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06/11/91 MCCLURE GODETTE v. ESTATE MILDRED COX

June 11, 1991

MCCLURE GODETTE, APPELLANT
v.
ESTATE OF MILDRED COX, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Annice M. Wagner, Trial Judge

Ferren, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

Appellant, the former personal representative of the estate of Mildred Cox, appeals from a judgment entered against him for $56,279.64 in disallowed expenditures of estate funds, including $24,440 in administrative fees taken without prior court authorization. Appellant maintains that the disallowance is (1) contrary to the evidence submitted in the case and (2) contrary to the intent of the testator, whose will expressly immunized appellant from liability "except in case of willful default or bad faith." Finding no merit to appellant's contentions, we affirm.

I.

When Mildred Cox, a childless widow incapacitated for many years by arthritis and Parkinson's disease, died on January 15, 1985, she left an estate valued at close to $240,000, including a home assessed at $65,000. Her will nominated McClure Godette, a neighbor and self-employed home contractor, as her personal representative. She gave most of her estate -- the residuary estate -- to three charities: the Arthritis Foundation, the Columbia Lighthouse for the Blind, and the Society for the Prevention of Cruelty to Animals. About two weeks after Mildred Cox's death, Godette filed a petition for probate. See D.C. Code § 20-304 (1989). Within days, the court approved his appointment, see id. § 20-303, and the decedent's will was admitted to probate. *fn1 Fifteen months later, in May 1986, Godette filed his initial accounting, see id. § 20-722; Super. Ct. Prob. R. 114, followed by an amended accounting that valued the estate at $238,476.10.

On October 4, 1986, without filing a request for compensation or obtaining court approval as required by D.C. Code § 20-751 (1989), see Super. Ct. Prob. R. 124, Godette withdrew $23,659 in several checks from the estate bank account as payment for his services in administering the estate. Not until March 1987 did Godette file a request for compensation with the court, seeking $26,990. *fn2 In June 1987, the residuary charitable beneficiaries objected that Godette's fees were excessive considering the size of the estate and that certain other expenditures were questionable.

After a hearing, the court referred the objections to an Auditor-Master, who conducted his own evidentiary hearings and issued a report on December 2, 1987. That report concluded that Godette should reimburse the estate $91,111.76 in disallowed expenses that included: $9,000 for payments to Godette's contracting firm in the amounts of $7,000 *fn3 and $2,000 (disallowed as unsupported by adequate documentation); $10,000 paid to Godette's wife for nursing assistance (disallowed as unsupported by documentation and contrary to the testimony of two witnesses); $62,709.16 in miscellaneous expenses (disallowed as lacking in adequate supporting documentation, as excessive, and as "made in total disregard of the interest of the beneficiaries of the estate"); and the entire $26,990 *fn4 in fees Godette had paid himself as personal representative (disallowed with reference to 31 AM. JUR. 2D Executors and Administrator § 953 (1989): "An executor or administrator who has been guilty of fraud, dishonesty, bad faith, gross neglect, gross negligence, or willful default may be denied compensation").

The Auditor recounted the testimony of appellant's own attorney, who, according to the Auditor,

feels the personal representative and the claimants took advantage of decedent and that [the attorney] went through matters with the personal representative that seemed irregular to him; . . . he tried to convey to the personal representative the need to conserve and protect the estate. . . . He further discussed the inordinate amount of disbursements with the Personal Representative.

The Auditor-Master also found that, "upon his appointment as Personal Representative, McClure Godette apparently commenced to expend exceedingly large sums for maintenance, repairs and upkeep of decedent's real estate." The Auditor-Master recommended removal of Godette as personal representative and concluded:

It is obvious to the Auditor-Master that McClure Godette, Personal Representative has completely mismanaged this estate. Commencing with an estate of $238,476.10, and after collecting additional interest of $692.18 and rentals of $1,025.00 for a total estate of $241,193.28 through August 18, 1987, there is now an estate of $76,163.81. Excluding distribution of legacies totaling $19,547,00, he has expended a total of $145,482.37 for maintenance of real estate, payment of claims, administration costs and debts. Expenditures thus far total an unbelievable 63% of the value of decedent's real estate. [] The sale of the property has still not been consummated although the Personal Representative was appointed on February 1, 1985 -- two years and nine months ago. All of the costs of repairing and maintaining decedent's real estate could have been avoided by the more expeditious sale of the real estate with a contract providing an "as is" condition. Further, he lowered the sales price on [decedent's home] without being requested to do so by the buyer.

Appellant filed objections to the report two weeks later.

In September 1988, the court issued an order adopting the report in part *fn5 but remanding the rest for the Auditor-Master to consider additional receipts and vouchers appellant claimed would verify that $62,709.19 in disallowed expenditures had been made for the benefit of the estate and were not time-barred under D.C. Code §§ 20-902, -903. Meanwhile, after a hearing in October 1988, the court removed Godette as personal representative and appointed a successor.

In November 1988, the Auditor-Master issued a second report. He allowed $264.52 (two phone bills and a gas bill) but continued to disallow $76,282.24, including $24,440 Godette had taken in fiduciary fees. The Auditor-Master found that most of the vouchers Godette had submitted were for merchandise delivered to his home address or to his management company, "which manages several pieces of real estate in the same block as decedent's real estate." "Many of these checks written and vouchers submitted do not reflect the various amounts paid for repairs and services were made for the benefit of the decedent's estate. Many of these expenditures appear to be quite excessive and far exceed a ...


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