{¶ 37} I dissent in order to uphold the principles that govern administration of probate estates.
{¶ 38} There are at least three overarching principles that govern the administration of probate estates. The first is that the general powers of the probate court are limited by statute. As stated by the Tenth Appellate District:
{¶ 39} "Probate Courts are not courts of general jurisdiction * * * no authority is needed in support of the statement. Their jurisdiction is such and only such *Page 689 as is conferred upon them by constitution or statute, with such auxiliary and incidental powers as are necessary and proper to carry into effect those expressly granted."2
{¶ 40} The second principle is that the state of Ohio seeks to "`facilitate the orderly administration of estates.'"3
{¶ 41} The third and final principle is that the law favors speedy settlement of estates.4
{¶ 42} I believe that the course of the litigation in the probate court violated all three of these principles.
{¶ 43} The significant dates and events in the administration of Ms. Kelsey's estate are as follows:
{¶ 44} January 30, 2000 Death of the decedent.
{¶ 45} February 6, 2001 Application to probate will and application for authority to administer estate filed.
{¶ 46} June 19, 2001 Appointment of Kelsey and Barton as co-executors.
{¶ 47} September 10, 2001 Appraisal of decedent's personal property.
{¶ 48} January 23, 2002 Barton files estate inventory.
{¶ 49} February 12, 2002 Kelsey files objections to inventory.
{¶ 50} May 8, 2002 Spotz appointed administrator with the will annexed.
{¶ 51} November 20, 2002 Judgment entry approving inventory.
{¶ 52} June 5, 2003 Spotz files partial account.
{¶ 53} October 28, 2003 Spotz files final account.
{¶ 54} December 4, 2003 Barton files exceptions to final account.
{¶ 55} Therefore, Barton filed exceptions to Spotz's final account 23 months after she filed the estate inventory.
{¶ 56} Notably, Barton was herself a fiduciary of the estate for the period from June 19, 2001, up to and including May 8, 2002. While a fiduciary, she filed an estate inventory, which omitted the family Bible that is in dispute. This omission was in derogation of the statute that required her to list all the assets of which she had knowledge or which were in her possession on the estate inventory. R.C. 2115.02 charges the executor with the duty to file an inventory of the decedent's probate assets as of the decedent's date of death:
{¶ 57} "Within three months after the date of the executor's or administrator's appointment * * * the executor or administrator shall file with the court an *Page 690 inventory of the decedent's interest in real estate located in this state and of the tangible and intangible personal property of the decedent that is to be administered and that has come to the executor's or administrator's possession or knowledge. The inventory shall set forth values as of the date of death of the decedent."
{¶ 58} The inventory includes the appraisement.5 There is no separate approval process for an appraisal, as asserted by the majority.
{¶ 59} The duty of a fiduciary to seek out and collect all probate assets in order to prepare the estate inventory was well stated in Ewing:6
{¶ 60} "An [executor] of an estate functions in a fiduciary capacity and, pursuant to R.C. 2113.25 * * * has a duty to collect all of the assets of the estate. * * * The representative of an estate has an obligation and mandatory duty to seek out and collect every asset belonging to the decedent at the time of his death and include it in the estate. * * * The duty exists from the time the estate is opened, which occurs upon issuance of letters testamentary or letters of administration, and continues until the administrator or executor files a final account and is discharged."7
{¶ 61} Barton filed an inventory for the estate on January 23, 2002. She signed the inventory. Under the heading "tangible personal property," Barton listed the following: "[h]ousehold goods and furnishings, jewelry, antiques" and stated the value thereof to be $3,987. No further description of the tangible personal property was given in the inventory, though the record reflects that in September 2001, the parties had commissioned an independent appraiser to ascertain the value of tangible personal property then in the possession of Kelsey and Barton.
{¶ 62} On May 30, 2002, Barton wrote a letter to her attorney drawing to his attention the fact that various items of tangible personal property were not listed in the appraiser's report with respect to the property in Kelsey's possession. Among those items, Barton listed the family Bible.
{¶ 63} Barton failed to include the family Bible in the estate inventory when she was the fiduciary and then took exception to its omission at the 11th hour in the estate administration. She commissioned a private appraisal of the decedent's personal property during September 2001. After the appraisal, she knew that the family Bible had not been included in the appraisal. Yet for reasons *Page 691 known only to Barton, she inserted a summary description of the tangible personal property on the estate inventory filed in January 2002 and chose not to list the specific items of tangible personal property that she was aware of from the commissioned appraisal. The estate inventory filed by Barton, without the inclusion of the family Bible, was approved by the court.
{¶ 64} Barton's acts of omission with respect to her knowledge of the family Bible continued after the filing of the estate inventory.
{¶ 65} Subsequent to the filing of the estate inventory, Barton entered into a settlement agreement in November 2002, also without any reference to the family Bible. The probate court approved this settlement agreement "in its entirety" and incorporated many of its provisions into its own judgment entry. Contrary to this judgment entry, Barton failed to comply with the court-ordered requirement to provide a list of tangible personal property that she had requested by December 5, 2002.
{¶ 66} When Spotz, the new administrator appointed by the probate court, filed his first partial account, Barton filed no exceptions to the account. However, after he filed his final account on October 28, 2003, Barton excepted on the ground that Kelsey had refused to turn over one-half of the family photographs to her and that the family Bible had not been included as an asset of the estate. This occurred 35 months after her mother's death.
{¶ 67} Exceptions to a fiduciary's account are permitted by R.C. 2109.33:
{¶ 68} "Any person interested in an estate or trust may file exceptions to an account or to matters pertaining to the execution of the trust. All exceptions shall be specific and written."
{¶ 69} The account itself shall include:
{¶ 70} "[A]n itemized statement of all receipts of the administrator or executor during the accounting period and of all disbursements and distributions made by the executor or administrator during the accounting period. In addition, the account shall include an itemized statement of all funds, assets, and investments of the estate known to or in the possession of the administrator or executor at the end of the accounting period and shall show any changes in investments since the last previous account."8
{¶ 71} All interested parties are to receive notice of the hearing on the account: *Page 692
{¶ 72} "The notice shall set forth the time and place of the hearing and shall specify the account to be considered and acted upon by the court at the hearing and the period of time covered by the account."9
{¶ 73} At the hearing on the account, "the court shall inquire into, consider, and determine all matters relative to the account and the manner in which the fiduciary has executed the fiduciary's trust * * * and may order the account approved and settled or make any other order as the court considers proper."10
{¶ 74} Exceptions to an account "go only to what the executor has done in his administration as set forth in his account and not to what he has failed to do[.]"11
{¶ 75} "[E]xceptions test the correctness of all items in the account with which the executor charges and credits himself, whether the account shows that the executor charges himself with all funds of the estate coming into his hands, whether the account shows all payments made by him during the period of the account, and whether such payments were authorized and legal; whether the executor failed to pay certain debts which should have been paid is not a matter raised by such exceptions."12
{¶ 76} Thus, Barton's exceptions to Spotz's final account should have tested only those entries made by Spotz in his account, limited to the time period for which Spotz was reporting. Exceptions are not intended as a device to test anything and everything that may have happened in the administration of the estate. When Spotz filed his first partial account and it was approved, the order approving that account had the effect of a judgment.13 Such judgment had finality, as is consistent with trying to achieve orderly administration of estates. Barton attempted at the 11th hour to inject new matter into the probate proceedings by filing exceptions to Spotz's final account.
{¶ 77} "If an executor, administrator, or other interested party discovers that an asset was not included in the inventory or supplemental inventory of a decedent, and that the asset may belong to the estate, such party may bring an action in declaratory judgment under R.C. 2721.05, or use the special proceedings *Page 693 of R.C. 2109.50 to determine whether such asset belongs in the estate of the decedent."14
{¶ 78} During the 34 months this estate was open, she neither pursued a declaratory judgment action nor a concealment-of-assets action. Instead, she waited until the 11th hour to assert her claim that the family Bible should be included as an asset of the estate. This was improper and should not have been allowed by the probate court.
{¶ 79} Moreover, Barton should be estopped by her conduct to assert that the family Bible should be included as part of the estate.
{¶ 80} In his first assignment of error, Kelsey argues that the doctrine of res judicata bars the court from accepting the family Bible as part of the estate inventory.
{¶ 81} The Supreme Court of Ohio has explained the relationship between res judicata and collateral estoppel:
{¶ 82} "As it has come to be recognized in its modern form,res judicata also takes in the doctrine of collateral estoppel, which provides that `if an issue of fact or law actually is litigated and determined by a valid and final judgment, such determination being essential to that judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.'"15
{¶ 83} With regard to probate administration, the rule regarding res judicata has been summarized in the case of In reEstate of Cecere:
{¶ 84} "The leading case this Court has found which holds that a judgment with respect to an inventory is res adjudicata as to the title of assets therein contained is Bolles v. ToledoTrust Company [1940], 136 Ohio St. 517 [17 Ohio Op. 156,27 N.E.2d 145], wherein the Supreme Court states: `When in an action an issue is determined and judgment rendered all parties are bound and thereafter estopped from asserting rights in conflict therewith in subsequent litigation in the same or another judicial tribunal.'"16 *Page 694
{¶ 85} In light of these principles regarding res judicata and collateral estoppel, I believe that Barton should not be able to relitigate issues that were or might have been litigated previously in the same matter.
2 Abicht v. O'Donnell (1936), 52 Ohio App. 513, 515-516,6 Ohio Op. 462, 3 N.E.2d 993.
3 Howard v. Reynolds (1972), 30 Ohio St. 2d 214, 217,59 O.O.2d 228, 283 N.E.2d 629, fn. 2, quoting the dissenting opinion of Potter, P.J., from the appellate court decision. See, also,White v. Randolph (1979), 59 Ohio St. 2d 6, 13, 13 O.O.3d 3,391 N.E.2d 333; Sup.R. 78(A).
4 Myers v. Myers (1907), 9 Ohio C.C.(N.S.) 449,1907 WL 536, paragraph three of the syllabus. See, also, Sup.R. 78(B), (C), and (D).
5 R.C. 2115.01.
6 In re Estate of Ewing, 3d Dist. No. 5-03-03, 2003-Ohio-4734, 2003 WL 22071471.
7 Id. at ¶ 12.
8 R.C. 2109.301(A).
9 R.C. 2109.33.
10 R.C. 2109.32(A).
11 In re Rothstein (1958), 108 Ohio App. 487, 9 O.O.2d 469,162 N.E.2d 547, paragraph two of the syllabus.
12 Id., paragraph four of the syllabus.
13 R.C. 2109.35.
14 Eger v. Eger (1974), 39 Ohio App. 2d 14, 68 O.O.2d 150,314 N.E.2d 394, paragraph two of the syllabus.
15 Gilbraith v. Hixson (1987), 32 Ohio St. 3d 127, 128,512 N.E.2d 956, fn. 1, quoting Hicks v. De La Cruz (1977),52 Ohio St. 2d 71, 74, 6 O.O.3d 274, 369 N.E.2d 776. See, also, Holzemerv. Urbanski (1999), 86 Ohio St. 3d 129, 133, 712 N.E.2d 713.
16 In re Estate of Cecere (1968), 17 Ohio Misc. 101, 102,46 O.O.2d 134, 242 N.E.2d 701.