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In re Estate of Elkins

March 27, 1995

IN RE: ESTATE OF EVELYN L. ELKINS; JAMES H. GILBERT, APPELLANT


Appeal from the Superior Court of the District of Columbia. (Hon. Eugene N. Hamilton, Trial Judge).

Before Ferren, Terry, and Steadman, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: This is an appeal from an order ratifying the Auditor-Master's accounting of an estate for which appellant was appointed conservator. Appellant contends that the Auditor's report erroneously holds him liable for various items totaling $1,592.98. He also challenges a finding by the Auditor which requires him to pay any penalties and interest that may accrue as a result of his failure to file income tax returns for the estate. We affirm in part and reverse in part.

I

In May of 1984 appellant Gilbert was appointed successor conservator of the estate of Evelyn Elkins ("the ward") and served approximately three years in that capacity. *fn1 Upon the termination of his appointment in 1987, the court ordered the Auditor-Master to state an account of the ward's estate. The Auditor's report, filed May 18, 1989, recommended that judgment in the amount of $30,106.94 be entered against Mr. Gilbert in favor of the estate. When Mr. Gilbert filed objections to the report, however, the court referred the matter back to the Auditor for reconsideration.

The Auditor-Master filed a new report on October 26, 1992. This second report acknowledged that the first report contained several errors, as Mr. Gilbert had asserted, but concluded nevertheless that Mr. Gilbert should reimburse the estate in the amount of $800.00 for personal property of the ward which he had abandoned in payment of a storage bill, plus $292.98 for funds withdrawn from the ward's bank account. In addition, the Auditor recommended that Mr. Gilbert pay $500.00 for the two Auditor's reports. The total amount of the proposed payment was $1,592.98. The report also recommended that Mr. Gilbert be held liable for any tax penalties or interest that might accrue as a result of his failure to file tax returns for the estate.

Although Mr. Gilbert filed objections, the trial court ratified the second Auditor's report and entered judgment against him for $1,592.98. Mr. Gilbert's motion to amend the judgment was denied, and this appeal followed.

II

The trial court must accept the Auditor-Master's findings of fact unless they are clearly erroneous. Super. Ct. Civ. R. 53 (e)(2); see Mayes v. Sanford, 641 A.2d 855, 856 (D.C.), cert. denied, 130 L. Ed. 2d 311, 115 S. Ct. 356 (1994). Thus our review of the trial court's ruling is limited to determining whether the Auditor's report was supported by the facts. We will not overturn a judgment based on the Auditor's findings unless those findings are clearly erroneous. Godette v. Cox, 592 A.2d 1028, 1032 (D.C. 1991); Rosendorf v. Toomey, 349 A.2d 694, 699 (D.C. 1975); David v. Bryant, 117 U.S. App. D.C. 266, 267, 328 F.2d 567, 568 (1964).

In this case the Auditor recommended that appellant Gilbert reimburse the estate for $800 worth of personal property which he turned over to a storage company. Mr. Gilbert maintains that this property, which consisted of furniture and other household items, was given to the storage company in payment of a $1,897.40 storage bill charged to the estate. Gilbert argues that he had the statutory power to dispose of the property and that it was in the best interest of the estate to do so. The Auditor's report stated that Gilbert had not paid storage fees during his accounting period. Although the report acknowledged that storage fees were accruing at the rate of $225 every quarter and that there was a past due balance of $2,150.86, the Auditor nonetheless found Mr. Gilbert liable for the value of the property because he offered "no evidence explaining why actions in abandoning the tangible personalty, as opposed to liquidating or distributing it, should be approved in this manner. . . ."

D.C. Code § 21-2070 (c)(7) (1989) provides that a conservator, when "acting reasonably in efforts to accomplish a purpose of the appointment," may, without prior consent of the court, "acquire or dispose of an estate asset . . . for cash or credit . . . or abandon an estate asset." Additionally, the conservator may "settle a claim by or against the estate . . . by compromise, arbitration or otherwise . . . ." D.C. Code § 21-2070 (c)(19). We agree with Mr. Gilbert that he was acting within these statutory powers when he turned the ward's personal property over to the storage company. In light of the mounting storage bills which had already accumulated to more than twice the value of the stored property, his decision to abandon the property was clearly in the best interest of the estate. We therefore hold that Mr. Gilbert is not liable for the $800 worth of property that he abandoned.

The trial court also adopted the Auditor's recommendation that Mr. Gilbert reimburse the estate for the cost of the two Auditor's reports. The court based its ruling on a finding that there was no evidence that Gilbert had paid for the first report. Gilbert concedes that he owes $200 for the second report, but argues that he should not have to pay $300 for the first report because it contained several errors, and because the notice of the hearing before the Auditor-Master was sent to the wrong address.

It is evident from the record that that report was erroneous because it charged Gilbert with $30,106.94 of estate debt, most of which consisted of court-authorized expenditures (as the second report made clear). Furthermore, the record shows that notice of the hearing before the Auditor was sent to Gilbert's old address even though he had previously filed a change of address with the court. Thus he was not given an opportunity to contest the Auditor's findings before the report was presented to the court. We therefore hold that Gilbert should not be held liable for the $300 cost of the first report.

The Auditor found Gilbert liable for $292.98 which had been withdrawn from the ward's personal bank account but had not been accounted for. Mr. Gilbert asserts that this account was established before his appointment as conservator in order to provide for direct deposit of the ward's social security payments, from which automatic transfers could then be made to the nursing home for the benefit of the ward. He maintains that he did not make the withdrawals, but that they were made by the nursing home. Although the Auditor's report found this assertion ...


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