Opinion
C.A. No. 17760-NC.
October 6, 2003.
IN THE JURISDICTION OF THE REGISTER OF WILLS, Folio No. 117844 ORDER
AND NOW, this 6th day of October, 2003, and it appearing as follows:
1. Respondent Jon L. Howell has moved for reargument of this Court's post-trial Memorandum Opinion, dated December 20, 2002 (the "Memorandum Opinion"), in the above-referenced matter. First, he challenges the Court's decision that the valuation and allocation of the firearms must be revisited; second, he asserts that certain bank accounts held jointly with the Decedent should be deemed to have passed to him under right of survivorship and not to the Estate as "convenience" accounts; and third, he contests the Court's decision to award him a fiduciary commission of only $8,000.
2. A motion for reargument will be granted only when the party moving for reargument is able to demonstrate that the Court's decision was premised on a misunderstanding of a material fact or a misapplication of law. See, e.g., In re ML/EQ Real Estate P'ship Litig., 2000 WL 364188, at *1 (Del.Ch. Mar. 22, 2000).
3. Respondent challenges the Court's factual finding that "[the Respondent] selected the firearms that he wanted for himself, and then he assigned the balance (based on the overall valuations) to his sisters." Mem. Op. at 10-11. Respondent is correct that this finding is not accurate. The issue of distribution of the firearms is more accurately characterized as between Petitioner Sarah Sue Howell and Respondent. More particularly, although the parties did not order a trial transcript, the Court has obtained an excerpt of the trial testimony which at pp. 3-4 provides:
Q. [By Mr. Thompson] Which in terms of percentage, isn't that about — of what was left, isn't that probably about 75 percent of what was left?
A. [Sarah Sue Howell] Yes. But when you look at the sum total of the — the individual values of those weapons, you would see that they don't range in very high manner. They probably would not have brought a lot at an individual auction. The bulk of the weapons that would have brought a high price at auction are the weapons that my brother selected.
Q. Okay. And what's the difference? I mean, if — if there's one gun that's worth $,000 and there's five guns that are worth $1,000 each, they're the same, aren't they — are they not?
A. The difference between the value of the guns that my brother selected and the value of the guns on my list is much different than that. Guns on my list range anywhere from $25 on up to maybe a thousand. The guns on my brother's list initially start at a much higher rate and go much — into the thousands.
Q. All right.
A. It's a smaller collection, a highly-prized collection. If these were all sold together, the likelihood that they would gamer a good price is much greater than if they were sold as a small collection of guns prized [sic], you know, between 500 and $25.
This testimony, which the Court accepts, provides a key part of the basis for the Court's conclusion, see Mem. Op. at 13, that by (a) selecting the higher value firearms and (b) controlling the valuation process, the Respondent, as a fiduciary, did not meet his duties of fairness and impartiality to the other beneficiaries. Thus, while the Memorandum Opinion was not entirely correct in its exposition of the facts, that error was not material to the Court's conclusion. Accordingly, as to his challenge of the Court's determination with respect to the process for valuation and distribution of the firearms, Respondent's motion for reargument is denied.
4. Since trial, Respondent has been able to provide the Court with the documentation governing the challenged joint accounts. (See letter of John J. Thompson, Esquire, dated January 15, 2003.) According to the Account Agreement for Personal Checking and Savings Account of PNC Bank: "If your Account is a joint Account, then you own your Account as joint tenants with the right of survivor and not as tenants in common." The joint accounts were subject to this Account Agreement. Thus, this document demonstrates clearly and convincingly that the accounts were held as joint accounts with right of survivorship (and not as "convenience" accounts as the Court concluded from the evidence at trial). Accordingly, Respondent's motion for reargument on this ground will be granted and the funds in the joint accounts shall be deemed the sole property of Respondent, as the surviving joint tenant.
5. Careful consideration has been given to Respondent's claim that he is entitled to a larger fiduciary commission. Respondent, however, has not demonstrated that the Court either misunderstood the facts or misapplied the law. The hourly rate sought by the Respondent is excessive for a non-professional fiduciary. Even though an estate (or trust) with substantial tangible personal property will typically require more effort than an estate of comparable size consisting primarily of liquid investments, the hours for which Respondent had sought compensation are also excessive. Thus, Respondent's motion for reargument to the extent that it seeks an increase in the award of a fiduciary commission is denied.