# FILED
June 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN RE: ESTATE OF WILLIAM F. ) BURTON, JR., Dece

ased, )

) Davidson Probate BOBBI BURTON MILLER, Executrix, ) No. 79822 ) Appellant, ) ) Appeal No. VS. ) 01A01-9708-PB-00434 ) PAUL T. HOUSCH, ADM INISTRATOR ) C.T.A., D.B.N., ) ) Appellee/Cross Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE PROBATE COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE WALTER KUR TZ, JUDGE (Desi

gnated) Charles A. Trost, #4079 Joseph A. Woodruff, #12869 Michael G. Stewart, #16920 WALLER , LANSD EN, DO RTCH & DAVIS 511 Union Street, Suite 2100 Nashville, TN 37219 ATTORNEYS FOR APPELLANT Frankie E. Wade, #6163 HILL AND BOREN 1269 North Highland Avenue P.O. Box 3539 Jackson, TN 38303-3539 ATTORNEY FOR APPELLEE/CROSS APPELLANT
AFFIRMED IN P

ART, REMANDED IN PAR

T.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: WILLIA M C. KOCH, JR., JUDGE WALTER W. BUSSART, JUDGE-2-

IN RE: ESTATE OF WILLIAM F. ) BURTON, JR., Dece

ased, )

) Davidson Probate BOBBI BURTON MILLER, Executrix, ) No. 79822 ) Appellant, ) ) Appeal No. VS. ) 01A01-9708-PB-00434 ) PAUL T. HOUSCH, ADM INISTRATOR ) C.T.A., D.B.N., ) ) Appellee/Cross Appellant. )



## O P I N I O N
This appeal involves an interlocut ory order of the Probate Court surcharging the executrix, Bobbi BurtonMiller, for misfeasance to the extent of $150,179.23 plus prejudgment interest. The executrix resigned, and an administrator, C.T.A., D.B.N. (with will annexed, for further administr

ation) represe

nted the estate in

Probate Court and t

his Court.
The executrix-appe

llant has filed the

following issues: I. Whether

the trial courterred when it re fused to enforcea consen t decree approving a family settlement agreement

despite the fact that appellees had not alleged much less put f

orwa rd proof of, fraud in the procurement of that agreemen

t. II. Whethe rthe appellees, having reaped hundreds of thousands of dollars in benefits pursuan t to a family settlement

agreement, are estopped from chal lenging that agre eme nt’ s va lid ity? III. Whether it w as error, absent a finding of fraud or gro ss ab use of discretion for the trial cour

t to substitute its opin ion of

what distributions were “necessary” for that of a truste e expressly granted full discretion in such matters by decedent’s will? IV. Wheth erthe trial court, having declared in a final order that $4,500 per month distributi ons to the beneficiaries by the successor fiduciary were appropriate, was precluded by collateral estoppel from subsequently taking pr ecisely the opposite position wit

h respect to appe

llant?-3- The administrator

-appellee has st

ated the issues as

follows: A. The releas e and hold harmless provisions of the settle ment agreement are not enforceable by Bobbi Burton Miller, executr

ix in this Probate Court accounting procedure. 1. The Probate Court’s Decree does not absolve Ms. Miller from accounting for her administration of the Estate o r the liability for any surcharge thereon. 2. The Trial Court’s reasons for not enforcing the release and hold harmless pro vis ions of the settlement agreement are valid.
a. The settlement agre ement specifica

lly states that Mrs. Miller “s

hall settle her accounts” and thus, this refer ence to her settlement of her accounts is inconsistentwith an interpretation that the release is a waiver of the requirement for her to settle her accounts. b. The order wh i ch approves the settlement

specifically approves the mone t ary settlement but does not mention the release.
c. The release is

signed by M

rs. Miller in her capaci ty as executrix and trustee releasing herself. Such a r elease is ineffectiveand will notbe given force and effect by

this Court. d. The rele ase i s also not signed by any representativeof the contingent beneficiaries
. B. The doctrine o f estoppel is not appl icable in the account of Bobbi Burton Miller. C. The Trial Court’s find in g th at Ms. Miller abused her discr

etion is correct. D. The doctrine of collateral estoppel is not applicable

and does not preclude the Trial Court’s fi ndings in t his account ing. IV (B). A PPELLE E/CR OSS-A PPELLA NT’ S

ADDITIONAL I

SSUES A. The Trial Court should have surcharg ed Bobbi Burt on M iller for loss to the value of the-4- property of the e state caused by the refinanci n g and sale of the Rivergate Inn. B. The Trial Court should not have approved the improper and exce

ssive attorney ’s fees. C. The Trial Cour t committed reversible error when it approvedadditional disbursements by Bobbi Burton Miller as c harges agai

n st th e estate and refu

sed to surcharg

e her for them. 1. Distributions made t o Bobbi Burton Miller under the terms of

the will are not proper charges against the estate. 2. The tax pena lties and interest paid by Bobbi Burton Miller are not proper charges against the estate.
William F. Burton, Jr. was a Nashville lawyer who had retired from ac tive practice when he prepared and e

xecuted his

will on August 24, 1986. He willed his entire estate to his wife, Bobbi Burton, (who remarried after his death a nd be came Bobbi Bur

ton Miller) in trust w

ith detailedinstructions for administering the trust. The purpose of the trust was stated as follows: THE Trustee shalluse the assets of the Trust in order of p

references a

s follows: (a) Provid e for the normal necessities and support

of my wife and each of my three children , includes a college education if advisable, until that child reaches the age of twenty-three y ears in so far

as my wife is concerned, she shall receive one-f

ourth (1/4) of the net income of my estate from the date of my death. (b) Upon the younge

st of my three children reaching the age of t wenty-three yea rs the Tru ste e sh all pay one-th ird of the net income available after the provision for m y wife to each of my three childre n for and during each of their

natu ral lives and to their issue for a pe riod of twenty-one years thereafter , at which time

one-third of the trust shallterminate

andbe distributed to the

heirsat- law of said decease

d child living at tha t time. At any time that any

one of my children shall be de ceased without leaving issue surviving, or the bl ood line of one should become extinct,

then, in that

event, that-5- share shall be paid to

the other of

my children or their i ssue per stirpes a

nd to my wife i

n equal share. (Emphasis supplied.)

It is clear from the

emphasized portion

of the above that t

he unused portion o

f the trust property at the death of ea

ch child was veste

d as a remainder

in the “issue,” tha

t is, child or children of each of testator’s children, i.e., the grandchild or grandchildre n of the testator.
The following grandchildren have been born: William F. Burton, IV, born October 10, 1987; and two unnamed grandchildren described in the record as “y oung.”
Although not pertinent to the issues on appeal, Mr. andMrs. Burton had executed a prenuptial agreement prior to their marriage. Mrs. Bu rton Miller denies the validity of the agreement, bu

t this issue is not invol

ved in this appeal.

For whatever reas

on, in making his

will, Mr. Burton did not see fit to take advantage of the well known “spousal deduction” whereby any testamentary g

ift to the spouse of the testator is exempt from death taxes up to one-half of the estate.

Because of the size of Mr. Burton’s estate, it becam e evi dent that it would be nefit all beneficiaries of the will if Mrs. Burton Miller would dissent from the will and claim her statutory share of the estate as provided by TCA §§ 31-4-101 et seq.

On August 21 , 1989, the Probate Court entered an order approving an agreement executedby the exe cutrix and the adult beneficiaries of the will. The unborn vested remaindermen

were not parties to this agreement and order. A copy of

said order and attached agreement is appended to this opinion as Exhibit A.-6- Pursuant to the agreement, the executr ix resigned and the Probate Court appointed Sovran Bank (now NationsBank), as administrator C.T.A., D.B.N.

On Septemb er 12, 1 991, the Probate Court accepted the resignation of the Bank and appointedPaul Housch as subs titu te ad ministrator C.T.A. The Bank or Mr. Housch has managed the affairs of the estate since February 27, 1990.

The principal asset of the estate was a motel which produced a substantial income. The executrix sold the motel on credit andcollected inst allments of the sal

e price in lieu of

rent. Both rent and instal

lments wer

e divided among the

benefici aries of t he will by the execu

trix.

After the Bank assumed management of the estate, the purchasers defaulted and the Bank foreclosed, re

sulting in a sharp

reduction in cash

flow to the benef

iciaries of the w

ill.

On April 26, 1994, the administratrix filed her “Amended and Restated Final Settlement.”

On May 24, 1996, Paul Housch, administrator, filed his exceptions to the settlement of the executrix.

On April 9, 1997, the Probate Court entered its final judgment upon the exceptions concluding as f

ollows: 2. Bobbi Burton Miller shall pay to the Estate of William F. Burton, Jr., the sum of two h und red and th irteen thousand, four hun dred and ninety

-eig h t dollars and seventy-three cents ($213,498.73) which sum represents thesurcharge of one hundred and f

ifty thousand, on e hundred and seventy-nine dollars and twenty-three

cents ($150,179.23) and interest of s ixty

three thousand, three h

undred nineteen

dollars a n d fifty cents ($63,319.50) computed at six percent (6%) from March 1, 1990 through March 10, 1997.-7- 3. Pur suant

to T.C.A. § 47-14-1 21, 122, the entir e su m of two hundr ed and thirteen thousand, four hundred andninety-eight dollars and seventy -three c ents ($213,498.73 shall bear interest at the post judgment interest rate of ten perce nt (10%) from March 10, 1997, the date of entry of the court’s verdict as evidenced by the Memorandum and Order incorporated

herein; said inter est to be calculated at the rat e of $ 58. 49 p er da y. 4. No di stributions shall be made to any beneficiar y without the express o

rder of this cour

t. 5. Th e Court has now disposed of all issues related t o this accounting and

this judgment is

to be considered final pursuant to Rule 54.02, Tennessee Rules of Civil Procedure. 6. The court costs ar e ta xed equally to Bobbie Burton Miller and the Estate of William F. Burton, Jr. 7. For all of the above, execution may issue.
At no time during proceedings in the Trial Court or this Court have the minor residual beneficiaries of the testamenta ry trust been joinedor represented in this proceeding except as the administrator CTA h

as called attenti

on to their interes

t.
On appeal, the exe

cutrix asserts: 1. The Probate Court’sD ecree Is A Final Order Which Absolve s Mrs. MillerOf All Liability For A ctions She Took As Executrix.
In refusing to enforce the Consent Decree carefully negotiated

b y Ms. Miller and all of th e Adult Benefic

iaries, the Trial Court impermi

ssi bl y reopened a final judgment of the Probate Court and in so doing denie d Ms. Miller the benefit of a bar gain o n which she had reasonably staked her fina ncial future. The Beneficiaries, represented by counsel from a major law firm of their choosing, made the decision to enter into the Family Settlement Agreement with Ms. Miller whereby she received just $515,000.00of Estate assets in lieu of a disputed statutory one-third interest in

the Estate worth in excess of One Million Three Hundred Thousand Dollars ($1,300,000.00).

- - - - It was in exchange for all of these benefits that the Beneficiarie

s, having opted not t

o replace Ms.Mill er with a-8- professional Administrator when she sought a statutory share, made the following unambiguous pledge: The Beneficiaries, for themselves, their heirs andassigns of the Deceased’s Estate here b y agree to h old plaintiff harm

less from any and all liability

arising out of or

in connection with her services as Executrix and/or Trustee under the terms and conditio

ns of Deceased’ s Will. The Beneficiaries and the Estate further agree to release plaintif

f from any an d all claims or causes of action whichthey may have or which may hereafter arise in connection with her serv ices as Executrix and/or as Trustee or for any servic

es rendered in su

ch capacities.
The executrix cites Third National Bank v. Scr ib ner , 212 Tenn. 400, 370 S.W.2d 482 (1963), wherein a beneficiary of a spendthrift trust joined in a contract

with the trustee to provide for the mann er of administering the trust property. The contract was appr oved by a consent decree. The trustee file

d a suit for interpr

etation and instru

ctions, especial

ly as to the sale of land occupied by one of the

beneficiaries . Some of the benef icia ries dem urred to the suit of the trustee, and the Trial Court dismissed the suit of the trustee. On a

ppeal, the Suprem

e affirmed, holding that the trustee was estopped by the agreement a nd consent decree.

The present case is d

istinguishable by

the fact that this i

s not a suit for instructio

ns, but exceptions by a successor/administrator/trustee to the final report of the executrix/trustee who resigned. The successor/trustee should not be bou nd by an agr eement of his pre

decessor to dissipate the fund

held in trust.

In the citedcase, the truste e had made no unau

thorized distributio

ns; in the present case, the executrix/trustee has made unauthorized, excessive, distribu tions to beneficia

ries, including herself. Also, in the present case, the consent decree of the Probate Court was not a fin al judgment andthereby remained subject to revision by the Probate Court at

any time before entry of final judgment discharging the executrix. TRCP Rule 54.02.-9- Th e exe cutrix cites other a uthorities rega

rding the binding

effect of conse

nt decrees, which are inap plicable

to non-final inter

locutory or

ders. Her claim o

f estoppel is not we

ll foundedbecause of her rem e dy of recla

iming from the ad

ult children the e

xcessive pay

ments made to them, and the need to preserve the interests of the minor and unborn grandchildren.

This Court agrees with the Trial Court that equity and the stability of the judicial process require that the executrix pr operly acc

ount to the Court for all

property coming into her control as executrix before she can be discharged.

The executrix asserts that the will conferred upon her full discretion as to the amount of payments to be made to herself and the adult children. This Court does not so construe the will, quoted above, which uses the words, “nor mal necessi

ties and su

pport”. T

he execut rix next insists that

the Probate Court approved her disbursement in a “final order.” The consent decree, signed only by the adult children is not binding upon the minor grandchildren, and the liability of the executrix for

her actions rema

in subject to the jud

gment of the Prob

ate Court.

The executrix next insists that this Court is “duty bound by established law to reject each andevery one of

the Trial Court’s reasons for not enforcing that decree.” This Court accepts as valid the reasons

assigned by

the Trial Court in its

final judgment.

The memorandum and order of the Trial Judge explains the amount of the $213,498.73 judgment agai

nst the executrix is as

follows: (1) The distribution to the benefi ciaries by the executrix was not co nsistent with the will and/or the executrix’s fiduciary duty to the estate. (2) The distributions made b y the executr

ix to herself were inconsistent with her fiduciary duty to the estate. (3) The executrix breach ed her fiduciary duty to the estate in her man

agement and sa

le of the motel which was the estate’s major a

sset, as well as, th

e lo ss of ce rtain estate pro pert y.-10- (4) The executrix breache d her fid uc iary duty

to the estate by ei

ther obligating the estate or approving the following fees : (a) attorney fees

(b) accounting fees (5) Th e la te payment of taxes was inconsistent with the executrix’s duty to the estate.

- - - - The Court does not find that the Johnson default was so predictable tha

t she should

be resp onsible for all the advancepa yments to the beneficiaries of the trust. She had reasonto believe that the assets would be sufficient to make the advance con

sistent.

- - - - During the period of time tha t Ms. Miller was the executrix, (less than three

years) she distributed One Hundred Thirty-Six

Thous and, Three Hundred Sixty-Eight Dollars, and Sixteen Cents ($136,368.16) to William F. Burton, III, One HundredTwenty-Seven Thousand, Nine Hundred Forty-Five Doll a rs, and Thirty Sev en Cents ($ 127,945.3 7) to Leigh Burton, and One Hundred Thirty-Four Thousan d, Two HundredEighty-Six Do llars, and Thirty

-Seven Cents ($134,286.37) to El izabeth Burton for a tota

l distribution to the three adult b eneficiaries of Four Hundred Eighty-Two Thousand, Nine Hundred Fo rty-Six Dollars, and Nine Center ($482,946.90) between Ap ril, 1987 and February, 1990 (34 months).

- - - - On the record befo

re the Court, it is dif

ficult to determine withexactitude the amount of money paid beyond whatwas authorized for “necessities and support” of t h e benefici ar ies. The payments made by the executrix did, however, a llow the beneficiaries to live at a level beyond what they lived before their father’s death and allowed for extravagant

an d wasteful spending. The beneficiaries were givenmoney to purc

hase houses, expen

siv e veh icles, and givenmoney beyond the amoun t re quested up to Five ThousandDollars ($5,000.00) per month. On e beneficiary even bought a pickup truck for her boyfriend. The record is replete with paymen

ts for expenditure

s far beyon

d what these ch ildre n needed for normal necessities and support. The Courtfeel s li ttl e em pat hy t ow ard the beneficiary who were immature and gree dy, but their immaturity and greed was the very reason that the deceased

set up a trust. He certainly had th e expectation that his decisions about the distribution of monies to his children would be h onored as he requested. These children lived better after his death than before, a n d received monies beyond what

they could have expected from their father. The Court is of the op in ion that the executr ix should b e surcharged One Hundred Twenty Thousa nd Dollars ($120,000.00) for payments mad e to the three adult beneficiaries ov er and above what was a ppropriate for t

heir “necessities and support.”

- - - --11- The administrator takes issue with the execu trix ’s purchase of a n ew a utomobile for Twenty Thousand, One HundredSeventy Nine

Dolla rs, a nd Twenty Th

ree Cents ($20,179.23), as well as, the salary out of the motel operating ac count totaling Forty

Thousand, Five H

undred Dolla

r s ($40,500.00) before the motel was closed. The Court agrees that the settlement agreement does not make exception to the general rule that one diss

e nting against the will cannot take under the will. The Court,

therefore, finds that

the executrix was n ot entitled to the pay ment for the car

of Twenty Thousand, One HundredSeventy-Ni ne Dollars, and Tw

enty Three Cents ($20,179.23) . She is to repay thi s amount. Her salary paid as an employee of the motel out of the mot el operating account was reasonable and was authorizedas part of her entitlemen

t to continue opera

ting the motel.

- - - - The fees paid

to Mr. Mondelli and to Mr. Paulus and Dearborn and Ewing prese

nt the most

difficulty related to the fees. (Payments

to Mondelli were $14,361.25 and Dearborn andE wing $4 8,345.99). The executrix bears the burden of proof as to these fees, an d the Court finds tha t the executrix has failed to

con vince the Court that all these fees were necessary and proper for the administration of the estate. Both Mr. Mondelli and Mr. Paulus werebeset by conflicts of interest (previous ly noted) an

d the executrix has f

ailed to convince this C our t that all fees were for the benefit of the estate. Mr. Paulus spent time engaged in advising the beneficiaries , and Mr . Mondelli spent time advising Ms. Burton Miller in

he r individual capa

city as she p

repared to claim her elective share and

dispute the prenup

tial agreemen

t. The Court thereforedisallows $2,000.00 of the Mondelli

fee and$8,000.00 of the Paulu s and D earbo rn and Ewing fee. In all other respects, these attorney fees are appr oved.

- - - - For the reasons stated above, the Court finds that the executrix is to resto re to the estate and is surcharged the amount of $150,179.23 for

improper distribut

io n to the beneficiaries and improper distribution to herself as well as excessive payment of

attorney fees. The Court further orders that interest be assess ed on this amount at six percent (6%) per annum from

March 1, 1990 to the present. See Pritchard § 862. Ms. Wade wil l compute this amount and submit an appropriate order.

In support of her fou

rthissue ( above) the execu trix states that the be

neficiaries sho

uld not be allowed to recover from her the excessive benefits they received from her. The present appeal relates to the efforts of the present administrator CTA to require the executrix to account for funds and property coming into her hands as such. This includes her reimbursement

of the-12-

estate of funds wrongfully expended by he r. Whatever rights she may have in respect to refunds from the adult heirs must be determined and enforced hereafter.

The executrix next insists tha t the excessive pay

ments made by her

to the adult heirs were within the bounds of

her discretion. This Court disagrees. The record contains ample evidence of payments to

the adult heirs which were clearly violated the express limitations of the will and trust.

Fin all y, the executrix alleges that the Trial Court charged her with expenditures the exact amount of which were approved when made by her immediate suc cessor, Sovran Bank. On May 15, 1995, the Probate Judge en te red a “Memorandum and Order,” on page 8 of which is the following: Th e d istribution to the beneficiaries by the

bank/administrator

was not consistent

withthe will and/or the bank’s fiduciary duty to the estate. On page 15 of the memo/order, the Court stated:

The Court, with some reservation, will give the bank th e benefit of the doubt and find that it would have been reasonable

to co ntinue payments suf ficient to pay

the adult beneficiaries income for

education and minimum necess ities, butno more. The bank will restore to the

estate and is surcharged

the amount of One Hundred Eighty Thousand Dollars ($180,000.00).
Even if a court errs in a f

inding as to the ac

ts of one party

during one peri

od of time, it is not thereby

estopped from a ma

king a more cor

rect finding in r

espect to another

party during
a different period of time. The holding as to the bank is not before this Cou rt i n this appeal. After appealing from the judgment, the bank made a compromise settlement which may or may notbe a credit against the surcharge of the executrix. The holding of the Probate Court in respec t to the executrix, which is before this Court, is approved.-13- Issues fir st s tat ed b y t he ad ministrator/appellee as A, B, C and D, quoted above, are simply a restatement

of the appellant’s issues in reverse. The above discussion of appellant’s issues is deemed a suffi cient response to

those issu es . However, as cross-appellant, the administrator presented four additional issues which must be discussed.
App aren tly, re l ying upon the agreements of the adult heirs to waive any negligence on her part (which defense this Court has rejected), the reply brief of the executrix has not addressed issues A, B, C and D presented by the administrator as cross-appellant relating to the mismanag

ement of t

he estate by the e xecutrix.

The first of sai d issues ch arges misman age ment by the refinancing and sale of the Rivergate Inn. At the death of deceased, the Inn was lease

d to an operator a

t a substantial rental which afforded the executrix/trustee ample funds for the reasonable needs of

the beneficiaries of the trust.
The executrix, witho

ut need to do so, sold

the Inn in

what is called a “leveraged deal.” The Trial Judge held th

at this “deal”

was mismanageme

nt resulting in loss

to the estate, and th

is Courtagrees. The nature of the “deal” was such that only experts in the field of finance

would be competent to asse

ss its wisdom. Richar

d Chambers and L

uriven Coomer, qua

lified experts, testified that the deal was improvident. The reasons given for these assessments were:

1. There were existing mortgages on the Inn at a fixed

rate of 9-5/8% interest and
a rate of payment which could be met within the rental income. As a par t of the deal, the mortgages were refin anced by borrowi ng a larger amou nt from Sov ran Bank at a “f loating” interest rate higher tha

n that of the previ

ous mortgages . The new, la rger, lo an included rig

hts
o f recourse against the estate and the executrix. The term of the loan was five y ears , durin g which time the pay

me nts were mostly consumed by interest. The e xpenses of the refinancing-14-

amountedto $13,870.45. Had the sale not taken place, the payments being made on the original mortgages would have reduced them by the a mount of $600,000.00.

The executrix sold the Innto Warren Johnson with a minimum down payment. Out of
a $2.8 million purcha

se price, the estate received only $58,644.58. The balance of t he purchase price was secured

only by a second mortga

ge which was sub

ject to, and secon

dary in preference to the first mortgage to Sovran. The interest pa id by the purcha ser on the se cond mortgage created an income tax liability (state and federal) upon the estate.

On September 1, 1989,

the purchaser d

efaulted and the

Inn was sold a

t a foreclosure sa

le for $900,000.00 to Sovra

n Bank which subse

quently sold

it at a private sal

e for $1,125,000.00. The estate received $45,109.33 as a result of the foreclosure.

The administrator C.T.A. claims that the es tate lost $1,002,500.00 as a result of the improvide

nt sale of the Inn by the e xecutrix.

The administrator C.T.A. sued his immediate prede cess or, the Sovran Bank, for mismanagement

and self-dealing and received a settlement of the liability of the

bank. To what extent, if any, the

amount so r eceived sho uld mitiga te the surch arge against the executrix does not appear in this record.

The administrator C.T.A. also questions the amount and propriety of fees paid to various att orn eys by the executrix. Fe es paid by a fiduciary should have the advance approval of the supervising cou

rt.

The administrator C.T.A. also claims a surcharge for penalties paid for

late payments of taxes, and for pay

ments to the executr

ix in excess of her re

asonable needs.-15- It does not appear t

hat the issues pre

sented by the

administrator C.T.A. were adequa tely litigatedby the parties and adjudged by the Trial

Court. Pursuant to T. C.A. § 3-128, the ca use must be remanded t

o the Trial Court fo

r further litiga

tion and adjudicat

ion of these issues
.

The rulings of the Trial Court challenged in the issues presented by the a ppellant and appellee are affirmed.

As to the ruli

ngs chall enged by the issues presented bythe counterappellant/administrator

C.T.A., the cause is remanded to the Trial Court for further litigation and adjudication. Costs of this appeal are taxed against the executrix personally, not to be credited to her in her final accou nting.

The order of the Probate Court from which this appeal is prosecuted is a ffirmed. Costs of this appeal are assessed against the executrix. The cause is remanded to the Probate Court for further appropr

iate proceeding

s. 

### AFFIRMED IN PART, REMANDED IN PART.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

_____________________________ WILLIA M C. KOCH, JR., JUDGE

_____________________________ WALTER W. BUSSART, JUDGE