In re Estate of Jones

• Citation: 67 P.3d 1113,116 Wash.App. 353
• Decision Date: 03 April 2003
• Docket Number: No. 20651-3-III.,20651-3-III.
• Court: Court of Appeals of Washington
• Parties: In the Matter of the ESTATE OF Marcella Louise JONES, Deceased. Jeffrey P. Jones and Peter C. Jones, Respondents, v. Russell K. Jones, Appellant.

67 P.3d 1113

116 Wash.App. 353

In the Matter of the ESTATE OF Marcella Louise JONES, Deceased.

Jeffrey P. Jones and Peter C. Jones, Respondents, v. Russell K. Jones, Appellant.

No. 20651-3-III.

Court of Appeals of Washington, Division 3, Panel Eight.

April 3, 2003.

Philip A. Talmadge, Talmadge & Stockmeyer, Tukwila, WA, for Appellant.

Robert F. Greer, Feltman, Gebhardt, Greer, Spokane, WA, for Respondents.

SWEENEY, J.

The superior court has broad authority to oversee the administration of a probated estate, subject only to review for abuse of discretion. But a court does not have this broad discretion when the will confers nonintervention powers on the personal representative. To assert superior court jurisdiction over an estate once its nonintervention status is established, the court must find that the personal representative has mismanaged the estate or otherwise failed to faithfully execute his trust. RCW 11.68.070. Under the probate statutes in effect at the relevant times here, a nonintervention personal representative was not required to provide interim accountings to the estate beneficiaries. The court, nonetheless, removed the nonintervention personal representative for failing to provide an interim accounting and for other alleged mismanagement of the estate. We hold that the alleged misconduct here was insufficient as a matter of law to empower the court to intervene. And we therefore reverse.

FACTS

Marcella Jones died testate in Spokane on September 2, 1995. She left a furnished home, stocks, money, and a 1987 Buick, with a total net value of $535,000. The will divided the estate equally among Ms. Jones's sons—David, Russell, Jeffrey, and Peter Jones. We will use first names in this opinion for clarity. Russell and his brother Peter have a long history of mutual animosity.

The will named Russell personal representative with nonintervention powers. Russell filed the will on September 25, 1995, and was appointed personal representative without opposition.

Russell had lived with his mother in the estate home since the mid-1980s and "conducts his law practice" from the home. Clerk's Papers (CP) at 97. That is, he did legal work there but did not maintain an office or see clients there. He continued to live in the home while administering the estate. Russell testified that he remained in the home to manage, protect, and insure it and its contents. Ms. Jones's insurance transferred to the personal representative but would lapse if the home was vacant for 30 days. Insurance on the structure, but not the contents, would continue if the home was rented.

Russell contends that his living in the home was a reasonable alternative that benefited the estate. Storing the large amount of household goods and hiring a house-sitter was not feasible because the estate property had to be available to the heirs under the care of a trustworthy caretaker. And the furnace broke in 1995. So the house was unrentable anyway.

In December 1995, Russell visited David and Peter in Seattle. David asked Russell to advance $5,000 each to David and Peter against their ultimate cash distribution. Russell complied. He did not have the estate checkbook with him, so he wrote two $5,000 checks on his own account. He later reimbursed himself $10,000 from the estate account. Peter alleged this was commingling of funds. But at trial he conceded it was not. Russell also wrote personal checks for funeral expenses and the probate filing fee, again reimbursing himself from the estate account. Peter again alleged commingling, but again later conceded it was not.

On May 4, 1996, the brothers met at the estate home to select personal property as part of their distribution. Russell presented each with a professional inventory and appraisal of everything of value. Peter asked for information, specifically the total value of the estate, the terms of the will, and the terms of Russell's executorship. Russell refused to address anything other than the distribution of personal property. Peter became enraged because the family dining table had not been appraised. The dining table had been purchased second hand when the boys were children. The appraiser found it to have no value. Russell called the police who escorted Peter from the house.

On May 9, 1996, Russell filed the estate inventory with the court as required by former RCW 11.44.015 (1967). The assessed value of the home was set at $120,900. The property inventory does not include any appraisal of personal property. Neither does it list bank accounts. But under the former statute, no property appraisal is called for. That requirement was added in 1997 for deaths occurring after the effective date of the amendment. Bank accounts were required to be listed in 1995. Former RCW 11.44.015(4).

In November 1998, Peter and Jeffrey petitioned the superior court for an order requiring an interim accounting and primary accounting documents from the ongoing estate administration. In a separate action, they alleged breach of fiduciary duty and sought removal of Russell as personal representative.

A court commissioner initially granted the petition for an accounting. This was revised by a judge. Peter and Jeffrey then specifically asked the court to:

• enjoin Russell from occupying the house or otherwise using estate property;

• reimburse the estate from Russell for 71 months of rent at $900 a month;

• reimburse the estate for utilities and taxes on the house paid by the estate for the years 1996 and 1997;

• adopt Peter and Jeffrey's expert's appraisal value of the home;

• either remove Russell as personal representative or restrict his nonintervention powers; and

• assess attorney fees against Russell personally.

This equitable action was tried to the court without a jury. The court entered findings and conclusions essentially in favor of Peter and Jeffrey.

DISCUSSION

STANDARD OF REVIEW

We review findings of fact for substantial evidence. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959). We review conclusions of law de novo. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999). A trial court's decision to remove a personal representative under its supervision receives considerable deference and will not be disturbed absent a manifest abuse of discretion. In re Estate of Ehlers, 80 Wash.App. 751, 761, 911 P.2d 1017 (1996).

Here, the dispositive issue is whether Peter and Jeffrey Jones made a prima facie showing sufficient to bring this nonintervention estate under the supervision of the court. Jurisdiction is a question of law which we review de novo. In re Estate of Peterson, 102 Wash.App. 456, 462, 9 P.3d 845 (2000); In re Marriage of Murphy, 90 Wash.App. 488, 493, 952 P.2d 624 (1998). We conclude as a matter of law that jurisdiction to intervene was not established.

JURISDICTION

Russell first challenges the superior court's subject matter jurisdiction over probate of a will with nonintervention powers.

The court's jurisdiction over nonintervention probate proceedings is statutory. In re Estate of Bobbitt, 60 Wash.App. 630, 632, 806 P.2d 254 (1991). Our review is therefore a matter of statutory interpretation. Our primary goal is to give effect to the intention of the legislature. Dep't of Transp. v. State Employees' Ins. Bd., 97 Wash.2d 454, 458, 645 P.2d 1076 (1982). The entire sequence of statutes enacted by the same legislative authority relating to a given subject must be considered in determining legislative purpose. In re Marriage of Little, 96 Wash.2d 183, 189, 634 P.2d 498 (1981). We conclude that giving effect to the entire sequence of probate statutes here requires reversal.

Once an order of solvency is entered, administration of the nonintervention estate is exclusively in the hands of the executor. The probate court then loses jurisdiction of the estate. In re Estate of Coates, 55 Wash.2d 250, 256, 347 P.2d 875 (1959); Bobbitt,60 Wash.App. at 632,806 P.2d 254 (citing In re Estate of Peabody, 169 Wash. 65, 70, 13 P.2d 431 (1932)). If the court is to regain jurisdiction of the estate, its jurisdiction must be invoked by application made by a person authorized by the statute to do so. RCW 11.68.070; Bobbitt,60 Wash.App. at 632,806 P.2d 254 (citing Peabody, 169 Wash. at 70, 13 P.2d 431). A beneficiary of the estate is a person authorized to invoke the jurisdiction of the court by petitioning for removal of a nonintervention personal representative. RCW 11.68.070; In re Estate of Ardell, 96 Wash.App. 708, 717, 980 P.2d 771 (1999); Bobbitt,60 Wash.App. at 632,806 P.2d 254; Peabody, 169 Wash. at 70, 13 P.2d 431. The petition must be supported by a prima facie showing that the personal representative has failed to faithfully execute his trust or is subject to removal for any of the reasons specified in RCW 11.28.250.

Here, Peter and Jeffrey invoked the court's jurisdiction by petitioning for Russell's removal under RCW 11.68.070. They alleged that Russell failed to execute his trust by neglecting his duties and mismanaging the estate. The petition conferred upon the court the jurisdiction to inquire. That is, the removal petition authorized the court to conduct a hearing to determine whether or not good cause had been shown for the court to reassume jurisdiction over the administration of this estate.

The first question before the superior court when a petition to remove a nonintervention personal representative is filed is not whether the alleged conduct was reasonable, as the question would be in the case of administration of an estate under the continuing direction of the court. In the matter of a nonintervention executor, the court must first determine that the disputed conduct was so irregular as to show that the executor did not faithfully discharge his trust. In re Estate of Holmgren, 189 Wash. 94, 96, 63 P.2d 504 (1937). Only after the trial court so finds upon competent and substantial evidence may the court assume general...