Kroslack v. Estate of Kroslack

• Decision Date: 05 March 1986
• Docket Number: No. 3-1284A336,3-1284A336
• Citation: 489 N.E.2d 650
• Parties: Mary L. KROSLACK, Plaintiff-Appellant, v. The ESTATE OF Joseph KROSLACK, Sr., Deceased, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 650

489 N.E.2d 650

Mary L. KROSLACK, Plaintiff-Appellant, v. The ESTATE OF Joseph KROSLACK, Sr., Deceased, Defendant-Appellee.

No. 3-1284A336.

Court of Appeals of Indiana Third District.

March 5, 1986.

Rehearing Denied May 8, 1986.

William P. Hapaniewski, Merrillville, for plaintiff-appellant.

Andrew V. Giorgi, Merrillville, William J. Moran, Highland, for defendant-appellee.

GARRARD, Judge.

Joseph Kroslack, Senior (decedent) died on August 31, 1980, leaving a will which named his son, Joseph Kroslack, Junior (son) as executor. The will explicitly stated that the decedent's widow, Mary L. Kroslack (widow), should take nothing under it. It appears that at his death the decedent owned several joint and pay-on-death bank accounts, the primary beneficiary of which was the son, Joseph Kroslack, Junior. These accounts contained approximately Thirty Thousand Dollars ($30,000).

Under IC 32-4-1.5-7, the beneficiaries of such joint accounts are liable to the estate for the funds necessary to pay creditors and survivors' allowances. Proceedings to assert liability under the section must be commenced within one year after the decedent's death. A demand must be made on the personal representative before proceedings under the act can begin. ¹ The first inventory of the estate did not mention the multi-party accounts. It appears that without them the estate was insolvent.

On January 13, 1981 the widow made a demand on the son, apparently as executor of the estate, to begin action pursuant to IC 32-4-1.5-7. On January 14, she elected to take against the will, and invoked that section by name. On December 11, 1981 the widow petitioned to charge the beneficiaries of the multi-party accounts pro-rata for the contributions necessary to pay the expenses of administration and her widow's allowance. On April 21, 1982 the son was ordered to collect the funds from the beneficiaries of the multi-party accounts. It appears that by September 24, 1982 the son had taken no action to collect these funds. In February of 1983 he was held in contempt of court and a special administrator was appointed to collect the funds from the various beneficiaries. In May of 1984 the son was again held in contempt. In August of 1984 the administrator and the son filed a petition for court approval of their agreement to compromise the estate's claims against the multi-party account beneficiaries. The settlement called for Eight Thousand Dollars ($8,000) to be paid into the otherwise insolvent estate. From this various expenses would be subtracted and the balance would be paid to the widow as widow's allowance. See IC 29-1-4-1.

After a hearing held on September 7, 1984 the court approved the settlement over the widow's objection. It is from this order that the widow appeals.

The widow presents five arguments to this court:

1) That the probate division erred when it approved the settlement and compromise over her objection.

2) That the court's order approving the settlement between the special administrator and Joseph Kroslack, Junior was against the weight of the evidence presented in the case.

3) That it was error not to grant the widow interest on her widow's allowance from the date of demand from the son.

4) That the probate division erred in making its award to the widow "in lieu" of her widow's allowance.

5) That it was incorrect to order that the costs for a special administrator be paid out of the assets of the estate and not by the multi-party account beneficiaries.

We affirm.

Procedural Matters

The son has argued that due to various shortcomings in the record and briefs presented to this court, the widow has waived her arguments on appeal. The various rules cited by the son were not designed to give the parties a sword to use against each other. Instead they seek to provide for the efficient administration of justice without exorbitant expense. The son has not pointed out any prejudice the alleged shortfalls in the record and brief cause him, and we are unable to say that we have had difficulty in dealing with the case because of them. Neither do we believe that the judge's certification was insufficient for failing to have certified the entire record rather than just the proceedings held before the court. No certification is necessary if there is no oral evidence taken at a trial. State ex rel. O'Neal v. Cros (1978), 177 Ind.App. 68, 378 N.E.2d 10. Therefore, we can see no need for a judge's certificate to cover any more matters than what were argued in hearings before him. As to all other matters, the clerk's certificate provides the necessary assurances of authenticity. We see no reason to dismiss the appeal.

I.

Did the trial court err when it approved the settlement and compromise over the widow's objection?

In essence, the widow argues that she could not be bound by the compromise between the administrator and the son since she was not a party to it. Unfortunately, she misunderstands the nature of the settlement.

During its existence, an estate goes through at least two phases. First, the assets of the estate must be mustered. That is to say, its assets must be collected so that funds are available to pay the taxes owing, the estate's creditors, the costs of administration, and the beneficiaries of the estate. Second, after the assets are collected, the estate is distributed to the creditors and the beneficiaries of the estate.

The estate fiduciary, whether an executor, administrator, or special administrator, is entrusted with the duty to muster the estate. In Indiana, the fiduciary also has the power to compromise claims owed the estate when such is thought to be in its best interests, and when properly ordered to do so by the court. IC 29-1-13-5. Since a determination of the best interests of the estate is a judgment calling for the exercise of sound judicial discretion, the most stringent standard of review would examine the decision only for an abuse of that discretion. ²

From the record, it appears that the son denied that he had any obligation to contribute the monies he received from the multi-party accounts. He seems to have asserted that by mentioning IC 32-4-1.5-7 in her January 14, 1981 election to take against the will, the widow did not start an action within the meaning of the section's statute of limitation, and that such action was not taken until her petition to charge beneficiaries on December 11, 1981. December 11 would, of course, be beyond the limitation provided in IC 32-4-1.5-7.

We need not decide the correctness of the son's construction of the statute of limitation because it is immaterial. What is material to the record presented here is that the son could have litigated his position in good faith. Such litigation, even if successfully prosecuted by the special administrator, would have delayed settling the estate and could have consumed much of the Thirty Thousand Dollars which might ultimately have been paid into it. If unsuccessful, the estate would have taken nothing. Instead of taking such risks, the special administrator, with proper authorization by the court, chose to compromise the estate's claim and settle it for Eight Thousand Dollars. IC 29-1-13-5 plainly authorizes him to do so. This was a tactical decision. The widow has not argued, and we do not perceive, that the compromise was made in bad faith or that it was the product of fraud. We therefore defer to the sound discretion of the trial court and the special administrator. Since the estate's interests and not the widow's were being compromised, its consent, and not hers, was required.

II.

We believe that what has been said in part I, supra, also disposes of the widow's contentions that the court's order was against the weight of the evidence and was in error for failing to grant her interest on the principal of her allowance from the date she first demanded it.

The weight of the evidence was not at issue before the probate division. At issue was the fairness of the proposed settlement, a matter to be decided by the sound judicial discretion of the court.

Further, we cannot say that it was an error to not order interest to be paid on the widow's Eight Thousand Five Hundred Dollar allowance, when there were insufficient assets to pay the principal sum.

III.

Did the probate division err in awarding the widow certain sums "in lieu" of her surviving spouse's allowance?

If the trial court attempted to award the widow a sum other than that to which she was entitled by law, it would certainly have committed an error. However, while the trial court did say that it was granting her an award "in lieu of her widow's allowance" we believe that when the order is read as a whole it becomes obvious that the probate court meant to award the funds to the widow as surviving spouse's allowance, and the words "in lieu of" were used merely to recognize the amount as less than the Eight Thousand Five Hundred Dollars provided by the statute. The error in phrasing was harmless, since it did not affect her rights.

IV.

Did the probate court err in ordering that the remaining costs of administering the estate be paid out of the surviving spouse's allowance?

Had it ordered that the expenses of administration be paid out of her widow's allowance, the probate court would have committed error. However, it did nothing of the kind. It ordered that the expenses of estate administration be paid out of the estate. This is plainly contemplated by the law. IC 29-1-14-19. The priority statute then came into effect. IC 29-1-14-9. It provides that the administration expenses are one of the two items which receive priority over the surviving spouse. ³ By ordering that these expenses be paid out of the estate before the widow is paid, the court was merely obeying the mandate of Indiana law.

The widow also argues that the will makes the son, as executor, personally liable for these expenses. The provision in question is a standard one. ⁴ We have been...