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STATE OF MICHIGAN 

COURT OF APPEALS 

In re Estate of HORNAK. 

JAMES P. BOARDMAN, Personal Representative 

of the Estate of VIVIAN G. HORNAK, F. RON 

HORNAK, KIRK AMMAN, Former Personal 

Representative of the Estate of VIVIAN G. 

HORNAK, KEITH AMMAN, CRAIG HUFF, 

AARON TITHOF, BRYAN TITHOF, and AMY 

WAUBEN, 

 Appellees, 

UNPUBLISHED 

April 23, 2015 

v No. 319955 

Saginaw Probate Court 

KENNETH J. HORNAK, LC No. 10-125981-DE 

 Appellant. 

Before: OWENS, P.J., and JANSEN and MURRAY, JJ. 

PER CURIAM. 

 Appellant Kenneth Hornak appeals as of right the decision of the probate court that (1) 

overruled all of appellant Kenneth Hornak’s objections to appellee Kirk Amman’s and appellee 

F. Ron Hornak’s petitions to allow accounts and payment of attorney fees, and (2) affirmed its 

prior order allowing those accounts and attorney fees. The court also allowed appellee James 

Boardman’s final account and closed the estate. Appellant and appellee F. Ron Hornak are 

brothers and the sons of the decedent, Vivian Hornak. We affirm. 

I. FACTUAL BACKGROUND 

 In addition to her sons, appellant and appellee F. Ron Hornak, the decedent was survived 

by grandchildren from two daughters that predeceased her. One of these grandchildren is 

appellee Amman. The decedent left a will that was admitted to probate which included a 

specific devise of an 80-acre parcel of land and accompanying fixtures to appellee Amman. The 

remainder of her property was to be distributed “one share for each child of mine who survives 

me and one share for the decedents, per stirpes of each child of mine who fails to survive me.” 

Appellant thereafter produced four unrecorded deeds, two from 2010 that deeded all of the 
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decedent’s property solely to him, and two from 2004 that deeded all of the decedent’s property 

to her and appellant jointly with “right of sole survivorship.” Those deeds were eventually set 

aside by the probate court, which determined that appellant was judicially estopped from 

asserting their validity because he had failed to disclose the deeds in bankruptcy schedules when 

he filed for Chapter 13 bankruptcy. We affirmed the probate court’s decision to set aside the 

deeds in In re Estate of Hornak, unpublished opinion per curiam of the Court of Appeals, issued 

July 5, 2012 (Docket No. 301912). 

 Following this Court’s decision, an LLC was formed that was owned by all the heirs 

accounted for in the decedent’s will with the exception of appellant, for the purpose of 

transferring most of the real property to the LLC. As of May 21, 2013, all of the decedent’s 

property had been transferred to the LLC with the exception of a 70-acre parcel that had yet to be 

resolved. On September 4, 2013, the probate court entered an order approving a settlement 

agreement signed by all the heirs to the decedent’s will that provided as follows: 

 All real estate remaining in the ESTATE OF VIVIAN G. HORNAK, 

DECEASED, namely a 70.58 acre parcel on Ditch Road, Chesaning, Michigan 

shall be deeded by the personal representative to HORNAK FARMS, LLC. 

HORNAK FARMS, LLC shall then deed 50 acres of the parcel as identified by 

KENNETH HORNAK to him, free of any security interest for attorney fees and 

expenses, as soon as a land division application has been approved by Chesaning 

Township. 

As further part of the settlement, appellant agreed to waive any and all claims against the estate 

or remaining heirs, and they agreed to waive any and all claims against him. Appellee Boardman 

submitted a quitclaim deed, deeding the 70.58 acres to the LLC on October 22, 2013. 

 Prior to settlement, appellee Amman had filed a petition to allow accounts for the time he 

had spent as personal representative of the estate. Appellant objected. Appellee F. Ron Hornak 

then filed a petition to allow payment of his attorney fees. Appellee Boardman filed a response, 

asking the probate court to take the petition under advisement until all expenses, costs, and fees 

allowable to be paid by the estate had been determined. Thereafter, appellant submitted a 

response to appellee F. Ron Hornak’s petition, asking that it be denied. A hearing on appellee F. 

Ron Hornak’s petition was held on November 12, 2013. The court decided to take the matter 

under advisement because appellee Boardman could not be present and because the court wanted 

more information on the total amount of expenses and claims. 

 Appellee Boardman filed a petition to allow accounts on December 4, 2013, asking for 

allowance of his final account, for his attorney and fiduciary fees, and for the estate to be closed. 

The probate court entered an order on December 9, 2013, allowing the account of appellee 

Amman and the attorney fees of appellee F. Ron Hornak. Subsequently, appellant filed an 

objection to appellee Boardman’s petition for an accounting and closing of the estate, arguing in 

part that the estate should not be closed until he received a check for crops that had been 

harvested on 50 acres of the estate that was to be deeded to him as part of the settlement. 

Appellant then filed an amendment to his previous objection to the petition of appellee Amman, 

asking for an evidentiary hearing. At the hearing held on the matter, the probate court reiterated 
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that it had already held an evidentiary hearing on this matter. The court denied and dismissed 

appellant’s amended objection. 

 A hearing was thereafter held on appellee Boardman’s petition. Appellee Boardman 

explained that the harvested crops appellant wanted money from were part of a sharecrop 

agreement with a farmer named Schneider. Appellant neither disputed this at the hearing nor 

does he dispute it in his briefs filed with this Court in the present appeal. Appellee Boardman 

stated that all that remains is for the LLC to deed the 50 acres to appellant. Appellee F. Ron 

Hornak’s attorney stated that the LLC was prepared to deed the 50 acres as soon as appellant 

submitted a division of 50 acres that would be approved by the township. Appellee F. Ron 

Hornak’s attorney stated that the one division appellant had already requested would have left 

the LLC a landlocked parcel and that the township “basically laughed at it.” 

 The probate court found that the agreement did not have any separate provision regarding 

the disputed harvested crops. The court also found that because the property belonged to the 

LLC and not the estate, the decedent’s will did not control that distribution. The court found that 

appellant had agreed as part of the settlement to waive any and all claims against the estate. The 

court approved the fiduciary and attorney fees and any other distributions set forth in its previous 

rulings. The probate court also entered an order stating that all of appellant’s objections were 

overruled and allowing the accounts and attorney fees of appellee Amman and appellee F. Ron 

Hornak. The same day, the court entered an order allowing the personal representative’s final 

account, discharged the personal representative, and closed the estate. 

II. STANDARD OF REVIEW 

 This Court reviews findings of the probate court, when it sits without a jury, to determine 

whether or not they are clearly erroneous. In re Bennett Estate, 255 Mich App 545, 549; 662 

NW2d 772 (2003). “A finding is clearly erroneous when a reviewing court is left with a definite 

and firm conviction that a mistake has been made, even if there is evidence to support the 

finding.” Id.

III. ANALYSIS 

 Appellant argues that he is entitled to cash from the grain harvest on part of the 70 acres 

that was the subject of the settlement agreement. Because the agreement gave him 50 of the 70 

acres, he argues, cash from the grain harvested on 50 acres of the land belongs to him. A 

necessary assumption of this argument is that growing crops are part of the real property that 

passes with a conveyance of the land. As support for his argument, appellant cites Blough v 

Steffens, 349 Mich 365; 84 NW2d 854 (1957). 

 In Blough, the owner of real property had entered into an agreement with a third party to 

have the third party cultivate and grow crops on the owner’s land, and in exchange the third party 

would receive 2/3 of the crop and the owner would receive 1/3. Id. at 367. Prior to the harvest 

the owner sold the real property to the defendant, who thereafter refused to allow the third party 

access to harvest the crop. Id. at 367-368. The trial court and the Supreme Court determined 

that the defendant had express notice that the prior owner and the third party had entered the 

sharecrop agreement and there was an “oral understanding to reserve the corn crop entered into 
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prior to the sale of the farm.” Id. at 369-370. The court cited in support of its decision the 

following passage from 15 Am Jur, Crops, § 13: 

 “The common-law rule that growing crops pass with the title to the land 

upon a conveyance thereof in fee by one who owns both the crops and the land 

assumes the absence of a reservation of the crops. The modern authorities hold 

that an effectual reservation of an annual crop may be made and established by 

parole without violating the statute of frauds or the parole evidence rule. A 

reservation of the natural products of the earth, however, must be in writing.” [Id. 

at 371.] 

 Appellant argues that it was both the presence of a sharecrop agreement and an oral 

notice of that sharecrop agreement in Blough that served to sever the crops from the real estate. 

He argues, accordingly, that in the absence of an oral reservation, growing crops on conveyed 

property follow the conveyance and that, therefore, he should receive the profit from the 

harvested crops. Appellant’s argument misperceives the facts of Blough. The Supreme Court 

did not find that there was an express oral reservation, merely that the purchaser had knowledge 

of a sharecrop agreement and that this knowledge created “an oral understanding” that the crops 

were severed from the realty. Id.

 This Court has also determined that a “Christmas tree crop was constructively severed 

from the real estate” by way of an agreement that third parties “had a right of entry to spray, 

prune, care for, as well as to harvest and remove” the trees. Groth v Stillson, 20 Mich App 704, 

706-707; 174 NW2d 596 (1969). When the land on which the trees were growing was sold, the 

trial court found that the purchasers “had notice of the sale of the trees to third parties prior to 

their deed.” Id. at 706. Noticeably absent from the facts in Groth is a specific reservation of the 

trees in the deed between the buyer and seller. See id. at 705-706. What the Groth Court 

focused on was the fact that the seller and the third parties considered the trees a crop and that 

the buyers of the real property had notice of the sale of the trees prior to receiving the deed. Id.

at 706. 

 Consistent with caselaw, we conclude that the sharecrop agreement with farmer 

Schneider severed the crops from the realty and required that they be treated as goods or personal 

property, not as part of the realty. See Blough, 349 Mich at 374; Groth, 20 Mich App at 706-

707. It is not important that the crops were not orally reserved. What is important is that 

appellant had knowledge of the sharecrop agreement at the time he entered the settlement 

agreement. See Blough, 349 Mich at 369-370, 373-374; Groth, 20 Mich App at 706-707.1

 Appellant also argues that the probate court erred by issuing an order allowing appellee 

F. Ron Hornak’s petition for attorney fees and appellee Amman’s petition for personal 

representative fees before a scheduled hearing on December 17, 2013. He is arguing, essentially, 

 

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 Additionally, even if appellant’s argument that growing crops pass to the owner of the real 

estate is accepted, he does not yet own the real estate. While he has an interest in the property by 

means of the settlement agreement, the current title owner is the LLC. 
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that his procedural due process rights were violated. “The fundamental requirement of due 

process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” 

Matthews v Eldridge, 424 US 319, 333; 96 S Ct 893; 47 L Ed 2d 18 (1976), quoting Armstrong v 

Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 2d 62 (1965). This requires that parties be 

given notice and an opportunity to present their objections. Sidun v Wayne Co Treasurer, 481 

Mich 503, 509; 751 NW2d 453 (2008). 

 The probate court record shows that appellee Amman submitted his petition to allow 

accounts on August 7, 2013, and that appellee F. Ron Hornak submitted his petition for attorney 

fees on October 16, 2013. Appellant was able to file written responses to both petitions prior to 

the probate court’s December 9, 2013 order. While a hearing held on November 12, 2013, 

primarily concerned appellee F. Ron Hornak’s request for attorney fees, the record shows that 

the Court inquired about the fees of appellee Amman as well. Additionally, when asked to 

present arguments, appellant’s attorney simply referred the probate court to the arguments he 

presented in his written responses. The probate court took the matter under advisement only 

because it still needed to hear from appellee Boardman. 

 Despite the opportunity given at the November 12, 2013 hearing, the probate court 

listened to the objections of appellee on this issue during the December 17, 2013 hearing. 

Accordingly, appellant was given “the opportunity to be heard ‘at a meaningful time and in a 

meaningful manner.’ ” His due process rights were not violated. 

 Affirmed. 

/s/ Donald S. Owens 

/s/ Kathleen Jansen 

/s/ Christopher M. Murray