years." Petition of Gabin, supra, and see 22 A.L.R.2d at 253.
In re Balestrieri, supra, (conviction murder) applied the doctrine but awarded citizenship.
[16]  See Note 15 supra.
[17]  (Footnote inserted). Cf. cases Note 7 supra.
[18]  See Id. § 60, "Character at an earlier time * * * is relevant only on the assumption that it was substantially unchanged in the meantime * * *." As cited in 3 Wigmore, 3d Ed. p. 471 et seq.; see Teese v. Huntingdon, 1859, 23 How. 2, 14, 16 L.Ed. 479, if not too remote; Minkow v. United States, 4 Cir., 1925, 5 F.2d 319; People v. Abbot, N.Y.1838, 19 Wend. 192, 200, "A long established character * * * is always more striking and more to be relied on than that of a day, a month, or a year." Sleeper v. Van Middlesworth, N.Y.1847, 4 Denio 431, "It might be too much to say that a character, when once formed, is presumed to remain unchanged for life. Still, the law founded on a full knowledge and just appreciation of the general course of human affairs, indulges a strong presumption against any sudden change in the moral * * * condition of man * * *. No certain limit, in point of duration, can be laid down for inquiries like this." Willard v. Goodenough, 1858, 30 Vt. 393, 397, "What the characters had formerly been is relevant only as it blends with the continuous web of life and tinges its present texture."

Accord: See Morss v. Palmer, 1850, 15 Pa. 51, 56, "It is impossible to fix any precise bound, as each case must depend on its own peculiar circumstances." Cf. Smith v. Hine, 1897, 179 Pa. 203, at page 206, 36 A. 222; Miller v. Miller, 1898, 187 Pa. 572, 590, 41 A. 277.
[19]  Persons who have been convicted of, or admit having committed a felony or other crime or misdemeanor involving moral turpitude are excluded from the United States. 2 Am.Jur. Aliens, § 83; United States ex rel. Ulrich v. Kellogg, 1929, 58 App.D.C. 360, 30 F.2d 984, 986, 71 A. L.R. 1210.

See Act of 1952, § 212(a) (9), 8 U.S. C.A. § 1182(a) (9), and see Act of 1954 as to certain misdemeanors, 8 U.S.C.A. § 1182(a).


                                                            [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                              Nov. 19, 2009
                           No. 09-10260                     THOMAS K. KAHN
                       Non-Argument Calendar                    CLERK
                     ________________________

                       Agency No. A099-538-291

ZHEN DE CHEN,

                                                            Petitioner-Appellant,

                                 versus

U.S. ATTORNEY GENERAL,

                                                        Respondent-Appellee.

                     ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                      _________________________

                          (November 19, 2009)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       Zhen De Chen, a native and citizen of the People’s Republic of China, seeks

review of the Board of Immigration Appeals’ final order dismissing his appeal

from the immigration judge’s decision denying his application for asylum,

withholding of removel, and CAT relief. Chen contends that substantial evidence

does not support the BIA’s adverse credibility determination and that if he returns

to China, he will be jailed and tortured because of his involvement in Catholic

religious activities.

       The BIA issued its own opinion in this case, so we will review only the

BIA’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

We review credibility determinations under the substantial evidence test, and we

may not substitute our judgment for the BIA’s with respect to credibility findings.

See Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).

Under the substantial evidence test, we must affirm the BIA’s decision if it is

“supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. (citation and internal quotation omitted). We will not

reverse a finding of fact by the BIA unless the record compels it. Adefemi v.

Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Evidence in the record

that may also support a conclusion contrary to the administrative findings is not

enough to justify a reversal. Id.

                                          2
      At his hearing before the IJ, Chen repeatedly testified that he lived at 425

West Town Place, #110, St. Augustine, Florida. On cross-examination, he testified

that he had been living at that address since he came to the United States. When

the government asked if he owned or rented that place, he replied that it was his

relative’s place, and he did not pay rent. The government asked him why the

internet showed that the address belonged to a Chinese restaurant rather than a

place of residence, and Chen indicated that his mail came to that address. The IJ

then questioned Chen about where he really lived and where he slept. Chen replied

that slept at his cousin’s, but he explained that he had testified about living at the

restaurant address because his mail came there, and he did not know the address of

his cousin’s place. On re-direct Chen’s attorney asked him whether “in [his] mind,

residing place and mailing place, are the same or different,” and he answered, “It’s

different.”

      The IJ found that Chen’s testimony about where he lived was not credible

and that even if he were found to be credible, he had failed to show that he had

faced past persecution or had a well-founded hear of future persecution based on

his religion. Chen appealed that decision, and the BIA determined that because

Chen had testified falsely about his address, the IJ’s credibility determination was

not clearly erroneous. Based on its own review of the record, the BIA also noted

that there were inconsistencies in Chen’s testimony about the date an alleged raid
                                            3
took place on his unsanctioned church and the number of church members arrested

in that raid.1 Furthermore, the BIA observed that there were contradictions

between Chen’s testimony about certain letters he submitted into evidence and the

actual letters. Under a totality of the circumstances credibility analysis, the BIA

concluded that Chen was not a credible witness and that he had not met his burden

of proof for asylum, withholding of removal, or CAT relief.

       Chen contends that his testimony about his address was insufficient evidence

to support the BIA’s credibility decision because his address did not have any

bearing on his claims for relief; he used the address because it would be easier to

receive mail there; and he did not understand the distinction between a mailing

address and a residence. Adverse credibility is assessed in light of the totality of

the circumstances and may be based on inaccuracies or falsehoods that do not

“go[] to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). An

applicant’s testimony, if credible, may carry the burden of proof for asylum

without corroboration. 8 C.F.R. § 208.13(a). “Conversely, an adverse credibility

       1
          Chen argues that the BIA’s consideration of that evidence constituted an impermissible
de novo review of the IJ’s adverse credibility finding because the IJ did not rely on that evidence
as grounds for its decision. A clear error standard of review not only permits a court to review
the entire record, it requires a court to do so. See United States v. United States Gypsum Co.,
333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948) (“A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”); see also Hale Container Line, Inc. v.
Houston Sea Packing Co., 137 F.3d 1455, 1474 (11th Cir. 1998). Here, the BIA did not engage
in a de novo review but instead reviewed the record as a whole and concluded that the IJ’s
adverse credibility determination was not clearly erroneous.
                                                   4
determination alone may be sufficient to support the denial of an asylum

application.” Forgue, 401 F.3d at 1287. “Once an adverse credibility finding is

made, the burden is on the applicant alien to show that the [BIA]’s credibility

decision was not supported by ‘specific, cogent reasons’ or was not based on

substantial evidence.” Forgue, 401 F.3d at 1287.

      Chen repeatedly provided incorrect information about where lived, even

though he testified that he understood the difference between a mailing address and

a residence. That testimony, coupled with additional inconsistencies between

Chen’s testimony and the evidence he submitted, formed the basis of the BIA’s

specific, cogent reasons in support of its adverse credibility determination. See

Forgue, 401 F.3d at 1287. The BIA’s denial of asylum is supported by substantial

evidence on the record considered as a whole. See id. at 1286. Because Chen “has

failed to establish a claim of asylum on the merits, he necessarily fails to establish

eligibility for withholding of removal or protection under CAT.” Id. at 1288 n.4.

      PETITION DENIED.

                                           5


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                   _____________________________

                            No. 92-3256
                   _____________________________

JAQUELINE B. BRUNEAU,

                                       Plaintiff-Appellant,
                                       Cross-Appellees,

                        versus

FEDERAL DEPOSIT INSURANCE CORPORATION,
As Receiver for Bankers Trust, N/A., ET AL.,

                                       Defendant-Appellees.

ROB A. HARDESTY, ROBERT L. KAREM,
RAYMOND A. LAPINO, SR., and MYRON E. MOOREHEAD,

                                       Defendants-Appellees,
                                       Cross-Appellants.

        _________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
        _________________________________________________

                           (November 12, 1992)

Before KING, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:

     In this appeal from the district court's grant of summary

judgment in favor of Defendant-Appellee Federal Deposit Insurance

Corporation   (FDIC),    Plaintiff-Appellant     Jacqueline   B.   Bruneau

asserts that the district court misapplied the law of constructive

trust, the holding in Downriver Community Federal Credit Union v.
Penn Square Bank,1 and the D'Oench, Duhme doctrine.2 As we find the

district court's decision to be free of reversible error, we

affirm.

                                   I

                     FACTS AND PROCEDURAL HISTORY

     In early December 1988, Bruneau opened three accounts at

Bankers Trust of Louisiana (Bankers Trust) and made deposits into

all three totalling of $223,125.76.        Bruneau asserts that an

employee of the bank represented that the three accounts would be

insured up to $100,000 each by the FDIC, and that Bruneau thus

believed that all of her money was insured.3      For purposes of this

review, we assume the truth of those representations by Bruneau.

     In early March 1989, the Comptroller of Currency declared

Bankers Trust insolvent and terminated its existence as a national

banking association.4      The   Comptroller   appointed   the   FDIC   as

receiver of Bankers Trust.

     Bruneau filed a claim for recovery of her deposits with the

FDIC.     The FDIC paid Bruneau $100,000 and issued her a Receivers

     1
      879 F.2d 754 (10th Cir. 1989), cert. denied, 493 U.S. 1070
(1990).
     2
      See D'Oench, Duhme & Co. v. Federal Deposit Ins. Co., 315
U.S. 447, 460 (1942).
     3
      This was clearly incorrect. 12 C.F.R. § 330.5 (1989)
provides: "Funds owned by natural persons and deposited in one
or more deposit accounts in his or her own name shall be added
together and insured up to $100,000 in the aggregate."
     4
        See 12 U.S.C. § 191 (1988).

                                   2
Certificate for the additional $123,473.53, entitling her to a

ratable distribution along with other uninsured depositors and

general creditors.     Since obtaining the Receivers Certificate,

Bruneau has received a number of payments from the FDIC.         When the

district court rendered its decision in the instant case, these

payments totaled $59,817.82.         The FDIC asserts that four more

payments))totaling $12,936.26))were made after the court's last

calculation date and were thus not included in the $59,817.82

amount.

     Unhappy    with   her   share   of   the   proceeds   of   the   bank

distribution under the National Banking Act, Bruneau sued the FDIC

and several former officers and employees of the bank (Hardesty et

al.), who she alleged made the misrepresentations to her.         Bruneau

claimed that the FDIC, by its predecessors, had breached its

fiduciary duty to her, had violated Louisiana statutory law, had

committed "concerted tort action" with some of the employees of the

bank, and had effectively created a constructive trust in her

favor.

     The district court granted summary judgment in favor of the

FDIC.     The court reasoned that the Bruneau's constructive trust

theory did not constitute a viable claim for a number of reasons.

One of those reasons was that the claims were barred by the

D'Oench, Duhme doctrine.       The court held that Bruneau's other

claims were barred by the D'Oench, Duhme doctrine and § 1823(e) of

FIRREA.5    Bruneau timely appealed.

     5
        12 U.S.C. § 1823.

                                     3
                                       II

                                  ANALYSIS

A.    Bruneau's Claims

       1.   Effect of D'Oench, Duhme

       The district court relied on several theories in rejecting all

of Bruneau's claims.     One of the theories properly espoused by the

district court here is that Bruneau's claims are barred by the

D'Oench, Duhme doctrine.        The district court found correctly that

all of the claims are based on bank personnel's misrepresentations

and fraudulent acts, all of which, for purposes of this appeal, we

assume to have occurred.        Under D'Oench, Duhme and its statutory

counterpart, a claimant against the FDIC must produce evidence that

the   agreement   made   with    the    bank   meets   all   of   the    FIRREA

requirements.6      As   the    district    court   found,   none   of   these

requirements were met by Bruneau.              The agreement was not in

       6
      The relevant portion of FIRREA provides:
     No agreement which tends to diminish or defeat the
     interest of the Corporation in any asset acquired by it
     under this section or section 11 [12 U.S.C.S. § 1821],
     either as a security for a loan or by purchase or as a
     receiver of any insured depository institution, shall
     be valid against the Corporation unless such
     agreement))
          (1) is in writing,
          (2) was executed by the depository institution and
          any person claiming an adverse interest
          thereunder, including the obligor,
          contemporaneously with the acquisition of the
          asset by the depository institution,
          (3) was approved by the board of directors of the
          depository institution or its loan committee, . .
          . and
          (4) has been, continuously, from the time of its
          execution, an official record of the depository
          institution.
12 U.S.C.S. § 1823(e) (Supp. 1992).

                                       4
writing;    it   was   not   executed       by   the   depository   institution

contemporaneously with the acquisition of the asset; it did not

have the required approval of bank executives; and it was not

continuously held as an official bank record.

     Bruneau asserts in her brief to this court that "D'Oench,

Duhme is not apposite.        Ms. Bruneau is not basing her claim for

recovery on the ground of a secret or side agreement, but rather on

the ground that this transaction never could occur because the bank

was prohibited from taking funds, thereby making this transaction

void from the beginning."7         Bruneau badly mischaracterizes her

position.   Her entire case rests on the theory that the officers of

the bank committed a fraud by allowing her to deposit money when

they knew the bank was insolvent.            The D'Oench, Duhme doctrine and

§ 1823(e) are directly implicated by a fraud accusation.                Without

meeting the requirements of either, Bruneau's claims are barred.

     2.    Hopeless Insolvency

     Bruneau's other argument involves the hopelessly outdated

"hopeless insolvency" doctrine, which was recently discussed in

dicta of the Tenth Circuit in the Downriver decision.8                      The

district court's opinion ably explains the effect of the hopeless

insolvency doctrine, the dicta in the Downriver decision, and

     7
      We, like the district court before us, will ignore the
gaping hole in Bruneau's logic that if there was no deposit
("th[e] transaction never could occur"), the FDIC would be
responsible for nothing because its liability is triggered only
by deposits.
     8
      879 F.2d at 761-63.

                                        5
everything else relative to this essentially frivolous ground of

appeal.    We refuse to expend any more judicial resources trying to

convince counsel that this turn-of-the-century doctrine has long

since ceased to have any contextual relevance in light of the

banking reforms that have occurred in this country during the past

sixty years.

B.   The Cross-Appeal of Hardesty et al.

      After the dismissing the FDIC with prejudice, the district

court turned to the state law claims that had been filed by Bruneau

against Hardesty et al.    As to these claims, the court stated:

      The    remaining    claims    are    for    "intentional
      misrepresentation"     (First     Claim),     "negligent
      misrepresentation" (Second Claim), "breach of fiduciary
      duty" (Fourth Claim), "violation of Louisiana Revised
      Statutes" (Fifth Claim), [and] "concerted tort action"
      (Sixth Claim). Each is based in Louisiana law, albeit as
      to the fifth claim, some of the defendants have filed a
      motion based on preemption of state law.

The court then held that it was without subject matter jurisdiction

and declined to exercise pendant jurisdiction over the remaining

parties.    It then dismissed Bruneau's claims against Hardesty et

al. without prejudice.

      Seeking to change the dismissal from one without prejudice to

one with prejudice, Hardesty et al. assert on appeal that the

district court erred in dismissing their claims for lack of subject

matter jurisdiction.    They ground their appeal on the theory that

the Louisiana statute involved in Bruneau's charge of "violation of

                                  6
Louisiana Revised Statutes"9 is preempted by federal banking law

and that the preemption in and of itself supports federal question

jurisdiction.     Alternatively, they argue that the district court

should have addressed the state law claims under its pendant

jurisdiction.     We dismiss out-of-hand the assertion that the

district court abused its discretion in not exercising pendant

jurisdiction over the state law claims.

     It is clear from the opinion of the district court that it

dismissed   Bruneau's        claims   against   Hardesty   et   al.   without

considering the claim of federal question jurisdiction arising from

the preemption of state law.          This refusal to consider the claim

does not place the issue beyond our review, however, as the

preemption question is a matter of law that we would review de novo

if it had been fully considered by the district court.

     Federal preemption most often appears as a defense to a

plaintiff's claim. Thus, the "federal issue does not appear on the

face of the plaintiff's complaint."10           Consequently, "a preemption

defense cannot be the basis of the original federal jurisdiction."11

     As   noted   by   the    Seventh   Circuit,   the   Supreme   Court   has

fashioned a narrow exception to this rule.           The preemption defense

can "be the basis of the original federal jurisdiction" when

     9
      LA. REV. STAT. ANN. § 6:419 (West 1986 & Supp. 1992).
     10
      Lister v. Stark, 890 F.2d 941, 943 (7th Cir. 1989), cert.
denied, 111 S. Ct. 579 (1990).
     11
      Id. (discussing jurisdiction sufficient to make removal
proper)(citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58,
63 (1987)); see Louisville & Nashville R.R. v. Mottley, 211 U.S.
149 (1908).

                                        7
     Congress has completely preempted a given area of state
     law.    This "complete preemption" exception permits
     recharacterization of a plaintiff's state-law claim to a
     federal claim . . . .12

Hardesty et al. thus assert that § 6:419 of the Louisiana Revised

Statutes has been preempted by federal banking regulations to the

point that the asserted violation of that statute is no more than

a federal claim masquerading as a state claim.      We disagree.

     In Metropolitan Life Ins. Co. v. Taylor,13 the Supreme Court

found that "ERISA's preemption provision is . . . so strong that

every claim for benefits under a covered plan is regarded as

arising under the laws of the United States."14     Similarly, "[i]t

has long been recognized that section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185, has such preemptive force."15      To

determine whether the statute has such preemptive force, there must

be evidence of "'the clearly manifested intent of Congress'" that

such preemption occur.16

     In the instant case, no evidence of congressional intent to

preempt the area of law so pervasively has been presented to this

court.     Instead, Hardesty et al. have thoroughly convinced us that

a defense of preemption exists in this context.      They point to a

case from the Eastern District of Louisiana involving the same bank

     12
          Id.
     13
          481 U.S. at 63.
     14
      Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 787
(5th Cir.), cert. denied, 111 S. Ct. 308 (1990).
     15
          Id.
     16
          Id. (quoting Taylor, 481 U.S. at 67).

                                   8
failure and the same defendants as the instant case, in which they

successfully used preemption as a defense to similar claims.17

Hardesty et al. now assert that "[t]he precise issue now before the

court has already been resolved in favor of defendants/cross

appellants" in the Mortgage Market case.     Clearly, Hardesty et al.

misapprehends the distinction between that which was decided in

Mortgage Market and that which they presently urge to us.

     In Mortgage Market, the district court held that "federal law

pre-empts [sic] application of La.Rev.Stat. § 6:419 or state

fiduciary law which would hold Hardesty, et al [sic] liable for the

uninsured portion of [the plaintiff]'s certificate of deposit."18

As irrefutable a proposition of law as that may be, it is entirely

different from the present assertion by Hardesty et al. that

federal law is so strongly preemptive in this area of the law that

plaintiff's claim "is regarded as arising under the laws of the

United States."19    Hardesty et al. cites nothing to this court (and

our research reveals nothing) to indicate that Congress intended to

"treat a complaint raising [these matters] as 'necessarily federal

in character'"20     Simply put, Hardesty et al.'s demonstration that

the defense of preemption applies does not create a basis for

subject matter jurisdiction in the same manner as does "super-

     17
      Mortgage Mkt., Inc. v. Federal Deposit Ins. Corp., 780 F.
Supp. 406, 407-08 (E.D. La. 1991).
     18
          780 F. Supp. at 408.
     19
          Trans World Airlines, 897 F.2d at 787.
     20
          Id. (citing Taylor, 481 U.S. at 63-64).

                                   9
preemption" of an ERISA provision or section 301 of the LMRA.

Hardesty    et   al.    thus   fail   to    convince   us    that   such   "super-

preemption" exists here.

      Hardesty et al.'s claims may well have merit; they have merely

been asserted in the wrong place. The district court dismissed the

claims against Hardesty et al. without prejudice.                Even though the

federal     preemption      cannot     sustain    federal       subject    matter

jurisdiction, it may be asserted in an effort to fend off any state

court claims against these defendants.

                                       III

                                  CONCLUSION

      We are not impressed with Bruneau's assertions of error by the

district court.        Unavoidably, the D'Oench, Duhme doctrine bars the

claims asserted by Bruneau against the FDIC.                The district court's

analysis of the "hopeless insolvency" doctrine and the dicta found

in the Downriver decision to the instant case was correct. And the

district court did not abuse its discretion in refusing to exercise

pendant jurisdiction over the state law claims against Hardesty et

al.   The district court's judgment is thus

AFFIRMED.

                                           10


336 So.2d 1311 (1976)
Frank PRICE, III and Jerry D. Williams, Jr.
v.
STATE of Mississippi.
No. 49248.
Supreme Court of Mississippi.
September 7, 1976.
J.W. Kellum, Sumner, Tom T. Ross, Clarksdale, for appellants.
A.F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.
Before GILLESPIE, ROBERTSON and LEE, JJ.
GILLESPIE, Chief Justice, for the Court.
Jerry D. Williams, Jr. and Frank Price, III, were jointly indicted, tried and convicted in the Circuit Court of Coahoma County of armed robbery and sentenced to serve terms of twenty-one years in the penitentiary.
The sole question is whether the court erred in overruling defendants' request for a severance. This question has two points of inquiry as hereinafter stated and discussed.

1. Is a separate trial a matter of right where two or more persons are jointly indicted for a felony?
Mississippi Code Annotated section 99-15-47 (1972) states as follows:

*1312 Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases.
On March 21, 1975, Rule 29 of the Uniform Rules for Circuit Courts of Mississippi was adopted in the following language:
The trial judge will have the discretion of granting or refusing a severance in all criminal cases where the death penalty is not involved.
The appellants rely on Greer v. State, 54 Miss. 378 (1877). In Greer the Court recognized that at common law the right to a separate trial was discretionary with the court, but held that "what the common law regarded as a privilege, to be granted or not at the pleasure of the court, is by this positive enactment converted into a right which the court cannot refuse." 54 Miss. at 380. The statute interpreted by the Court in Greer read as follows: "When two or more persons are joined in one indictment ... the court shall on application grant a severance, and permit them to be tried separately." Id. (Emphasis appearing in opinion.) However, since 1880 and at present the statute provides the defendants may be tried separately. In several cases since the statute was changed to its present form, the Court has used language indicating that severance is a matter of right if seasonable application is made. Thompson v. State, 231 Miss. 624, 97 So.2d 227 (1957); Dueitt v. State, 225 Miss. 254, 83 So.2d 91 (1955); Bolin et al. v. State, 209 Miss. 866, 48 So.2d 581 (1950); Malone v. State, 77 Miss. 812, 26 So. 968 (1900). However, in each of those cases the Court did not have squarely before it the question whether a separate trial was a matter of right; therefore, the statements in these cases were obiter dictum. We hold that the word "may" in section 99-15-47 should be given its ordinary meaning, and whether a severance should be granted is addressed to the sound discretion of the trial judge.

2. Did the trial judge abuse his discretion in overruling the motion for a severance?
In a conference in chambers, with all defense counsel present, the judge asked whether there was any conflict of interest between the two defendants and counsel for appellant Price stated: "As far as a conflict of interest we are of the opinion that it does not exist." Counsel for the defendant, Williams, remained silent. Absent a showing of prejudice there are no grounds to hold that the trial court abused its discretion.
Because Circuit Court Rule 29 made no change in the law, no question arises under the constitutional prohibition against ex post facto laws.
AFFIRMED.
PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


                        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-4532-14T1

IN THE MATTER OF THE
ESTATE OF ALFRED
FINOCCHIARO, SR., Deceased
_______________________________

ESTATE OF ALFRED FINOCCHIARO, JR.
Deceased, CHAD FINOCCHIARO, KELSEY
FINOCCHIARO and NICHOLAS FINOCCHIARO,

        Plaintiffs-Appellants,

v.

FRANK FINOCCHIARO,

        Defendant-Respondent.

________________________________

              Telephonically Argued November 1, 2016 -
              Decided November 30, 2017
                      ember 30, 2017
              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Probate Part, Morris
              County, Docket No. P-1257-2012.

              Frank M. Williams          argued    the    cause    for
              appellants.

              Robert W.       Mayer     argued     the   cause     for
              respondent.
     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     This appeal concerns the validity of the last Will and

Testament of Alfred Finocchiaro, Sr., who died in Dobson, North

Carolina from cardiac arrest on August 18, 2011 at the age of

eighty-nine.    On July 2, 2012, decedent's son Frank Finocchiaro1

successfully    admitted   his   father's     2007    non-resident   Will    to

probate in the Office of the Surrogate of Morris County.                     On

October 16, 2012, Peggy M. O'Dowd, the estranged wife of decedent's

late son Alfred, Jr., and his children Chad, Kelsey and Nicholas,

filed a verified complaint in the Morris County Chancery Division,

Probate Part, seeking to nullify the 2007 Will and revoke the

letters testamentary issued to Frank.

     The case was tried before Judge Stephan C. Hansbury over a

two-day period on April 27 and 28, 2015.         Plaintiffs claimed three

grounds   for   invalidating     decedent's    2007    Will:   (1)   lack    of

testamentary capacity; (2) undue influence by his son Frank; and

(3) improper execution.     Plaintiffs sought to invalidate the 2007

Will and reinstate a Will decedent executed in 2001 that contained,

inter alia, specific bequests to Chad, Kelsey and Nicholas, and

1
  In the interest of clarity, we will refer to the individuals
whose last name is "Finocchiaro" by their first name. We intend
no disrespect.

                                     2                                A-4532-14T1
directed the residuary estate to be equally divided between his

two   sons,   Frank   and   Alfred,   Jr.,    per   stirpes   in   fee    simple

absolute.     Plaintiff also sought punitive damages and an award of

counsel fees.

      In    support   of    their   claims,    plaintiffs     presented       the

testimony of Dr. Robert Bock, a family practice physician who

briefly treated decedent in 2005.             Judge Hansbury also granted

plaintiffs' application to admit Dr. Bock as an expert witness in

the field of "general family medicine, competency determination

and geriatric care."        Plaintiff also called Detective James A.

Mandeville, who was one of the Pequannock Police Officers who

responded to decedent's residence on December 29, 2006, the day

Alfred, Jr. committed suicide.            Detective Mandeville testified

about the circumstances surrounding Alfred, Jr.'s suicide.                    The

balance of plaintiffs' case consisted of testimony from O'Dowd and

from the children she had with Alfred Jr.

      Defendant's case consisted of Frank's testimony and that of

John A. Snowdon, Sr., the attorney who prepared the March 1, 2007

Will.    Frank described his father's emotional state and cognitive

abilities during the time he cared for him after Alfred, Jr.'s

death.     Snowdon testified about his interactions with Frank and

decedent and the procedures he followed to ensure that decedent

had the testamentary capacity to execute the 2007 Will.

                                      3                                  A-4532-14T1
       After considering the evidence presented by the parties,

Judge Hansbury found plaintiffs did       not prove, by clear and

convincing evidence, that Frank unduly influenced decedent to

disinherit Alfred Jr.'s children or that decedent lacked the

testamentary capacity to dispose of his estate at the time he

executed the March 1, 2007 Will.      Judge Hansbury also found that

Snowdon's testimony describing the manner the Will was executed

satisfied the requirements of N.J.S.A. 3B:3-23.2

       Against this record, plaintiffs now appeal arguing that they

were "manifestly denied justice" because Judge Hansbury's factual

findings and application of the relevant legal standards were

clearly erroneous.    We disagree and affirm substantially for the

reasons expressed by Judge Hansbury in his oral opinion delivered

from the bench on April 29, 2015.      We gather the following facts

from the evidence presented by the parties before the Chancery

Division.

2
    N.J.S.A. 3B:3-23 provides:

            If an issue as to the execution of a will
            arises in a contested probate action, the
            testimony of at least one of the attesting
            witnesses, if within the State, competent and
            able to testify, is required. Other evidence
            is admissible as to the due execution of a
            will.

                                  4                          A-4532-14T1
                                  I

     At the time of his death on August 18, 2011, Alfred, Sr.

resided with his son Frank and his wife Jacqueline in Boonville,

North Carolina.    Decedent's wife Florence and his older son Alfred

Jr., both predeceased him.   As reflected in the certificate issued

by the Morris County Surrogate, decedent was survived by his son

Frank and four grandchildren, Chad, Kelsey, Nicholas and William

Ray Smith, Jr.    On May 22, 2001, decedent executed a last Will and

Testament that designated Frank as executor and Alfred Jr. as the

substitute executor.    This Will contained the following specific

bequests and provisions:

          1) To my grandson, WILLIAM RAY SMITH, JR., I
          leave the sum of $30,000.00

          2) To my granddaughter, DARLEEN MCCLELLAN, I
          leave the sum of $5,000.00.

          3) To my grandson, NICHOLAS FINOCCHIARO, I
          leave the sum of $5,000.00.

          4) To my grandson, CHAD FINOCCHIARO, I leave
          the sum of $5,000.00.

          5) To my granddaughter, KELSEY FINOCCHIARO, I
          leave the sum of $5,000.00.

          6) To my great-granddaughter, HAILEY MARIE
          SMITH, I leave the sum of $5,000.00 and

          7) To my great-grand[son], WILLIAM RAY SMITH,
          I leave the sum of $5,000.00.

          8) To any unborn or afterborn grandchildren
          or   great-grandchildren not   specifically

                                  5                          A-4532-14T1
          name[d] above, I leave the sum of $5,000.00
          for each.

          9) To my two sons FRANK T. FINOCCHIARO and
          ALFRED F. FINOCCHIARO, I leave the property
          located on Highway 71, Scohata, Louisiana,
          along with all the rights, leases, contracts
          and appurtenances thereto.

The 2001 Will also divided the residuary estate equally between

Frank and Alfred, Jr., per stirpes in fee simple absolute.

     On March 1, 2007, decedent executed a second Will that

expressly revoked "all prior Wills and Codicils made by me."      The

2007 Will designated Frank as executor and William Ray Smith, Jr.,

as the substitute executor.   The 2007 Will contained the following

specific bequests and provisions:

          1) To my grandson, WILLIAM RAY SMITH, JR., I
          leave the sum of THIRTY THOUSAND DOLLARS
          ($30,000.00).

          2) To my granddaughter, DARLEEN MCCLELLAN, I
          leave the sum of FIVE THOUSAND DOLLARS
          ($5,000.00).

          3) To my grandson, NICHOLAS FINOCCHIARO, I
          leave the sum of FIVE THOUSAND DOLLARS
          ($5,000.00).

          4) To my grandson, CHAD FINOCCHIARO, I leave
          the sum of FIVE THOUSAND DOLLARS ($5,000.00).

          5) To my granddaughter, KELSEY FINOCCHIARO, I
          leave the sum of FIVE THOUSAND DOLLARS
          ($5,000.00).

          6) To my son FRANK T. FINOCCHIARO, I leave the
          property located on Highway 71, Scohata,

                                 6                           A-4532-14T1
            Louisiana, along with all rights,                leases,
            contracts and appurtenances thereto.

      The 2007 Will bequeathed the residuary estate to Frank.                   In

the event Frank did not survive him, decedent left the residuary

of   his   estate   to   his   daughter-in-law     Jacqueline       Finocchiaro,

Frank's    wife.     Thus,     the   2007   Will   removed    two    significant

provisions that were part of the 2001 Will: (1) the specific

bequests to Hailey Marie Smith and to decedent's unborn or after-

born grandchildren or great-grandchildren; and (2) the per stirpes

provision in the distribution of the residuary estate between

Frank and Alfred, Jr., thus denying Alfred, Jr.'s children the

right to equal shares of their late father's share of the residuary

estate.

      Dr. Bock was the first witness to testify at the trial.                   He

began seeing decedent as a patient when he took over the practice

of decedent's former physician.             Dr. Bock testified his first

contact with decedent was in September 2005.            Although he did not

remember the visit, Dr. Bock was able to describe decedent's

physical and emotional status based on the medical notes he took

to document the      encounter. Dr. Bock wrote that decedent was

"overall feeling well" and said "he could still rage hell."                     He

did not have "any chest pain" or "trouble breathing," or any signs

of "acute illness."       Dr. Bock testified that decedent told him he

                                        7                                A-4532-14T1
was "eating okay" and "his moods were good."

     Dr. Bock next saw decedent approximately one month later.

According to his notes, decedent was more "agitated" and "confused"

that day.      Although "he didn't actually complain of anything,"

Dr. Bock asked his son Alfred Jr., to try to get him decedent's

medical records because he had been "diagnosed with bladder cancer

[six] years before."       Dr. Bock wrote that decedent's "blood

pressure was real high, which . . . goes along to him being

agitated[.]"    On that day, Dr. Bock found him "only alert and

oriented X1."    This meant "he knew his name but didn't know where

he was."

     On that day, Dr. Bock "made a note of his dementia" on

decedent's file.    Dr. Bock testified that he left a message with

his son Alfred Jr., and ordered "a CAT scan of the abdomen and an

ultrasound of the neck."      He saw decedent again on November 1,

2005.   On this day, Dr. Bock testified that decedent "wasn't

delusional."     Dr. Bock spoke to "his daughter-in-law"3 about

scheduling the "scans."    Dr. Bock also noted that decedent had not

started to take his blood pressure medication and his "[b]lood

pressure was high, still."

     Dr. Bock next saw decedent on December 29, 2005.      He noted

3
  We presume this reference to "daughter-in-law" applies to Peggy
O'Dowd.

                                  8                          A-4532-14T1
decedent's condition "was better."                  Although he was still smoking,

his blood pressure was better.            Dr. Bock continued to see decedent

on this semi-monthly basis in 2006.                  His main medical concern was

decedent's elevated blood pressure aggravated by his continued

smoking.    According to Dr. Bock, he visited decedent at his home

on a regular basis in 2006 and noted that his physical appearance

was deteriorating throughout the months.                    The last time he saw him

that year was in December 2006.                    Dr. Bock wrote decedent was:

"Walking    about    at    home.        Smoking.         Pleasant.      Conversive.

Appropriate.       Greeted me at the door.            No complaints.    Mild cough.

Wants to stay home.         Refusing nursing home placement."                Despite

these    indicia    of    normalcy      and       cognitive    awareness,   Dr.   Bock

testified that decedent "was unaware of my name or what I did,

even though I was there for the last year."

     Dr. Bock's relationship with decedent ended on January 26,

2007, when he encountered decedent's son Frank.                      Dr. Bock wrote

that Frank was "[v]ery agitated" and did not want him to continue

to treat his father.         Ultimately, Dr. Bock opined that decedent

suffered from a chronic, progressive course of dementia from

October 27, 2005 until the last time he examined him in December

2006.      In his opinion, decedent was not competent during this

entire    time   period.           In   response       to     plaintiffs'   counsel's

questions, Dr. Bock provided the following opinion testimony with

                                              9                               A-4532-14T1
respect to the ultimate issue before the court.

          Q. So, therefore, Doctor, in your opinion do
          you believe that he could understand the terms
          of a will?

          A. That's something that we never discussed,
          but I wouldn't expect so, no.

          Q. Given his medical condition?

          A. No.

          Q. And do you believe that he would be able
          to understand or to express a proposed
          distribution plan route under a will? Or what
          he'd like done after he died?

          A. I don't think he'd even understand a
          distribution plan, or necessarily what that
          meant. What he would want to happen like if
          he got - - if he wanted to be buried or
          cremated? He might have an opinion on that.
          But in terms of long—term estate planning and
          things, you know, part of the - - I don't
          think he would have the competency for that.

     Pequannock Police Detective Mandeville testified that he and

other police officers responded to a report of a suicide at

decedent's home on December 29, 2006.     Upon arrival, they found

that Alfred, Jr. had hanged himself in the garage.         Mandeville

remembered speaking with Alfred Jr.'s wife Peggy O'Dowd, who did

not reside at the house.   Relying on police records to refresh his

recollection, Mandeville testified that he believed Alfred, Jr.

and his father Alfred, Sr. were the only residents.

                                10                            A-4532-14T1
     Peggy O'Dowd testified that from October 2005 to December

2006, her husband Alfred, Jr. lived with his father.          She and her

husband were separated and estranged from each other.          During this

same period of time, she would go to the house where her husband

lived "on occasion."      According to O'Dowd, she had "a very good

relationship" with her father-in-law "during the period of my

marriage." She and her estranged husband took care of whatever her

in-laws needed.

     On cross-examination, O'Dowd confirmed that she had a pending

divorce action at the time Alfred, Jr. took his own life.              When

asked if she had a tumultuous marriage, O'Dowd responded: "We had

. . . a marriage at sometimes made in hell, yes."           She sought and

obtained   a   domestic   violence    restraining   order    against    her

husband.   O'Dowd testified that she was forced to get several

restraining orders against her husband over the years, mostly due

to his alcoholism.     O'Dowd and Alfred, Jr. also had significant

financial problems and filed for bankruptcy protection.

     O'Dowd described her father-in-law as a reclusive man who was

accustomed to a daily routine of going to work and returning home

without socializing.      Even before his illness, decedent never

answered the telephone.     He depended on his wife to take care of

the house work and the family's finances.      O'Dowd also stated that

decedent did not "believe[] in doctors."        She did not seek out

                                     11                            A-4532-14T1
decedent or have any communications with him at the time her

husband committed suicide.        In fact, she did not see decedent

until Alfred, Jr.'s wake.

     Alfred, Jr.'s daughter Kelsey was fifteen years old at the

time of her father's death in December 2006.               She described her

relationship with decedent as "very close."                Kelsey stated, "I

lived right down the street my whole life[;] so I saw him all the

time[;]   we   were   very   close."        She    testified   that   she   spent

"[a]lmost every weekend" at her grandfather's house in 2006.                 This

also allowed her to visit her father who was residing there at the

time.     When asked to describe her relationship with her uncle

Frank in 2006, Kelsey responded: "I've never had a relationship

with my uncle."       She did not see decedent again or have any form

of contact with him after her father's wake.

        Chad testified that he enlisted in the Navy a week after his

father Alfred, Jr.'s death in 2006.               According to Chad, decedent

seemed confused during this time period in 2006.                He too did not

see decedent again and did not have any contact with him after his

father's death.       Nicholas was twenty-four years old at the time

his father Alfred, Jr. committed suicide. Unlike his two siblings,

Nicholas testified that he did not see or have any kind of regular

contact with his grandfather in 2006 "because I was kind of

strained [sic] with my father."             He learned of his grandfather's

                                       12                               A-4532-14T1
passing from his mother, Peggy O'Dowd.               Plaintiffs rested after

Nicholas's testimony.

      Defendant called William Ray Smith as his first witness.

Smith is the son of decedent's daughter. She survived her father's

passing but died before this trial began in April 2015.              Smith is

decedent's oldest grandchild.                 Unlike his cousins, Smith was

unaffected by decedent's repudiation of the 2001 Will. His bequest

remained the same in the 2007 Will.              Smith testified that when he

was   a     child   he   lived    with    his    maternal   grandparents      for

approximately twenty years, including his high school years.                    He

said his grandparents treated him like a son.                 In response to

defense counsel's question, Smith testified that from 2000 until

decedent relocated to North Carolina with Frank in 2006, he saw

his grandfather on a regular schedule "every other week."                     His

visits usually lasted "a couple of hours" and at times included

having dinner with him.          When asked to describe his grandfather's

demeanor and cognitive abilities during this time, Smith stated

that "[h]e had his good days . . . and his bad days."

      The    Pequannock    Police    Department      contacted   Smith     after

Alfred, Jr.'s suicide and requested that he come to decedent's

residence.     After Alfred, Jr.'s death, Smith stayed at decedent's

residence until his uncle Frank arrived approximately four days

later.      Smith testified that decedent was "very depressed" and

                                         13                              A-4532-14T1
inconsolable during this time.        Smith made clear, however, that

decedent understood the gravity of the situation; but he was in

disbelief over his son's death.         Smith testified that even at

Alfred, Jr.'s wake decedent was able to communicate and tell him

what was on his mind.

     Frank and his wife Jacqueline were the last two witnesses to

testify. Frank testified that he and Jacqueline went to decedent's

house after Alfred, Jr.'s death to assess the situation and assist

with the burial arrangements.   According to Frank, his father only

required assistance "with meals and paying bills[.]" He emphasized

that his father needing assistance with these two particular tasks

was not necessarily indicative of any age-related degeneration or

limitation.   His mother (decedent's wife) had cooked all of the

family's meals and paid the household expenses during the entire

time his parents lived together as husband and wife.       His father

"never cooked in his life."

     Frank testified that his father stopped driving after his

brother's suicide.      Decedent relied on him for transportation.

Jacqueline testified that decedent knew who she was and was happy

to see her.   He was also understandably distraught and upset over

his son's death.     Jacqueline claimed she was able to maintain

productive conversations with her father-in-law during the time

she was with him in this State.        She testified that he confided

                                 14                           A-4532-14T1
in her his fear of being left alone.     According to Jacqueline,

decedent was receptive to the idea of moving to North Carolina to

be near his son Frank and her.

     Jacqueline returned to North Carolina on January 9, 2007.

Frank remained behind to care for his father.    On March 1, 2007,

decedent executed a new Will in New Jersey.   Frank and his father

flew to North Carolina shortly thereafter. Upon decedent's arrival

in North Carolina, Jacqueline and Frank rented an apartment for

him to live, located across the street from their home.

     Jacqueline testified that she became very close to decedent

during the time he lived across the street from her home.          In

fact, she voluntarily assumed most of the responsibility for his

care.   They worked together on house chores or mini-projects,

including the construction of a fence.   Jacqueline testified that

decedent was able to engage in conversations "most of the time."

However, there were times when he became confused.   This confusion

could last for hours or for days.     Conversely, there were times

when he was lucid for days.

     In May 2007, Jacqueline took decedent to see a doctor because

she was concerned about his weight and frailness.    After engaging

in conversation with him, the doctor told Jacqueline that he

believed decedent was suffering from Alzheimer's disease.        The

doctor suggested that he submit to certain cognitive tests to

                                 15                         A-4532-14T1
confirm the diagnosis.     Decedent chose not to take the tests;

Jacqueline testified that she did not attempt to persuade him

otherwise.   The doctor suggested that decedent take Aricept, a

medication designed to slowdown the progression of the symptoms

of Alzheimer's.4    Jacqueline agreed.

     Jacqueline    testified   that   decedent   began   to    decline

physically and mentally in 2009.      Frank corroborated his wife's

testimony.   He testified that his father was in "real good shape"

for approximately two years after his move to North Carolina.

Alfred, Sr. died on August 18, 2011.     Frank testified that he did

not contact O'Dowd or any of Alfred, Jr.'s children to inform them

of his passing.    Frank provided the Morris County Probate Clerk

with an address where he believed they may be residing.       According

to Frank, the Probate Court told him that he was not legally

obligated to notify these individuals directly.          He was only

obligated to place a formal notification in the newspaper.        Frank

complied accordingly.

4
  Dr. Bock testified that Aricept is a medication for dementia and
is typically prescribed to dementia patients as part of an
aggressive treatment plan.     Dr. Bock explained that he did not
prescribe Aricept for decedent because it only slows the on-set
of dementia. He opined it would have been futile given decedent's
deteriorating state.

                                 16                             A-4532-14T1
                                      II

     When a judge sits as the trier of fact in a bench trial, the

judge must make factual findings based on the evidence presented

by the parties.        In this case, the evidence consisted primarily

of the testimony of the witnesses.             Here, Judge Hansbury found

"no problem with credibility of anyone.            I really think everybody

pretty much told me the truth."            Our standard of review of Judge

Hansbury's factual findings is well-settled.             "Factual findings

premised upon evidence admitted in a bench trial 'are binding on

appeal     when    supported     by   adequate,     substantial,    credible

evidence.'"       Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. Co.

v. Pa. Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (quoting

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). See also Rova

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

(1974).     This     deference   is   especially    appropriate    "when     the

evidence    is     largely   testimonial     and   involves   questions        of

credibility."       Sipko v. Koger, Inc., 214 N.J. 364, 376 (2013),

(quoting Cesare, supra, 154 N.J. at 412).

     Guided by these standards, we discern no legal basis to

disturb Judge Hansbury's factual findings.             However,    we    review

de novo and afford no deference to the trial court's rulings which

constitute a determination of law.            Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).

                                      17                                A-4532-14T1
     As the parties contesting decedent's 2007 Will, plaintiffs

bear the burden of proving undue influence.        In re Estate of

Stockdale, 196 N.J. 275, 303 (2008).   Furthermore, undue influence

is a form of fraud that must be proven by clear and convincing

evidence.    In re Niles Trust, 176 N.J. 282, 300 (2003).         Our

Supreme Court has held that

            undue influence is a mental, moral, or
            physical exertion of a kind and quality that
            destroys the free will of the testator by
            preventing that person from following the
            dictates of his or her own mind as it relates
            to the disposition of assets, generally by
            means of a will or inter vivos transfer[.]

            [In re Estate of Folcher, 224 N.J. 496, 512
            (2016) (quoting Stockdale, supra, 196 N.J. at
            302-03).]

     Here, Judge Hansbury reviewed the evidence presented at trial

and did not find any evidence to support the claim of undue

influence by Frank.    Judge Hansbury found decedent's decision to

repudiate the 2001 Will was based primarily on Alfred, Jr.'s

suicide and the reasons he believed precipitated it.

            I find the defendant [Frank] credible and I
            do find the decedent was extremely upset at
            the loss of his son and it's not hard to
            imagine that. I have never suffered through
            a suicide; but, to lose a child I've been told
            is the worst thing in the world. It's worse
            than losing anybody else and to lose a child
            at his own hands has got to be the most
            traumatic experience one can have.

                                 18                          A-4532-14T1
           So, Senior now had one son and the testimony
           through the defendant here was that he blamed
           Peggy and the kids for Junior's suicide.
           That's not out of the blue, because, given the
           nature of the marriage, . . . I can conclude
           that that's a legitimate thought of the
           decedent.     The TRO's, the divorce, the
           separation between them, the lack of contact
           between plaintiff and defendants and the
           decedent for all those years, meaning from the
           date of the wake forward, it fits with that
           conclusion. I find it a credible statement.

      As the trier of fact, Judge Hansbury chose to rely on this

evidence to support his legal conclusion.                We review a trial

judge's legal conclusions de novo.           The evidence amply supports

Judge Hansbury's conclusion.        It is undisputed that O'Dowd and her

children severed all contacts with decedent immediately after

Alfred, Jr.'s suicide.        When decedent relocated to North Carolina,

Frank and Jacqueline were his only family.              Finally, decedent's

decision to include in the 2007 Will the same $30,000 bequest to

his grandson Smith that he included in the 2001 Will is further

evidence that he was acting under his own volition.

      We next address plaintiffs' argument claiming Judge Hansbury

erred when he found decedent had the testamentary capacity to

execute the 2007 Will.          We begin our analysis of this issue by

noting that "[t]he findings of the trial court on the issues of

testamentary capacity and undue influence, though not controlling,

are   entitled   to   great    weight    since   the   trial   court   had   the

                                        19                             A-4532-14T1
opportunity of seeing and hearing the witnesses and forming an

opinion as to the credibility of their testimony."               Matter of Will

of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992) (quoting

Gellert v. Livingston, 5 N.J. 65, 78 (1950)), certif. denied, 133

N.J. 432 (1993).       Plaintiffs must rebut the presumption that "the

testator was of sound mind and competent when he executed the

will."   Id.   at     524   (quoting    Gellert,    supra,   5   N.J.   at    71).

Plaintiffs     must    satisfy   this    burden    of   proof    by   clear   and

convincing evidence.        Ibid.

     Plaintiffs rely on the testimony of Dr. Bock in support of

their contention that decedent lacked testamentary capacity when

he executed the 2007 Will.             In rejecting this argument, Judge

Hansbury accepted as credible the testimony of John A. Snowdon,

Sr., the attorney who drafted the March 1, 2007 Will and was

present when decedent executed it.                Judge Hansbury noted that

Snowdon met with decedent approximately two weeks after Alfred,

Jr. died, and personally discussed with decedent what plans he had

concerning the disposition of his estate.

     Following this meeting, Snowdon sent decedent drafts of the

Will for his review and approval.             Judge Hansbury specifically

found that this process took approximately six weeks, which "was

plenty of time [for decedent] to reflect . . . plenty of time to

calm down, to overcome the initial shock of losing his son[.]"

                                        20                               A-4532-14T1
Stated differently, decedent was not pressured to reach this

decision.    Judge Hansbury also did not find strange or suspicious

that Snowdon did not retain any notes in his file of his meetings

with decedent.    The judge concluded:

            I do find that the [decedent] had sufficient
            testamentary    capacity   to    execute   the
            documents. He went in and out. That I find,
            not a problem.    He suffered from dementia,
            that I find; but, there's [no] evidence that
            he was incapable of understanding what his
            desires were and as I said, even the doctor
            said he could decide what to do with his body.

                 . . . .

            So, I do find that he had sufficient capacity
            to execute the Will, understanding that he
            suffered from dementia, had bad days and had
            good days.

     The    evidence   presented      at   trial,   including    Dr.    Bock's

testimony, supports this finding.            There is no question that

decedent suffered from dementia that was progressing commensurate

with his age and was likely exacerbated by the emotional trauma

associated with Alfred, Jr.'s death. The testimony of his grandson

Smith corroborated Dr. Bock's testimony in one key respect.                Both

of these witnesses testified that decedent had days in which he

was able to have "normal" conversations.

     This court has held that a person who may at times lack

testamentary   capacity    may   be   deemed   capable   of     executing     an

enforceable will if they have "lucid intervals."              See Wallhauser

                                      21                               A-4532-14T1
v. Rummel, 25 N.J. Super. 358, 366 (App. Div. 1953); see also In

re Politowicz, 124 N.J. Super. 9, 12 (App. Div. 1973).   We discern

no legal basis to disturb Judge Hansbury's well-reasoned legal

conclusion upholding the validity of the March 1, 2007 Will.

     We affirm the judgment of the Chancery Division substantially

for the reasons expressed by Judge Hansbury in his oral opinion

delivered from the bench on April 29, 2015.

     Affirmed.

                               22                           A-4532-14T1


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