In re Estate of Jones
John W. Slagle, Dayton Ohio, for Appellant.
Jon C. Hapner, Hapner and Hapner, Hillsboro, Ohio, for Appellee.
McFarland, J.:
{¶1} Jerilyn Jones, Appellant, appeals the decision of the Adams County Probate Court denying her motion to remove Susan Bogard, Appellee, as administrator of Jeffrey Jones’ estate. Though the trial court incorrectly determined that, under
I. Facts
{¶2} Jeffrey Jones, the decedent in the matter under consideration, was killed in an automobile accident. He died intestate. Appellee, his sister, applied to administer his estate. Appellee’s parents and siblings waived
{¶3} Appellant appealed Appellee’s appointment and filed a motion to stay the proceedings in the trial court. We dismissed that appeal for lack of a final appealable order. Appellant then filed a motion with the trial court to remove Appellee as administrator. The trial court denied that motion and the motion to stay the proceedings. Subsequent to that decision, Appellant timely filed the current appeal.
II. Assignments of Error
I. THE LOWER COURT ERRED TO THE DETRIMENT OF APPELLANT BY FAILING TO PROPERLY INTERPRET THE “SUITABILITY” FOR APPOINTMENT ISSUE PRESENTED TO IT.
II. THE LOWER COURT ERRED TO THE DETRIMENT OF APPELLANT BY FAILING TO APPLY ANY WEIGHT WHATSOEVER REGARDING THE CASE OF IN RE ESTATE OF ROBERTSON 26 Ohio App. 3d 64, 26 Ohio B. 238, 498 N.E.2d 206, 1985 OHIO APP. [sic].
III. THE LOWER COURT ERRED TO THE DETRIMENT OF APPELLANT BY FAILING TO CONSIDER THAT THE
IV. THE LOWER COURT ERRED TO THE DETRIMENT OF APPELLANT BY FAILING TO DETERMINE THAT AN AUNT TO THE ONLY HEIRS TO THIS ESTATE IS NOT A SUITABLE PERSON, WITHIN THE STATUTORY DEFINITION, TO ADMINISTER THIS ESTATE AND THE LOWER COURT ERRED IN FINDING THAT SHE WAS A SUITABLE PERSON.
V. THE LOWER COURT ERRED TO THE DETRIMENT OF APPELLANT BY FAILING TO CONSIDER WHATSOEVER THE TESTIMONY PRESENTED AT THE HEARING BEFORE ITS MAGISTRATE ON THE ISSUE OF SUITABILITY.
III. Legal Analysis
{¶4} Though Appellant presents five separate assignments of error, they essentially comprise one argument: the trial court erred in appointing Appellee as administrator of the decedent’s estate. As such, we address the assignments of error as one.
{¶5}
{¶6} “Administration of the estate of an intestate shall be granted to persons mentioned in this section, in the following order:
{¶7} (A) To the surviving spouse of the deceased, if resident of the state;
{¶8} (B) To one of the next of kin of the deceased, resident of the state.
{¶10} If there are no persons entitled to administration, or if they are for any reason unsuitable for the discharge of the trust, or if without sufficient cause they neglect to apply within a reasonable time for the administration of the estate, their right to priority shall be lost, and the court shall commit the administration to some suitable person who is a resident of the state * * * .”
{¶11} The trial court interpreted
{¶12} “The Court finds that, according to
{¶13} Appellant interprets
{¶14} In In re Golembiewski‘s Estate (1946), 146 Ohio St. 551, 67 N.E.2d 328, the Supreme Court of Ohio faced a similar issue.1 In that case, the intestate decedent’s spouse was a minor. The probate court denied the administration applications of the decedent‘s father and the minor spouse and appointed the spouse’s guardian instead. The court of appeals reversed that decision and ordered the father of the decedent, as next of kin, to be appointed administrator if he was competent.
{¶15} In affirming the court of appeal’s decision, the Golembiewski Court stated that “the incompetency of one individual does not destroy the right of priority of other classes enumerated in the statute. The succeeding provision requires that next in priority after the surviving spouse shall be ‘one of the next of kin of the deceased, resident of the county.’ It is not denied that the decedent‘s father comes within the classification of ‘next of kin’; but it is contended that under the facts in this case the interest of the
{¶16} The Tenth District Court of Appeals refined the holding of Golembiewski in In re Kelly‘s Estate (1956), 102 Ohio App. 518, 144 N.E.2d 130. In that case, the intestate decedent was survived by two uncles, an aunt, and others more distantly related. The uncles and aunt were the sole inheritors of the decedent’s estate. A cousin challenged the trail court’s decision to appoint of one of the uncles as administrator, asserting that he also qualified as next of kin. The court held that, in the context of appointing an administrator, next of kin means only those relatives who, at the time of appointment, would inherit in case of intestacy. The court reconciled its decision with the holding in Golembiewski with the following:
{¶17} “Counsel for the appellant relies upon the case of In re Estate of Golembiewski * * * which provides: ‘The right of priority of such next of kin is not dependent upon the extent of his interest in the assets of the estate.’
{¶18} The holding in Kelly, that priority of appointment as next of kin requires a present interest in the estate, has been reaffirmed in subsequent cases. In re Estate of Robertson (1985), 26 Ohio App.3d 64, 498 N.E.2d 206, 26 O.B.R. 238, dealt with a fact pattern remarkably similar to the case sub judice. In that case, the decedent, killed in an automobile accident, was survived by four minor children and an ex-husband who was the father of the children. The appointment of the ex-husband as administrator was challenged by the decedent’s brother who had received waivers in his favor from the decedent’s other siblings and parents. The
{¶19} In a fact pattern that was, once again, very similar to the case sub judice, the court in In re Blevins v. Fueston (June 14, 1976), 1st Dist. No. 102, also adopted this rationale. “* * * [W]e adopt the rule * * * announced in In re Estate of Kelly, * * *, that the term ‘next of kin’ as used in
{¶20} See, also, In re Williams’ Estate (1958), 153 N.E.2d 727, 728, 79 Ohio Law Abs. 592, quoting Shannon v. Hendrixson (1935), Ohio App., 32 N.E.2d 431, 20 Ohio Law Abst. 316 (“Where the priority as a matter of right * * * is exhausted for lack of eligible persons, the Probate Court in committing administration ‘to some suitable person’ resident in the county, is not compelled to appoint the nearest relative in the direct line of inheritance.”); In re Cassell‘s Estate (1948), 83 N.E.2d 72, 76, 53 Ohio Law Abs. 65 (Where the decedent‘s only relatives entitled to inherit were minor grandchildren, decedent‘s nephew, nieces and cousins were not next of kin and not entitled to priority of appointment).
{¶21} The cases cited above are directly applicable to the case sub judice. Appellants’ children are the only parties entitled to inherit the decedent’s estate and, as such, are the only next of kin for purposes of
{¶22} The doctrine of standing holds that only those parties who can demonstrate a present interest in the subject matter of the litigation and who have been prejudiced by the decision of the lower court possess the right to appeal. Willoughby Hills v. C.C. Bar‘s Sahara (1992), 64 Ohio St.3d 24, 26, 591 N.E.2d 1203; citing Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 42 N.E.2d 758. “The question of standing is whether a litigant is entitled to have a court determine the merits of the issues presented.” Ohio Contractors Association v. Bicking (1994), 71 Ohio St.3d 318, 320, 1994-Ohio-183, 643 N.E.2d 1088.
{¶23} Here, Appellant was not entitled to challenge the trial court’s decision. Under Kelly, because Appellant has no personal interest in the decedent’s estate, she consequently has no capacity to attack Appellee’s appointment as administrator. Because she inherits nothing from the estate, Appellant cannot demonstrate a present interest in the subject matter of the appeal and cannot show that she was prejudiced by the decision of the trial
IV. Conclusion
{¶24} The trial court’s determination that Appellee was entitled to priority of appointment under
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court, Probate Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Judge Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.