Jones v. Jones

152 Wash. 2d 1
CourtWashington Supreme Court
DecidedJuly 1, 2004
DocketNo. 73951-0
StatusPublished
Cited by223 cases

This text of 152 Wash. 2d 1 (Jones v. Jones) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Jones, 152 Wash. 2d 1 (Wash. 2004).

Opinion

Owens, J.

The Spokane County Superior Court removed Russell Jones, a beneficiary and the personal representative of Marcella Jones’s estate, from his position based on several breaches of fiduciary duty to the remaining beneficiaries, his three brothers. The appellate court reinstated him as the personal representative holding the trial court lacked the specific legal grounds for his removal listed in RCW 11.68.070 and 11.28.250. We construe RCW 11-.68.070 and 11.28.250 to hold all personal representatives to the same fiduciary duty. Under RCW 11.68.070, all of the grounds listed in RCW 11.28.250 are incorporated into the nonintervention statutory scheme. Probate courts may remove a personal representative or restrict his or her nonintervention powers for waste, embezzlement, mismanagement, fraud, or “for any other cause or reason which to the court appears necessary.” RCW 11.28.250. Based on this statutory construction, we find Russell breached his fiduciary duty to the beneficiaries, and we affirm the trial court’s removal of Russell. We also affirm the appointment of James Woodard as a successor personal representative, remand for a final accounting, and award attorney fees to Peter and Jeffrey Jones.

FACTS

Marcella Louise Jones died testate September 2, 1995, with property in Spokane, Washington. Marcella’s will [7]*7transferred her estate in equal shares to her four sons, David, Russell, Jeffrey, and Peter, and named Russell the personal representative with nonintervention powers. The will was admitted to probate on September 25, 1995, Russell was appointed the personal representative, and an order of probate and solvency was entered. The estate included real estate in Spokane, securities and investments, an interest in a mortgage/real estate contract, personal property, and a 1987 Buick automobile. Although the brothers met on May 4,1996, to distribute property, the meeting was unsuccessful due to continuing unresolved conflicts between the brothers that have endured over the last 40-50 years.

Subsequently, Peter and Jeffrey filed several petitions during the probate proceedings to receive an interim accounting, a final accounting, remove Russell as personal representative, and appoint a new personal representative. Peter and Jeffrey also filed a personal complaint against Russell based on several breaches of his fiduciary duty. The actions were consolidated and on September 4, 2001, Judge Rebecca Baker heard Peter and Jeffrey’s complaints. Judge Baker found that Russell had breached several of his fiduciary duties as a personal representative. She subsequently removed Russell and appointed James Woodard as his successor. Judge Baker further concluded that the unrecorded deed transferring the house to Russell was void and that he should pay rent, utilities, insurance, and property taxes based on his residence in the estate property from the time of his mother’s death until the present. Finally, Judge Baker ordered a final accounting and awarded attorney fees to Peter and Jeffrey, both to be paid by Russell.

On November 5, 2001, Russell appealed the trial court’s decision. The Court of Appeals reversed the trial court and held that the trial court did not have jurisdiction to intervene in the probate proceeding because the alleged misconduct was insufficient to disqualify Russell under RCW [8]*811.68.070 and 11.28.250. In re Estate of Jones, 116 Wn. App. 353, 358, 67 P.3d 1113 (2003). Peter and Jeffrey petitioned this court for review and we granted it on November 4, 2003. We now reverse the appellate court and affirm the trial court’s ruling.

ISSUES

1. Under RCW 11.68.070 and 11.28.250, did the trial court have grounds to properly remove Russell Jones as the nonintervention personal representative of Marcella Jones’s estate?

2. If removal was proper, did the trial court properly appoint James Woodard as the new personal representative?

3. Should either party receive attorney fees?

STANDARD OF REVIEW

On review, unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). An appellate court will uphold challenged findings of fact and treat the findings as verities on appeal if the findings are supported by substantial evidence. Miller v. City of Tacoma, 138 Wn.2d 318, 323, 979 P.2d 429 (1999). Substantial evidence is evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. Where the findings do not support the removal of a personal representative, the removal is arbitrary and improper. In re Estate of Coates, 55 Wn.2d 250, 259-60, 347 P.2d 875 (1959) (finding that the court lacked jurisdiction to remove a personal representative where the evidence did not support his unfaithful conduct); In re Estate of Ardell, 96 Wn. App. 708, 720, 980 P.2d 771 (1999).1 An appellate court reviews conclusions of law and questions of statutory [9]*9interpretation de novo, as these are questions of law. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999); State v. J.P., 149 Wn.2d 444, 449, 69 P.3d 318 (2003).

ANALYSIS

A. Removal

The superior court properly removed Russell Jones because the court had jurisdiction over the proceeding and the grounds for removal were valid. Superior court jurisdiction over nonintervention probate is statutorily limited. In re Estate of Bobbitt, 60 Wn. App. 630, 632, 806 P.2d 254 (1991). As the court explained in Coates, once the decedent dies, the personal representative applies for an order of solvency, and the court has jurisdiction to grant or deny the order. However, once an order of solvency is entered the court loses jurisdiction. The court may regain jurisdiction only if the executor or another person with statutorily conferred authority invokes jurisdiction. Coates, 55 Wn.2d at 255-56 (citing In re Estate of Peabody, 169 Wash. 65, 13 P.2d 431 (1932)). Here, an order of solvency was granted, and Russell did not invoke the superior court’s jurisdiction. However, under RCW 11.68.070

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Bluebook (online)
152 Wash. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-wash-2004.