Kingseed's Estate, Matter of, 2-478A122

• Decision Date: 15 December 1980
• Docket Number: No. 2-478A122,2-478A122
• Citation: 413 N.E.2d 917
• Parties: In the Matter of the ESTATE of Albert C. KINGSEED.
• Court: Indiana Appellate Court

Page 917

413 N.E.2d 917

In the Matter of the ESTATE of Albert C. KINGSEED.

No. 2-478A122.

Court of Appeals of Indiana, Fourth District.

Dec. 15, 1980.

Frank E. Tolbert and Kim S. Walker, Miller, Tolbert, Hirschauer & Wildman, Logansport, for appellants.

J. Conrad Maugans, Bayliff, Harrigan, Cord & Maugans, Kokomo, John Hurley, Jerkins, Plaszczak, Silaski & Hurley, Kalamazoo, Mich., for appellees.

MILLER, Judge.

By way of appeal and cross-appeal the heirs and former executor of the Estate of Albert C. Kingseed ¹ are challenging rulings of the trial court, after a hearing in 1977 on the executor's final account, which 1) ratified, for the most part, a partial distribution of real property made by the executor seven years earlier without prior court approval, 2) ordered distribution of general bequests effective as of the ratified date of the distribution of the real property, and 3) ordered a reduction of attorney and executor fees.

We affirm in part and reverse in part.

In their motions to correct errors and in their briefs, the parties raise the following issues:

1) Did the special judge err in ratifying, in substantial part, the former executor's unauthorized partial distribution of real property?

2) Did such judge err in determining the distributees of said real property were not entitled to income collected during the first year of administration, and in requiring them to repay it to the estate?

3) Was the special judge vested with authority to retroactively distribute general bequests on his own motion?

4) Was it an abuse of discretion for the trial court to reject the $11,850 executor-attorney fees requested and award the amount of $6,030?

5) Did the trial court err in failing to find the executor had mismanaged certain rental property belonging to the estate?

6) Did the court err in assessing interest at the rate of 6% rather than 8% refunds due the estate?

On July 16, 1969, Albert C. Kingseed died testate leaving a will and codicil which were duly admitted to probate on July 24, 1969. Joseph A. Noel was appointed executor and also served as attorney for the estate. At the testator's death he owned two parcels of real estate, a 160 acre farm with two houses thereon and a house and lot located in Amboy, Indiana. The testator devised the farm to the four children of his deceased son, Robert L. Kingseed, and made general bequests of $10,000 to his daughter, Geneva M. Wolff and $5,000 to his granddaughter, Marilyn Foland. The residue was divided in three equal shares among (1) the four children of Robert L. Kingseed, (2) Geneva M. Wolff, and (3) Marilyn L. Foland. The will and codicil failed to mention the Amboy property, valued for inheritance tax purposes at $3,750.

In August or September of 1969 the children of Robert Kingseed along with Mildred Kingseed, their mother and widow of Robert Kingseed, moved from the smaller to the larger house on the farm where they continued to reside. That November, Geneva Wolff and Kenneth Wolff, her husband, filed claims against the estate in excess of $13,000, the validity of which finally being determined, after trial, in favor of the estate in May, 1976 and not appealed. On January 9, 1970 Geneva Wolff filed a petition to contest the will which she eventually dismissed on August 1, 1975.

In 1969, the farm was rented on a fifty/fifty share crop basis. The landlord's share for 1969 was paid into the decedent's estate. However, in February, 1970 without any order from the court Noel advised the tenant and Mildred Kingseed, as guardian of the children, that they could make their own agreement and arrangements relative to the farm operation. Thereafter, the farm was rented on a cash rent basis and the children retained the rent. ² In addition, Mildred Kingseed, beginning in 1972, rented the second house located on the farm and collected the rent on behalf of her children. The house on the Amboy property was rented by the Estate until 1974, remained vacant thereafter and was not disposed of by Noel.

On September 8, 1976 Noel resigned as executor. A successor was appointed and at the court's direction, Noel filed his final account to which Geneva Wolff filed objections. On February 17, 1977 evidence was heard on the final account by the regular judge of Howard Circuit Court and the trial recessed until March 15, 1977. But on March 9, 1977 the regular judge, on his own motion, ordered withdrawal of submission of the final account and disqualified himself. A special judge was appointed and Noel ordered to file an amended final account which he did on May 25, 1977.

In his amended account Noel submitted an accounting of all funds and property coming into his hands, expenditures made by him on behalf of the estate and the cash balance on hand of $8,253.25 to be turned over to the successor administrator. The report recited the distribution of the farm and its income to which Geneva Wolff objected. She also challenged the reasonableness of $11,850 in attorney and executor's fees which Noel had paid himself without an order from the court. Finally, she claimed he mismanaged the Amboy property. On November 21, 1977 the parties agreed the special judge should consider the evidence previously submitted and additional evidence was heard. After trial the judge approved the amended final account with the following exceptions: (1) partial distribution of the farm and its income should have been made as of March 1, 1971, not February, 1970, to the children of Robert Kingseed and they were ordered to repay the $6,254.50 farm rent received for the year 1970 with 6% interest; (2) partial distribution of $10,000 and $5,000 to Geneva Wolff and Marilyn Foland should have been made as of March 1, 1971, together with 6% interest and in the event there were insufficient assets in the estate to pay such bequests with interest, any deficiency was to be paid by the children of Robert Kingseed; and (3) reasonable attorney and executor fees amounted to only $6,030 and Noel was ordered to repay $5,820 plus pre-judgment interest of $1,622. ³ The children of Robert Kingseed filed a motion to correct errors, Wolff and Foland filed their cross motion and this appeal was perfected.

I. COURT'S RETROACTIVE APPROVAL OF DISTRIBUTION OF THE FARM

The parties raise several issues surrounding Noel's distribution of the farm and its income. Noel's report disclosed distribution of the farm in February, 1970, without court order, to the specific devisees of said real estate, their management and operation of same from February, 1970 to and including 1976, and their collection of rent and payment of taxes and encumbrances during said period. Thus, the farm and its income were not listed as assets to be distributed or turned over to the successor personal representative. The judge retroactively approved the distribution as of March 1, 1971. Wolff and Foland object to this order in two respects claiming 1) the special judge was without authority to approve the farm's distribution, and 2) the approval was contrary to law based on Noel's statutory duty to take possession of the farm and his lack of authority to make a distribution without a court order.

In support of their first contention, Wolff and Foland point out in their brief that the special judge was appointed solely to approve or disapprove Noel's final account and did not acquire jurisdiction over the general administration of the estate noting that at the time of the hearing on the final account the estate was being generally administered by a successor representative under the jurisdiction of the regular judge. They further contend the special judge's jurisdiction was "limited" by Ind.Code 29-1-16-8, ⁴ which provides for the approval or disapproval of an executor's accounting, and conclude in their brief:

"Since the estate was not in a condition to be closed, and since estate administration was not within the authority of either Mr. Noel or Judge Berger, the order by Judge Berger dated December 12 1977, which ordered distribution of real estate with income thereon from and after March 1, 1971, was contrary to law for failure to follow applicable law."

This quoted paragraph, representing their sole argument in support of the contention that the special judge lacked authority, does not present us with a cogent argument. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). Nevertheless, the extent of a special judge's jurisdiction is a threshold matter for several issues raised on appeal. We therefore address the issue of his authority and, more particularly, the propriety of a distribution without a court order and a court's power to retroactively ratify such distribution.

It is our opinion, under the circumstances of this case, that the special judge's authority extended to all matters to be resolved affecting Noel's discharge and we affirm the judge's power to retroactively approve the distribution of the farm and its income. A special judge duly appointed to try a cause has all the powers and authority of a regular judge as to the particular case and his acts within his jurisdiction become those of the court. State ex rel. Harp v. Vanderburgh Circuit Court, (1949) 227 Ind. 353, 85 N.E.2d 254; Dinkla v. Miles, (1934) 206 Ind. 124, 188 N.E. 577; 17 I.L.E. Judges, § 63 (1959). But where a particular contested issue requiring a hearing and determination is submitted to a special judge, his jurisdiction is limited to the issue submitted. Zaring v. Zaring, (1942) 219 Ind. 514, 39 N.E.2d 734; 17 I.L.E. Judges, § 63 (1959). Thus it has been held the filing of an executor's report confers authority on the court to hear and determine the matters involved therein. Mefford v. Lamkin, (1906) 38 Ind.App. 33, 76 N.E. 1024, 77 N.E. 960.

In the instant case, the judge was appointed to scrutinize Noel's final accounting and the subsequent objections with a view toward his discharge. In such a review the court must apply the same rules "as govern the...