Summary
reversing the decision of a probate court denying the removal of an estate's administrator
Summary of this case from In re Estate of DePalmaOpinion
No. 32283
Decided April 25, 1951.
Executors and administrators — Removal of fiduciary appointed by Probate Court, discretionary — Judgment refusing to remove may be reversed, when — Fiduciary disqualified by conduct, and without capacity to administer estate fairly.
Although as a general rule the removal of a fiduciary appointed by the Probate Court rests largely in the sound discretion of that court, an appellate court will reverse the judgment of the Probate Court refusing to remove such fiduciary upon a proper application therefor, where it appears that the fiduciary by reason of his conduct is disqualified to act as such, and that he lacks the capacity to administer the estate entrusted to him in a manner which will be fair and unbiased toward those who may have an interest therein.
APPEAL from the Court of Appeals for Geauga county.
Charles L. Ober, a cattleman and farmer, residing in Newbury township, Geauga county, Ohio, died January 24, 1949. He was survived by his widow, two sons and a daughter. The widow, Rena M. Ober, applied for letters of administration of the decedent's estate to the Probate Court and represented under oath in the application that to her knowledge there was no last will and testatment of the decedent. See Section 10509-4, General Code. Rena M. Ober was appointed administratrix pursuant to her application therefor.
Later, Hilda Ober Ritchie, daughter of the decedent, filed exceptions to the inventory and appraisement of the estate, claiming that personal property belonging to the estate had not been included therein. This was followed by an action for a declaratory judgment instituted by Hilda Ober Ritchie in the Court of Common Pleas of Geauga County, involving rights in property alleged to have been owned by the decedent.
On November 15, 1949, Hilda Ober Ritchie filed a written application, duly verified, in the Probate Court asking the removal of Rena M. Ober as administratrix, on the grounds that decedent had died leaving a last will and testament and shortly after his death Rena M. Ober destroyed the same; that Rena M. Ober had conspired to conceal certain assets of the estate and to exclude them from the inventory; that Rena M. Ober is chargeable with neglect of duty and fraudulent conduct in connection with the administration of the estate; and that her interests are in conflict with those of the estate.
Testimony was taken upon the hearing of the application for removal and is embodied in a bill of exceptions now before this court. Rena M. Ober testified, among other things, that in October, 1948, the decedent, during the time he was ill and a patient in a Cleveland hospital, orally transferred to her all his interest in some 38 head of registered cattle. She and one of her sons, Lloyd E. Ober, were also questioned concerning various assets decedent might have owned at the time he died.
Lloyd E. Ober testified that originally the decedent "owned the farm and all personal property"; that at no time did decedent make a conveyance to him of any part of the personal property; that gross income of $24,057.57 was reported in the federal income tax return made for the year 1948; that the return was made by "Oberland Farms, Charles L. Ober, Rena M. Ober, Lloyd E. Ober" and perhaps Lloyd E. Ober's wife; and that the last personal property tax return was made in the names of "Charles L. and Lloyd E. Ober."
From a reading of the bill of exceptions the impression is gained that the two witnesses mentioned were not as frank and open in some of their disclosures as they might have been.
Rena M. Ober was further asked and answered the following questions:
"Q. Now, Mrs. Ober, your husband left a will upon his death, did he not? A. Yes, there was a will in the house.
"Q. He left a will, yes, or no. A. Yes.
"Q. What did you do with that will? A. I read it, through curosity. I let my daughter read it, through curosity, and then I burned it.
"Q. About two weeks after your husband's death? A. I think it was about thirteen days."
The record shows that the Probate Court, "after consideration, found the issues in favor of Rena M. Ober, administratrix, and against Hilda Ober Ritchie, the applicant herein.
"Whereupon * * * said applicant's motion was overruled and dismissed by the court and judgment entered accordingly * * * to which ruling of the court Hilda Ober Ritchie, applicant, then and there duly excepted."
An appeal on questions of law to the Court of Appeals resulted in an affirmance of the judgment below and the cause is presently in this court pursuant to the allowance of a motion to require the Court of Appeals to certify its record.
Mr. H.J. Doolittle and Messrs. Beach Warner, for appellant, Hilda Ober Ritchie.
Messrs. Thrasher Dinsmore, for appellees, Rena M. Ober, individually and as administratrix.
It is apparent that a bitter controversy exists between a mother and her daughter respecting assets which rightfully belong to the estate of the deceased husband and father. The mother contends that all assets properly attributable to the estate were included in the inventory and the daughter asserts the contrary. Claims respecting the matter were lodged not only in the Probate Court but were carried to the Court of Common Pleas by way of an action instituted by the daughter for a declaratory judgment.
Besides, the mother, by her own admission, deliberately destroyed the will of her husband shortly after his death, and in her signed and verified application for appointment as administratrix stated that to her knowledge there was no "last will and testament of said intestate." What provisions such destroyed will may have contained are not disclosed by the record.
The law looks upon the intentional concealment, suppression or destruction of a will as a very serious offense.
Section 10504-14, General Code, provides:
"No property or right, testate or intestate, shall pass to a beneficiary named in a will, knowing for three years of its existence and having it in his power to control it, who, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that time to cause it to be offered for or admitted to probate. By such neglect, the estate devised to such devisee shall descend to the heirs of the testator, not including any heir who has concealed or withheld the will as aforesaid."
Section 12451, General Code, reads:
"Whoever, during the life of a testator, or after his death, steals a will, codicil, or other testamentary instrument, or, for a fraudulent purpose, destroys or secretes it, shall be imprisoned in the penitentiary not less than one year nor more than ten years."
This court has recognized and declared that the malicious destruction of a valid will constitutes a crime under the statute last quoted. See Morton v. Petitt, 124 Ohio St. 241, 247, 177 N.E. 591, 592.
Conceding that the removal of fiduciaries rests largely in the sound discretion of the Probate Court and that appellate courts should be slow to interfere with the actions of the Probate Court in such matters, the members of this court are unanimously of the opinion that the Probate Court erred to the prejudice of Hilda Ober Ritchie and abused its discretion in dismissing and not granting her application to remove Rena M. Ober as administratrix. Not only are Rena M. Ober and Hilda Ober Ritchie at serious odds, but, upon the hearing on the application, facts were developed which disqualify Rena M. Ober as a proper fiduciary and raise grave doubts as to her capacity to administer the estate in an impartial and unbiased manner. See Sections 10501-53, 10506-53 and 10509-19, General Code.
Since the Court of Appeals erred in affirming the judgment of the Probate Court, the judgment of the Court of Appeals is reversed and the cause is remanded to the Probate Court with instructions to remove Rena M. Ober as administratrix of the estate of Charles L. Ober, deceased.
Judgment reversed.
WEYGANDT, C.J., STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.