In re Estate of Jones
| Decision Date | 01 July 2004 |
| Docket Number | No. 73951-0.,73951-0. |
| Citation | 152 Wash.2d 1,93 P.3d 147 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the ESTATE OF Marcella Louise JONES, Deceased. Jeffrey P. Jones and Peter C. Jones, Petitioners, v. Russell K. Jones, Respondent. |
Francis J. Gebhardt, Robert Franklin Greer, Feltman Gebhardt Greer Zeimantz PS, Spokane, for Petitioners.
Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, for Respondent.
Michael Cohen, Michael B. King, Gail Mautner, Lane Powell Spears Lubersky LLP, Seattle, June A. Jackson, Edmonds, David William Savage, Pullman, for Amicus Curiae (Washington State Bar Association).
The Spokane County Superior Court removed Russell Jones, a beneficiary and the personal representative of Marcella Jones's estate, from his position based on several breaches of fiduciary duty to the remaining beneficiaries, his three brothers. The appellate court reinstated him as the personal representative holding the trial court lacked the specific legal grounds for his removal listed in RCW 11.68.070 and 11.28.250. We construe RCW 11.68.070 and 11.28.250 to hold all personal representatives to the same fiduciary duty. Under RCW 11.68.070, all of the grounds listed in RCW 11.28.250 are incorporated into the nonintervention statutory scheme. Probate courts may remove a personal representative or restrict his or her nonintervention powers for waste, embezzlement, mismanagement, fraud, or "for any other cause or reason which to the court appears necessary." RCW 11.28.250. Based on this statutory construction, we find Russell breached his fiduciary duty to the beneficiaries, and we affirm the trial court's removal of Russell. We also affirm the appointment of James Woodard as a successor personal representative, remand for a final accounting, and award attorney fees to Peter and Jeffery Jones.
Marcella Louise Jones died testate September 2, 1995, with property in Spokane, Washington. Marcella's will transferred her estate in equal shares to her four sons, David, Russell, Jeffery, and Peter, and named Russell the personal representative with nonintervention powers. The will was admitted to probate on September 25, 1995, Russell was appointed the personal representative, and an order of probate and solvency was entered. The estate included real estate in Spokane, securities and investments, an interest in a mortgage/real estate contract, personal property, and a 1987 Buick automobile. Although the brothers met on May 4, 1996, to distribute property, the meeting was unsuccessful due to continuing unresolved conflicts between the brothers that have endured over the last 40-50 years.
Subsequently, Peter and Jeffery filed several petitions during the probate proceedings to receive an interim accounting, a final accounting, remove Russell as personal representative, and appoint a new personal representative. Peter and Jeffery also filed a personal complaint against Russell based on several breaches of his fiduciary duty. The actions were consolidated and on September 4, 2001, Judge Rebecca Baker heard Peter and Jeffery's complaints. Judge Baker found that Russell had breached several of his fiduciary duties as a personal representative. She subsequently removed Russell and appointed James Woodard as his successor. Judge Baker further concluded that the unrecorded deed transferring the house to Russell was void and that he should pay rent, utilities, insurance, and property taxes based on his residence in the estate property from the time of his mother's death until the present. Finally, Judge Baker ordered a final accounting and awarded attorney fees to Peter and Jeffery, both to be paid by Russell.
On November 5, 2001, Russell appealed the trial court's decision. The Court of Appeals reversed the trial court and held that the trial court did not have jurisdiction to intervene in the probate proceeding because the alleged misconduct was insufficient to disqualify Russell under RCW 11.68.070 and 11.28.250. In re Estate of Jones, 116 Wash.App. 353, 358, 67 P.3d 1113 (2003). Peter and Jeffery petitioned this court for review and we granted it on November 4, 2003. We now reverse the appellate court and affirm the trial court's ruling.
1. Under RCW 11.68.070 and 11.28.250, did the trial court have grounds to properly remove Russell Jones as the nonintervention personal representative of Marcella Jones's estate?
2. If removal was proper, did the trial court properly appoint James Woodard as the new personal representative?
3. Should either party receive attorney fees?
On review, unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). An appellate court will uphold challenged findings of fact and treat the findings as verities on appeal if the findings are supported by substantial evidence. Miller v. City of Tacoma, 138 Wash.2d 318, 323, 979 P.2d 429 (1999). Substantial evidence is evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. Where the findings do not support the removal of a personal representative, the removal is arbitrary and improper. In re Estate of Coates, 55 Wash.2d 250, 259-60, 347 P.2d 875 (1959) (); In re Estate of Ardell, 96 Wash.App. 708, 720, 980 P.2d 771 (1999).1 An appellate court reviews conclusions of law and questions of statutory interpretation de novo, as these are questions of law. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999); State v. J.P., 149 Wash.2d 444, 449, 69 P.3d 318 (2003).
The superior court properly removed Russell Jones because the court had jurisdiction over the proceeding and the grounds for removal were valid. Superior court jurisdiction over nonintervention probate is statutorily limited. In re Estate of Bobbitt, 60 Wash.App. 630, 632, 806 P.2d 254 (1991). As the court explained in Coates, once the decedent dies, the personal representative applies for an order of solvency, and the court has jurisdiction to grant or deny the order. However, once an order of solvency is entered the court loses jurisdiction. The court may regain jurisdiction only if the executor or another person with statutorily conferred authority invokes jurisdiction. Coates, 55 Wash.2d at 255-56, 347 P.2d 875 (citing In re Estate of Peabody, 169 Wash. 65, 13 P.2d 431 (1932)). Here, an order of solvency was granted, and Russell did not invoke the superior court's jurisdiction. However, under RCW 11.68.070, Peter and Jeffery, as heirs of the estate, had the statutory authority to invoke jurisdiction and properly did so. Therefore, the superior court had the jurisdiction to decide if Russell faithfully discharged his duties pursuant to RCW 11.68.070 and 11.28.250.
If the personal representative "has not faithfully discharged said trust or is subject to removal for any reason specified in 11.28.250," RCW 11.68.070 allows the court to intervene and to remove or restrict the powers of a nonintervention personal representative. RCW 11.28.250 provides:
Whenever the court has reason to believe that any personal representative has wasted, embezzled, or mismanaged, or is about to waste, or embezzle the property of the estate committed to his charge, or has committed, or is about to commit a fraud upon the estate, or is incompetent to act, or is permanently removed from the state, or has wrongfully neglected the estate, or has neglected to perform any acts as such personal representative, or for any other cause or reason which to the court appears necessary, it shall have power and authority, after notice and hearing to revoke such letters.
(Emphasis added.) The superior court must have valid grounds for removal and these grounds must be supported in the record. In re Estate of Beard, 60 Wash.2d 127, 132, 372 P.2d 530 (1962); In re Estate of Aaberg, 25 Wash.App. 336, 339, 607 P.2d 1227 (1980). Further, if even one ground for removal is valid, the decision should be upheld on appeal. Beard,60 Wash.2d at 134-35,372 P.2d 530; Aaberg,25 Wash.App. at 339,607 P.2d 1227.2
The appellate court held that the superior court did not base its removal of Russell Jones on valid grounds. Jones, 116 Wash.App. at 358, 67 P.3d 1113. One basis for the appellate court's holding was a narrow construction of RCW 11.68.070 and 11.28.250. It held that RCW 11.28.250's catchall phrase "for any other cause or reason which to the court appears necessary" could not be incorporated into RCW 11.68.070 because that statute allows removal only for unfaithful conduct or "reasons specified in RCW 11.28.250." Id. at 363, 67 P.3d 1113. The court concluded that the catchall phrase was not a "reason specified" and therefore could not be a basis for removal of a nonintervention personal representative. Id. The court then found that Russell's actions did not constitute specified grounds listed in the statutes and his removal was improper. Id. at 364, 372, 67 P.3d 1113.
The appellate court's statutory interpretation is contrary to the rules of statutory construction. Where a statute is unambiguous, the court assumes the legislature means what it says and will not engage in statutory construction past the plain meaning of the words. Davis v. Dept. of Licensing, 137 Wash.2d 957, 963-64, 977 P.2d 554 (1999). RCW 11.68.070 is not ambiguous and plainly incorporates all of the reasons for removal listed in RCW 11.28.250 into the nonintervention statutory scheme. A plain reading of both statutes shows that the purpose of the statutes is to provide protection to beneficiaries and other interested parties when a personal representative breaches his fiduciary duties. To exclude nonintervention personal representatives from the "for...
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