Aaberg's Estates, Matter of

• Decision Date: 06 February 1980
• Docket Number: No. 3148-II,3148-II
• Citation: 607 P.2d 1227,25 Wn.App. 336
• Parties: In the Matter of the ESTATES of Melvin T. AABERG and Christina B. Aaberg, Deceased.
• Court: Washington Court of Appeals

Page 336

25 Wn.App. 336

607 P.2d 1227

In the Matter of the ESTATES of Melvin T. AABERG and Christina B. Aaberg, Deceased.

No. 3148-II.

Court of Appeals of Washington, Division 2.

Feb. 6, 1980.

Michael R. Tabler, Waterville, for appellant.

Samuel H. Pemberton, Jr., Tacoma, for respondent.

REED, Acting Chief Judge.

Executor William J. Walton and Attorney C. M. Clark appeal from a lower court order removing them as executor and attorney representing the estates of Melvin and Christina Aaberg, and ordering the repayment of part or all of the fees paid to them by the estate. We affirm in part and reverse in part.

The principal issues presented in this appeal are: (1) whether there is sufficient evidence of the executor's mismanagement to uphold the lower court's finding; and (2) whether the lower court erred in requiring the executor and attorney to refund part or all of the fees received.

Late in February 1974, both Melvin and Christina Aaberg died, leaving real and personal property to Mrs. Aaberg's 8 children. One of her sons, William J. Walton was appointed executor for both estates. The property was to be distributed among the children "share and share alike," and the executor was to have nonintervention powers.

Shortly after the funeral of their parents the legatees gathered at a meeting to agree upon a procedure for dividing the estates' personal property. ¹ Elizabeth Carlton, a legatee, claims she submitted to the others a list of her personal items stored at their parents' home. Mrs. Carlton wished to have these items set aside for her before the remaining personal property was distributed. All agreed she could have the items requested. As the meeting continued, Mrs. Carlton became angry for unknown reasons and left before any agreement could be reached on a distribution scheme. The remaining legatees agreed to divide the household goods by lot and following the distribution they removed the goods from the house. The executor kept no records of the property distributed, its value, or to whom it was distributed. Although the items mentioned on Mrs. Carlton's list were left for her in the house, it was some time before she was able to remove them from the premises.

In August of 1977, Mrs. Carlton petitioned the Superior Court, under RCW 11.68.070, seeking revocation of the executor's Letters Testamentary or restriction of his nonintervention powers. Testimony elicited at the hearing indicated that pursuant to his duties under RCW 11.44.015, the executor inventoried properties in both estates. According to an appraisal dated April 18, 1974, the total value of both estates was $84,443.17. The inventory, however, failed to include a 1964 automobile which was later sold to another legatee for $125. ² Furthermore, the household goods were appraised at only $580, and the executor was unable to recall whether the inventory was made before or after the other legatees had removed the distributed goods.

After completion of the testimony the lower court approved the executor's removal. Before appointing a successor, the court ordered Mr. Walton to refund the entire $2,500 fee he had collected for his prior services as executor and ordered the estates' attorney to refund $1,000 of his $1,500 attorney's fees. Thereafter, a successor was appointed with nonintervention powers to continue the administration of the estates.

The first issue in the former executor's appeal is whether the lower court had adequate grounds to revoke his Letters Testamentary. RCW 11.68.070 provides, inter alia, that should the executor become subject to removal for any reason specified in RCW 11.28.250, the court may, within its discretion, remove the executor and appoint a successor. RCW 11.28.250 authorizes the court to revoke the executor's letters where it has reason to believe the personal representative has wasted, embezzled, or mismanaged property of the estate, or where for other cause or reason the court finds such action is necessary. Although the trial judge is given broad discretion as to the grounds upon which he may remove an executor, the grounds must be valid and supported by the record. In re Estate of Beard, 60 Wash.2d 127, 372 P.2d 530 (1962). If any one of a court's several grounds for removal is valid, its decision will not be disturbed on appeal. In re Estate of Beard, supra. See In re Estate of Blodgett, 67 Wash.2d 92, 406 P.2d 638 (1965); In re Estate of Wolfe, 186 Wash. 216, 57 P.2d 1066 (1936).

The trial court's findings in the case at bar indicate that the executor failed to submit a complete inventory, that money received and other estate property was not maintained or recorded properly, and that the distribution made was not according to the share and share alike provision of the decedents' wills. An independent review of the record reveals that these findings are based on evidence concerning the executor's failure to inventory the $125 automobile and his failure to provide Mrs. Carlton with a full one-eighth share of their parents' household property.

On appeal, the executor cites In re Estate of Hooper, 76 Wash. 72, 135 P. 813 (1913), in urging that the inventory omission was a minor irregularity and not sufficient grounds for removal, especially in light of his specific reference to the automobile and the inventory omission in the inheritance tax report. Furthermore, the executor urges that his failure to provide Mrs. Carlton with her one-eighth share in the $580 of household furnishings is insignificant in light of the estates' final appraised value of over $74,000. At oral argument the executor suggested that the trial court acted excessively in removing him and denying all his fees. He maintains that, considering the alleged de minimus nature of the conduct involved, a more appropriate sanction would have been the restriction of his nonintervention powers.

Despite any disagreement we may have with the trial court's decision, our only query on appeal is whether that decision is so arbitrary as to amount to an abuse of discretion. In re Estate of Blodgett, supra; State ex rel. Carlson v. Superior Court, 47 Wash.2d 429, 287 P.2d 1012 (1955). Based on the executor's failure to provide Mrs. Carlton with her full share of the household goods and, judging from the record, the animosity existing between the executor and Mrs. Carlton, we cannot say that the court's ruling was so devoid of reason that it now should be overturned. See In re Estate of Blodgett, supra. Because the executor was unable to specify whether the inventory of household goods was taken before or after most of the goods were removed by the other legatees, we cannot say that the value of a one-eighth share is de minimus.

The second assignment of error concerns the court's ruling requiring the executor and attorney to refund fees they claim to have earned during administration of the two estates. The executor, William J. Walton, was ordered to repay all of the $2,500 fee he had collected, and the attorney, C. M. Clark, was ordered to repay $1,000 of the $1,500 he had collected. Both appeal the order claiming that the lower court lacked authority to order such a refund and even with proper authority the court did so without considering the reasonable value of services actually provided. Because we find the court lacked jurisdiction to consider the question of fees we do not address the need for a court evaluation of the reasonable value of services actually provided.

Analysis of the jurisdiction issue requires a brief summary of the respective roles of the court and personal representative in a nonintervention will. See generally Fletcher, Washington's Nonintervention Executor Starting Point for Probate Simplification, 41 Wash.L.Rev. 33 (1966). The notion of a nonintervention will is one that allows the executor to deal with the estate's property without the need for court supervision. RCW Chapter 11.68 concerns the settlement of estates without court supervision, and the nonintervention statute, RCW 11.68.030, identifies the point at which the personal representative acquires the nonintervention powers.

Under RCW 11.68.030, upon entry of an order of solvency and the furnishing of any required bond the court loses jurisdiction. Quoting the language parallel in meaning in RCW 11.68.030, the court in In re Estate of Megrath, 142 Wash. 324, 326-27, 253 P. 455, 456 (1927), said:

"After the probate of any such will * * * all such estates may be managed and settled without the intervention of the court."

This is not a limitation, but rather a grant of power to the executor. If in his judgment matters arise in the settlement of the estate requiring judicial determination, he may invoke the jurisdiction of the superior court, either in equity or in probate. But this must be of his own volition. The jurisdiction of the probate court can only be invoked by others in those cases where the statute has conferred the right.

In Schubach v. Redelsheimer, 92 Wash. 124, 158 P. 739, after reviewing many of our earlier cases, this court said:

"Where the requirements of this statute have been complied with, the jurisdiction of the probate court ceases, except upon the happening of one or more of the conditions provided in the statute which authorizes an interference on the part of the court." (Emphasis added.)

The court in In re Estate of Peabody, 169 Wash. 65, 70, 13 P.2d 431, 432-433 (1932), provided further insight to the existence of subject matter jurisdiction when it said:

To make this clear, let us illustrate: (a) Mr. Peabody in his lifetime made a nonintervention will, but no court then had jurisdiction of his estate. (b) Mr....