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HomeMy WebLinkAbout04-06-10', _ iii ~~ .4L-_~ .. .... Zi~lO APR -~ r''ri I ~ 16 IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF LOTTIE IVY DIX ,~ :CUMBERLAND COUNTY, PENNSYLVANIA Deceased ~,Sr~~~`~TQ :ORPHANS' COURT DIVISION N0.21-07-0686 IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF GEORGE F. DIXON, JR., :CUMBERLAND COUNTY, PENNSYLVANIA Deceased :ORPHANS' COURT DIVISION QTIP -Trust : N0.21-1994-0754 SECOND INTERIM REPORT AND RECOMMENDATIONS AND NOW, this 6th day of April, 2010, upon consideration of the exceptions to the Order of Court dated February 23, 2010, denying the petition for appointment of an administrator pro tem, in the nature of a motion for reconsideration and treated as such, the auditor finds, recommends, and directs, as follows: 1. Richard E. Dixon, George F. Dixon, III (hereinafter "the brothers") are two of the children of the decedent. 2. The executor of the estate of the decedent, Marshall L. Dixon, is their brother. 3. The evidence in the allegations in the brothers' petition for appointment of an WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 administrator pro tem would have been available to them at the time that they filed their objections to the first and intermediate accounting of Marshall L. Dixon as executor of the Estate of Lottie Ivy Dixon on August 22, 2008, more than a year after the date of death of the decedent on June 28, 2007. 4. The brothers could have and should have advanced those allegations at that time. 5. The allegations of the brothers, in their petition for appointment of an administrator pro tem, of improper conduct of the executor toward the decedent go back as far as 1999, but there are no allegations that they were not aware of those facts in 1999 or that they took any action to address their concerns in those respects during the lifetime of their mother, the decedent. 6. In addition to the fact that the brothers did not advance the allegations in their petition for appointment of an administrator pro tem until fifteen days before the scheduled hearing, they expressly conceded at the pre-hearing conference on February 12, 2010, that they would not be able to prove that the decedent was subject to incapacity or undue influence during her lifetime. 7. The brothers also had an opportunity to be heard where they were permitted to argue and did argue the merits of their petition for appointment of an administrator pro tem at the pre-hearing conference on February 12, 2010. 8. At a hearing on the merits of the objections of the brothers that was held on WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 February 24, 2010, the undisputed evidence, on page 96 of the transcript of testimony, developed by the brothers in their cross-examination of the executor, was that, in September of 2005, nearly two priors prior to her date of death, the decedent signed check number 4554 on her account in the amount of $4,629.76 to pay off the credit card account of the executor. -2- 9. Where the brothers conceded at the pre-hearing conference on February 12, 2010, that they would not be able to prove that the decedent was subject to incapacity or undue influence during her lifetime and where there are no allegations that the brothers took any action to address their concerns in those respects during the lifetime of the decedent, the auditor finds the decedent's gift of $4,629.76 to the executor to show a lack of evidence of improper conduct on the part of the executor, in general. 10. In paragraph 52 of their petition for appointment of an administrator pro tem, the brothers did not aver that they could not have advanced their allegations in a timely manner, but, rather, that they did not previously advance their allegations against the executor of the estate because their prior counsel did not advise them to do so. 11. Where the petition for appointment of an administrator pro tem was not filed until fifteen days prior to the scheduled hearing and where the auditor had full knowledge of the background of the case from the pleadings and two pre-hearing conferences, the objection of the brothers to the failure to strictly observe the rules of procedure in disposition of the petition is unavailing. 12. Any departure from the strict requirements of the rules was the result of the WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania (7013 failure of the brothers to proceed in a timely manner and was necessary in order to avoid material prejudice to the other parties in the avoidance of further expense and delay in completion of administration of the estate. -3- 13. Appointment of an administrator pro tem, after the failure of the brothers to timely advance their petition therefor, would prejudice the other parties in terms of delay and expense where there are no material allegations in the petition that the brothers could not have raised at the time of the filing of their objections to the first intermediate accounting in the estate. 14. The auditor recommends that the exceptions to the Order of Court dated February 23, 2010, denying the petition for appointment of an administrator pro tem, in the nature of a motion for reconsideration and treated as such, be dismissed. Respectfully submitted, Wayne .Shade, Esquire Auditor WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -4-