In re Estate of Eiswert

38 Pa. D. & C.5th 496, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1001
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedJune 3, 2014
DocketNo. 41-95-0247
StatusPublished

This text of 38 Pa. D. & C.5th 496 (In re Estate of Eiswert) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Eiswert, 38 Pa. D. & C.5th 496, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1001 (Pa. Super. Ct. 2014).

Opinion

LOVECCHIO, J.,

— Rose M. Eiswert passed away on April 26, 1995. Fred C. Eiswert, her son, was appointed as executor of her estate on May 16, 1995.

On April 9, 2013, Fred Eiswert, as executor, filed a first and final account and statement of proposed final distribution of the estate. On May 6,2013, Robert J. Miller as executor of the Estate of Alice I. Miller, daughter of the deceased, filed objections to the first and final account. On September 13, 2012, Fred Eiswert as executor, filed an answer to the objections.

A status conference was held before the court on December 10, 2013. Following said conference, an order was entered addressing discovery and scheduling issues. Pursuant to that order dated December 10,2013, on March 14, 2014, the parties filed a joint stipulation of issues and [498]*498facts. Said joint stipulation of issues and facts withdrew varied objections and identified objections “remaining in dispute.” A hearing on the objections was held on March 19, 2014. Following said hearing, the court directed that the parties informally provide case citations. As well, objectant was given until March 28, 2014 to file his post hearing proposed findings of fact and conclusions of law. The executor was given until April 11, 2014 to file any responsive document.

The record is now closed, the respective proposed findings and conclusions have been filed and the case is ripe for a decision.

Fred Eiswert was first called as a witness on behalf of the objectant. The first issue discussed was the delay between his appointment as executor and the filing of the final accounting and proposed distribution.

During his direct testimony as well as when he was recalled on his own behalf, he referenced various reasons for the delay. He noted that the land was being farmed and was still productive. He referenced a condemnation matter in which Penn DOT condemned 13 acres to build a new road, resulting in extensive litigation. He referenced the fact that given the price of land and interest rates as well as third party interest in purchasing separate lots, it made sense to try to sell off some lots especially when the price of a lot could be close to the price for the entire parcel. He referenced that he tried to settle the estate but once it became clear that his brother-in-law through his niece wanted to purchase the parcel for far less than what it was worth, things became very difficult. He indicated that there was a complete lack of cooperation and that the matter appeared to be headed to court.

[499]*499Mary Lewis also testified. Her mother Alice passed away in 2007. Her father Robert is the executor of her mother’s estate but because of dementia and other health issues, she has been acting on his behalf through a power of attorney. She did not rebut the testimony of Mr. Eiswert. Rather she indicated that she was interested in purchasing the property at either a private or public sale. She then wanted to resell the property at a premium.

On behalf of her mother’s estate, she did not agree with the remaining siblings who wanted to either hold the property jointly or to buy out her mother’s interests. She indicated that prior to pursuing her objections, there was no contact or correspondence between the parties for a period of five to six years. She indicated as well that her side of the family did not get along with the others. She also indicated that her side of the family was losing out because of the “future income on the property.” She did not believe the property could be held jointly because it “hadn’t worked out previously.” There was “no relationship” between the parties.

Her proposal was to purchase the property in her and/ or her husband’s names. She was willing to pay more for the property. Accordingly, each of the siblings would receive greater monies than if the property were held and eventually sold. She did not wish to keep the property under any circumstances. She intended on purchasing the property and then selling it to a third party at a greater price than for what it was purchased. Documentation was produced at the hearing and entered under separate exhibits. The documentation included letters between counsel on behalf of their respective parties.

The court will address each of the objections separately [500]*500or group-wise depending upon their nature. The court will also reference the relevant testimony with respect to the objection(s) at issue.

Objections 2, 3, 4, 5 and 7 allege that the executor failed to fulfill his duty to collect, marshal, inventory and distribute the assets of the estate in a reasonable and timely manner and that a surcharge is warranted. The administration of the estate took 18 years to complete and objectant contends that this delay prevented him from possessing and enjoying the real estate, from being able to invest liquid monies he was entitled to, and from receiving benefits from the distribution. Objectant also contends that by the unwarranted delay, the executor used the land for personal and financial gain.

The court cannot conclude that the delay in the administration of the estate was a violation of the executor’s duty to the estate under the circumstances.

An executor is “required to use such common skill, prudence and caution as a prudent man, under similar circumstances, would exercise in connection with the management of his own estate.” Estate of Lohm, 269 A.2d 451, 454 (Pa. 1970).

Contrary to the position of the objectant, the court finds that the reasons for the delay were both reasonable and necessary and in fact worked to the beneficiaries’ benefit. At all times, the executor exercised prudence, skill and caution in the exercise of his duties.

The dispute between the objectant’s family and the remaining families was such that an expeditious resolution was impossible. This is confirmed by the fact that despite years of attempts, the parties have been unable to reach [501]*501an agreement. Complicating the matters were the Penn DOT litigation, the roller coaster real estate values, the roller coaster interest rates, the health of the sister and then her husband, the fact that the siblings wanted to keep the property and the fact that the objectant wanted to sell the property, the fact that the property was being farmed and producing income, the fact that the property had significant sentimental value and the fact that there is no evidence whatsoever to prove that a loss has been caused to the objectant by the executor.

Rose Eiswert died in 1995. 30 acres were sold in 1996 and then Alice Miller died in 2007. Robert Miller never talked about maintaining the property. He wanted it to be sold immediately but at the time the value was extremely low. Indeed, by not selling the property, its value substantially increased. The oil and gas rights became an unexpected valuable asset, resulting in a substantial increase in the value of the property.

The first time that the executor became aware that the objectant was pursuing legal action related to a gas lease was approximately five to six years ago.

Of further note, the objectant failed to take action on his own behalf to expedite the finalization of the estate. He failed to move for the filing of a final accounting or failed to file any pleading to dispose of the disputed property. He failed to take any action to compel the conclusion of the estate.

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Related

Wallis Estate
218 A.2d 732 (Supreme Court of Pennsylvania, 1966)
In Re Estate of Harrison
745 A.2d 676 (Superior Court of Pennsylvania, 2000)
Estate of Getz
618 A.2d 456 (Superior Court of Pennsylvania, 1992)
Lohm Estate
269 A.2d 451 (Supreme Court of Pennsylvania, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
38 Pa. D. & C.5th 496, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-eiswert-pactcompllycomi-2014.