Opinion
10-P-1832
12-09-2011
JANET H. BAUER v. ROBERT H. HOWARD, special administrator.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Janet H. Bauer, and the defendant, Robert H. Howard, are the daughter and son of the decedent, John A. Howard, who died on December 7, 2007. Although Janet insisted the decedent executed a last will and testament, Robert, unable to locate one, filed a petition for administration of the decedent's estate on March 27, 2008. Janet filed a notice of appearance on April 23, 2008. Robert's motion to strike her appearance was allowed on July 10, 2008, and Robert was appointed administrator of the estate. The record reflects that on April 21, 2009, the judge reconsidered his decision and vacated the order striking Janet's appearance and appointing Robert as administrator. By this time, having located the decedent's last will and testament dated June 8, 1978, Robert had filed a petition to probate the will and had moved to dismiss the petition for administration and for appointment as executor of the estate. Janet opposed the motion but the judge held that Janet had failed to provide credible evidence that Robert was unsuitable and sua sponte appointed him special administrator of the estate, subject to Janet's objection. On March 24, 2010, the judge allowed Robert's first and final account as administrator of the estate.
On April 21, 2010, Janet filed a notice of appeal seeking review of the allowance of Robert's first and final account as administrator of the estate of John A. Howard and from the 'improper appointment of Robert Howard as administrator of . . . the estate and subsequent actions.' No other issues were identified in the notice of appeal.
Discussion. The impetus behind Janet's objection to the appointment of Robert as the administrator and, in large part, to the allowance of his accounts, is her belief that her father's estate was much larger than has been accounted for by Robert. Statements her mother made to her in 1993 cause Janet to believe her parents had made new estate plans during that time period which could have included a trust. Despite extensive discovery, however, she has been unable to produce any evidence that such a trust exists or that additional assets were in the estate. In fact, summary judgment allowing the decedent's 1978 will, was granted. So far as it appears from the record, the plaintiff has not appealed from that judgment. We do not consider, therefore, her suggestion in this appeal that summary judgment was improperly granted. Nor do we consider asserted errors on other various motions not identified in the notice of appeal. Rothkopf v. Williams, 55 Mass. App. Ct. 294, 295 n.2 (2002). See Mass.R.A.P. 3(c), as amended, 430 Mass. 1602 (1999).
Notwithstanding Janet's unsupported arguments to the contrary, it long has been settled that Robert is entitled to reimbursement for reasonable expenses incurred as the appointed administrator before the discovery of the decedent's last will. Edwards v. Ela, 5 Allen 87, 89-90 (1862). During the time his appointment as administrator was in place, even Janet asserts that Robert 'administered Estate property,' by selling estate assets, opening estate bank accounts, and hiring and paying counsel to assist him. The judge made no finding that Robert exceeded the scope of his duties, otherwise improperly administered the estate, or sought unreasonable fees. Even if it is true that a more diligent search would have uncovered the will sooner, there has been no showing that the costs associated with administering the estate would have been avoided. We discern no error in allowing the account.
As for challenging as 'unsuitable' the appointment of Robert as administrator and special administrator, Janet's argument is unavailing. That hostility has arisen between the siblings over the administration of the estate does not prove, in and of itself, that the judge was plainly wrong in determining that Robert was 'suitable.' Cefalo v. Cefalo, 359 Mass. 756 (1971); Lindsey v. Ogden, 10 Mass. App. Ct. 142, 149 (1980).
Orders of the Probate and Family Court affirmed.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),