McGuire v. Citizens Fidelity Bank & Trust Co., 90-SC-142-DG
| Decision Date | 14 March 1991 |
| Docket Number | No. 90-SC-142-DG,90-SC-142-DG |
| Citation | 805 S.W.2d 119 |
| Parties | E.E. McGUIRE, Appellant, v. CITIZENS FIDELITY BANK & TRUST COMPANY, etc., et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
James H. Moore, III, J. Grant McGuire, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Ashland, Robert K. Emerson, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, W.Va., Paul E. Sullivan, Debra Hays Eucker, Brown, Todd & Heyburn, Lexington, Thomas C. Walker, Brown, Todd & Heyburn, Louisville, for appellant.
James Brown, Culver V. Halliday, Michael F. Lawrence, Greenebaum, Boone, Treitz, Maggiolo & Brown, Louisville, Max D. Picklesimer, Martin, Picklesimer, Justice & Vincent, Ashland, Douglas L. McSwain, James C. Strode, Ogden, Sturgill & Welch, Lexington, for appellees.
This is an appeal of a civil action to settle the estate of E.R. McGuire who died testate on August 14, 1981. His two sons, E.E. McGuire and L.R. McGuire, were appointed co-executors of the estate on August 28, 1981. The two sons together with their mother, Dell McGuire, and their sisters, Cleo McGuire and Helen Webb, are the beneficiaries of the estate. The estate consisted mainly of non-liquid assets including stock in closely held corporations and banks. In August, 1985, the gross value of the estate's assets was agreed upon by the co-executors and the Internal Revenue Service as $5,009,356.00.
On November 6, 1985, the co-executors on behalf of the estate executed a promissory note whereby they borrowed from Kentucky Farmers Bank the sum of $1,250,000. As security for the loan, the co-executors pledged 408, 406 shares of the Bank of Josephine stock owned by the estate. Additionally, the co-executors endorsed the note personally and E.E. McGuire pledged 309,946 and L.R. McGuire pledged 307,310 shares of the Bank of Josephine stock respectively owned by them individually. These total shares constituted a majority of some 2,000,000 outstanding and issued shares of Bank of Josephine. The record is silent as to the purpose of the loan.
On April 15, 1987, the Boyd District Court, wherein the probate matter was pending, on verified motion of L.R. McGuire that he was in a state of insolvency and had instituted bankruptcy proceeding, entered an order permitting him to withdraw as co-executor of the estate. Subsequently an action was filed in the Boyd Circuit Court by Dell McGuire and others against E.E. McGuire to have him removed as co-executor of the estate for wrongful actions alleged to have been committed by him. By order of that court entered October 19, 1987, E.E. McGuire was removed as the executor of the estate of E.R. McGuire, and he was ordered within 10 days to make a full accounting to the court of the assets and liabilities of the estate and any and all expenditures that had been made.
Pursuant to the order of the court and on October 28, 1987, E.E. McGuire rendered a six page narrative report which was filed with the Boyd Circuit Court and in the probate proceeding in the Boyd District Court. The pertinent part of that report and which is the subject of this appeal is quoted in part from page 3:
The Bank of Josephine stock is the Estate's major asset. It was agreed by E.E. McGuire and L.R. McGuire that they would sell their individual interests in Bank of Josephine together with the Estate's interest so that the Estate could realize a higher value for its stock ... I recommend that the Executor of the Estate reduce to writing the agreement between E.E. McGuire, L.R. McGuire and the Estate so that the Estate stock will either be sold as a block or that no party may sell their stock without obtaining a commitment from the buyer to purchase the other stock at the same price.
On June 30, 1988, Citizens Fidelity Bank and Trust Company (Citizens Fidelity) was appointed administrator de bonis non of the estate, and on that same day it filed an action in the Boyd Circuit Court to settle the estate pursuant to KRS 395.515. Prior to this date in June, 1988, E.E. McGuire purchased the estate's note to Kentucky Farmers Bank and acquired possession of the stock collateral securing the loan.
On October 14, 1988, Citizens Fidelity served a motion for hearing to determine the necessity for sale of assets of the estate, directing the manner of sale, and directing the disposition of the proceeds. Hearing was held on November 29, 1988, wherein Citizens Fidelity moved the court to order the shares of Josephine Bank owned by E.E. McGuire, L.R. McGuire and the estate be sold as a block. After hearing and briefing by the parties, the circuit court over the objection of E.E. McGuire, held that in order to protect the assets of the estate an order be entered requiring E.E. McGuire to put his...
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Moffett v. Shaw
...(Ky. 1997). Further, we note that statements made in oneaction can be binding on other actions. See, e.g., McGuire v. Citizens Fidelity Bank & Trust Co., 805 S.W.2d 119 (Ky. 1991). And there is no question that a criminal conviction can be used as collateral estoppel in a later civil action......
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Moffett v. Shaw
...(Ky. 1997). Further, we note that statements made in oneaction can be binding on other actions. See, e.g., McGuire v. Citizens Fidelity Bank & Trust Co., 805 S.W.2d 119 (Ky. 1991). And there is no question that a criminal conviction can be used as collateral estoppel in a later civil action......
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