In re Estate of Miller
Grant A. Wolfe for Appellant
Steven R. Fansler for Appellee, Clair R. Miller
James R. Miller, Appellee
WILLAMOWSKI, P.J.
{¶1} Appellant Rosanna L. Miller (“Rosanna“) brings this appeal from the judgment of the Court of Common Pleas of Logan County, Probate Division, denying her motion to have appellee Clair R. Miller (“Clair“) removed as executor of the estate of Elizabeth A. Miller. For the rеasons set forth below, the judgment is affirmed.
{¶2} On November 24, 2006, Elizabeth A. Miller fell down her basement steps and died. Rosanna filed a petition to be named guardian of Clair, her father and the husband of Elizabeth, alleging that he was incompetent. The matter was assigned case number 07-GI-01. Numerous hearings were held on the matter and volumes of materials were filed by Rosanna, Clair, Rosanna‘s siblings James, Ellen, Nancy, and Kathy, and other extended family members. On October 31, 2008, prior to the ruling by the trial court on her petition, Rosanna proceeded to file a copy of Elizabeth‘s last will and testament, an application to probate the will, and an application to be named executrix of thе estate. The will provided as follows:
I hereby nominate and appoint Clair R. Miller as my Personal Representative under this, my Last Will. If for any reason such person fails to qualify, or is unable or unwilling to serve as my Personal Representative, I nominate and appoint Rosanna L. Miller as my Personal Representative * * *.
The trial court subsequently named Clair as the executor of Elizabeth Miller‘s estate on October 27, 2009.2
{¶3} On January 19, 2010, Rosanna filed a motion to have Clair removed as executor and herself named as his replacement alleging two reasons: 1) Clair was incompetent and 2) Clair refused to pursue a wrongful death suit against James for the death of Elizabeth. Clair filed his response to Rosanna‘s motion on February 2, 2010. On May 4, 2010, a hearing was held on the matter. The trial court entered judgment denying Rosanna‘s motion on June 16, 2010. Rosanna appeals from this judgment and raises the following assignments of error.
First Assignment of Error
The Probate Court erred by failing to take judicial notice of, and/or otherwise considering the statements of expert evaluation and/or reports of court ordered psychological
Second Assignment of Error
The Probate Court‘s decision to deny [Rosanna‘s] motion to remove executor pursuant to [R.C. 2109.24] was erroneous, against the manifest weigh (sic) of the evidence and an abuse of discretion.
Third Assignment of Error
The Probate Court erred by failing to take judicial notice of, and/or otherwise considering the pleadings and other documents filed of record in a related pending wrongful death сase when it decided whether to remove the executor, [Clair], pursuant to [R.C. 2113.18(B)].
Fourth Assignment of Error
The Probate Court‘s decision to deny [Rosanna‘s] motion to remove executor pursuant to [R.C. 2113.18(B)] was erroneous, against the manifest weigh (sic) of the evidence and an abuse of discretion.
Fifth Assignment of Error
The Probate court‘s journal entry approving the executor‘s inventory and appraisement was erroneous, against the manifest weigh (sic) of the evidence and an abuse of discretion.
Sixth Assignment of Error
The Probate Court‘s judgment entry approving the Executor‘s certificate of termination and discharging the executor was erroneous, against the manifest weigh (sic) of the evidence and an abuse of discretion.
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.
{¶5} In this case, Rosanna wished to have the trial court take judicial notice of the psychological reports of the expert witnesses in the guardianship proceeding. However, Rosanna did not subpoena the experts to testify at this hearing. The results of the psychological evaluations of Clair are not generally known facts nor are they capable of accurate and ready determinations by sources whose accuracy cannot be questioned. Thus, they do not meet the requirements for judicial notice. Additionally, they were being offered to prove the alleged fact that Clair lacked competency to serve as executor. Thus, the reports are testimonial evidence presented in a different case and the trial court may not take judicial notice of them. The first assignment of error is overruled.
{¶6} Rosanna also wanted the trial court to take judicial notice of the complaint and documents filed in a wrongful death cаse she filed when she was the applicant to be executor of the estate of Elizabeth Miller. Although the trial court could consider that a wrongful death suit was filed by Rosanna, especially since she testified to such, it could not consider the pleadings that were filed in that case. Rosanna did not testify to the contents of those pleadings and documents at the hearing in this case. The facts allegedly in those documents
{¶7} Rosanna alleges in her second assignment of error that the trial court‘s judgment that Clair was competent to serve as executor was against the manifest weight of the evidence. “The court may remove any fiduciary * * * for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct * * *.”
{¶8} In support of her assignment of error, Rosanna points to evidence from the hearing. The trial court could not consider the psychological reports, as discussed above, and did not err by failing to do so. The trial сourt did consider all of the additional evidence to which Rosanna cites.
In reviewing the evidence, the court finds that Attorney William Goslee testified that he had represented Clair and Ann Miller
several years prior to the death of Ann in a couple of lawsuits. He testified that the lawsuits were managed by Ann Miller, and that Clair did not seem to pay attention to the matters. He also testified that in conversations, Clair was not always “there“. This evidence is both stale, as Goslee has not had contact with Clair Miller in several years, and even if current, did not indicate that Miller was incompetent as defined herein. Clair Miller testified. He admitted that he has vision impairment and that he can‘t reаd any written materials. He testified at length as to his present condition and his assets and his awareness of the current proceedings. He admitted that he had little understanding of the legal process, but explained that‘s why he hired an attorney. While his answers were sometimes a little fuzzy, the court determines that the answers were appropriate and did not indicate that he was incapable of taking proper care of himself or his property.
The movant, Rosanna Miller testified that she has observed her father “from time to time,” and that she believes that her father is unaware of what is going on around him. She also admitted in testimony that she had turned her father into the BMV, causing his drivers’ licensе revocation. And she admitted that she had filed a complaint against him for having junk vehicles. She acknowledged that she had entered her father‘s home and removed at least $173,000 from his safe and that she had put her name on his bank accounts in December 2006. She acknowledged that she contested Clair‘s appointment as executor of the estate and filed an application for herself to be appointed. It is clear that there is animosity between Clair and Rosanna, and because of this, the court finds her testimony as to his mental health to be self-serving and not credible. Furthermore, it is contrary to the observations of the court during the testimony of Clair Miller.
For thesе reasons, the court finds that the movant, Rosanna Miller has failed to establish that Clair Miller is incompetent, and the motion to remove will not be granted on this basis.
{¶9} The fourth assignment of error claims that the trial court erred by not removing Clair as executor pursuant to
(B) The probate court may remove any executor * * * upon motion of the * * * children * * * of the dеceased person whose estate is administered by the executor * * * if both of the following apply:
(1) The executor * * * refuses to bring an action for wrongful death in the name of the deceased person;
(2) The court determines that a prima-facie case for a wrongful death action can be made from the information available to the executor * * *.
{¶10} Rosanna argues that since she filed a case while her application to be executor of Elizabeth Miller‘s estate was pending, Clair was aware of
{¶11} In the fifth assignment of error, Rosanna alleges that the trial court erred by approving the inventory and appraisement filed by Clair as executor. Initially, this court notes that Rosanna did not file an objection to the inventory when it was filed and no hearing on objections was held. Thus, the trial court has not had аn opportunity to review these objections.
Since Clair was the trustee of the trust, he, in his capacity as trustee, inherited all of the estate. Rosanna, thus, had no direct pecuniary interest in the estate and was not a person interested in the estate who might be entitled to notice if the executor chooses to give it.
{¶13} Rosanna also argues that the trial court erred by accepting the inventory when there were additional assets that were not included. During the hearing, Rosanna testified that there were additional bonds, insurance policies and
{¶14} Finally, Rosanna alleges that the trial court erred by approving the certificate of termination and discharging Clair as executor. Rosanna bases this assignment of error solely upon the claimed improper inventory and the trial court‘s alleged error in not removing Clair as executor. This court has already
{¶15} The judgment of the Court of Common Pleas of Logan County, Probate Division is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
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