In re Estate of Smith

[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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OHIO FIRST DISTRICT COURT OF APPEALS
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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OHIO FIRST DISTRICT COURT OF APPEALS
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
inventory.
{¶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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OHIO FIRST DISTRICT COURT OF APPEALS
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.
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