[Cite as In re Estate of Crain, 2017-Ohio-2724.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
IN THE MATTER OF: : OPINION
ESTATE OF RALPH A. CRAIN, : DECEASED CASE NO. 2016-T-0017 :
:
Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case No. 14 EST 0464.
Judgment: Affirmed.
David L. Engler, 725 Boardman-Canfield Road, Suite S-3, Youngstown, OH 44512 (For Appellants).
David A. Shepherd, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (Special Administrator WWA).
Douglas J. Neuman, Neuman Law Office, LLC, 761 North Cedar Street, #1, Niles, OH 44446 (For Appellees Bryan Crain and Frederick J. Crain)
COLLEEN MARY O’TOOLE, J.
{¶1} Thomas Crain, Jill Sferra, Marcia McNelis and Debra Pirock (collectively,
“exceptors”), appeal from the judgment of the Trumbull County Court of Common Pleas,
Probate Division, dismissing their exceptions to the amended inventory and appraisal
filed in their late father, Ralph Crain’s estate. Principally, they allege some $760,000 in cash is missing from the estate. Finding they failed to carry their burden of proof, we
affirm.
{¶2} Ralph Crain died June 9, 2014, aged 91. He was preceded in death by
his wife, Margaret, aged 89, in 2013. Attorney David A. Sheperd was appointed Special
Administrator WWA for Ralph Crain’s estate. Mr. Shepherd filed an inventory and
appraisal October 15, 2014, and an amended inventory and appraisal October 21,
2014. Exceptors filed their exceptions to the amended inventory and appraisal
November 10, 2014. Hearing on the exceptions went forward December 14, 2015, and
January 19, 2016. The trial court filed its judgment entry dismissing the exceptions
February 4, 2016, and this appeal timely ensued.
{¶3} Ralph Crain operated a small truck farm, and sold the resulting produce
from a stand located on his property. When younger, he had also worked for the
government inspecting agricultural land. Tax records indicate the Crains received a
gross income of $15,000 to $20,000 per year from the farm. The Crains lived a frugal
lifestyle. Ralph Crain was extremely guarded concerning his financial affairs, which he
ran from a small office in the farmhouse, which he kept locked. Others were rarely
invited inside.
{¶4} At the hearing on the exceptions, Thomas Crain testified that his mother
took him into the office in 2010, when Ralph Crain was hospitalized. He testified there
were six strongboxes in the office, and that his mother opened one, showing him it
contained $130,000 in carefully wrapped cash. The money was divided into packets of
six thousand dollars each, the denominations being 20, 50, and 100 dolllar bills. He
testified his mother stated all six boxes contained the same amount of money, evidently
2 as gifts to the six remaining Crain children, exceptors and their brothers Frederick and
Bryan.
{¶5} Marcia McNelis testified her father brought her into his office in March
2011, and there were six strongboxes. She testified her father opened one, showed her
there was $130,000 in cash inside, the bills being 50 and 100 dollar bills. She testified
her father stated to her that all six boxes contained the same amount, and were
intended for the Crain children.
{¶6} Jill Sferra testified that in February 2011, she and her parents took three of
the six strong boxes from the office, and counted the money contained therein, which
was $130,000 in each, in ten, 20 and 50 dollar bills. She testified her father told her
each box contained the same amount, and were meant for the six Crain children.
{¶7} Frederick Crain testified that in May 2013, his father brought four
strongboxes to him, which he locked in his gun safe. After his father’s death, he turned
the boxes over to Mr. Sheperd. Mr. Sheperd testified the four boxes he received from
Frederick Crain contained legal documents, and $20,379.80 in cash.
{¶8} Most of the exceptors testified that Frederick and Bryan Crain isolated
their father in his later years. Frederick and Bryan Crain testified their father wanted
limited contact with exceptors. Gary Foltz, Ralph Crain’s nephew, testified Ralph Crain
felt closer to Frederick and Bryan Crain.
{¶9} Exceptors assign a single error on appeal. It reads: “Exceptors-Appellants
assign as error that the trial court abused its discretion in denying their exceptions to the
Amended Inventory filed in the Estate of Ralph Crain, Deceased, and accepting that
3 Amended Inventory.” Exceptors present six issues for review under this assignment of
error:
{¶10} “1. Should the Special Administrator, based on the totality of the
circumstances, have taken steps to determine whether a large sum of money was
missing from the Amended Inventory of the Estate of Ralph Crane?
{¶11} “2. Did the Special Administrator make the efforts legally required of him to
determine if a large sum of cash was missing from the Amended Inventory of the Estate
of Ralph Crane?
{¶12} “3. Did the manner in which the Special Administrator handled the issue of
the allegedly missing money violate his fiduciary duties?
{¶13} “4. Did the trial court abuse its discretion in making its decision?
{¶14} “5. Was the decision by the trial court arbitrary?
{¶15} “6. Was the decision by the trial court unreasonable?”
{¶16} We review the probate court’s decision for abuse of discretion. In re
Estate of Luoma, 11th Dist. Lake No. 2011-L-006, 2011-Ohio 4701, ¶20. The term
“abuse of discretion” is one of art, connoting judgment exercised by a court which
neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676–
678 (1925). An abuse of discretion may be found when the trial court “applies the
wrong legal standard, misapplies the correct legal standard, or relies on clearly
erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-
1720, ¶15 (8th Dist.)
{¶17} “‘A hearing of exceptions to an inventory, pursuant to R.C. 2115.16, is a
summary proceeding conducted by the probate court to determine whether those
4 charged with the responsibility of filing an inventory have included in the decedent’s
estate more or less than the decedent owned at the time of his or her death.’ In re
Estate of Platt, 148 Ohio App.3d 132, 2002–Ohio–3382, ¶13 (citation omitted).
{¶18} “The exceptor has the burden of proving the existence of assets he
claims should have been included on the inventory. In re Estate of Haas, 10th Dist No.
07AP 512, 2007–Ohio–7011, ¶43; Talbott v. Fisk, 10th Dist. Nos. 02AP–427 and 02AP–
428, 2002–Ohio–6960, ¶31.” Luoma, supra, at ¶17-18.
{¶19} “The burden of proof as to the value of any estate asset lies with the
exceptor who must prove the value by clear and convincing evidence.” In re Estate of
Ross, 11th Dist. Trumbull No. 2015-T-0009, 2015-Ohio-4030, ¶37, citing Luoma, supra,
and In re Estate of Thatcher, 6th Dist. Fulton No. F-07-004, 2008-Ohio-473.
{¶20} “Clear and convincing evidence is that measure or degree of proof which
is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established.” Cross v. Ledford, 161 Ohio St.
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[Cite as In re Estate of Crain, 2017-Ohio-2724.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
IN THE MATTER OF: : OPINION
ESTATE OF RALPH A. CRAIN, : DECEASED CASE NO. 2016-T-0017 :
:
Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case No. 14 EST 0464.
Judgment: Affirmed.
David L. Engler, 725 Boardman-Canfield Road, Suite S-3, Youngstown, OH 44512 (For Appellants).
David A. Shepherd, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (Special Administrator WWA).
Douglas J. Neuman, Neuman Law Office, LLC, 761 North Cedar Street, #1, Niles, OH 44446 (For Appellees Bryan Crain and Frederick J. Crain)
COLLEEN MARY O’TOOLE, J.
{¶1} Thomas Crain, Jill Sferra, Marcia McNelis and Debra Pirock (collectively,
“exceptors”), appeal from the judgment of the Trumbull County Court of Common Pleas,
Probate Division, dismissing their exceptions to the amended inventory and appraisal
filed in their late father, Ralph Crain’s estate. Principally, they allege some $760,000 in cash is missing from the estate. Finding they failed to carry their burden of proof, we
affirm.
{¶2} Ralph Crain died June 9, 2014, aged 91. He was preceded in death by
his wife, Margaret, aged 89, in 2013. Attorney David A. Sheperd was appointed Special
Administrator WWA for Ralph Crain’s estate. Mr. Shepherd filed an inventory and
appraisal October 15, 2014, and an amended inventory and appraisal October 21,
2014. Exceptors filed their exceptions to the amended inventory and appraisal
November 10, 2014. Hearing on the exceptions went forward December 14, 2015, and
January 19, 2016. The trial court filed its judgment entry dismissing the exceptions
February 4, 2016, and this appeal timely ensued.
{¶3} Ralph Crain operated a small truck farm, and sold the resulting produce
from a stand located on his property. When younger, he had also worked for the
government inspecting agricultural land. Tax records indicate the Crains received a
gross income of $15,000 to $20,000 per year from the farm. The Crains lived a frugal
lifestyle. Ralph Crain was extremely guarded concerning his financial affairs, which he
ran from a small office in the farmhouse, which he kept locked. Others were rarely
invited inside.
{¶4} At the hearing on the exceptions, Thomas Crain testified that his mother
took him into the office in 2010, when Ralph Crain was hospitalized. He testified there
were six strongboxes in the office, and that his mother opened one, showing him it
contained $130,000 in carefully wrapped cash. The money was divided into packets of
six thousand dollars each, the denominations being 20, 50, and 100 dolllar bills. He
testified his mother stated all six boxes contained the same amount of money, evidently
2 as gifts to the six remaining Crain children, exceptors and their brothers Frederick and
Bryan.
{¶5} Marcia McNelis testified her father brought her into his office in March
2011, and there were six strongboxes. She testified her father opened one, showed her
there was $130,000 in cash inside, the bills being 50 and 100 dollar bills. She testified
her father stated to her that all six boxes contained the same amount, and were
intended for the Crain children.
{¶6} Jill Sferra testified that in February 2011, she and her parents took three of
the six strong boxes from the office, and counted the money contained therein, which
was $130,000 in each, in ten, 20 and 50 dollar bills. She testified her father told her
each box contained the same amount, and were meant for the six Crain children.
{¶7} Frederick Crain testified that in May 2013, his father brought four
strongboxes to him, which he locked in his gun safe. After his father’s death, he turned
the boxes over to Mr. Sheperd. Mr. Sheperd testified the four boxes he received from
Frederick Crain contained legal documents, and $20,379.80 in cash.
{¶8} Most of the exceptors testified that Frederick and Bryan Crain isolated
their father in his later years. Frederick and Bryan Crain testified their father wanted
limited contact with exceptors. Gary Foltz, Ralph Crain’s nephew, testified Ralph Crain
felt closer to Frederick and Bryan Crain.
{¶9} Exceptors assign a single error on appeal. It reads: “Exceptors-Appellants
assign as error that the trial court abused its discretion in denying their exceptions to the
Amended Inventory filed in the Estate of Ralph Crain, Deceased, and accepting that
3 Amended Inventory.” Exceptors present six issues for review under this assignment of
error:
{¶10} “1. Should the Special Administrator, based on the totality of the
circumstances, have taken steps to determine whether a large sum of money was
missing from the Amended Inventory of the Estate of Ralph Crane?
{¶11} “2. Did the Special Administrator make the efforts legally required of him to
determine if a large sum of cash was missing from the Amended Inventory of the Estate
of Ralph Crane?
{¶12} “3. Did the manner in which the Special Administrator handled the issue of
the allegedly missing money violate his fiduciary duties?
{¶13} “4. Did the trial court abuse its discretion in making its decision?
{¶14} “5. Was the decision by the trial court arbitrary?
{¶15} “6. Was the decision by the trial court unreasonable?”
{¶16} We review the probate court’s decision for abuse of discretion. In re
Estate of Luoma, 11th Dist. Lake No. 2011-L-006, 2011-Ohio 4701, ¶20. The term
“abuse of discretion” is one of art, connoting judgment exercised by a court which
neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676–
678 (1925). An abuse of discretion may be found when the trial court “applies the
wrong legal standard, misapplies the correct legal standard, or relies on clearly
erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-
1720, ¶15 (8th Dist.)
{¶17} “‘A hearing of exceptions to an inventory, pursuant to R.C. 2115.16, is a
summary proceeding conducted by the probate court to determine whether those
4 charged with the responsibility of filing an inventory have included in the decedent’s
estate more or less than the decedent owned at the time of his or her death.’ In re
Estate of Platt, 148 Ohio App.3d 132, 2002–Ohio–3382, ¶13 (citation omitted).
{¶18} “The exceptor has the burden of proving the existence of assets he
claims should have been included on the inventory. In re Estate of Haas, 10th Dist No.
07AP 512, 2007–Ohio–7011, ¶43; Talbott v. Fisk, 10th Dist. Nos. 02AP–427 and 02AP–
428, 2002–Ohio–6960, ¶31.” Luoma, supra, at ¶17-18.
{¶19} “The burden of proof as to the value of any estate asset lies with the
exceptor who must prove the value by clear and convincing evidence.” In re Estate of
Ross, 11th Dist. Trumbull No. 2015-T-0009, 2015-Ohio-4030, ¶37, citing Luoma, supra,
and In re Estate of Thatcher, 6th Dist. Fulton No. F-07-004, 2008-Ohio-473.
{¶20} “Clear and convincing evidence is that measure or degree of proof which
is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established.” Cross v. Ledford, 161 Ohio St. 469, paragraph three of the syllabus
(1954).
{¶21} Initially, exceptors argue Mr. Shepherd ignored his fiduciary duty as
special administrator, by failing to investigate their claim that Ralph Crain had six
strongboxes containing $130,000 apiece. They further imply that Frederick and Bryan
Crain exercised undue influence over their father, by limiting exceptors’ contact with him
during the last years of his life. For authority they cite to In re Estate of Kemp, 189 Ohio
App.3d 232, 2010-Ohio-4073, ¶5 (3d Dist.):
5 {¶22} “‘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 (her) death
and include it in the estate.’ In re Estate of Ewing, 3d Dist. No. 5–03–03, 2003-Ohio-
4734, * * *, ¶12. This duty exists from the time the executor is appointed until the final
account is filed and the executor is discharged. Id. If the record indicates that the
inventory is inaccurate and is lacking assets that should have been included, the trial
court errs in approving it. Id. In addition, the items to be included in the inventory are
not limited to only the items in the estate’s actual possession. In re Estate of Kelsey,
165 Ohio App.3d 680, 2006-Ohio-1171, * * *.” (Parallel citations omitted.)
{¶23} We respectfully fail to see how Mr. Shepherd failed in his fiduciary duty.
He inspected Ralph Crain’s home on several occasions, and had a professional
appraise its contents. He identified Ralph Crain’s bank accounts. When he opened and
counted the money in the four strongboxes delivered to him by Frederick Crain, he
invited representatives of both sides of the family to his office to participate. None of the
exceptors did. If exceptors believed Frederick and Bryan Crain had taken the allegedly
missing money, they could have filed an action for concealment, R.C. 2109.50. They
never have.
{¶24} In this case, Thomas Crain, Marcia McNelis, and Jill Sferra all testified
they saw $130,000 in one or more strongboxes in Ralph Crain’s possession in 2010 or
2011. Ralph Crain died in June 2014. There is no evidence or testimony that six
strongboxes containing $130,000 each existed at the time of his death. Consequently,
exceptors failed to carry their burden, by clear and convincing evidence, that such
assets existed at the time of Ralph Crain’s death and should have been included in the
6 amended inventory. See, e.g., Luoma, supra, at ¶18.
{¶25} The assignment of error lacks merit.
{¶26} The judgment of the Trumbull County Court of Common Pleas, Probate
Division, is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
TIMOTHY P. CANNON, J. concurs in judgment only with a Concurring Opinion.
_____________________
TIMOTHY P. CANNON, J. concurring in judgment only.
{¶27} I respectfully concur in judgment only. I write separately because I
disagree with the majority’s position that the standard of review in this case is abuse of
discretion.
{¶28} Many appellate decisions pronounce that we review orders from the
probate court for abuse of discretion, and many probate court orders should be
reviewed for abuse of discretion. For example, a probate judge clearly has discretion
to determine who is best suited for appointment as a guardian or administrator of an
estate. See In re Estate of Ryan, 11th Dist. Lake No. 2010-L-075, 2011-Ohio-3891,
¶23 (citations omitted). However, there are many probate orders, including this one, to
which that standard of review simply does not apply.
{¶29} If an asset was owned by the decedent at the time of his or her death, and
there is no survivorship owner or designated beneficiary, the asset belongs on the
estate inventory. R.C. 2115.02; see also In re Estate of Boccia, 11th Dist. Trumbull
7 No. 2007-T-0060, 2008-Ohio-4764, ¶16. Therefore, the probate court does not have
discretion as to what should or should not be included on an estate inventory. Instead,
the probate court must make factual findings based on the evidence presented and
determine whether those findings support that the asset should be included on the
inventory.
{¶30} Appellants assert that the trial court erred in denying the exceptions to the
inventory and attack the alleged failure on the part of the estate administrator to
conduct an adequate investigation into the existence of cash. A review of the
administrator’s testimony and cross-examination reveals no such inadequacy. The
burden to establish that an asset is missing from inventory is on the party objecting to
the inventory. Boccia, supra, at ¶29 (citations omitted). That burden is not met by
simply contending the administrator could have or should have done some nonspecific
task in an effort to discover an asset that may or may not exist. If the administrator
was not diligent in the performance of his or her obligations, or violated a fiduciary duty
to the estate or beneficiaries, the offended party could request removal of the
administrator or ask the court to direct the administrator to engage in some specific
investigation.
{¶31} The probate court conducted an evidentiary hearing and made a factual
determination that the exceptions to the inventory were not well taken. It then made
the correct legal decision that the exceptions should be overruled. Because there is
competent, credible evidence to support the trial court’s decision, it should be affirmed
on appeal. See Whitaker v. Estate of Whitaker, 105 Ohio App.3d 46, 53 (4th
Dist.1995) (citations omitted) (“Regarding factual determinations, a trial court will not be
8 reversed where there is some competent, credible evidence going to all essential
elements of the case.”).