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In re Estate of Delaney

March 27, 2003

IN RE ESTATE OF DANIEL B. DELANEY.
EDNA J. VALENTINE, APPELLANT,
v.
LAWRENCE M. ELLIOTT, APPELLEE.
EDNA J. VALENTINE, APPELLANT,
v.
LAWRENCE M. ELLIOTT, APPELLEE.
LAWRENCE M. ELLIOTT AND R. ELIOT ROSEN, APPELLANTS,
v.
CHRISTOPHER G. HOGE, APPELLEE.
CHRISTOPHER G. HOGE, APPELLANT,
v.
EDNA J. VALENTINE, APPELLEE.
LAWRENCE M. ELLIOTT, APPELLANT,
v.
CHRISTOPHER G. HOGE, APPELLEE.



Appeals from the Superior Court of the District of Columbia (ADM1809-93) (Hon. Cheryl M. Long, Motions Judge) (Hon. Kaye K. Christian, Motions and Trial Judge)

Before Farrell and Washington, Associate Judges, and Belson, Senior Judge

The opinion of the court was delivered by: Belson, Senior Judge

Argued November 18, 2002

These fourteen consolidated appeals arise out of the probate proceedings for the estate of Daniel B. Delaney (decedent). The central issues to be decided are: (1) whether a challenge to the will and a claim for status as common law wife were properly dismissed as time-barred; (2) whether certain disputed accounts were correctly determined to be part of the estate; (3) whether compensation was properly denied to the original personal representative and reduced for tax counsel to the estate; (4) whether attorneys' fees were properly denied to the estate and the residuary beneficiaries; and (5) whether the original personal representative was properly removed. We affirm all the challenged orders and judgments.

Since these appeals involve a multitude of facts not all of which are pertinent to every appeal, we begin with a brief exposition of the underlying facts. We will provide the salient facts specific to each appeal as we take up the various appeals in turn.

Mr. Delaney died on August 6, 1993, leaving behind a valuable estate; a long-time acquaintance, Edna J. Valentine, who described herself as Delaney's companion, and later in the course of litigation described herself as his common law wife; and several cousins, including Lawrence M. Elliott. Among Mr. Delaney's effects at the time of his death was a sizable account with a Virginia office of Merrill Lynch that appeared to be jointly held with Valentine.

A will, signed by Delaney on July 18, 1993 ("July 18 will") and naming Valentine as sole beneficiary, was filed shortly after Delaney's death with the Register of Wills of the District of Columbia. Elliott, designated by the will to serve as executor, mailed notice of his appointment as personal representative to Valentine on August 25, 1993, and the Register of Wills admitted the July 18 will to probate on September 9, 1993.

In March of 1994, the personal representative discovered a later will, dated July 31, 1993, ("July 31 will"or "after-discovered will") and filed it with the Register of Wills. Valentine was to receive a relatively minor cash bequest under the July 31 will, with the bulk of the estate going to the National Association for the Advancement of Colored People ("NAACP"), the American Heart Association, and two other charities (collectively "residuary beneficiaries").

The July 31 will named Lawrence M. Elliott (original personal representative) as Executor, as had the July 18 will. After filing the July 31 will, Elliott published the requisite notice of after-discovered will and notice of appointment and mailed a copy of the notice (along with a form known as General Information to Heirs and Legatees) to all those named in the July 31 will, including Valentine. At the time, Elliott was unaware of several other relatives of Delaney, and so did not mail the notice or general information forms to them until much later. Valentine received her copy of the notice on March 28, 1994. The July 31 will was admitted to probate by order dated April 4, 1994, which vacated that portion of the earlier order which had admitted the July 18 will to probate. In re Estate of Delaney, ADM 1809-93.

In August of 1997, Valentine learned "quite by accident" that Delaney had living cousins who were potential heirs. On August 13, 1997, Valentine brought this to the attention of the trial court. The trial court then stayed the case to give the newly-discovered relatives an opportunity to object to the wills. Elliott duly notified the cousins and, in September of 1997, the cousins filed a complaint to contest the validity of both wills. Patton v. Elliott, ADM 1809-93, order dated September 3, 1998. After being granted leave to intervene in the cousins' will contest, the NAACP located and deposed two of the witnesses to the July 31 will. Based on their testimony, the NAACP moved for summary judgment on the issue of the validity of the July 31 will. The trial court (Christian, J.) granted the motion in an order entered September 8, 1998, which was not appealed.

SECTION I: APPEAL NO. 97-PR-1217

1. Appeal-Specific Facts and Procedure

Valentine took this appeal from the trial court's order dated June 27, 1997, barring her challenges to the will as time-barred by the probate statute. D.C. Code, Title 20, §§ 20-101 through 20-1305 (1980, as amended in 1995, 1996, and 1997). Valentine is the appellant, and Elliott (personal representative at the time of the appeal) is the appellee.

As Valentine later explained in a deposition, when she received her notice of the after-discovered will in March of 1994, she read the will and was immediately suspicious as to its authenticity. She felt this way because she thought Delaney was so ill that he was unable to write on the day the will was purportedly signed, and because she felt that Delaney "would never have said [what was said in the will] about me." Valentine did not act on her suspicions, however, until much later.

In June of 1995, Elliott brought a subsidiary proceeding against Valentine within the probate proceeding to recover the jointly-registered accounts as assets of the estate, claiming that the accounts were not joint accounts but simply convenience accounts. *fn1 Elliott v. Valentine, ADM 1809-93. On February 1, 1996, almost two years after receiving the notice as to the July 31 will, Valentine filed an answer in Elliott v. Valentine which "assert[ed]," inter alia, that the will was "a forgery and a fraud." This is the only allegation made of fraud and/or forgery in Valentine's answer.

Sometime in late 1996 or early 1997, Valentine hired a handwriting expert to examine Delaney's signatures on both the July 18 will and the July 31 will. The expert told Valentine that both signatures were forged. Valentine then filed, in Elliott v. Valentine, a motion for leave to file amending and dispositive motions, including, inter alia, a motion to vacate probate order based on new evidence of fraud and common law marriage. She filed this motion on March 17, 1997, almost three years after she received the notice of appointment. In this filing, Valentine made extensive claims of forgery regarding the July 31 will. By order dated March 31, 1997, the court rejected Valentine's challenge to the July 31 will as time-barred. In the order, the court noted that in oral argument held on January 23, 1997, in Elliott v. Valentine, as well as in the February 1, 1996, answer Valentine filed in that case, Valentine challenged the July 31 will as a forgery and fraudulent.

Notwithstanding the court's ruling of March 31, 1997, Valentine filed, on April 7, 1997, a complaint in the nature of a caveat attacking the validity of both the July 18 will and the July 31 will on the grounds of fraud and/or forgery. She also realleged that she was decedent's common law wife. By order entered June 27, 1997, the trial court dismissed Valentine's renewed claims of forgery and her claim to be decedent's common law wife as time-barred under D.C. Code § 20-903 (a)(1) (1981). *fn2 Valentine took appeal No. 97-PR-1217 from this order; Elliott (personal representative at the time of the appeal) is the appellee.

2. Discussion

A. Jurisdiction

Although appeal No. 97-PR-1217 may have been premature when filed, *fn3 a final judgment was entered in Elliott v. Valentine on October 20, 1999. This had the effect of ripening the instant appeal thereby giving this court jurisdiction to act because the trial court had entered a final judgment on the entire case. Super. Ct. Civ. R. 54; West v. Morris, 711 A.2d 1269, 1271 (D.C. 1998); Dyer v. William S. Bergman & Assocs., Inc., 635 A.2d 1285, 1286-87 (D.C. 1993); Robinson v. Howard Univ., 455 A.2d 1363, 1366 (D.C. 1983).

B. Standard of Review

The trial court's ruling rejecting appellant Valentine's challenge to the will as time-barred constituted an adjudication of that issue. Although her challenge to the July 31 will arose in the context of Elliott v. Valentine, it was properly a part of In re Estate of Delaney because the issue in Elliott v. Valentine concerned the nature of the jointly-registered accounts. The validity of the July 31 will had no bearing on the nature of those accounts. Had Valentine lodged her complaint against the July 31 will within the probate proceeding itself (In re Estate of Delaney), rather than in a subsidiary proceeding, the order denying her caveat to the will would have functioned as a summary judgment that the July 31 will was properly admitted to probate.

We make an independent, de novo review of the record in deciding appeals from summary judgment. See, e.g., In re Burleson, 738 A.2d 1199, 1203-04 (D.C. 1999); Knight v. Furlow, 553 A.2d 1232, 1233 (D.C. 1989). In so doing, we use the trial court's standard of review for motions for summary judgment. Knight, supra, 553 A.2d at 1233. Summary judgment is appropriate when there is no genuine issue as to a material fact and the movant is entitled to a ruling as a matter of law on the issue in question. Super. Ct. Civ. R. 56 (c). The court must view the record in the light most favorable to the party opposing the motion for summary judgment and resolve any doubts as to the existence of a factual dispute in that party's favor. Duggan v. Keto, 554 A.2d 1126, 1131 (D.C. 1989). Thus, we review the record de novo, resolving any doubts as to the existence of a factual dispute in favor of appellant Valentine.

C. Appellant Valentine's Challenge to the Validity of the July 31 Will

On appeal, appellant Valentine presents three alternative theories under which her challenge to the July 31 will is not time-barred. First, she suggests that because she is claiming that the will is a fraud, she should be given the benefit of the discovery rule. Alternatively, she suggests that the three-year civil statute of limitations for fraud should be applied rather than the six-month limitation on bringing challenges to a will. As a final option, she proposes that the late notification of after-discovered heirs of Delaney "restarted" the time for appellant Valentine's caveat as of the date of the late notification.

(1) The Discovery Rule

D.C. Code § 20-305 states "any person may file a verified complaint to contest the validity of a will within 6 months following notice by publication of the appointment . . . of a personal representative." D.C. Code § 20-305 (emphasis added). Appellant Valentine does not dispute the fact that she received the notice pertaining to the July 31 will in March of 1994. To excuse the length of her delay, she seeks to toll the will contest statute of limitations by invoking the discovery rule. In support of her theory, appellant Valentine cites Johnson v. Martin, 567 A.2d 1299, 1302 (D.C. 1989), where we dealt with the discovery rule in the context of a late objection to an accounting in a probate case.

Valentine is correct that we have allowed the use of the discovery rule in the probate context. Within probate cases the discovery rule has been applied with regard to (1) contesting a personal representative's power to pay expenses relating to devised realty from the residuary estate, see id.; (2) claims of fraud and breach of fiduciary duty under a testamentary trust, see Interdonato v. Interdonato, 521 A.2d 1124 (D.C. 1987); and (3) a dispute over two paintings claimed to be estate assets, see In re Estate of McCagg, 450 A.2d 414 (D.C. 1982). We have not applied the discovery rule to will contests involving claims of fraud. Interdonato, however, appears to leave open the possibility of such a use of the discovery rule.

One of the many claims brought in Interdonato was an allegation that the decedent's will had been altered before it was offered for probate - essentially a challenge to the will on the basis of fraud. We ruled that the claim (which was brought nineteen years after the will had been admitted to probate) was barred by laches, rather than by any time bar within the statute. Interdonato, supra, 521 A.2d at 1138. A laches determination includes an analysis of whether or not the delay was excusable. This examination is quite similar to a discovery rule analysis.

Although the probate codes of many jurisdictions contain tolling exceptions for fraud to extend the time limit on contesting wills, ours does not. Other jurisdictions have dealt with statutes similar to ours in a variety of ways. See Eliot J. Katz, Annotation, Fraud as Extending Statutory Limitations Period for Contesting Will or Its Probate, 48 A.L.R. 4th 1094 (1986). Some have hewn strictly to the statutory language and refused to grant late challenges on the grounds of fraud. These courts reasoned that because the right to contest a will existed only by statute, any challenge to a will could be exercised only within the time limits prescribed by the statute. In addition, these courts considered that the best way to carry out the statute's purpose, which was to ensure the prompt and orderly settlement of estates and to avoid confusion and consequences injurious to the rights and titles of interested parties, was to abide strictly by the statutory deadline regardless of the type of fraud alleged. See, e.g., Criscoe v. Derooy, 384 A.2d 627 (Del. Ch. 1978); Robinson v. First State Bank of Monticello, 454 N.E.2d 288 (Ill. 1983); Ruffing v. Glissendorf, 243 N.E.2d 236 (Ill. 1968); In re Estate of Thompson, 346 N.W.2d 5 (Iowa 1984).

Other courts have allowed application of the discovery rule for claims of fraud under a probate statute that contained no express tolling provision for fraud. Reasoning that time limitations in the will contest statute did not strip the probate court of its authority to review its own orders of probate, and that a will signed with a forged signature or obtained by undue influence works a fraud on the Register of Wills and on the court, these courts have allowed the use of the discovery rule for claims of intrinsic fraud brought after the statutory time limit for contesting a will. *fn4 See, e.g., Padgett v. Estate of Padgett, 318 So. 2d 484 (Fla. Dist. Ct. App. 1st Dist. 1975); Estate of Colucci, 492 A.2d 1155 (Pa. Super. Ct. 1985).

We find persuasive the reasoning of this last line of cases. The probate of a will that is a product of intrinsic fraud such as forgery practices a fraud on the probate court and on at least some of the parties to the case. Although the District of Columbia has a strong interest in prompt and efficient probate for estates, it has an even stronger interest in ensuring that a will admitted to probate is not the result of fraud. Thus it seems appropriate to allow the use of the discovery rule for belated will contests based on claims of intrinsic fraud.

Although we hold that the discovery rule can be used to bring a late will contest based on a claim of intrinsic fraud, our holding does not help appellant Valentine. Valentine claims to have "discovered the forgery" in "late February 1997" when she received an expert opinion report that the signature on the July 31 will was a forgery. She filed her "Objection in the Form of a Motion Alleging Fraud and Request for an Evidentiary Hearing" less than a month later, on March 7, 1997. Application of our precedents to what transpired in this case demonstrates that Valentine was chargeable with notice of any alleged fraud from before February of 1997.

"When one person defrauds another, there will be a delay between the time the fraud is perpetrated and the time the victim awakens to the fact." Kropinski v. World Plan Executive Council-US, 272 U.S. App. D.C. 17, 19, 853 F.2d 948, 955 (1988). Because of this inherent delay, "a cause of action [for fraud] accrues for purposes of the statute of limitations when the plaintiff has either actual notice of her cause of action or is deemed to be on inquiry notice because if she had met her duty to act reasonably under the circumstances in investigating matters affecting her affairs, such investigation, if conducted, would have led to actual notice." Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996). See also Kropinski, supra, 272 U.S. App. D.C. at 19, 853 F.2d at 955 ("[I]n a fraud case, the statute of limitations will not begin running until the date the fraud is discovered, or reasonably should have been."); Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 299 (D.C. 2001) (citing Colbert v. Georgetown Univ., 641 A.2d 469, 472-73 (D.C. 1994)) ("the statute of limitations will not run until plaintiffs know or reasonably should have known that they suffered injury due to the defendants' wrongdoing"). "The discovery rule does not, however, give the plaintiff carte blanche to defer legal action indefinitely if she knows or should know that she may have suffered injury and that the defendant may have caused her harm." Colbert, supra, 641 A.2d at 473. What constitutes acting reasonably under the circumstances to investigate the problem is a "highly factual analysis," Diamond, supra, 680 A.2d at 372, but usually requires that the injured party be ignorant of the fraud through no "fault or want of diligence or care on his part." Id. at 373 (internal citations omitted). Thus, "the focus of the rule is on when [the plaintiff] gained general knowledge [that she had been injured], not on when she learned of the precise legal remedies [for the injury]. East v. Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153, 157 (D.C. 1998) (emphasis in original). See also Ray v. Queen, 747 A.2d 1137, 1142 (D.C. 2000) (distinguishing between discovery rule and tolling doctrine).

Turning to the timing of relevant events in this case, we see that Valentine received notice of the July 31 will on March 28, 1994. In a deposition, she admitted reading the will and having immediate suspicions as to its authenticity because, she said, Delaney was no longer able to write on the day the will was purportedly signed, and because she felt that Delaney "would never have said [what was said in the will] about me." Valentine's immediate suspicions about the will placed upon her the obligation to move promptly and with reasonable diligence to inquire further into the matter. Instead of making a reasonable, prompt, and diligent inquiry, Valentine did nothing from March 28, 1994, until the end of 1996 or early 1997 when she engaged the services of a handwriting expert. This hardly constitutes reasonable diligence on her part. For our purposes here, we need not determine precisely how soon after March 28, 1994, Valentine, for the purposes of reasonable diligence, should have concluded her inquiry into the circumstances surrounding the execution of Delaney's will of July 31, 1993, for it is clear that a reasonably diligent inquiry could have been completed substantially more than six months before Valentine filed her attack on the will in March of 1997. Under the probate statute, that statutory clock ran out six months after such inquiry could have been concluded. Therefore, even allowing full play for the discovery rule in applying § 20-305, Valentine's attack on the will in March of 1997 came far too late.

(2) Statute of Limitations for Civil Fraud

As an alternative theory for allowing her to mount a will contest, Valentine argues that the presence of fraud in the making of the will, e.g., securing Delaney's signature on it at a time when he could not write, invokes the probate court's equity jurisdiction and allows it to use the statute of limitations for civil fraud. Under D.C. Code § 12-301, the time limit for bringing an action for forgery or fraud is three years. D.C. Code § 12-301 (8). Many courts have held that a provision in the general statutes of limitations for fraud does not apply to a will contest when the statute governing wills contains its own limitations provision. This is because a will contest is purely a creature of statute, is not derived from common law causes of action, and therefore should be governed by statutes of limitations provisions in its creating statute rather than those derived from the common law. See, e.g., Riddell v. Edwards, 32 P.3d 4, 8 (Alaska 2001) ("[W]ill contests are unknown to the common law and exist only as permitted by statute." (internal quotations omitted)); Estate of Kitterman v. Pierson, 661 N.E.2d 1255, 1257 (Ind. Ct. App. 1996) ("The right to contest a will is statutory."); In re Estate of Thompson, 346 N.W.2d 5, 7 (Iowa 1984) (declining to apply doctrine of fraudulent concealment so as to extend time for challenging wills which have been admitted to probate); Miller v. Munzer, 251 S.W.2d 966 (Mo. Ct. App. 1952); In re Peterson, 9 P.3d 845, 850 (Wash. Ct. App. 2000) ("Will contests are statutory proceedings and courts must be governed by the provisions of the applicable statutes," rather than by the rules of civil procedure (internal quotations and citations omitted)).

Other courts have shown themselves reluctant to apply civil statutes of limitation to probate proceedings because to do so would run directly counter to the state's strong interest in the orderly settlement of estates. See, e.g., Pedersen v. Dempsey, 93 N.E.2d 85, 86 (Ill. App. 1950). *fn5

On the whole, it seems most reasonable to us to use only the will-contest statute of limitations for probate cases. Since the probate code itself sets forth a period of limitations for contesting a will, there is neither need nor reason to look elsewhere for a different time limitation. Furthermore, if we read the three-year statute of limitations for civil fraud into the probate statute, that three-year period might be further extended by application of the discovery rule. This could unleash grave uncertainty into the world of probate. Under this approach, a plaintiff conceivably could reopen a probate case years after it was closed and after the estate had been distributed. This is directly contrary to the District's strong policy interest in the orderly settlement of estates. We hold that the statute of limitations for fraud embodied in D.C. Code § 12-301 (8) does not apply to will contests under the probate code. Therefore, the six months limitation period of the probate statute applies.

(3) Restarting the Statutory Clock

As a final alternative theory for allowing her challenge to the July 31 will, Valentine proposes that the late notification of after-discovered heirs of Delaney "restarted" the time for the filing of her caveat as of the date of the late notification. However, Valentine cites no support for this proposition, and we are aware of none. The relevant statute clearly states that the interested party has six months from the time of publication of the notice of appointment within which to challenge the will. Valentine refers us to nothing in our cases or the statute that can be read to mean that if the notice is published again for the benefit of other interested parties, the later publication becomes a new publication date for parties who already received notice.

D. Common Law Wife Claim

In addition to challenging the will as the product of fraud, Valentine's motion dated March 17, 1997, also claimed, for the first time, that she was Delaney's common law wife. This claim is not barred under D.C. Code § 20-305 because it does not contest the validity of the will. *fn6 Presumably, Valentine asserted that she was decedent's common law wife so that she could claim a spouse's statutory share of the estate, a claim she could make regardless of the validity of the will.

D.C. Code § 19-113 (a) provides a six-month period from the time the will is admitted to probate for a surviving spouse to renounce "any devise or bequest made . . . by the last will of my husband" and to "elect to take in lieu thereof my legal share of the real and personal estate of my deceased spouse." This period does not begin to run until the end of any action to construe the will of the decedent (D.C. Code §19-113 (c) (2001)), but that is the only tolling provision provided in the statute. In other words, the statute is not tolled for an individual who suddenly "discovers" that she was the decedent's common law wife three years after a will is admitted to probate. *fn7 Since appellant Valentine could be attempting to claim common law wife status only for the purpose of electing a statutory share of the estate, and since any election of the statutory share is clearly time-barred, appellant Valentine's assertion of common law wife status is time-barred as well.

In light of the foregoing, we affirm the trial court's order dated June 27, 1997, dismissing both the challenge to the will and the common law wife claim as time-barred.

SECTION II: APPEAL NOS. 98-PR-934; 98-PR-1104; 98-PR-1771; 99-PR-531; 99-PR-1392 & 99-PR-1619

1. Appeal-Specific Facts and Procedure

This set of six appeals stems from various aspects of the trial court's decisions as to the disputed Virginia accounts. As noted above, Elliott filed a subsidiary proceeding within the probate proceeding against Valentine in June of 1995 (Elliott v. Valentine) to recover funds in two accounts on behalf of the estate. The accounts in question were a credit union account and a Merrill Lynch cash management account. Both accounts were maintained in Virginia and established with funds contributed entirely by decedent Delaney.

The credit union account was opened in 1986. Although the names of both Delaney and Valentine appear on the account card filled out by Valentine, Delaney's social security number was the only personal identification number to appear on the account. Delaney, the sole depositor, never signed the card entitled "joint account" and never made a joint account election. Quarterly statements were sent only to Delaney, who was the sole taxpayer on the income from the account.

Delaney had opened the Merrill Lynch account in 1962, and it contained the bulk of his liquid assets. This account was registered solely in Delaney's name until four days before his death on August 6, 1993. On July 19, 1993, the day Delaney was transferred to a different hospital to undergo a new round of treatment, he executed a power of attorney appointing Valentine as his attorney in fact for convenience in maintaining his property and to use his property for his care, support and maintenance. Merrill Lynch did not honor this power of attorney, and Valentine could not use it to write checks on that account to pay Delaney's bills. With her assistance, on July 28, 1993, Delaney completed the paperwork to change the Merrill Lynch account to a joint account, by establishing a new, joint account, in his name and hers so that she could pay his bills. Three days later, on July 31, 1993, decedent signed the will that was eventually admitted to probate, which stated "all I own in any form is my property, with no pre-death gift intended." Valentine transferred the funds from Delaney's original Merrill Lynch account to the new joint account on August 2, 1993, three days before his death.

Immediately after Delaney's death, Valentine transferred the funds again, this time to a new joint account in the names of Valentine and her daughter. Valentine then began spending the funds and transferring funds to her children.

As personal representative, Elliott sued Valentine on behalf of Delaney's estate, contending that the Virginia accounts were not joint accounts but simply convenience accounts and therefore part of the estate. After Valentine answered Elliott's complaint, Elliott filed a motion seeking a summary judgment that the estate was entitled to the return of the proceeds of the Merrill Lynch and credit union accounts, ordering an accounting, directing Valentine to divest herself of all funds and other assets that had been Delaney's or were acquired with his funds, and for other relief. Elliott filed this motion one day after the deadline for such filings, and the court rejected it. Elliott then filed a motion for consideration of his motion for summary judgment which was, in effect, a motion to permit the filing of the motion after the deadline. When the parties appeared before the court for a hearing on January 23, 1997, and the court undertook to hear argument on Elliott's motion for summary judgment, Valentine's counsel indicated that he had understood that the hearing was not on the motion for summary judgment, to which he had not filed an opposition, but merely on Elliott's motion to permit the late filing of the motion for summary judgment. *fn8 While counsel's reading of the court's order scheduling the hearing was plausible, the court intended its order to schedule a hearing on the motion for summary judgment itself. Without seeking a continuance or leave to file a written opposition, Valentine's counsel argued against granting the motion for summary judgment. Valentine prevailed in her opposition to summary judgment on the merits of the issue of the estate's entitlement to a return of the proceeds of the two Virginia accounts. The court, however, granted the estate's motion with respect to an accounting and the creation of an escrow account. *fn9

Following the hearing, on January 24, 1997, the trial court issued an order requiring Valentine to place the disputed funds in the court registry. On January 27, 1997, the court issued an order in Elliott v. Valentine appointing an auditor and requiring an accounting of the disputed funds.

On August 13, 1997, Valentine brought Delaney's newly-discovered relatives to the attention of the trial court. Once the court learned of Delaney's additional relatives, it stayed Elliott v. Valentine (the action instituted by Elliott to procure the Virginia accounts) to give the newly-discovered relatives an opportunity to object to the wills. The cousins were duly notified by Elliott and, in September of 1997, the cousins filed a complaint to contest the validity of both wills (Patton v. Elliott). Two of the charities that are beneficiaries under the July 31 will sought to intervene in Patton v. Elliott. By orders issued February 4 and February 20, 1998, the trial court allowed the American Cancer Society and the NAACP to intervene in Patton v. Elliott. Sometime after that order was issued, Valentine sought to intervene in Patton v. Elliott, but the court denied her motion to intervene in an order dated May 20, 1998. This order was subsequently appealed (No. 98-PR-1104). On the same day, the trial court ordered Valentine to pay the auditor's fees in Elliott v. Valentine, and Valentine appealed that order as well (No. 98-PR-934).

In the summer of 1998, the NAACP moved for summary judgment in Patton v. Elliott. By order issued September 8, 1998, the trial court granted the NAACP's motion. This order was not appealed. In November, the trial court issued a consent order requiring Valentine to pay the ...


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