Estate of Lovell, Matter of, No. 83-420

CourtCourt of Appeals of Iowa
Writing for the CourtSCHLEGEL
Citation344 N.W.2d 576
Docket NumberNo. 83-420
Decision Date27 December 1983
PartiesIn the Matter of the ESTATE OF Alva Lee LOVELL, Deceased; 1 Donald P. Baird, Executor, Appellant.

Page 576

344 N.W.2d 576
In the Matter of the ESTATE OF Alva Lee LOVELL, Deceased; 1
Donald P. Baird, Executor, Appellant.
No. 83-420.
Court of Appeals of Iowa.
Dec. 27, 1983.

Page 577

John D. Sens of Stuart, Tinley, Peters, Thorn, Smits & Sens, Council Bluffs, for appellant.

Peter J. Peters, Council Bluffs, for appellee Gail C. Lovell.

Considered by SNELL, P.J., and SCHLEGEL and HAYDEN, JJ.

SCHLEGEL, Judge.

This appeal is from an order removing Donald P. Baird as executor of the estate of Alva Lee Lovell, deceased. The removal was brought about in response to a petition for removal filed by Gail Lovell, the surviving son and a beneficiary of the deceased. We affirm.

The removal petition was filed on February 22, 1983. On the same date, the executor filed a motion to dismiss the petition, stating in essence that the petition, governed by Iowa Code section 633.65 (1981), failed to allege any grounds set out in that statute and that no grounds for his removal existed. He alleged that the petition for removal of executor was fatally defective and should be dismissed. On February 23, 1983, the petition for removal and the motion to dismiss were scheduled for hearing at 10:00 a.m. on March 21, 1983. On February 25, 1983, the executor filed a document entitled: "Objection to Scheduling Trial." The executor filed an amendment to his motion to dismiss on March 2, 1983, referring to the fact that a matter involving claimed estate assets was on appeal to the Supreme Court of Iowa and alleging that the district court (sitting in probate) had no jurisdiction of the matter.

An amendment to the petition for removal of executor was filed on March 3, 1983, specifying alleged grounds of mismanagement by the executor. On the same date, Gail Lovell filed a resistance to the executor's motion to dismiss and its amendment and a resistance to the executor's objection to the scheduling of trial. Finally, on March 18, 1983 the executor filed an answer to the petition for removal.

On the date of the scheduled hearing, March 21, 1983, the executor moved either to continue the cause or to dismiss it. The trial court reserved ruling on the motion to dismiss and overruled the motion for continuance. The matter proceeded to a hearing on the petition for removal and on the other issues raised by the pleadings and motions.

The trial court, in its final order, overruled the executor's motion to dismiss and objection to scheduling for trial and removed Donald P. Baird as executor of the estate. Gail C. Lovell, decedent's son and beneficiary, was appointed executor of the estate. Donald P. Baird (hereinafter Baird) appealed from the trial court's final order.

Actions for the removal of a fiduciary are triable as actions in equity. Iowa Code § 633.33 (1981). Review of this equity matter is de novo. Iowa R.App.P. 4.

I. Due Process. Baird first asserts that the immediate scheduling of the petition for trial, without giving him a reasonable opportunity to prepare for trial, deprived him of due process of law. Baird does not claim that he did not receive ample notice of the filing of the petition for removal. His motion to dismiss, filed on the same date as the filing of the petition, demonstrates that he received notice of the petition and a copy of it. 2 Baird's response to the petition was immediate.

Baird cites Miller v. Warren County, 285 N.W.2d 190, 193 (Iowa 1979), which states "[a] fundamental notion of due process is notice of the pendency of the proceeding and an opportunity to prepare a response to it." The supreme court in Galloway v. Farber, 252 Iowa 360, 364, 106 N.W.2d 920, 922 (1961), stated the rule as follows: "The rule in all cases, with hardly

Page 578

an exception, is that before an executor or administrator can be removed, he must be notified or cited to appear at a time and place fixed by the court, to show cause why he should not be removed; ...." (citation omitted)....

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13 practice notes
  • Jarmin v. Shriners Hospitals for Crippled Children, No. 890207
    • United States
    • United States State Supreme Court of North Dakota
    • 18 Enero 1990
    ...Counts, 217 Mont. 350, 704 P.2d 1052 (1985); Estate of Jaworski v. Jaworski, 479 N.E.2d 89 (Ind.Ct.App.1985); Matter of Estate of Lovell, 344 N.W.2d 576 (Iowa App.1983); In re Estate of Moss, 183 Neb. 71, 157 N.W.2d 883 (1968). See also 31 Am.Jur.2d Executors and Administrators Sec. 277 The......
  • Estate of Randeris v. Randeris, No. 93-1184
    • United States
    • Court of Appeals of Iowa
    • 25 Agosto 1994
    ...the will. The trial court has broad discretion in deciding whether to remove an executor Page 606 and trustee. In re Estate of Lovell, 344 N.W.2d 576, 579 (Iowa App.1983). We examine the record de novo to determine whether an abuse of discretion can be found. Schildberg v. Schildberg, 461 N......
  • Marriage of Hatzievgenakis, In re, No. 88-388
    • United States
    • Court of Appeals of Iowa
    • 29 Noviembre 1988
    ...abuse of discretion. Department of Gen. Servs., State of Iowa v. R.M. Boggs Co., Inc., 336 N.W.2d 408, 410 (Iowa 1983); Estate of Lovell, 344 N.W.2d 576, 578 (Iowa App.1983). Prejudice must be shown to require a reversal for denial for such a motion. Cavanagh v. O'Connor, 194 Iowa 670, 186 ......
  • In re Estate of Rutter, No. 99-0208.
    • United States
    • United States State Supreme Court of Iowa
    • 6 Septiembre 2001
    ...whether to remove an executor. In re Estate of Lininger, 230 Iowa 201, 205, 297 N.W. 310, 312 (1941); accord In re Estate of Lovell, 344 N.W.2d 576, 579 (Iowa Ct. App.1983). Accordingly, we will not interfere with the exercise of this discretion unless it has been abused. See In re Estate o......
  • Request a trial to view additional results
13 cases
  • Jarmin v. Shriners Hospitals for Crippled Children, No. 890207
    • United States
    • United States State Supreme Court of North Dakota
    • 18 Enero 1990
    ...Counts, 217 Mont. 350, 704 P.2d 1052 (1985); Estate of Jaworski v. Jaworski, 479 N.E.2d 89 (Ind.Ct.App.1985); Matter of Estate of Lovell, 344 N.W.2d 576 (Iowa App.1983); In re Estate of Moss, 183 Neb. 71, 157 N.W.2d 883 (1968). See also 31 Am.Jur.2d Executors and Administrators Sec. 277 The......
  • Estate of Randeris v. Randeris, No. 93-1184
    • United States
    • Court of Appeals of Iowa
    • 25 Agosto 1994
    ...the will. The trial court has broad discretion in deciding whether to remove an executor Page 606 and trustee. In re Estate of Lovell, 344 N.W.2d 576, 579 (Iowa App.1983). We examine the record de novo to determine whether an abuse of discretion can be found. Schildberg v. Schildberg, 461 N......
  • Marriage of Hatzievgenakis, In re, No. 88-388
    • United States
    • Court of Appeals of Iowa
    • 29 Noviembre 1988
    ...abuse of discretion. Department of Gen. Servs., State of Iowa v. R.M. Boggs Co., Inc., 336 N.W.2d 408, 410 (Iowa 1983); Estate of Lovell, 344 N.W.2d 576, 578 (Iowa App.1983). Prejudice must be shown to require a reversal for denial for such a motion. Cavanagh v. O'Connor, 194 Iowa 670, 186 ......
  • In re Estate of Rutter, No. 99-0208.
    • United States
    • United States State Supreme Court of Iowa
    • 6 Septiembre 2001
    ...whether to remove an executor. In re Estate of Lininger, 230 Iowa 201, 205, 297 N.W. 310, 312 (1941); accord In re Estate of Lovell, 344 N.W.2d 576, 579 (Iowa Ct. App.1983). Accordingly, we will not interfere with the exercise of this discretion unless it has been abused. See In re Estate o......
  • Request a trial to view additional results

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