Rigby v. Leister, 969A164

• Decision Date: 08 September 1970
• Docket Number: No. 969A164,No. 1,969A164,1
• Citation: 261 N.E.2d 891,147 Ind.App. 438
• Parties: Charles A. RIGBY, Executor of the Estate of Brownell Rigby, Deceased, Charies A. Rigby, Appellants, v. June Louise LEISTER, Howard E. Petersen, Successor Personal Representative, Appellees
• Court: Indiana Appellate Court

Page 891

261 N.E.2d 891

147 Ind.App. 438

Charles A. RIGBY, Executor of the Estate of Brownell Rigby, Deceased, Charies A. Rigby, Appellants, v. June Louise LEISTER, Howard E. Petersen, Successor Personal

Representative, Appellees.

No. 969A164.

Appellate Court of Indiana, Division No. 1.

Sept. 8, 1970.

Rehearing Denied Oct. 6, 1970.

Roland Obenchain, Jr., Jones, Obenchain, Johnson, Ford & Pankow, South Bend, for appellants.

Howard E. Petersen, LaGrange, Edgar A. Grimm, Auburn, for appellees.

LOWDERMILK, Chief Justice.

This is an appeal from the proceedings had in the Noble Circuit Court, wherein the appellee June Louise Leister filed her action to remove Charles A. Rigby from his trust as Executor of the estate of Brownell Rigby, deceased.

Appellee alleged, among other things, the following acts of mismanagement and wrongful conduct:

In failing to inventory the partnership assets of the Executor and the decedent, as well as the Executor's failure to inventory certain real estate and equity in contracts pertaining to real estate; the Executor's failure to file a current report in more than four years since his appointment; the Executor's use of certain of decedent's property for his own personal gain, including an automobile, boats, furniture and cabins, and in collecting rents and profits from a part of said named personal property without depositing the same in the Executor's bank account.

Appellee further charged the Executor disposed of certain personal property without first obtaining a court order and also comingled funds of the estate with his personal funds; that the Executor failed and refused to perform his duty of closing the estate as promptly as possible and further charged mismanagement of the estate in the Executor's failure to utilize the assets to produce maximum profits but instead used the assets for his own personal gain.

The record before us reveals that the cause was submitted to the court without the intervention of a jury, and the trial court found for and entered judgment for the appellee upon her complaint. Appellant timely filed his motion for a new trial which was, in due course, overruled.

Appellant's assignment of errors was that the court erred in overruling appellant's motion for a new trial on July 16, 1969. The motion for new trial had been filed alleging the statutory defects that the decision was not sustained by sufficient evidence and was contrary to law, together with a memorandum affixed thereto.

It is a well established rule that the weight of the evidence and the credibility of the witnesses are for the trial court and not for the appellate tribunal to determine and where such evidence is conflicting this court will only consider the evidence most favorable to the party in whose favor the judgment was entered. Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Procedure, § 2786; Brennan v. Reydell (1963), 134 Ind.App. 298, 187 N.E.2d 492.

The rule as hereinabove set out pertaining to the court's duty to consider the evidence most favorable to the party in whose favor the judgment is entered where there is a conflict in the evidence is the same as and is applied to the charge that the judgment or decision of the court is contrary to law and the same as the rule is applied to the charge of insufficiency of the evidence. We agree with appellant's contention that the evidence in this case is conflicting; and the evidence being in conflict, we 'will only consider the evidence most favorable to the party in whose favor the judgment was entered.' After a thorough examination of the evidence most favorable to the appellee, we conclude that the judgment was supported by sufficient evidence and was not contrary to law. Helm v. Odle Admrx. etc. (1959), 129 Ind.App. 478, 157 N.E.2d 584; Von Der Lieth v. Young (1966), 139 Ind.App. 525, 212 N.E.2d 404; Saltzman, et al. v. Saltzman (1969), Ind.App., 251 N.E.2d 595.

In the case of Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669, the court said:

'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.'

We are of the opinion that reasonable men might differ under the evidence in this cause. The decision of the court, then, would not be contrary to law.

Appellant contends that the trial court did not have absolute uncontrolled discretion to remove the Executor and appoint his successor, and cited Helm v. Odle, supra, as follows:

'The law is well settled that a court of probate jurisdiction has great latitude and wide discretion in matters concerning the appointments and the removal of administrators and administratrices, and this Court will not attempt to control or interfere with the Probate Court's actions therein, except in a case where it is clear that its discretion has been abused. 129 Ind.App. p. 480, 157 N.E.2d at p. 585.'

Appellant further urges that it remains to be determined whether the actions of the trial court under the evidence before it constituted an abuse of discretion and defines...