Gulbankian v. M & I Bank & Trust Co. of Racine
Gulbankian v. M & I Bank & Trust Co. of Racine
Opinion of the Court
This is an appeal from an order removing a special administrator. Two issues are raised: Is the order appealable? Was the special administrator entitled to notice and hearing before removal?
The will of the deceased, which named appellant Akabe Gulbankian as personal representative, was filed for probate in the county court of Racine county. An objection to admission of the will was filed on behalf of the vice
Appellant contends that a pretrial conference was held on March 28, 1974. The record does not contain any reference to a pretrial conference. On the same date the trial judge removed appellant as special administrator and appointed the M & I Bank & Trust Company of Racine as her successor. The order of removal recited that the court had received additional information, had reconsidered the appointment, and was of the opinion that it would be in the best interests of all parties that a disinterested special administrator act during the pen-dency of the will contest.
Is the order appealable?
Respondent argues that because an order appointing a special administrator is not appealable,
Was notice and hearing required?
Respondent relies on sec. 867.21 (1), Stats., providing that a special administrator may be discharged with or without notice as the court determines. Sec. 867.21 has two subsections. The first applies when no personal representative is to be appointed, and provides:
“The special administrator shall be discharged whenever the court is satisfied that he has properly performed his duties. . . . Discharge may be granted with or without notice as the court determines.”
We construe the phrase “properly performed his duties” as meaning that the special administration has been completed. We hold this provision was intended to apply only where no further administration of the estate was contemplated. That is clear from the second subsection, which provides that the power of the special administrator ceases upon granting of letters to a personal representative.
If a special administrator is to be removed while special administration continues, sec. 867.21, Stats., does not cover the situation, because in such a case the special administrator has not “properly performed his duties.” Fundamental notions of fair play require that a special administrator be given an opportunity to respond to any charges which in the court’s mind justify removal. If, as the result of information which came to the court, either at a pretrial hearing or otherwise, it determined that arguable grounds existed for the removal of the special administrator, the court either should have invited a petition from another interested party to that effect, or
By the Court. — Order reversed and cause remanded for further proceedings not inconsistent with this opinion.
See. 867.15, Stats.
See. 274.33 (2) (a), Stats.
Reference
- Full Case Name
- Estate of White: Gulbankian v. M & I Bank & Trust Company of Racine
- Status
- Published