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Montgomery v. Estate of Montgomery

Court of Appeals of Indiana

June 21, 2019

Sheri Montgomery, Appellant,
v.
Estate of Donald M. Montgomery, Steve Shively, the Executor, and The Living Trust of Donald M. Montgomery and Betty M. Montgomery, Steve Shively, Trustee, Appellees.

          Appeal from the Miami Superior Court The Honorable Wayne E. Steele, Special Judge Trial Court Cause Nos. 52D02-1611-TR-32 52D02-1612-ES-35 25D01-5216-CB-35

          ATTORNEYS FOR APPELLANT Jonathan E. Lamb John A. Cremer Cremer & Cremer Fishers, Indiana

          ATTORNEY FOR APPELLEES Jeffry G. Price Peru, Indiana

          BROWN, JUDGE

         [¶1] Sheri Montgomery appeals from the trial court's approval of an accounting by Steve Shively as executor of the Estate of Donald M. Montgomery (the "Estate") and trustee of The Living Trust of Donald M. Montgomery and Betty M. Montgomery (the "Trust," and Steve, the Estate, and the Trust, collectively, "Appellees"). Sheri raises two issues which we consolidate and restate as whether the court erred in approving the accounting. We reverse and remand.

         Facts and Procedural History

         [¶2] Sheri and Pamela Shively are the daughters of Donald Montgomery, and Steve is Pamela's husband. In November 2016, Steve filed a Petition to Docket Trust under cause number 52D02-1611-TR-32 (the "Trust Cause"). On December 10, 2016, Donald passed away. On December 12, 2016, Steve filed a petition for probate of Donald's will under cause number 52D02-1612-ES-35 (the "Estate Cause"), and on December 19, 2016, the court appointed Steve as personal representative. Donald's Last Will and Testament bequeathed his estate to Sheri and Pamela equally. On December 22, 2016, the court granted the petition to docket the Trust. A Settlement Agreement and Mutual Release of Claims dated August 2, 2017 (the "Settlement Agreement") was signed by Sheri, Pamela, and Steve, filed in the Trust and Estate Causes, and provided:

[A]t Don M. Montgomery's date of death there existed certain property belonging to the [Trust] and/or [Estate], with approximate date of death values, to wit:
1) 1091 W. 450 N. Peru, Indiana, to be determined by appraisal
2) 4569 S. Strawtown Pike, Peru, Indiana, to be determined by appraisal
3) 1st Merchants Checking Account, approximate value of $1, 917.00;
4) 1st Merchants Money Market, approximate value of $4, 902.00;
5) Logansport Savings, approximate value of $84, 930.00;
6) 1st Merchants Bank account, approximate value of $207, 000.00;
7) American Funds account, approximate value of $288, 000.00;
8) Raymond James account. approximate value of $109, 162.00;
9) Vodaphone stock, approximate value of $9, 995.00;
10) Verizon stock, approximate value of $71, ...

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