In re Estate of Smith

2020 Ohio 3378

• Court: Ohio Court of Appeals
• Decided: June 18, 2020
• Docket: C-190407
• Status: Published

Opinion

[Cite as In re Estate of Smith, 2020-Ohio-3378.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: ESTATE OF VERNA T. : APPEAL NO. C-190407 SMITH. TRIAL NO. 2018 00 443 :

: O P I N I O N.

Appeal From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: June 18, 2020

John G. Banner, for Executor-Appellee,

James J. Condit, Sr., and Thomas W. Condit, for Exceptor-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Exceptor-appellant Kenneth Burger (“Kenneth”) appeals from the

judgment of the Hamilton County Court of Common Pleas, Probate Division,

denying his exceptions to the inventory filed in the estate of his mother, Verna T.

Smith. On appeal, Kenneth argues that the trial court erred in determining the funds

held in a joint checking account, a joint money market savings account, and a joint

brokerage account by Smith and his brother and executor-appellee Ronald Burger

(“Ronald”), would not be included in his mother’s probate estate.

{¶2} Smith died testate on January 17, 2018. On February 5, 2018, the

Hamilton County Probate Court assumed jurisdiction over her last will and

testament, and Ronald was named executor. Ronald filed an inventory and schedule

of assets, and Kenneth filed exceptions to the inventory and appraisal. On February

25, 2019, a hearing was held before the magistrate on the exceptions to the

inventory.

{¶3} Kenneth filed a pretrial statement, challenging the exclusion of a

checking account, a money market savings account, and a brokerage account. At the

time of Smith’s death, the checking account had a balance of $20,723.49, the balance

in the money market savings account was $6,401.62, and the brokerage account had

a final balance of $13,516.75.

{¶4} The magistrate denied the exceptions to the inventory and found that

the signature cards indicated that both Smith and Ronald were the “legal owners” of

the accounts. The magistrate further found that all of the accounts were joint and

survivorship accounts held by the decedent and Ronald, and that there was no

evidence that duress, fraud, undue influence, or lack of capacity occurred in the

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execution of the signature cards. Finally, the magistrate found that “[t]he opening of

these joint accounts is conclusive evidence of the decedent’s intent to transfer the

balance remaining in the accounts to the surviving party.” Ronald was entitled to the

balances upon his mother’s death. The magistrate indicated that the inventory

would be approved by separate entry, but an entry approving the inventory was

never journalized.

{¶5} Kenneth filed objections to the magistrate’s decision claiming that the

magistrate erred in determining that the joint accounts were also survivorship

accounts in the absence of any survivorship language, and that the magistrate erred

in admitting extrinsic evidence about the nature of the accounts and the intent of the

decedent.

{¶6} After a hearing on the objections, the trial court overruled the

objections and adopted the magistrate’s decision. The court found that the exact

status of the accounts was unclear because the account agreements were not

submitted as evidence. The court noted that the signature cards were silent on

survivorship, but stated that both signatories held “Legal Title.” Because the actual

account agreements were not presented, the court found that the magistrate

appropriately considered extrinsic evidence.

{¶7} The court concluded that Ronald’s testimony established that the bank

knew the decedent had died because the final social security check amount had been

withdrawn from the account. Thereafter, the bank permitted Ronald to close the

accounts. Therefore, the evidence demonstrated that the bank treated the accounts

as if they were joint accounts with survivorship rights. The court overruled the

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objections and adopted the magistrate’s decision. However, the trial court did not

order that the inventory be approved.

{¶8} On appeal, Kenneth contends that the trial court erred by overruling

the objections and adopting the magistrate’s decision denying the exceptions to the

{¶9} Before we can reach the merits of Kenneth’s assignment of error, we

must decide whether the trial court’s judgment entry was a final, appealable order.

After supplemental briefing on this issue by the parties, for the reasons that follow,

we dismiss the appeal for lack of a final, appealable order.

{¶10} Under R.C. 2505.02(B)(2), matters related to estate administration are

considered special proceedings. Sheets v. Antes, 14 Ohio App.3d 278, 279-280, 470

N.E.2d 931 (10th Dist.1984). An order is considered final and appealable where it

“affects a substantial right made in a special proceeding or upon a summary

application in an action after judgment.” R.C. 2505.02(B)(2). Generally, an order

denying exceptions to an inventory and approving the inventory affects the

substantial rights of a party and is a final, appealable order. Sheets at 279-280.

{¶11} However, an order denying exceptions to an inventory that does not

approve the inventory is not a final, appealable order. See In re Estate of Sickmiller,

3d Dist. Paulding No. 11-13-01, 2013-Ohio-3788, ¶ 7; In re Estate of Ross, 11th Dist.

Trumbull No. 2012-T-0093, 2013-Ohio-2622, ¶ 15; In re Estate of Perry, 12th Dist.

Butler No. CA2007-03-061, 2008-Ohio-351, ¶ 47. “Rulings on exceptions alone do

not affect ‘substantial rights’ as defined in R.C. 2505.02(A)(1). Future relief is not

foreclosed because the exceptions can be reviewed when the probate court conducts

the statutorily required hearing to settle the inventory or account.” In re Estate of

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Lilly, 12th Dist. Warren Nos. CA99-07-083, CA99-07-088, CA99-07-084 and CA99-

07-087, 1999 WL 1239470, *3 (Dec. 20, 1999).

{¶12} Here, the judgment entry appealed from overruled Kenneth’s

objections and adopted the magistrate’s decision. However, the trial court did not

approve a final inventory in this matter. Therefore the judgment entry is not final

and appealable, and we must dismiss this appeal for lack of jurisdiction.

{¶13} Accordingly, the appeal is dismissed.

Appeal Dismissed.

MYERS and BERGERON, JJ., concur.

Please note: The court has recorded its own entry this date.