Pontrello v. Estate of Kepler, 87-2033

• Decision Date: 22 June 1988
• Docket Number: No. 87-2033,87-2033
• Citation: 13 Fla. L. Weekly 1504,528 So.2d 441
• Parties: 13 Fla. L. Weekly 1504 William C. PONTRELLO, Appellant, v. ESTATE OF Kenneth C. KEPLER, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 441

528 So.2d 441

13 Fla. L. Weekly 1504

William C. PONTRELLO, Appellant, v. ESTATE OF Kenneth C. KEPLER, Deceased, Appellee.

No. 87-2033.

District Court of Appeal of Florida,

Second District.

June 22, 1988.

Richard T. Earle, Jr. of Earle and Earle, St. Petersburg, for appellant.

Bruce Marger and David A. Thompson of Goldner, Reams, Marger, Davis, Piper & Bartlett, P.A., St. Petersburg, for appellee.

SCHOONOVER, Judge.

The appellant, William C. Pontrello, challenges an order denying his petition for administration of the estate of Kenneth C. Kepler. We reverse.

Mr. Kepler executed his last will and testament in 1980. In 1984, he executed a codicil naming the appellant, an attorney, as personal representative of his estate. Mr. Kepler was adjudged incompetent in June 1986, and his wife, B. Lynnette Kepler, was appointed guardian of his person and property. After Mr. Kepler's death on April 29, 1987, his widow and his adult daughter, Danielle A. Kepler, filed a petition for administration of the estate. The appellant filed a similar petition.

Both petitions alleged that the estate consisted of real estate, bank accounts, mortgages, and personal property with an approximate value of $1,637,884.02. The appellant's petition alleged that he was entitled to preference in appointment as personal representative because he was named in the codicil to Mr. Kepler's will. The petition filed by the widow and adult daughter alleged that the appellant was not qualified by character, ability, experience, adverse interest, and hostility to those immediately interested in the estate and requested that they be appointed co-personal representatives.

After the final hearing in this matter, the court entered an order which provided:

The Court finds that there is no substantial evidence reflecting that Mr. Pontrello is not qualified to serve by character, ability and experience. The Court finds that the Estate holds a second mortgage on property owned by Mr. Pontrello to secure payment of the sum of $20,000 which mortgage does not become due until 1991. The Court finds that Mr. Pontrello is not disqualified to serve as Personal Representative because of any adverse interest arising out of said indebtedness and mortgage.

The Court finds that there is hostility between B. Lynnette Kepler and Danielle A. Kepler, the daughter of the decedent, and Mr. Pontrello. As a result of said hostility, it is apparent to the Court that if Mr. Pontrello is appointed Personal Representative of the Estate, there will be dissention [sic] between Mr. Pontrello, Mrs. Kepler and Danielle A. Kepler, which will probably cause unnecessary litigation, attorneys fees, Personal Representative's commission and costs and will impede the administration of the Estate. The Court further finds that because Mrs. Kepler had been serving as the Guardian of the decedent, she has knowledge of the full nature and extent of the assets of the Estate and the actions which should be taken in relation thereto. The appointment of Mr. Pontrello as Personal Representative would require an unnecessary expenditure of time, effort and money in enabling him to acquire said knowledge of the assets of the Estate and the actions which should be taken in relation thereto.

As a result of the Findings of Fact in the preceding paragraph, the Court finds that it is to the best interests of the Estate and the persons beneficially interested therein that B. Lynnette Kepler and Danielle A. Kepler be appointed Personal Representatives of this Estate and the Petition of William G. Pontrello for his appointment be denied.

This timely appeal followed.

We are herein called upon to determine if a trial court has any discretion to refuse to appoint the personal representative named in a will if such person meets all of the statutory qualifications for appointment. See §§ 733.302-733.305, Fla.Stat. (1985). It is a well recognized principle of law that a testator has the right to name the person who shall administer his estate provided such person is not disqualified by law. E.g., State v. North, 159 Fla. 351, 32 So.2d 14 (1947); Estate of Kenton v. Kenton, 423 So.2d 531 (Fla. 5th DCA 1982), petition for review denied, 436 So.2d 99 (Fla.1983). Ordinarily, courts have no discretion but to issue letters testamentary to the person nominated in the will unless such a person is expressly disqualified or such discretion is granted by statute. North; Estate of Kenton. See also, Dutcher v. Estate of Dutcher, 437 So.2d 788 (Fla. 2d DCA 1983); In re Estate of Murphy, 336 So.2d 697 (Fla. 4th DCA 1976); In re Estate of Jose, 164 So.2d 888 (Fla. 2d DCA 1964); § 733.301, Fla.Stat. (1985); 31 Am.Jur.2d Executors and Administrators § 46 (1967); Annotation, Power of Court to Refuse Letters Testamentary to One Named in Will as Executor, Absent Specific Statutory Disqualification, 95 A.L.R. 828 (1935). Notwithstanding these firmly established principles of law, however, this court has recognized that in some circumstances a trial court may exercise a very limited discretion to refuse to appoint such a personal representative. For example, the exercise of this narrow discretion would be appropriate if after the personal representative is named in the will, unforeseen circumstances arise which clearly would have affected the testator's decision had he been aware of such circumstances, but the testator had no reasonable opportunity prior to his death to change the designation of the personal representative in his will. See, e.g., In re Estate of Maxcy, 240 So.2d 93 (Fla. 2d DCA 1970), cert. denied, 244 So.2d 435, 244 So.2d 437 (Fla.1971) (trial court should have refused to appoint testator's widow as co-executrix when court found widow was involved in planning testator's murder); cf. Estate of Kenton (decedent's wife properly appointed as executrix as provided in will even though she had entered into separation agreement in anticipation of divorce approximately forty-five days before decedent's death). Because such unforeseen circumstances do not exist in this case and the parties agree that the appellant is statutorily qualified to serve as personal representative, the court erred in refusing to appoint him as personal representative as designated in the codicil to the decedent's will.

The appellees' reliance on this court's holding in In re Estate of Snyder, 333 So.2d 519 (Fla. 2d DCA 1976), to support the trial court's exercise of discretion here is misplaced. In Snyder, this court affirmed a trial court's refusal to appoint a person who had a statutory preference to serve as administrator of an intestate estate although he was statutorily qualified to hold the position. In so doing, we held that a court does not have to appoint a statutorily qualified person as administrator of an estate if there is sufficient evidence to find that he is not qualified by character, ability, and experience to serve in the important capacity demanded of an administrator of an estate. We stated that where the record supports the conclusion that a person occupying the position of statutory preference does not have the qualities and characteristics necessary to properly perform the duties of an administrator, it would be an anomaly to hold that a probate court, which has historically applied equitable principles in making its judgments, does not have the discretion to refuse to appoint him simply because he did not fall within the enumerated list of statutory disqualifications. Here, however, the court found that the appellant was not disqualified because of character, ability, and experience. More importantly, unlike the situation in Snyder where the court was dealing with the appointment of an administrator for an intestate estate, we are dealing here with an executor who had been specifically appointed by the decedent.

The distinction between an executor named in a will and an administrator appointed by the court is significant because the executor derives his powers from the appointment of the testator and not from appointment by the court. Cf. Comerford v. Cherry, 100 So.2d 385 (Fla.1958) (testamentary guardian derives his powers from appointment by testator, not from appointment by court). A judge treads on sacred ground, not only when he overrides the testator's directions regarding the custody of his children, but also when he overrides the testator's directions regarding the appointment of the person in whom the decedent placed his trust to administer his estate according to the powers given in the will. See Comerford.

One could argue that if a trial court's findings would support the removal of a nominated personal representative, the court should have the discretion to refuse to appoint him. The time for determining whether the person nominated in the will is qualified to serve, however, must be when the appointment is made by the court. The question of whether that person is unsuitable to continue as personal representative is determined when the question of removal arises and under an entirely different statute, see § 733.504, Fla.Stat. (1985), from the statutes governing the appointment of personal representatives. See §§ 733.301-733.305, Fla.Stat. (1985). See also, In re Zartner's Will, 183 Wis. 506, 198 N.W. 363 (1924). The removal statute, section 733.504, sets forth causes for removal which generally do not arise or are not discovered until after the appointment. Furthermore, since the legislature has provided separate and distinct statutes to deal with the appointment of the personal representative, the terms of the removal statute should not be read into the explicit appointive statutes. See Trustees of House of the Angel Guardian, Boston v. Donovan, 71 R.I. 407, 46 A.2d 717 (1946). This position is further supported by the general principle of statutory construction expressio unius est exclusio alterius that the mention of one thing implies the exclusion of another. Hence, where as here, a...