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Date: 03-01-2017

Case Style: In the Matter of the Estate of Leonard P. Clark, Deceased

Case Number: A158411

Judge: Egan

Court: Oregon Court of Appeals on appeal from the Circuit Court, Washington County

Plaintiff's Attorney: Zachariah H. Allen for Dalton Hobbs, et al.

Defendant's Attorney: Bruce L. Campbell for Robert B. Harrington, et al.

Description: Dalton Hobbs, as personal representative for his
mother Thelma’s estate (Dalton), appeals from a judgment
of final distribution of the estate of his step-father, Leonard
Clark (the decedent).1 Respondents Downie and Evans are
the decedent’s daughters, and respondent Harrington is the
personal representative of the decedent’s estate. Dalton contends
that the probate court erred in declining to address
a request for partial distribution that had been filed by
Thelma during her lifetime, before entering the judgment
of final distribution. In reviewing the probate court’s judgment,
we are bound by the court’s factual findings in the
record if there is evidence to support them, and we review
legal questions for errors of law. ORS 111.105(2) (“Appeals
from a circuit court sitting in probate shall be taken to the
Court of Appeals in the manner provided by law for appeals
from the circuit court.”); Bigsby v. Vogel, 248 Or App 423,
425, 273 P3d 284 (2012).2 We conclude that the court did not
err and therefore affirm.
The facts on which the probate court based its judgment
are primarily procedural and are not disputed. The
decedent’s will created two revocable trusts upon his death.
The first trust, Thelma’s Trust, was exclusively for the benefit
of Thelma, his surviving spouse. Thelma’s Trust was to
be funded after the decedent’s death. The will directed the
greater portion of the decedent’s estate to Thelma’s Trust. All
of the income from Thelma’s Trust was to be paid to Thelma
at least annually. The trust permitted Thelma to appoint
the trust’s remainder beneficiaries. Thelma appointed her
sons, Dalton and Mitchell, as the remainder beneficiaries of
Thelma’s Trust.
The decedent’s will also created the Decedent’s
Trust, which was to be funded after the decedent’s death
1 Dalton and Mitchell Hobbs are also named as appellants in their individual
capacities, but the only arguments on appeal are made by Dalton in his capacity
as personal representative of Thelma’s estate.
2 Formerly, this court reviewed probate court proceedings de novo. Adams v.
West Coast Trust, 266 Or App 83, 338 P3d 171 (2014), rev den, 356 Or 689 (2015).
Now, de novo review is discretionary in most equitable cases, like this one. ORS
19.415(3)(b).
128 Hobbs v. Harrington
with the maximum amount of the remainder of the decedent’s
estate that could pass free of federal estate tax. The
Decedent’s Trust was to be managed by a trustee who would
have the discretion to distribute income from the Decedent’s
Trust to Thelma for her proper care and support. The decedent’s
daughters were the remainder beneficiaries of the
Decedent’s Trust.
After the decedent’s death in June 2010, the decedent’s
will was admitted into probate, and Harrington was
appointed as personal representative. Thelma requested
that all documents relating to the estate be served on her
attorney. In May 2012, the estate made a partial distribution
to Thelma’s Trust of estate assets totaling $5.9 million.
In July 2013, Thelma’s attorney filed a petition for a second
partial distribution on Thelma’s behalf. The petition sought
to have the estate distribute to Thelma all of the estate’s
accumulated income, and distribute to Thelma’s Trust
shares of stock that the estate had acquired in “Rainier
Distribution, Inc.” Harrington requested that the court not
act on Thelma’s petition for partial distribution without first
holding a hearing. Thelma’s attorney did not request a hearing,
and the court did not take any action on the petition for
partial distribution.
In November 2013, Harrington filed a final accounting
and a petition for general judgment and final distribution,
and served all parties entitled to notice, including
Thelma and her attorney. The proposed final distribution
distributed to the Decedent’s Trust the shares of stock from
Rainier Distribution and accumulated income of the estate,
contrary to Thelma’s petition for partial distribution.
Harrington, as personal representative for the
decedent’s estate, required that any objections to the final
accounting be filed no later than November 26, 2013. Neither
Thelma nor her attorney objected to the final accounting.
But Dalton and Mitchell did object, explaining that they
were interested in the disposition as the children of the
decedent’s surviving spouse and the remainder beneficiaries
of Thelma’s Trust.
At a hearing to consider the final accounting and
distribution, the probate court declined to consider Dalton’s
Cite as 284 Or App 125 (2017) 129
and Mitchell’s objections brought in their individual capacities,
ruling that the brothers lacked standing.3 In light of
the court’s refusal to consider their objections, their attorney
asked the court to resolve Thelma’s petition for partial
distribution, which had sought a distribution of the disputed
shares of stock and the accumulated income. It is undisputed
that Thelma had died on January 2, 2014, after the deadline
for filing objections to the final accounting but before the
hearing, and that Dalton had been appointed as personal
representative of her estate. Dalton’s attorney sought to substitute
Dalton, as personal representative, for Thelma, and
contended that the court was required to resolve the issues
raised by Thelma’s petition for partial distribution before
addressing the final accounting and distribution. The court
concluded that the final distribution superseded and obviated
the need to address the petition for partial distribution,
and entered the judgment of final distribution.
On appeal, Dalton, as personal representative of
Thelma’s estate, argues that the probate court erred in
declining to address the merits of Thelma’s petition for partial
distribution before considering the final distribution. We
begin our analysis with the relevant statutes. ORS 116.013
relates to petitions for partial distribution and provides:
“Upon petition by the personal representative or other
interested person, and after such notice and hearing as
the court may prescribe, the court may order the personal
representative to distribute, prior to final settlement and
distribution, property of the estate to the person or persons
who would be entitled to the property under the will
or under intestate succession on final distribution[.]”
Under ORS 116.013, after notice and a hearing “as the court
may prescribe,” the court “may order” the personal representative
to make a partial distribution of estate property
“prior to final settlement and distribution.” The statute
gives the probate court discretion to make a partial distribution
before the estate is closed. See State v. Summers, 277
3 The court reasoned that Dalton and Mitchell lacked standing in their individual
capacities because, as of the deadline for filing objections, their interests
in the estate were as remainder beneficiaries of Thelma’s Trust. Because Thelma
was still alive and the trust was revocable, the court concluded that the brothers’
interests had not yet vested. That ruling is not challenged on appeal.
130 Hobbs v. Harrington
Or App 412, 418, 371 P3d 1223, rev den, 384 Or 156 (2016)
(statute describing sanctions that the court “may order” for
violation of discovery statutes conferred “broad discretion”
on trial court). But any partial distribution authorized by
the court is subject to reconsideration; the court may order
that it be returned to the estate if required for payment of
claims or expenses of administration. ORS 116.043.
When the personal representative files a final
accounting and petition for a judgment of distribution, the
personal representative also fixes a time for filing objections
to the final accounting and petition, and notifies each heir,
devisee, and creditor of the time fixed for filing objections.
ORS 116.093(1). ORS 116.103 provides:
“Any person entitled to notice under ORS 116.093 may,
within the time fixed for the filing, file in the estate proceeding
objections to the final account and petition for distribution,
specifying the particulars of the objection. Upon
the filing of objections the court shall fix the time for hearing
thereon.”
As we held in Adams v. West Coast Trust, 266 Or App 83,
98-99, 338 P3d 171 (2014), rev den, 356 Or 689 (2015), the
time set by the personal representative under ORS 116.093
for filing objections to the final accounting controls. If no
objections are filed by that date and the probate court
approves of the final accounting, the court enters a judgment
of final distribution. ORS 116.113. A judgment of final distribution
is the “conclusive determination of the persons who
are the successors in interest to the estate and of the extent
and character of their interest therein.” ORS 116.113(4).
There is no contention on appeal that there were
irregularities in the procedures leading up to the hearing
on the final accounting and petition for judgment of distribution.
Dalton’s four assignments of error all derive from his
view that the court should have resolved Thelma’s petition
for partial distribution before considering the final accounting
or entering a judgment of distribution.
Respondents challenge Dalton’s standing to appeal
the probate court’s judgment. They point out that Thelma,
who had been represented by an attorney during the probate
proceedings, did not file any objection to the final accounting
Cite as 284 Or App 125 (2017) 131
and that, after Thelma’s death, there was no motion under
ORCP 34 G (describing procedures for substitution of parties)
to substitute Dalton in his capacity as personal representative.
Dalton responds that the probate court in fact
ruled from the bench that he could appear in his capacity
as personal representative of Thelma’s estate for the purpose
of asserting that the petition for partial distribution
should be addressed. It is not clear to us from the record
whether the court ruled on Dalton’s requested substitution.
The court nonetheless did address the merits of Dalton’s
contention that it should dispose of the issues raised by
Thelma’s petition for partial distribution before entering a
final judgment of distribution. In rejecting the contention,
the court concluded that the petition for partial distribution
was “trumped” by the final accounting and distribution.
Assuming that the probate court in fact allowed
Dalton to appear in his capacity as the personal representative
of Thelma’s estate and that Dalton had standing in
that capacity, we conclude that there is no support in either
the statutes or the case law for Dalton’s contention that the
probate court erred in concluding that it did not need to
address the issues raised in the petition for partial distribution.
ORS 116.013 allows a probate court to make a partial
distribution “prior to final settlement and distribution”
but, as we have explained, the probate court’s authority to
make a final distribution is discretionary. There has been no
showing that the probate court abused its discretion here in
declining to resolve the petition. Country Casualty Ins. Co.
v. Villa-Chavez, 228 Or App 677, 682, 208 P3d 1036 (2009)
(court’s application of statute “couched in permissible terms”
reviewed for abuse of discretion).
Additionally, as the probate court correctly explained,
the petition for judgment of final distribution superseded
the petition for partial distribution.4 The probate court was
correct, because the judgment of final distribution designates
“the persons in whom title to the estate available for
4 The probate court characterized the issues raised in the petition for partial
distribution as having become “moot,” and Dalton disputes the correctness of that
characterization. We understand the probate court’s use of the term “moot” to
express the court’s conclusion that the petition for final judgment of distribution
superseded the petition for partial distribution.
132 Hobbs v. Harrington
distribution is vested and the portion of the estate or property
to which each is entitled.” ORS 116.113(1). Thus, the
judgment of final distribution made the final distribution of
all of the estate assets, including the assets that were the
subject of the petition for partial distribution. After the filing
of the final accounting and petition for a final judgment
of distribution, Thelma could have raised the same issues
raised in the petition for partial distribution by objecting to
the final accounting by the deadline established by the personal
representative, and the probate court would have been
required to hear them. ORS 116.103 (“Upon the filing of
objections the court shall fix the time for hearing thereon.”).
But, in the absence of a timely filed objection by a party with
standing to object, the court was not required to consider
those issues before entering the judgment of final distribution.
Adams, 266 Or App at 98-99.

Outcome: Affirmed.

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