Summary
In State ex rel. Beedle v. Kiracofe (1964), 176 Ohio St. 149, the Supreme Court expressly stated that a guardian has the power after the ward's death to make a proper accounting and settlement of any acts taken in regard to the ward's assets.
Summary of this case from State ex Rel. Hards v. KlammerOpinion
No. 38443
Decided April 22, 1964.
Guardianship — Right to bring action after ward's death — Assets of estate distributed — Final account settled and estate closed — Application to commit securities, formerly of estate, to trustee — Probate Court without jurisdiction, when.
1. A guardian, who is subject to citation for contempt in one Probate Court and is under a duty to file a final guardian's account in another Probate Court, has sufficient interest to bring an action in prohibition against the first court notwithstanding the death of his ward.
2. Where the assets of an estate have (in accordance with the terms of a will) been distributed to life tenants, the estate has been closed and the final account has been settled and determined, and the life tenants die, in the absence of a motion, filed in accordance with Section 2109.35, Revised Code, to vacate the order of the Probate Court, such court lacks jurisdiction to entertain an application by the remaindermen to commit securities formerly in the estate to a trustee.
APPEAL from the Court of Appeals for Miami County.
In November 1949, the last will and testament of Mary A. Kyle, deceased, was admitted to probate in Miami County. The will, which named Clara K. Demmitt and Maggie K. Beedle as executrices, contained the following relevant provision:
"Item Four: — Subject to the above items, I give, devise and bequeath to my sisters Clara Kyle Demmitt and Maggie Kyle Beedle, all the property of which I die possessed, for and during their natural lives in equal shares, and to the survivor of them for life. If it should become necessary for the comfort and support of either that a part or all of the principal be used, then each may use her one-half of the principal, or the survivor may use all."
Thereafter, in June 1950, the assets of the estate, consisting of cash and certain securities, were distributed in kind to Clara Demmitt and Maggie Beedle, the life tenants; the final account was settled and determined; and the executrices of the estate were discharged.
Clara K. Demmitt died in May 1951, leaving Maggie K. Beedle the sole surviving life tenant.
Although Mrs. Beedle then resided in Cuyahoga County, in April 1954 four of the remaindermen without reopening the Kyle estate and without the appointment of an administrator de bonis non filed an application in the Probate Court of Miami County, under the estate case number, to commit securities to a trustee and to restore funds. Arthur K. Beedle, who, in January 1955, was appointed guardian of his mother, Maggie K. Beedle, an incompetent, by the Probate Court of Cuyahoga County and took charge of all the property possessed by his ward, was made a party to the proceeding on the application of the remaindermen in the Probate Court of Miami County in August 1956. In June 1957, the Miami County Probate Court restrained Maggie K. Beedle and Arthur Beedle, individually and as her guardian, from disposing of said securities. Thereafter, in October 1957, the court found the life tenant and her guardian guilty of devastavit and ordered the securities, held in life tenancy, committed to a trustee.
On October 31, 1961, Mrs. Beedle died. Subsequently, on November 19, 1961, the Probate Court of Cuyahoga County entered an order confirming the guardian's expenditure of funds, allowing fees and expenses, and authorizing distribution of assets in kind.
In February 1962, subsequent to appellate proceedings and other procedural actions relative to the pending application of the remaindermen, the Probate Court of Miami County appointed a trustee to take charge of the property held by Arthur K. Beedle, guardian.
Shortly after the Court of Appeals for Miami County dismissed Arthur K. Beedle's appeal from the overruling of his motions to dismiss the application of the remaindermen, to dissolve the injunction, and to vacate the appointment of the trustee, he filed this petition for a writ of prohibition in the Court of Appeals for Miami County. The respondent, judge of the Court of Common Pleas of Preble County assigned to hear and determine the application of the remaindermen pending in the Probate Court of Miami County, appealed to this court as a matter of right from the judgment of the Court of Appeals allowing the writ of prohibition.
Mr. Raymond E. Cookston and Mr. Owen Calvin Neff, for appellee.
Messrs. Faust Harrelson, for appellant.
The first question for determination is whether the relator has the capacity to bring this action in prohibition. The respondent, relying upon the general rule that the death of the ward terminates the guardianship, contends that the relator, as guardian of the deceased ward, is not qualified to prosecute this action. However, the respondent de-emphasizes the fact that those powers and duties necessarily involved in the proper accounting and settlement of the stewardship continue. Simpson v. Holmes, Admr. (1922), 106 Ohio St. 437, 439; 39 Corpus Juris Secundum, 61, Guardian and Ward, Section 41; 26 Ohio Jurisprudence (2d), 457, Guardian and Ward, Section 116. The Court of Appeals held, and rightly so, that the relator had the power to prosecute this action in prohibition as an incident to his duty to file his final guardian's account in the Probate Court of Cuyahoga County. It should be noted also that, if the relator filed his final account and distributed the assets of his ward to the remaindermen in accordance with the order of the Probate Court of Cuyahoga County, it is probable, as he alleges in his petition, that the trustee appointed by the Probate Court of Miami County would endeavor to have him cited for contempt.
Having determined that relator has the capacity to bring this action in prohibition, the next question for consideration is whether the Probate Court of Miami County has jurisdiction to hear and determine the remaindermen's application. To sustain respondent's contention that such court has jurisdiction to consider the remaindermen's application, we would have to determine that the personal property, for which a receipt was given to the executrices in 1950 by those entitled to life estates therein, either (1) could not lawfully have been distributed as it was, or (2) remained at least in part property of the estate of Mary A. Kyle even after distribution, or (3) again became property of the estate of Mary A. Kyle on the termination of the life interests therein.
In our opinion item four of the Kyle will, quoted above, clearly expressed an intention that possession of the personal property should be delivered to Mary Kyle's sisters, Clara Demmitt and Maggie Beedle. There was no requirement that a bond be given, and apparently the court did not believe that a bond was necessary.
The order of the Probate Court of Miami County approving the settlement of the executrices' account in the Kyle estate had the effect of a final judgment. Such judgment may be vacated only in accordance with the provisions of Section 2109.35, Revised Code. There is no evidence that a motion to vacate the order of June 1950 was ever filed. In fact the respondent does not question the lawfulness of the distribution of personalty to the life tenants by such order.
Any contention that the Probate Court of Miami County continued to have jurisdiction on the theory that the securities remained at least in part the property of the estate after the distribution in 1950, or on the theory that they again became property of the Kyle estate after the death of the life tenants, would be disposed of by paragraph three of the syllabus of In re Estate of Sexton (1955), 163 Ohio St. 124, reading as follows:
"3. Where personal property is given by will to one for life with remainder over to another and where the will expresses an intention that the life tenant shall have possession and control of the personal property so bequeathed during his life and where the executor of the estate lawfully distributes such personal property to the life tenant and where no bond is ever required from the life tenant, such personal property or its proceeds will not thereafter be or, on the death of the life tenant, will it again become property of such estate."
It should be noted that neither of the foregoing theories on which jurisdiction may continue is advanced by the respondent.
Respondent, in contending that under Section 8, Article IV, Ohio Constitution, Probate Courts have such jurisdiction as may be provided by law, relies upon Sections 2113.58 and 2101.24, Revised Code, as conferring continuing jurisdiction. In view of the discussion of each of these statutes by Taft, J., in Estate of Sexton, supra, it is sufficient to note that the "plenary power" provision of Section 2101.24 does not come into operation until first there is some "matter properly before the court," and that Section 2113.58 authorized the Probate Court to require a bond of the life tenants only prior to the termination of the limited estate. In the instant case, the assets of the Kyle estate were lawfully distributed to the life tenants, the estate was closed and the final account was settled and determined. In other words, the remaindermen's application relates to property as to which the Kyle estate had no title or right to possession. Hence there was no matter properly before the court over which it could exercise its plenary power. Further, the life tenants having died, the Probate Court of Miami County can not now require a bond.
Although in a proper case an appeal for abuse of discretion may lie, we can not say that the Court of Appeals abused its discretion in view of our decision in State, ex rel. Cleveland Trust Co., Exr., v. Probate Court of Cuyahoga County (1961), 172 Ohio St. 1, holding that prohibition is a proper remedy where a Probate Court once having had jurisdiction subsequently lost it. Accordingly, the judgment of the Court of Appeals should be, and hereby is, affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, KOVACHY, O'NEILL, GRIFFITH and HERBERT, JJ., concur.
KOVACHY, J., of the Eighth Appellate District, sitting by designation in the place and stead of MATTHIAS, J.