MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Nov 15 2017, 9:34 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Joseph Leon Payne                                        John W. Mead
Austin, Indiana                                          Mead, Mead & Clark, P.C.
                                                         Salem, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Barbara A. Shirley,                                      November 15, 2017
Appellant,                                               Court of Appeals Case No.
                                                         88A05-1703-ES-508
        v.                                               Appeal from the Washington
                                                         Circuit Court
Donna Jent,                                              The Honorable Larry W. Medlock,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         88C01-1511-ES-100



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017        Page 1 of 11
[1]   Barbara A. Shirley appeals from an order of the trial court removing her as

      personal representative of the estate of Doug Bieghler. Shirley raises one issue

      which we revise and restate as whether the court abused its discretion in

      removing her as the personal representative of the estate. We affirm.


                                      Facts and Procedural History

[2]   On July 15, 2015, Shirley filed a Petition for Appointment of Personal

      Representative in the estate of her son Doug Bieghler under cause number

      88C01-1507-EU-61 (“Cause No. 61”), and the following day the court issued an

      order granting the petition and ordering unsupervised administration. A

      number of claims were filed against the estate, including several by Donna Jent.

      The chronological case summary includes entries which indicate that Jent or

      her attorney filed claims for “List of Gifts,” “$8,000.00,” “$9,935.00,”

      “Wheeler, gift,” and “Claim #5: 1/2 Net Estate,” and “Claim #5-A for Baler

      parts and manual and for 580K Case Backhoe.” Appellant’s Appendix Volume

      2 at 4. On November 18, 2015, Jent filed a Petition for Revocation of Order

      Granting Unsupervised Administration. On November 23, 2015, the court

      issued an Order Revoking Unsupervised Administration stating that, from that

      day forward, Shirley as personal representative of the estate of Bieghler shall

      proceed according to the provisions of the Indiana Code governing supervised

      estates.


[3]   On November 24, 2015, the estate action was transferred from Cause No. 61 to

      cause number 88C01-1511-ES-100 (“Cause No. 100”). In December 2015, Jent

      filed a Motion for Declaratory Judgment. On March 8, 2016, Shirley as
      Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 2 of 11
      administrator of Bieghler’s estate and Jent filed an Agreement Satisfying Claims

      of Donna Jent which provided that Jent would receive certain personal

      property, would be reimbursed by the estate for the funeral bill of $9,935 and

      would be paid $8,000 to satisfy her claim upon sufficient funds being received

      by the estate; that Jent would return certain personal property to Shirley as

      administrator of the estate; and that Jent would dismiss her motion for

      declaratory judgment. The first page of the agreement included language

      stating “this agreement satisfies all claims made or to be made by Donna Jent

      and she releases the Estate of Doug Bieghler from any further claim, obligation

      or liability,” this language was crossed out, and the initials of Shirley and Jent

      appear next to the crossed-out language. Appellee’s Appendix Volume 2 at 2.


[4]   On June 2, 2016, Shirley filed a Motion for Court Authority to Pay Claims and

      Costs of Administration which stated that many of the estate assets were sold at

      an auction on April 30, 2016, making the estate solvent and liquid enough to

      make payment of most pending claims, and which requested authority to pay

      certain claims and costs. The motion, in listing claims, stated in part: “#5

      Donna Jent - ½ of net estate - disallowed to be set for mediation.” Appellant’s

      Appendix Volume 2 at 50. On August 3, 2016, Jent filed a motion to dismiss

      her request for declaratory judgment, and on August 5, 2016, the court granted

      the motion to dismiss.


[5]   On October 17, 2016, Shirley as administrator of the estate filed a Personal

      Representative’s Final Accounting and Petition to Settle and Allow Accounting

      which stated in part that upon his death the decedent was the sole owner of

      Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 3 of 11
      10.48 acres of unimproved real estate and the real estate is to be transferred to

      Shirley and the decedent’s brother as tenants in common, that the personal

      property of the estate was sold at public auction, that the amount left after final

      distributions was $12,869.71, and that all distribution of the estate’s assets was

      accomplished upon certain payments including $6,434.85 to the decedent’s

      brother, $6,434.86 to Shirley, and “10.48 Acres to [the decedent’s brother] and

      Barbara Shirley.” Appellant’s Appendix Volume 2 at 19.


[6]   On December 2, 2016, Jent filed a Motion for Leave of Court to Amend Claim

      alleging that she and the decedent cohabitated for many years, she worked side

      by side with the decedent in the conduct of his business, she was never

      compensated for her labor and services, and she should be permitted to pursue a

      wage claim. Also on December 2, 2016, Jent filed a Petition for Removal of

      Personal Representative alleging that Shirley failed to properly account for all

      known property and assets of the decedent, disposed of property and assets of

      the decedent without fair, just and adequate compensation, failed to adjust,

      resolve or compromise the claim filed by Jent, failed to file a complete

      inventory of the property and assets of the decedent, and failed to properly

      account for the decedent’s debts and obligations. On December 9, 2016, the

      court granted Jent’s Motion for Leave to Amend Claim.


[7]   On January 20, 2017, Jent filed an Amended Claim in which she alleged that a

      partnership between herself and the decedent arose as a result of a seventeen-

      year relationship in which she and the decedent cohabitated as husband and

      wife. She alleged that throughout the relationship the decedent was engaged in

      Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 4 of 11
      the business of installing agricultural tile, that she worked side by side with him

      and provided services and labor in the installation of tile, that she was never

      compensated for her services, and that she should be compensated for her labor

      in a wage comparable to that of a construction wage for laborers. Jent sought

      damages in an amount equal to one-half of the decedent’s net distributable

      estate or $200,000, whichever is greater, and attorney fees and costs.


[8]   On January 23, 2017, the court held a hearing on Jent’s Petition for Removal of

      Personal Representative at which it heard testimony from Jent, Shirley, the

      decedent’s brother, and James Moon. On February 6, 2017, the court issued an

      Order Removing Personal Representative and Appointing Successor Personal

      Representative. The order provides in part:

              3. Removal of Barbara Shirley as personal representative is
              appropriate as a result of the following:

                      •    Failed to properly account for all known property and
                           assets of the decedent;
                      •    Disposed of property and assets of the decedent
                           without fair, just, and adequate compensation;
                      •    Failed to adjust, resolve, or compromise the claim filed
                           by claimant, Donna Jent;
                      •    Failed to file a complete inventory of the property and
                           assets of the decedent; and
                      •    Failed to properly account for the debts and obligations
                           of the decedent.

              4. Removal of the original personal representative and
              appointment of the successor personal representative is in the
              best interests of all of the beneficiaries under the decedent’s will.



      Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 5 of 11
               5. The parties will have 5 business days to agree on the person to
               be appointed as the successor personal representative. If the
               parties do not reach an agreement, the Court will appoint an
               uninterested personal representative.

      Appellant’s Appendix Volume 2 at 18. Shirley appealed the court’s order. The

      trial court later subsequently appointed Andrew Wright as special personal

      representative.


                                                       Discussion

[9]   The issue is whether the trial court abused its discretion in removing Shirley as

      the personal representative of the estate.1 “A court of probate jurisdiction has

      great latitude and wide discretion in matters concerning the appointments and

      the removal of administrators . . . , and this court will not attempt to control or

      interfere with the Probate Court’s action therein, except in a case where it is

      clear that its discretion has been abused.” Hauck v. Second Nat. Bank of

      Richmond, 153 Ind. App. 245, 267, 286 N.E.2d 852, 865 (1972) (citing Helm v.

      Odle, 129 Ind. App. 478, 480, 157 N.E.2d 584, 585 (1959)), reh’g denied. Ind.

      Code § 29-1-10-6(b) provides:


               When the personal representative becomes incapacitated (unless
               the incapacity is caused only by a physical illness, infirmity, or
               impairment), disqualified, unsuitable or incapable of discharging




      1
        Jent asks us to dismiss on grounds that Shirley did not name Andrew Wright as special personal
      representative as a party to this appeal. Shirley was required to file, and did file, her notice of appeal well
      before the trial court issued its order appointing Wright, Wright filed his oath, and letters of administration
      were issued. Under the circumstances we decline to dismiss, and we exercise our discretion to review the
      trial court’s order.

      Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017              Page 6 of 11
               the representative’s duties, has mismanaged the estate, failed to
               perform any duty imposed by law or by any lawful order of the
               court, or has ceased to be domiciled in Indiana, the court may
               remove the representative in accordance with either of the
               following:

                       (1) The court on its own motion may, or on petition of
                       any person interested in the estate shall, order the
                       representative to appear and show cause why the
                       representative should not be removed. The order shall set
                       forth in substance the alleged grounds upon which such
                       removal is based, the time and place of the hearing, and
                       may be served upon the personal representative in the
                       same manner as a notice is served under this article.

                       (2) The court may without motion, petition or
                       application, for any such cause, in cases of emergency,
                       remove such personal representative instantly without
                       notice or citation.


[10]   The removal of a personal representative after letters are duly issued does not

       invalidate official acts performed prior to removal. Ind. Code § 29-1-10-6(c). A

       personal representative of an estate is regarded as a trustee appointed by law for

       the benefit of and the protection of creditors and distributees of that estate. In re

       Bender, 844 N.E.2d 170, 178 (Ind. Ct. App. 2006), reh’g denied, trans. denied. The

       personal representative has a duty to protect and preserve the assets of the estate

       to properly distribute those assets to the rightful heirs and devisees of the

       decedent. Estate of Daniels ex rel. Mercer v. Bryan, 856 N.E.2d 763, 768 (Ind. Ct.

       App. 2006). The personal representative has a duty to care for and conserve the

       assets of a decedent’s estate so that such assets are not wasted or mismanaged.



       Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 7 of 11
       Ind. Dep’t of State Revenue, Inheritance Tax Div. v. Cohen’s Estate, 436 N.E.2d 832,

       836 (Ind. Ct. App. 1982).


[11]   Ind. Code §§ 29-1-7.5 relates to unsupervised estates, and Ind. Code § 29-1-7.5-

       3.2(a) provides that “[n]ot more than two (2) months after the appointment of a

       personal representative under this chapter, the personal representative shall

       prepare a verified inventory of the decedent’s probate estate. The inventory

       may consist of at least one (1) written instrument.” Ind. Code § 29-1-7.5-3.2(b)

       provides that the inventory must indicate the fair market value of each item

       including a statement of all known liens and other charges on any item and that

       the property must be classified as real property; furniture and household goods;

       emblements and annual crops raised by labor; corporate stocks; mortgages,

       bonds, notes, or other written evidences of debt or of ownership described by

       the name of the debtor; bank accounts, money, and insurance policies; and all

       other personal property identified including the decedent’s proportionate share

       in any partnership. Ind. Code § 29-1-12-1 regarding the classification of

       properties contains similar requirements. Ind. Code § 29-1-16-4 provides in part

       that “[a]ccounts rendered to the court by a personal representative shall be for a

       period distinctly stated and shall consist of three (3) schedules, of which the first

       shall show the amount of the property chargeable to the personal representative;

       the second shall show payments, charges, losses and distributions; the third

       shall show the property on hand constituting the balance of such account, if

       any.”




       Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 8 of 11
[12]   Shirley argues that the court abused its discretion by removing her without

       cause. She argues no facts adduced at the hearing tended to show she failed to

       account for all assets of the decedent, the personal property was sold at public

       auction, the estate was unsupervised when an accounting was performed and

       she was not required to file the same with the court, and that she paid all of the

       claims except for Jent’s claim. Jent maintains that, in addition to the

       equipment, the estate included real property, income from crops, and at least

       one bank account, and that Shirley’s accounting did not account for all

       property, show what property she has on hand, or account for the disposition of

       significant items of personal property that were not sold at auction. She argues

       sufficient evidence was submitted to support the trial court’s decision to remove

       Shirley and appoint a special administrator.


[13]   The record reveals that the October 17, 2016 accounting filed by Shirley

       indicates the estate included real property and income from crops. It also

       reveals that, in addition to six claims filed by Jent or her attorney against the

       estate, other claims were filed on behalf of ten other claimants. Shirley’s June

       2, 2016 motion for authority to pay claims stated in part: “Donna Jent - ½ of

       net estate - disallowed to be set for mediation.” Appellant’s Appendix Volume

       2 at 50. Moon testified that he went to the property of the decedent for the

       purpose of conducting an inventory and appraisal of certain equipment and that

       he prepared an estimate of equipment values for the estate in August 2015, and

       the sixteen-page list of assets and estimated values was admitted at the January

       23, 2017 hearing. The list prepared by Moon stated that it did not include the


       Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 9 of 11
       value of four items. Moon indicated there were items which would commonly

       be referred to as junk at the place. Moon’s list did not identify any real

       property, income from crops, money, or bank accounts. The court also

       admitted into evidence the final settlement from the April 30, 2016 auction

       which set forth the proceeds of the sale, the seller’s expenses, and the total

       proceeds to the seller.


[14]   Jent testified that to her knowledge certain items on the list prepared by Moon

       did not sell at the auction and specifically noted thirteen items in Moon’s list

       which had not been sold. Moon’s list shows that he estimated that the value of

       each of the thirteen items identified by Jent ranged from $250 to $9,000, and the

       total of the estimated values for those items was over $30,000.


[15]   When asked if the document prepared by Moon reflected the real property

       owned by the decedent, Shirley testified “[w]ell, you realize, my late husband

       and I, had, was in the excavating business, and like that car and things, some of

       the tings [sic] his dad and I had bought for him” and “[s]o there was things on

       there, and he had used the equipment after his dad passed away when he

       started back into excavating, he used his dads [sic] equipment, and that’s where

       he started from.” Transcript at 12-13. When asked if there was equipment in

       Moon’s list that did not belong to the decedent, Shirley answered “I can’t

       answer that, I don’t really know. I’m not as familiar with the equipment as

       everybody else is.” Id. at 13. When asked “were there any errors or inaccuracy

       in [Jent’s] testimony about wasn’t sold,” Shirley answered “I don’t know for

       sure.” Id. Shirley testified that the decedent had a bank account.

       Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 10 of 11
[16]   The decedent’s brother testified that he was present at the sale at the property,

       that several items that belonged to his brother did not sell, that some of the shop

       equipment belonged to him, and that a lot of the tools “was my dad[’]s, and my

       grandfather[’]s, and some was mine.” Id. at 20-21. When asked the value of

       the unsold items, he answered “[p]robably 5, 6,000 dollars.” Id. at 21. Shirley’s

       October 17, 2016 accounting does not appear to explicitly account for the

       distribution of property which was not sold at the auction.


[17]   Based upon the record and in light of the trial court’s great latitude in matters

       concerning the removal of administrators, we cannot say that the court abused

       its discretion in finding that Shirley should be removed as the personal

       representative of the estate and a special personal representative appointed.


                                                   Conclusion

[18]   For the foregoing reasons, we affirm the order of the trial court.


       Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 88A05-1703-ES-508 | November 15, 2017   Page 11 of 11
