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In re Estate of Villiers

Court of Appeals of Ohio, Tenth District

June 20, 2013

In re: The Estate of Ernest Villiers, Jr., (James H. Villiers and Ernest A. Villiers, III, Appellants). In re: The Testamentary Trust of Ernest Villiers, Jr., (James H. Villiers and Ernest A. Villiers, III, Appellants). In re: The Testamentary Trust of Virginia L. Villiers, FBO, Ernest A. Villiers, (James H. Villiers & Ernest A. Villiers, III, Appellants). In re:The Estate of Virginia L. Villiers, (James H. Villiers & Ernest A. Villiers, III, Appellants).

APPEAL from the Franklin County Probate Court Prob. Nos. 521311, 525685, 518951, 510377

Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., and Timothy J. Ryan, for appellants.

J. Randolph Burchfield, for appellees Valerie Sholtes and Elissa Villiers.

DECISION

CONNOR, J.

{¶ 1} Exceptors-appellants, James H. Villiers, and Ernest A. Villiers, III (collectively "appellants, " individually "James" and "Ernest III"), appeal from a judgment of the Franklin County Probate Court assessing attorney fees incurred in connection with the exceptions they filed to the accounts of four different probate entities.

{¶ 2} Appellants bring the following sole assignment of error for our review:

THE TRIAL COURT ERRED WHEN IN RESPONSE TO A MOTION FOR ATTORNEY FEES AND COSTS FILED BY EACH OF THE FOUR PROBATE ENTITIES IN THE LITIGATION THE COURT ADOPTED THE MAGISTRATE[']S DECISION CHARGING THE ENTIRE SUM OF ATTORNEY FEES TO ONLY ONE OF THE FOUR ENTITIES, THE TESTAMENTARY TRUST OF VIRGINIA VILLIERS. A SIGNIFICANT PORTION OF THE FEES CHARGED TO THE TRUST WERE NOT INCURRED FOR THE BENEFIT OF THE TRUST, BUT WERE INSTEAD INCURRED TO ADVANCE THE INTERESTS OF THE THREE REMAINING PROBATE ENTITIES AND ALSO CARL SHOLTES, VALERIE SHOLTES, AND ELISSA VILLIERS.

{¶ 3} This matter arised out of probate proceedings following the successive deaths of Virginia L. Villiers and her son Ernest Villiers, Jr. ("Ernest Jr."). In addition to the individual parties, four different probate entities are at issue: The Estate of Virginia L. Villiers, the Testamentary Trust of Virginia L. Villiers, the Estate of Ernest Villiers, Jr., and the Testamentary Trust of Ernest Villiers, Jr.

{¶ 4} Virginia died testate on June 21, 2005 leaving three children, Ernest Jr., Valerie Sholtes, and Elissa Villiers. Elissa Villiers was appointed executor of the estate. Virginia's will generally distributed her residual estate among her three children. Most relevant to this case, the will provided that one-third of her residual estate would go to Ernest Jr., but first pass through a testamentary trust providing for gradual disbursement of his share. Valerie Sholtes and Elissa Villiers were the named trustees of this Testamentary Trust of Virginia L. Villiers ("the Virginia Trust"), and the terms of the trust provided for 20 percent of the corpus to be distributed to Ernest Jr. immediately and the balance paid in 120 monthly installments. The terms of the Virginia Trust further provided that, upon the death of Ernest Jr., any remaining undistributed corpus would be distributed to his sons, James and Ernest III.

{¶ 5} Ernest Jr. died testate on January 23, 2007. The probate court appointed Valerie Sholtes as executor of his estate. Ernest Jr.'s will provided that the residuary of his estate would go equally to appellants, with James' share to be held in trust until James' 25th birthday through the Testamentary Trust of Ernest Villiers, Jr. ("the Ernest Jr. Trust"). Valerie Sholtes is the trustee for the Ernest Jr. Trust.

{¶ 6} The estate of Virginia closed on January 4, 2007 with no remaining assets. The estate of Ernest Jr. filed its final account on December 20, 2007, with no remaining assets. The Ernest Jr. Trust filed a final account on February 10, 2009, also stating that there were no assets in the trust.

{¶ 7} On March 17, 2009, appellants filed exceptions to the accounts filed for the estate of Virginia, the Virginia Trust, the estate of Ernest Jr., and the Ernest Jr. Trust. The gist of the exceptions is that their aunts and fiduciaries, Valerie Sholtes and Elissa Villiers, as well as their uncle by marriage, Carl Sholtes, had cooperated amongst themselves to wrongfully convert assets from Virginia during her life and from her estate after her death. To the extent that allegations involved the aunts in their fiduciary capacities, the exceptions rely on the fiduciaries' failure to fulfill their obligations to recover assets that they themselves had previously converted. The exceptions asserted that these actions had reduced the rightful expectancies of appellants by depleting assets that would otherwise have devolved to them by transit through the estate of Virginia, the Virginia Trust, the estate of Ernest Jr., and the Ernest Jr. trust.

{¶ 8} On January 8, 2010, a magistrate for the probate court issued a decision dismissing all exceptions to the estate of Ernest Jr. and the Ernest Jr. Trust. On October 15, 2010, appellants withdrew their exceptions to the accounts for Virginia's estate and the Virginia Trust. On May 21, 2010, the probate court overruled objections to the magistrate's decision of January 8, 2010 and adopted the magistrate's decision.

{¶ 9} The fiduciaries for the various probate entities then filed applications for attorney fees and costs arising from the litigation prompted by appellants' filing of exceptions. The itemized attorney fees amount to $39, 150. In addition, Valerie Sholtes and Elissa Villiers, as fiduciaries, and Carl Sholtes, who was not a fiduciary for any of the probate entities, sought to recover time and travel expenses totaling $16, 060. After the hearing the magistrate granted the requested attorney fees in their entirety, but denied any award for costs incurred by the fiduciaries or Carl Sholtes. The magistrate specified that the attorney ...


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