von der Lieth v. Young
| Decision Date | 16 December 1965 |
| Docket Number | No. 2,No. 20327,20327,2 |
| Parties | William C. von der LIETH, Appellant, v. Floyd L. YOUNG, Administrator of the Estate of Wendy Cullen von der Lieth, Deceased, Appellee |
| Court | Indiana Appellate Court |
Emison & Emison, Vincennes, for appellant.
Floyd L. Young, Vincennes, for appellee.
This appeal arises from an action filed by appellant, father of the decedent, to remove the Administrator of the Estate of Wendy Cullen von der Lieth, alleging mismanagement of the estate.
Decedent, Wendy Cullen von der Lieth, died intestate on May 12, 1962. Decedent left an unliquidated claim for damages by reason of personal injury to James C. Baker. The attorney representing James C. Baker (hereinafter referred to as plaintiff's attorney) desired to file a claim against the estate of decedent, but administration of her estate had not been opened. Plaintiff's attorney, in correspondence with the claims representative of the Farm Bureau Insurance Company and counsel for appellant, urged that decedent's estate be opened and that appellant, or someone in privity with the family, be appointed administrator as they were reluctant to [139 INDAPP 527] invade this capacity which is normally filled by a member of the family. Appellant declined to serve as administrator and indicated that it was immaterial to him who might be appointed as personal representative of the estate. Plaintiff's attorney requested the appellee to file letters of administration, which he did, and subsequently was appointed administrator on April 13, 1963. Suit was then filed against the estate asking for damages in the sum of $500,000. Appellee entered an appearance as attorney for himself as administrator of the estate of Wendy Cullen von der Lieth.
On April 16, 1963, appellee wrote the Farm Bureau Insurance Company, of Vincennes, Indiana, and enclosed the summons and complaint in the suit filed by plaintiff, James Baker. On May 7, 1963, John Houston, Assistant Claims Manager for the insurer, answered appellee informing him that the policy was limited to $100,000 for injuries to one person and that $400,000 of the prayer of the complaint would be unprotected. Mr. Houston stated further that he presumed the interest of appellee was to some extent identical to that of the plaintiff. Appellee answered this letter stating therein that the presumption that appellee's interest was identical with that of plaintiff was an insult. Appellee also expressed his willingness to cooperate to the end that he could faithfully carry out his duties as administrator.
Appellee then embarked upon a course to determine the facts of the claim and the terms of the insurance policy. However, it appears that his efforts were of no avail because of lack of cooperation by the insurer and its attorneys.
On November 20, 1963, plaintiff's attorney called at appellee's office in Vincennes and told him that he was going to file a motion for change of venue from Knox County and asked that they agree on a county. Plaintiff's attorney and appellee agreed to venue the cause to Sullivan County. Plaintiff's attorney wanted the venue to go to Sullivan County as it would [139 INDAPP 528] be a short trip for him and a long trip for the attorneys representing the insurer. Appellee agreed on Sullivan County because he respected Judge Lowdermilk as a trial judge.
The attorneys representing the insurer did not receive notice of the motion for change of venue nor were they consulted concerning the same. Two days later they received notice of the agreement to change the venue to Sullivan County. The record is devoid of evidence to the effect that they timely objected to the ruling of the trial court granting the change.
Petitioner herein testified that when he read that a change of venue had been granted without consulting him, he sought out his attorney concerning the same as he felt he was not being represented when he learned appellee was not acting as an individual only but, also, as an attorney for the estate.
On July 6, 1964, seven months after the agreement for change of venue, appellant filed his petition for removal of appellee as administrator and alleged as grounds therefor mismanagement of the assets of the estate in that appellee did not consult with appellant concerning his intention to seek appointment as administrator; and that appellee, being the third counsel of record for himself, entered into an agreement with plaintiff's attorney for a change of venue without consulting with the two prior counsel of record.
The trial court refused to remove the appellee as administrator and, thereafter, overruled appellant's motion for a new trial. The overruling of this motion is assigned as error herein.
[1, 2] At the outset, as must state that the appellant was charged with the burden of proving acts of mismanagement of the estate by appellee in sufficient degree to disqualify him from the furtherance of the exercise of his duties as administrator of said estate. On appeal we are limited by the contents of the record upon which to base our review of the case. It thus devolves upon the appellant to affirmatively demonstrate error upon the part of the trial court.
[139 INDAPP 529] In Helm v. Odle, Admrx., etc. (1959), 129 Ind.App....
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...removed and we must only consider the evidence most favorable to the appellee. In Re Estate of Saltzman, supra; Von Der Lieth v. Young, (1966) 139 Ind.App. 525, 212 N.E.2d 404. 'It is the duty of judges exercising probate jurisdiction to evince vigorous and aggressive honesty in dealing wit......
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