Newman's Estate, Matter of
| Citation | 369 N.E.2d 427,174 Ind.App. 537 |
| Decision Date | 10 November 1977 |
| Docket Number | No. 1-576A68,1-576A68 |
| Parties | In the Matter of the ESTATE of Aaron Day NEWMAN, Deceased, Golda Hadfield, Personal Representative. Vaughn Ray NEWMAN, minor heir of Aaron Day Newman, Deceased, Appellant, v. Golda HADFIELD, Personal Representative of the Estate of Aaron Day Newman, Deceased, Appellee. |
| Court | Court of Appeals of Indiana |
O. H. Roberts, Jr., Matthews & Shaw, Evansville, for appellee.
Vaughn Ray Newman (Newman), minor heir of Aaron Day Newman, deceased, appeals from a judgment of the trial court approving the administrator's final report in the estate of Aaron Day Newman, which report Newman contends approved an excessive award of fees for Golda Hadfield (Personal Representative), and her attorney.
We reverse.
Newman and the Personal Representative present several issue for our review. Having found reversible error, we will discuss only those issues relevant to our disposition of this appeal:
I. Whether the December 18, 1973 decision of the trial court, wherein the contested fees originally were awarded, is a final appealable judgment; and, correspondingly, whether Newman's failure to file a motion to correct errors within 60 days of that decision necessitates the dismissal of this appeal?
II. Whether the trial court erred in approving a Personal Representative's fee of $4,000 and an attorney fee of $8,000 out of an estate whose assets totaled $37,902.96?
III. Whether the trial court erred in refusing to compel the Personal Representative to submit to Newman's attempted discovery of matters relating to the redetermination of compensation for the Representative and her attorney?
Aaron Day Newman, then unmarried, died intestate on August 30, 1972. He left surviving him a sister who is a resident of Indiana, a brother in Baltimore, Maryland, a son in Tennessee, a minor son born out of wedlock, and a grandson, the son of his deceased daughter.
Golda Hadfield, decedent's sister, was appointed and qualified as a personal representative, and bond was approved.
The Personal Representative filed an inventory of the estate's property which had a total appraised value of $37,902.96. The inventory listed the following assets of the estate:
(1) Checking account $ 4,652.96
(2) Certificate of Deposit 25,000.00
(3) One automobile 1,000.00
(4) One parcel of real property 7,000.00
(5) Household and personal
goods 250.00
-----------
$ 37,902.96
On November 29, 1973, the Personal Representative and her attorney filed a verified petition for allowance of fees. Notice was issued by certified mail that a hearing on the petition would be held on December 18, 1973, at 9:00 A.M. The return receipt shows delivery of the notice to Newman's original attorney on November 30, 1973. No objections were filed, and at the scheduled hearing no one appeared in opposition to the petition. The court thereupon entered its order allowing the fees.
In the petition, the following activities were listed in justification of the claimed fees of $4,000 for the Personal Representative, and $8,000 for her attorney (our summary):
(a) Preparation and filing of petition for probate of will, issuance of letters, probating such will, qualification of Personal Representative, and execution of bond;
(b) Taking property of estate into custody by Personal Representative;
(c) Inventory and appraisal of property of the estate;
(d) Preparation and filing of petition to sell personal property, order to sell personal property, and sale of personal property;
(e) Preparation and filing of petition to sell real estate, order to sell real estate, sale of real estate and report of sale;
(f) Preparation and filing of Petition to determine heirship in real estate and a hearing;
(g) Settling of claims against the estate;
(h) Preparation of federal and state income tax returns;
(i) Correspondence, general administration, paying of bills and arrangements with realtor for sale of real estate;
(j) Conferences with personal representative of one-half hour to one hour per week from September 7, 1972, to November 29, 1973.
The record further shows: (1) that there was no will to be probated; (2) that there were only four uncontested claims filed in the estate and paid by the Personal Representative without transfer to the issue docket; (3) that the only contested claim was for child support in the amount of $3,000, which resulted in an award of $1,160; and (4) that forty-three bills were listed in the final report as having been paid by the Personal Representative.
Sixty-five days after the court's determination of fees, Newman's attorney filed a petition for rehearing on this matter and a petition to remove the Personal Representative. The court denied the petitions on June 7, 1974. New attorneys for Newman entered an appearance on September 3, 1974, and filed a motion for a rehearing on fees. On October 10, 1974, Newman's guardian filed a motion to compel discovery of matters pertaining to services performed by the Personal Representative and attorney. The court denied both the petition for rehearing and the motion to compel discovery. On two subsequent occasions Newman's discovery attempts were thwarted by the trial court's sustaining of the Personal Representative's "Motion(s) to Strike" Newman's motion to compel such discovery and his Notice of Taking of Depositions.
On December 30, 1974, Newman filed an objection to the final account on the grounds of excessive fees. The court dismissed the objection on May 1, 1975, and entered a decree of final distribution on September 16, 1975, approving the final report. It is from this decree that Newman appeals.
We must first decide whether Newman's delay in appealing the issue of fees for the attorney and Personal Representative precludes our consideration of this appeal. The Personal Representative asks us to consider the December 18, 1973 decision as a final judgment. She relies on Butler University The Personal Representative in the case at bar argues that the Butler case controls our disposition of this issue. She concludes that since Newman failed to file any motions or objections until more than 60 days after the court entered its ruling, Newman has waived all opportunity to contest that ruling and is prohibited from raising such objections in an appeal from the order approving the final report.
v. Danner (1943), 114 Ind.App. 236, 50 N.E.2d 928. Butler held, on the particular facts of that case, that an award of attorney fees in an estate proceeding is a final and appealable judgment. That court went on to hold that the appellant's failure to prosecute a timely appeal from the judgment-award precluded the court's consideration of that issue. See also Estate of Meyer (1965), 247 Ind. 64, 211 N.E.2d 305; transferred to the Court of Appeals (1966), 138 Ind.App. 649, 215 N.E.2d 556.
This court had occasion to discuss the finality of orders and decrees entered pursuant to estate proceedings in the more recent case of Krick v. Farmers and Merchants Bank of Boswell (1972), 151 Ind.App. 7, 279 N.E.2d 254:
Thus, we previously have determined that the administration of an estate itself is to be viewed as a single proceeding; however, as the Krick case demonstrates, an appeal may be taken in a timely manner following any final decisions in collateral (or ancillary) proceedings. The will contest in the Krick case was an adversary proceeding in which the court finally determined the rights of the parties; therefore, the court held, any appeal had to be timely taken from that final decision:
"This is true even though the administration of an estate is essentially one proceeding in rem. The collateral proceedings which arise out of the administration of the estate require finality. Otherwise, the parties against whom a judgment has been rendered in these collateral proceedings may unduly lengthen the administration of estates by waiting until the end of the estate proceedings and then file objections to the final report based on errors which may have occurred years previously in a collateral action. The early and speedy administration of estates is militated against when heirs or other adverse parties can wage guerrilla warfare against the estate and rightful heirs by losing one or more unappealed from collateral actions during the course of administration of an estate and then raise the same issues in objections to the final report. By thus lying in wait unnecessary expense is created for all concerned, the wishes of the decedent are frustrated, estate assets are dissipated, and the public interest in shortening the period of administration of decedents' estates is thwarted.
We think it consistent with the concept of one proceeding in rem that collateral proceedings be finally determined and appeals taken as in other civil causes. The implication of § 6-122 (IC 1971, 29-1-1-22 (Burns Code Ed.)) supra, is that, while a party 'may prosecute an appeal,' failure However, the Krick, 2 Butler and Meyer decisions were based on our...
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