Zbigniew S. Rozbicki v. Eugene Gisselbrecht, Executor et al. (2013)

MEMORANDUM OF DECISION

Preliminary Statement

This probate appeal arises out of the determination of the Probate Court (Blick, J.) regarding the amount of fees and compensation owed to the plaintiff as the former executor of the Estate of Kathleeen Gisselbrecht.   Plaintiff, Zbigniew S. Rozbicki, in his proposed final accounting to the probate court sought certain attorney and fiduciary fees.   The defendant Executor of the estate objected to the requests and petitioned for several surcharges against the plaintiff.   The Probate Court awarded a lesser amount of fiduciary and attorneys fees than was requested and granted several of the requested surcharges.   Plaintiff appealed to this court and a trial de novo was conducted over the course of several days in May 2013.   At the trial, the court heard from several witnesses and received a number of exhibits into evidence.   Thereafter, the parties submitted post-trial memoranda on June 24, 2013.²  The court has reviewed the evidence admitted, the testimony provided, the arguments advanced in the parties' briefs, the cases and authority cited therein and renders this decision after consideration of all of these items.³

FACTS

“In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ․ It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.”  (Citations omitted;  internal quotation marks omitted.)  Cadle Company v. D'Addario, 268 Conn. 441, 462 (2004).   The court makes the following findings of fact.

Kathleen Gisselbrecht, hereinafter “the decedent” died on April 17, 2007 after a difficult battle with cancer.   Prior to her death, she had worked for many years at the plaintiff's law offices.   She was both employee of, and dear friend to, the plaintiff.   She had helped the plaintiff and his family many times over the years out of friendship and affection.   It was clearly mutual.   Indeed, the plaintiff provided $20,000.00 to the decedent to help her purchase her home.

The decedent identified the plaintiff as the Executor of her Will, which was dated November 3, 2000 and admitted into probate following her death.   In accordance with the terms of her will, the plaintiff was appointed Executor to the estate in November 2007.

At that time, the plaintiff enjoyed a friendly and longstanding relationship with many of the decedent's family members, the beneficiaries under the will and individual defendants herein.⁴  As was his obligation, plaintiff undertook to identify, inventory and collect the estate assets.   He made arrangements for the purchase of a suitable headstone and maintained correspondence with the beneficiaries as to his activities.

At the time of her death, the decedent had a life insurance policy with a stated benefit of $100,000.   Article III of the Will references this policy and provided:

I hereby direct that the proceeds from my Allstate life insurance policy in the original amount of $100,000 be used to pay the remaining balance owing on my mortgage at 40 Ridgebrook Road, Torrington Connecticut.   I further direct that the sum of $20,000.00 be paid from these proceeds to ZBIGNIEW S. ROZBICKI, of Torrington, Connecticut, representing reimbursement for funds advanced to me for the purchase of said real estate.

However, the policy itself named Anne Marie Rozsas, the decedent's sister, and her brother Edward Gisselbrecht as the beneficiaries of the policy.   As a result, the insurance proceeds were outside the estate.   In light of these designations, with the assistance of the plaintiff, the insurance proceeds were distributed to Ms. Rozsas and Mr. Edward Gisselbrecht in June 2007.

Thereafter, on August 30, 2007, the plaintiff demanded a return of the insurance proceeds to the Estate.   In response, Ms. Rozsas, by letter dated September 7, 2007 explained that the decedent had changed the beneficiary designation on the life insurance policy because her home had sufficient equity to cover any debts.   Thereafter, the plaintiff circulated a document for signature to each beneficiary indicating that they waived any claim to the life insurance proceeds through the estate.⁵  The document was signed by all those for whom a signature line had been prepared.⁶

In addition, Philip Falzarano, the ex-husband of the decedent's niece Christina Falzarano and a named beneficiary, sent the plaintiff a letter in which he released any claim he may have in the estate to Christina.   Having received the requested signatures and the letter from Philip Falzarano the plaintiff advised the beneficiaries by letter dated January 21, 2008 that the last bills had been paid and the estate could be finalized.   Also around this time, in December 2007, the plaintiff removed $20,000.00 from the Estate as repayment of the loan referenced in the decedent's will.   He made this payment to himself without notice to the beneficiaries and without approval of the Probate Court.⁷

In February 2008, the plaintiff filed an Application for Approval of Payments with the Probate Court.   The Application for Payment included a request that the plaintiff receive certain funds owed to him as a result of a personal injury action brought by the decedent for which plaintiff was her lawyer.   The heirs were theretofore unaware of this debt having had no prior discussions with the plaintiff about this fee and so questioned the propriety of the application.⁸  The beneficiaries also thought it odd that the plaintiff offered to reduce the fee if there was no challenge to it made in the probate court.   At this point, the relationship between the heirs and the plaintiff began to sour quickly.   The tenor of the correspondence from the plaintiff moving forward became critical, hostile and arguably intimidating.   His resentment of the family members for challenging this fee was palpable at trial and appears to this court, to have influenced the decisions he made as executor from that point forward.

Within days or weeks of learning that the beneficiaries would contest his request for a legal fee, the plaintiff revived the notion that the insurance proceeds should be returned to the estate and distributed in accordance with the will.   That this change in posture was retaliatory is abundantly clear.   The plaintiff alone maintained the position that the insurance proceeds should pass through the estate.   He demanded the return of the funds and threatened litigation if repayment was not forthcoming.   None of the decedent's beneficiaries undertook to advance that position and indeed were not interested in pursuing any entitlement to the insurance proceeds.

In approximately April 2008, the beneficiaries of the decedent's estate hired counsel to represent them in their dealings with the plaintiff.

In August 2008, the plaintiff commenced a lawsuit in the Superior Court in which he sued Ms. Rozsas and Mr. Gisselbrecht for return of the life insurance proceeds.   At this juncture, the plaintiff was operating in contravention to the wishes of the beneficiaries;  was openly hostile to their respective positions and was clearly pursuing a personal vendetta against the decedent's family members.⁹  While he testified as to his good faith belief in the bona fides of this lawsuit and that he felt it was his obligation to the estate to pursue such litigation, his testimony on this issue was simply not credible.   Regardless the conflicting positions as to the merits of the lawsuit,¹⁰ its purpose was not to vindicate rights the estate may have had, but was designed to punish, harass and annoy the decedent's family members.

Eventually, the plaintiff was removed as executor of the estate for cause on June 10, 2009.   The newly appointed executor promptly withdrew the lawsuit, despite plaintiff's efforts to block that process.   When removed, the plaintiff was ordered to prepare an accounting of the estate and to submit the accounting in November 2009.   Five times an accounting was submitted.   Five times it was not accepted insofar as it had errors, omissions, or was otherwise incomplete or non-compliant with the probate court rules of practice and procedure.   Ultimately, the probate court, though finding the final accounting unacceptable, noted that there was no claim or indicia that any estate assets were unaccounted for and so did not require any further effort on the part of the plaintiff to correct any still existing errors.   The court addressed the various claims for payment by the plaintiff as well as claims for surcharge sought by the then executor.   This court tried de novo those claims.

Additional factual findings will be set forth herein as necessary.

DISCUSSION

Before discussion of the legal principles to be applied to this appeal, it is, in the court's view, necessary to identify what is and what is not on appeal before this court.   In this action, the plaintiff has appealed the memorandum of decision and decree on the “APPLICATION FOR ACCEPTANCE OF THE REMOVED EXECUTOR'S FINAL ACCOUNT and PETITION FOR SURCHARGE” dated August 13, 2010.   The issues decided in that memorandum and challenged on appeal, and only those issues, were tried de novo in this action.   See, Silverstein's Appeal From Probate, 13 Conn.App. 45, 52–55 (1987).

However, the plaintiff had previously appealed the probate court's order and decree that he be removed as executor.   That case and the issues associated therewith are not decided herein.   Additionally, the plaintiff was the subject of disciplinary proceedings arising out of his conduct in connection with this estate.   The court's findings and the plaintiff's suspension are presently on appeal and the issues decided by Judge Upson are not decided herein.   Further, the plaintiff sued the executor for a return of the $20,000.00 loaned to the decedent.   That case was determined by way of summary judgment in favor of the estate.   The issues presented and decided in that case are not decided herein.   Finally, the merits of the lawsuit commenced by the plaintiff against two of the decedent's family members to recoup the insurance policy proceeds are not decided herein.   Much testimony was offered in which the outcomes in all of these matters was challenged by the plaintiff.   Although the complaint and the plaintiff's memoranda are difficult to follow, plaintiff makes repeated reference to these other issues and appears to contest the substantive outcome of the proceedings at issue.   The court repeatedly rejected any effort to re-litigate those claims in this forum.   The court did take judicial notice of the court's files in those cases but does not, in so doing, adopt the various factual findings made therein.¹¹  The court does not need to adopt those findings because the court does not need any of those findings to adjudicate the claims brought in this appeal.   This appeal is limited to the probate court's determination on the final account and the estate's claimed surcharges.   While the circumstances surrounding the administration of the estate, as factual matters, overlap to all of these claims, the determination made by this court is based upon the evidence presented and does not rely upon factual findings made in a different forum or before a different tribunal.

In Connecticut, generally, any person aggrieved by an order or decree of the probate court may appeal the order or decree to the Superior Court.   See, Conn. Gen.Stat. § 45a–186.   Such persons are required to attach a copy of the probate court decision from which the appeal was taken.   Plaintiff complied with this requirement.   Further, plaintiff is an aggrieved party insofar as he is the former executor of the decedent's will and it is his final account and his entitlement to fees which is the subject of the decree from which an appeal is taken.

An appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․

The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo ․ Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.  (Citations omitted;  internal quotation marks omitted.)

Sandford v. Metcalfe, 110 Conn.App. 162, 167–68, cert. denied, 289 Conn. 931 (2008).

The appeal from probate does not vacate the decree appealed from, nor does it ‘lift’ or surrender the entire matter from the Probate Court into the Superior Court for further proceedings ․ ‘On the contrary, it leaves the matter as it was in the Probate Court, there to be continued with and completed according to law, presenting in the meanwhile to the Superior Court for redetermination, after a retrial of facts, the special and limited issues embraced within the particular decree appealed from.   It follows that the Superior Court ․ may not consider or adjudicate issues beyond the scope of those proper for determination by the decree being attacked.’

(Citation omitted.)  Silverstein's Appeal From Probate, 13 Conn.App. 45, 52–53 (1987).

THE CLAIMS ON APPEAL

The plaintiff seeks the following by way of compensation for his services rendered as executor of the estate from November 2007 through his removal in June 2009:

Executor fees for services to the estate administration:  $38,417.50

Attorney fees for services rendered for the bringing of the lawsuit to collect the insurance policy proceeds:  $22,605.00

Attorney fees for services rendered in the sale and closing of the decedent's real property and related matters:  $2,860.00

The estate seeks the imposition of several surcharges for items already paid out of the estate at the direction of the plaintiff while he was executor.   These include:

Superior Court Filing Fee incurred upon the filing of the lawsuit against two of the beneficiaries to recover insurance policy proceeds:  $225.00

James E. Townsend's Attorneys Fees:  $2,000.00

Research fee by Attorney William Barrante:  $623.00

Transcript of Ms. Rozsas testimony in the grievance proceeding:  $764.97

Various filing fees incurred in the Probate Court:  $665.00

Each request will be addressed below.   As the former executor submitting the final account, the plaintiff bears the burden of establishing not only his entitlement to these fees but also that the expenditures were appropriate and should therefore be paid by the estate.  French v. Oberratter, 157 Conn. 181, 192 (1968);  Reilley v. Healey, 124 Conn. 216, 222 (1938).

The Fiduciary Fee of $38,417.50

“An executrix has a fiduciary responsibility to maintain an undivided loyalty to the estate;  ․ and must diligently represent the rights of the heirs and distributees and also those of creditors.”  Cadle Company v. D'Addario, 268 Conn. 441, 461 (2004).  “[T]he executor's primary duty is to the estate itself, and to fulfilling the intentions of the decedent with respect to the estate.   Only secondarily is the executor's duty to those with conflicting interests in the estate, vis-a-vis the decedent, with whom, nevertheless, the fiduciary is obligated to deal fairly” i.e. creditors.  (Citation omitted.)  Id. “The general rule as to the duty of the executor is that he must exercise due diligence in the light of particular circumstances surrounding the administration of his estate.”  (Citations omitted).   McGovern v. Appeal from Probate, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV97–0348895 (September 9, 2003, Doherty, J.).

Thus, an executor may incur reasonable expenses taken on in good faith in furtherance of the interests of the estate and those obligations will be paid by the estate.   However, obligations incurred as a result of “positive misconduct or a violation of duty on his part” are not allowed.  Hewitt v. Beattie, 106 Conn. 602 (1927);  Robbins v. Wolcott, 27 Conn. 234 (1858).

In Connecticut, “an executor, administrator, trustee or guardian is entitled to a reasonable compensation for his services, depending upon the circumstances of the case.”  Hayward v. Plant, 98 Conn. 374, 384 (1923).  “In Hayward, our Supreme Court set forth nine factors for the trial court to consider when determining the reasonableness of such compensation:  (1) the size of the estate;  (2) the responsibilities involved;  (3) the character of the work required;  (4) the special problems and difficulties met in doing the work;  (5) the results achieved;  (6) the knowledge, skill and judgment required of and used by the executors;  (7) the manner and promptitude with which the estate has been settled;  (8) the time and service required;  and (9) any other circumstances which may appear in the case and are relevant and material to this determination.  Id., at 384–85,” which factors are of equal applicability today.  McGrath v. Gallant, 143 Conn.App. 129, 134–35 (2013).   Insofar as this matter was heard as a trial de novo, the court must apply the factors set forth in Hayward and make “an independent determination, with regard to the result reached by the probate court.”  Andrews v. Gorby, 237 Conn. 12, 16 (1996).

This estate was neither large nor complicated.   The compilation of the decedent's assets and the satisfaction of her creditors was not difficult.   Indeed, by January of 2008, mere months after the will was submitted to probate, the plaintiff announced the bills were all paid and the plaintiff was prepared to finalize the estate.   Yet here the parties are, almost six years later, due in large measure to plaintiff's conduct and his efforts to keep the estate and the beneficiaries involved in endless litigation.   Indeed, after February 2008, the plaintiff engaged in conduct not to promptly settle the estate but to prolong, delay and deplete the estate.   The limited filings the court had to review reflect improper and/or error riddled accountings.   The plaintiff achieved few “results” for the estate, save for selling the real property and gathering the assets.   The “plusses” obtained as a result are, however, far outweighed by the detriment caused to this estate by the plaintiff's course of conduct beginning in February 2008 and continuing through trial of this matter.

Despite the plaintiff's failings in regards to his role as executor, he submitted a fiduciary fee bill which represents in excess of 10% of the gross value of the estate.¹²  The bill is admittedly incorrect, insofar as it includes some items that are “double billed.”   Yet plaintiff makes no effort to identify which entries should be taken out of consideration and merely leaves the issue to the court's discretion.   Plaintiff's bill for fiduciary fees also includes substantial time entries for dates after he was removed by the probate court as the fiduciary.   This brazen effort to charge the estate for tasks undertaken to advance his own personal interests further undermines the quality and reliability of the plaintiff's proof in this regard.

Further, plaintiff seeks payment as a fiduciary at the rate of $275.00 per hour, the rate he charges for legal services.   He charges this rate even though much of the activity required as the executor was ministerial in nature, i.e. paying bills or reviewing bank statements.   He charges this rate for activity that was perhaps not ministerial, but did not require a law degree or constitute legal services, i.e. corresponding with the beneficiaries regarding the status of the estate.   Plaintiff offered no reasonable basis upon which to proceed in such a fashion and simply stated that this was his charge.¹³  This court will not countenance such an arbitrary and inflated billing rate.

Considering all of the circumstances surrounding the plaintiff's time as executor, the court determines that for his efforts between November 2007 and January 2008, a reasonable fee for the services provided is $2,000.00.   After January 2008, the plaintiff's conduct was not in the best interests of the estate but was quite to the contrary.   No additional fiduciary fees are appropriate or owing therefore.   The estate is ordered to pay a fiduciary fee to the plaintiff of $2,000.00.

Attorneys fees ($22,605.00 and $2,860.00)

Like fiduciary fees, an award of attorneys fees in probate matters requires consideration of the Hayward factors to the extent they may be applicable.   An attorney who serves in the dual capacities of fiduciary and attorney for the estate may be compensated for both functions.   See, e.g. McGrath v. Gallant, supra.

A. Attorneys Fees incurred for the lawsuit against Rozsas and Gisselbrecht

As previously found, the evidence produced at trial established conclusively that the plaintiff's motivation in bringing and pursuing the litigation against Ms. Rozsas and Mr. Gisselbrecht was to punish, harass, annoy and to retaliate against the decedent's family members.   His revival of this issue came immediately after the beneficiaries questioned his request for the personal injury case attorneys fee.   Plaintiff's testimony to the contrary, that he was trying to fulfill his obligations, vindicate a right of the estate, or comply with the decedent's wishes, is simply not credible.¹⁴  The lawsuit was a personal vendetta for which the estate need not pay.   The request for attorneys fees in connection with the bringing of the lawsuit in the amount of $22,417.50 is DENIED in its entirety.   See, Hewitt v. Beattie, 106 Conn. 602 (1927);  Robbins v. Wolcott, 27 Conn. 234 (1858).

B. Attorneys Fees for the sale of the decedent's home.

As noted in the accounting, the plaintiff sought attorneys fees for the sale and closing of the decedent's real property.   The invoice for those services was received by the court and the plaintiff offered testimony as to the transaction.   A fair number of entries for time spent on the real estate closing appear to be activities of a fiduciary, and not those that the real estate lawyer would normally undertake.   As plaintiff's fiduciary fees are considered and awarded elsewhere, to include for his efforts to sell the real property of the decedent, a substantial discount of the legal services invoice is warranted.   The court approves and awards a reasonable attorneys fee in connection with the sale of the decedent's real property in the amount of $1,500.00

THE PETITION FOR SURCHARGES

A. Superior Court Filing Fee—$225.00

This fee was incurred by the estate when plaintiff commenced the lawsuit against Ms. Rozsas and Mr. Gisselbrecht.   For the same reasons articulated above for the court's denial of the plaintiff's request for attorneys fees in connection with the lawsuit, the court disallows the expense for the filing fee and sustains the request for a surcharge in the amount of $225.00.

B. James Townsend's Attorneys Fees

Plaintiff enlisted the assistance of Attorney Townsend in connection with both the personal injury fee dispute as well as the beneficiaries' efforts to have him removed as executor in the Autumn of 2008.   In light of the determination by the probate court that the plaintiff would be removed for cause, and the fact that the personal injury fee was a personal interest to the plaintiff, charging the estate for Attorney Townsend's efforts is not appropriate.   The court disallows the expense and sustains the request for a surcharge in the amount of $2,000.00.

C. William T. Barrante's Attorneys Fees

Plaintiff enlisted the assistance of Attorney Barrante to assist with the summary judgment motions which had been filed by the defense in the lawsuit against Ms. Rozsas and Mr. Gisselbrecht.   Despite the clear entries on the invoice itself, plaintiff testified that he had hired Attorney Barrante many months prior on matters not related to the lawsuit and had simply never gotten a bill for that time.   This testimony is rejected as wholly incredible.   For the same reasons articulated above for the court's denial of the plaintiff's request for attorneys fees in connection with the lawsuit, the court disallows the expense for Attorney Barrante's invoice and sustains the request for a surcharge in the amount of $623.75.

D. Payment to Sarah Jensen for transcript services—$764.97

The court is without any invoice for this expense.¹⁵  The plaintiff did reference portions of this transcript during this trial and acknowledged that it is the testimony of Ms. Rozsas during the grievance proceedings.   The Webster Bank records provided by defendant include a copy of the check to Ms. Jensen—just two days before he was removed as executor—with a notation of “transcript (Rozsas v. Rozbicki ).”   There is no basis upon which to charge the estate for a copy of the transcript.   The expense is disallowed and the surcharge is sustained in the amount of $764.97.

E Probate Filing Fees

The estate seeks a surcharge for what it considers unnecessary filing fees incurred by the estate due to the plaintiff's conduct as executor.   The invoices are in evidence and they appear to relate, at least in part, to the filing of the final accounts.   Certainly, an estate will incur, in the normal course of the probate proceedings, expenses associated with court filings.   The evidence is insufficient for this court to determine that the specific invoices for which a surcharge is sought, should not be charged to the estate.   The expense is allowed.

Conclusion

The order and decree appealed from included additional findings and directives which were not challenged on this appeal and which remain the orders and directives of the probate court.¹⁶  This matter is hereby returned to the probate court with hope that the estate might finally be closed.

SO ORDERED

Kari A. Dooley, J.

FOOTNOTES

FN1. Prior to trial, in consideration of plaintiff's motion to transfer the matter from the Litchfield Judicial District and the defendants' objection thereto, it was determined that the undersigned was available to preside over the trial on the then existing trial dates and so arrangements were made to have the matter tried in Waterbury before the undersigned.   The case remains pending in the Litchfield Judicial District..  FN1. Prior to trial, in consideration of plaintiff's motion to transfer the matter from the Litchfield Judicial District and the defendants' objection thereto, it was determined that the undersigned was available to preside over the trial on the then existing trial dates and so arrangements were made to have the matter tried in Waterbury before the undersigned.   The case remains pending in the Litchfield Judicial District.

FN2. Plaintiff also filed a motion to reopen the evidence in order to submit an additional exhibit.   That motion is denied..  FN2. Plaintiff also filed a motion to reopen the evidence in order to submit an additional exhibit.   That motion is denied.

FN3. The court does not attempt to include in this decision all of the evidence relied upon in the court's factual findings.   The court has considered all of the evidence admitted and the reference to any subset of the evidence presented should not be construed as identifying the exclusive basis for the court's finding.   Nor should the court's failure to identify or mention specific evidence give rise to an inference that such evidence has not been considered..  FN3. The court does not attempt to include in this decision all of the evidence relied upon in the court's factual findings.   The court has considered all of the evidence admitted and the reference to any subset of the evidence presented should not be construed as identifying the exclusive basis for the court's finding.   Nor should the court's failure to identify or mention specific evidence give rise to an inference that such evidence has not been considered.

FN4. The decedent had never married and had no children..  FN4. The decedent had never married and had no children.

FN5. Whether such waivers were viewed as necessary or procured through an excess of caution is unclear.   The evidence is clear however that the beneficiaries did not wish to pursue any claim to the life insurance proceeds, at that time, or thereafter..  FN5. Whether such waivers were viewed as necessary or procured through an excess of caution is unclear.   The evidence is clear however that the beneficiaries did not wish to pursue any claim to the life insurance proceeds, at that time, or thereafter.

FN6. The court notes that the plaintiff made much of the fact that the document circulated did not contain a signature line for Edward Gisselbrecht and that the absence of his signature rendered any number of subsequent representations made by the defendants or their counsel false and fraudulent.   This was one of many red herring arguments introduced during the trial which have little or no bearing on the issues presented.   However, the court notes in the first instance that the plaintiff drafted the document so the failure to include Edward Gisselbrecht as a signatory was plaintiff's doing.   Further, Edward Gisselbrecht was the beneficiary of the life insurance proceeds.   He stood to gain more through the direct distribution of those funds than if they were disbursed through the estate.   It is therefore understandable that his “waiver” was not sought..  FN6. The court notes that the plaintiff made much of the fact that the document circulated did not contain a signature line for Edward Gisselbrecht and that the absence of his signature rendered any number of subsequent representations made by the defendants or their counsel false and fraudulent.   This was one of many red herring arguments introduced during the trial which have little or no bearing on the issues presented.   However, the court notes in the first instance that the plaintiff drafted the document so the failure to include Edward Gisselbrecht as a signatory was plaintiff's doing.   Further, Edward Gisselbrecht was the beneficiary of the life insurance proceeds.   He stood to gain more through the direct distribution of those funds than if they were disbursed through the estate.   It is therefore understandable that his “waiver” was not sought.

FN7. After the defendants retained counsel in approximately April 2008, plaintiff returned the funds to the Estate..  FN7. After the defendants retained counsel in approximately April 2008, plaintiff returned the funds to the Estate.

FN8. The fee was ultimately approved by the probate court..  FN8. The fee was ultimately approved by the probate court.

FN9. Plaintiff's disdain for the family members may have begun to germinate during the final months of the decedent's life.   It is unclear whether he felt this way at the time, but it is evident now that he views their conduct toward the decedent in her final months as neglectful.   He resents what he described as their lack of interest in her headstone and the finding of an appropriate memorial for her.   Indeed, at this juncture, he has little kind to say about any of the decedent's family members..  FN9. Plaintiff's disdain for the family members may have begun to germinate during the final months of the decedent's life.   It is unclear whether he felt this way at the time, but it is evident now that he views their conduct toward the decedent in her final months as neglectful.   He resents what he described as their lack of interest in her headstone and the finding of an appropriate memorial for her.   Indeed, at this juncture, he has little kind to say about any of the decedent's family members.

FN10. The court notes that Plaintiff's expert, Professor Cooper, was not provided adequate or complete information prior to being asked to formulate his opinion about the bona fides of the lawsuit.   Therefore, while he is obviously knowledgeable in the law, his testimony does little to support plaintiff's not credited testimony that he was acting in good faith and in the interests of the estate..  FN10. The court notes that Plaintiff's expert, Professor Cooper, was not provided adequate or complete information prior to being asked to formulate his opinion about the bona fides of the lawsuit.   Therefore, while he is obviously knowledgeable in the law, his testimony does little to support plaintiff's not credited testimony that he was acting in good faith and in the interests of the estate.

FN11. The defendants argue in the first instance that none of these issues are properly raised in this appeal.   Alternatively, they argue that the doctrines of res judicata and/or collateral estoppel bar the plaintiff from relitigating these issues.   Plaintiff objected to the application of either doctrine to his claims.   Insofar as this court does not intend to take up the issues for which collateral estoppel or res judicata is asserted, the court does not address those arguments..  FN11. The defendants argue in the first instance that none of these issues are properly raised in this appeal.   Alternatively, they argue that the doctrines of res judicata and/or collateral estoppel bar the plaintiff from relitigating these issues.   Plaintiff objected to the application of either doctrine to his claims.   Insofar as this court does not intend to take up the issues for which collateral estoppel or res judicata is asserted, the court does not address those arguments.

FN12. The exact value of the decedent's estate is still in dispute..  FN12. The exact value of the decedent's estate is still in dispute.

FN13. The court notes that this request for a fiduciary fee was presented for the first time when the plaintiff filed his first attempted final accounting.   The plaintiff had never discussed with the beneficiaries the nature or amount of the fee he would seek in connection with his role as executor or his hourly rate..  FN13. The court notes that this request for a fiduciary fee was presented for the first time when the plaintiff filed his first attempted final accounting.   The plaintiff had never discussed with the beneficiaries the nature or amount of the fee he would seek in connection with his role as executor or his hourly rate.

FN14. The court notes that the estate was relatively small and without many creditors.   The decedent's debts were paid easily from the estate leaving only the beneficiaries to be concerned with the method and amount of distribution.   As none of the beneficiaries wanted the plaintiff to pursue the lawsuit or the insurance proceeds, his determination to press forward was irresponsible and in direct conflict with the best interests of the estate.   It delayed the administration of the estate and if this fee is allowed would also unnecessarily deplete the assets of the estate..  FN14. The court notes that the estate was relatively small and without many creditors.   The decedent's debts were paid easily from the estate leaving only the beneficiaries to be concerned with the method and amount of distribution.   As none of the beneficiaries wanted the plaintiff to pursue the lawsuit or the insurance proceeds, his determination to press forward was irresponsible and in direct conflict with the best interests of the estate.   It delayed the administration of the estate and if this fee is allowed would also unnecessarily deplete the assets of the estate.

FN15. Plaintiff's failure to address this issue in any fashion is consistent with this court's assessment that the plaintiff was less interested in prevailing on these issues than he is in simply invoking the process by which the executor must litigate them..  FN15. Plaintiff's failure to address this issue in any fashion is consistent with this court's assessment that the plaintiff was less interested in prevailing on these issues than he is in simply invoking the process by which the executor must litigate them.

FN16. In his trial memorandum, the plaintiff appears to raise, for the first time, the question of whether he has standing in the probate court proceedings as a creditor or a legatee.   He does not brief the issue and the issue does not appear to have been decided in the decree from which an appeal was taken.   As such, this court does not address the issue..  FN16. In his trial memorandum, the plaintiff appears to raise, for the first time, the question of whether he has standing in the probate court proceedings as a creditor or a legatee.   He does not brief the issue and the issue does not appear to have been decided in the decree from which an appeal was taken.   As such, this court does not address the issue.

Dooley, Kari A., J.