Estate of Posey, In re

• Citation: 548 N.E.2d 1205
• Decision Date: 24 January 1990
• Docket Number: No. 79A02-8801-CV-8,79A02-8801-CV-8
• Parties: In re The ESTATE OF Pearl C. POSEY, Deceased. Raymond HARKRIDER, as Executor of the Will of Georgia Cory, Deceased, Raymond Harkrider, Individually, June Nelson and Betty Rogers, Appellants, v. LAFAYETTE NATIONAL BANK, ADMINISTRATOR w/w/a, Appellee.
• Court: Court of Appeals of Indiana

Page 1205

548 N.E.2d 1205

In re The ESTATE OF Pearl C. POSEY, Deceased.

Raymond HARKRIDER, as Executor of the Will of Georgia Cory,

Deceased, Raymond Harkrider, Individually, June

Nelson and Betty Rogers, Appellants, v. LAFAYETTE NATIONAL BANK, ADMINISTRATOR w/w/a, Appellee.

No. 79A02-8801-CV-8.

Court of Appeals of Indiana,

Second District.

Jan. 24, 1990.

Richard S. Ewing, Douglas R. Brown, Stewart & Irwin, Indianapolis, for appellants.

Stephen R. Pennell, Stuart & Branigin, Lafayette, for appellee.

SULLIVAN, Judge.

The appellants, relatives of the decedent Pearl C. Posey, ("the family") challenge the trial court's appointment of Lafayette National Bank ("LNB") as successor personal representative of the estate of Pearl Posey.

We affirm.

Pearl Posey died on March 19, 1982. Floyd Wilcox was appointed executor of Pearl's estate by the Tippecanoe Circuit Court. Floyd died on July 1, 1987, prior to the closing of Pearl's estate. At the time of Floyd's death, a will contest was pending in Warren Circuit Court. On July 8, the co-administrators of Floyd's estate filed a petition with the Tippecanoe Circuit Court requesting LNB be appointed as successor personal representative of Pearl's estate.

On August 5, 1987, the family, including, primarily, Pearl's brother, Raymond Harkrider, filed their position entitled "Notice of Position and Desires of Pearl's Family in respect of Successor Personal Representative." In their petition, the family objected, among other things, to LNB as successor personal representative and requested opportunity for discovery.

At the outset of a hearing in the Tippecanoe Circuit Court on August 31, 1987, Richard Holmes, attorney for the family, filed a Motion to Withdraw Appearance and requested a continuance to allow the family to obtain new counsel. After the court sustained Mr. Holmes' Motion to Withdraw, Mr. Harkrider renewed the request for a continuance. The court heard arguments from the attorney for the estate and from Mr. Harkrider concerning the suitability of LNB to be successor personal representative and the need for a continuance. The court then proceeded to appoint LNB as successor personal representative.

The family presents three issues which we restate as follows:

1. Whether the court erred in appointing LNB as successor representative by failing to allow the family an opportunity to conduct discovery, to present evidence at trial and by failing to consider newly discovered evidence presented to the trial court following the hearing;

2. Whether the Tippecanoe Circuit Court had jurisdiction to appoint a successor personal representative; and 3. Whether the trial court ignored the guidelines of I.C. 29-1-10-1 in appointing LNB successor personal representative.

LNB argues that this appeal is frivolous and requests attorney's fees.

The family argues that the trial court erred by failing to grant them an opportunity to conduct discovery and to obtain and present evidence regarding a conflict of interest between LNB and Pearl's estate. During the hearing, Mr. Harkrider told the court in the form of argument, that he had spoken with a representative of LNB in July of 1979 concerning a guardianship of Pearl's estate. At that time, the representative allegedly advised Mr. Harkrider that there might be a conflict of interest between LNB and Floyd Wilcox which precluded LNB from accepting the guardianship of Pearl's estate. Mr. Harkrider then told the court that he thought a conflict may still exist because Mr. Wilcox had some farms of his own and he also farmed for other people and LNB had a farm department. Mr. Harkrider then argued that since Pearl's estate was claiming an 80 acre farm from Mr. Wilcox, it would be improper for the court to appoint LNB without further investigation into what business LNB did for Mr. Wilcox. Based on this claim of a conflict of interest, the family contends that the trial court had a duty to allow them time to obtain evidence to support their claim.

We first note that the court did not err in failing to consider Mr. Harkrider's argument because Mr. Harkrider was not under oath and did not testify before the court. His argument did not constitute evidence for consideration by the court. Moreover, Mr. Harkrider did not request that he be sworn and permitted to testify.

The trial court has wide discretion and latitude in matters concerning the appointment or removal of personal representatives. Its determination will not be reversed unless the court clearly abused its discretion. Matter of Estate of Swank (1978) 3d Dist., 176 Ind.App. 182, 375 N.E.2d 238.

The appointment of successor personal representatives is governed by I.C. 29-1-10-7 (Burns Code Ed.1972), which states, in relevant part:

"When a personal representative dies ... the court may, and if he was the sole or last surviving personal representative and administration is not completed, the court shall appoint another personal representative in his place." [Emphasis supplied].

Here, the court had a mandatory duty to appoint a successor personal representative. Public policy dictates that estates should be settled without unreasonable delay. White v. Sloss (1964) 245 Ind. 289, 198 N.E.2d 219. When the duly appointed executor or administrator dies, resigns or is removed, the estate is left without a managing agent and the assets of the estate are unprotected. Therefore, the trial court has a duty to appoint a successor personal representative at the soonest possible time.

In this case, the court had to weigh the need for a successor personal representative against Mr. Harkrider's assertion that a conflict of interest might possibly exist. We cannot say that the court's decision to appoint LNB as successor personal representative without granting additional time to the family to obtain evidence against LNB was an abuse of discretion. Therefore it was not error for the court to appoint LNB without granting the family a continuance.

It is important to note that the family was not left without remedy. If evidence was later discovered showing LNB to have a conflict of interest, the family could have petitioned the court for removal of LNB as personal representative under I.C. 29-1-10-6 (Burns Code Ed.Supp.1989).

The family argues that the trial court erred in failing to consider "newly discovered evidence" contained in Mr. Harkrider's Affidavit attached to their Motion to Correct Errors. The affidavit sets out the particulars concerning Mr. Harkrider's meeting with a representative of LNB in 1979 after which Mr. Harkrider was told by the representative that LNB might have a conflict of interest with Floyd Wilcox if it were to undertake the guardianship of Pearl's estate. This evidence is substantially the same as the argument Mr. Harkrider presented to the court at the hearing. This evidence cannot be considered to be "newly discovered" within the meaning of T.R. 59. See, Briggs v. Clinton County Bank and Trust Co. (1983) 2d Dist.Ind.App., 452 N.E.2d 989; Trout v. Summit Lawn Cemetery Ass'n (1974) 1st Dist., 160 Ind.App. 552, 312 N.E.2d 498. Mr. Harkrider's argument at the hearing shows that the family could have produced the same evidence at the hearing that was subsequently presented with their Motion to Correct Errors.

Furthermore, Mr. Harkrider's affidavit only addresses a conflict that might have existed in 1979. It contains no solid facts to indicate that a conflict existed at the time of the appointment of LNB as successor representative. LNB filed with their response to the family's Motion to Correct Errors, affidavits of Kathryn Wilcox, widow of Floyd Wilcox, and Ralph Jackson, Vice-President of Agricultural Services for LNB. Both Mrs. Wilcox and Mr. Jackson stated in their affidavits that LNB's only relationship with Floyd Wilcox was that Floyd maintained a joint checking account with his wife at LNB and that prior to March 1, 1976, Floyd was a tenant of a farm managed by LNB. Therefore, the court did not have before it any facts of a current conflict of interest. With respect to the alleged newly discovered evidence, it was not an abuse of discretion for the court to deny the Motion to Correct Errors filed by the family.

The family next argues that the Tippecanoe Circuit Court lacked jurisdiction to appoint a successor personal representative because a will contest was pending in Warren Circuit Court. Although the record before us does not include a record of any of the proceedings concerning the will contest in Warren Circuit Court or the venue of those proceedings, both parties admit either in their briefs or in memoranda appearing in the record that probate of Pearl's estate began in Tippecanoe County. A will contest was subsequently filed and that proceeding was venued to Warren County.

The family contends that the court having a will contest pending has exclusive jurisdiction to appoint a successor personal representative. In support of this position, appellants cite In re Barger's Estate (1943) 114 Ind.App. 129, 51 N.E.2d 104. That case involved a will contest in which all of the proceedings were in Adams Circuit Court. A change of venue was not a part of the proceedings. An heir of the decedent sought the appointment of a special administrator pending the final determination of the appeal in the suit contesting the will. The appellant challenged the court's order appointing a special administrator. The court held that when the validity of the will is being challenged, the trial court has jurisdiction provided by statute to appoint a special administrator. Id. at 137, 51 N.E.2d at 107.

We do not disagree that the court may appoint a special administrator when the validity of the will is being contested. This procedure is provided for by statute. See, I.C. 29-1-10-15 (Burns Code Ed.Supp.1989). This reasoning does not, however, lead to the conclusion that the Warren Circuit Court had exclusive jurisdiction to appoint a successor personal representative....