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Buoscio v. Estate of Buoscio9/14/2001
JUDGMENT: Affirmed.
Appellant Samuel Buoscio appeals the decision of the Mahoning County Probate Court which denied his request for certain expenditures to be paid by the trustee to him as the beneficiary of a discretionary trust. Specifically, appellant sought the trustee to reimburse him for a health insurance policy which cost him $3,100 and to pay a $25,000 retainer to an attorney. The issue before us is whether the probate court abused its discretion by failing to hold that the trustee should have expended trust funds per appellant's request. For the following reasons, the decision of the probate court is affirmed.
BACKGROUND
In 1984, appellant's father died with a Will that created a testamentary trust in favor of appellant. This trust, which was executed in 1977 when appellant was thirty-two years of age, provides in pertinent part:
"(A) The TRUSTEE shall hold and administer this trust for the use and benefit of my son, SAMUEL BUOSCIO, paying to or for his benefit such part of the income and such part of the principal as my TRUSTEE deems advisable, in its absolute and uncontrolled discretion, for his maintenance, care and support, including medical, hospital and nursing home care.
(B) In making distributions as provided for in (A) above, my TRUSTEE is directed to take into consideration the income and other personal assets which my said son, SAMUEL L. BUOSCIO, has available for his maintenance and support."
Over the course of years, the trustee, Dollar Savings & Trust Co. and then National City Bank, expended income and principal for appellant. For instance, the trustee paid medical bills and car insurance at various times. In 1985, the probate court granted the trustee's application to pay $1,500 in attorney fees to Attorney Krichbaum for a criminal charge appellant was facing. The trustee also made monthly distributions to appellant. From 1985 through 1987, the trustee distributed approximately $1,200 per month to appellant. From 1988 through 1991, the trustee paid appellant approximately $1,300 per month. In 1989, the trustee gave appellant $15,000 to purchase a vehicle. In 1992, the court granted the trustee's application to pay $7,504.47 in legal fees and expenses to Attorney Seidita who represented appellant in a criminal case and performed some work in two civil cases.
One of the civil cases arose when a homicide victim's family sued appellant for wrongful death. In July 1993, appellant filed a motion in the probate court requesting $50,000 from the trustee to pay Attorney Hennenberg to represent him in the wrongful death action. The court overruled this motion that same month. In August 1993, appellant filed a motion asking for $50,000 to pay Attorney Hanni to represent him in the wrongful death action. The court overruled the motion in October 1993.
The criminal case arose after appellant was indicted in 1991 for aggravated murder with a firearm specification and having a weapon while under disability. In 1992, appellant pled guilty in the Summit County Common Pleas Court to a reduced charge of voluntary manslaughter with a firearm specification. Appellant was sentenced to ten to twenty-five years to be served after three years of actual incarceration on the specification. A few months after being sentenced, appellant filed a motion to withdraw his plea which was denied. A post-conviction relief petition was also denied.
In October 1993, appellant again asked for $50,000 in attorney fees so that he could be represented by Attorney Hennenberg. A letter from this attorney to appellant was attached which stated that appellant's only "long shot" in the criminal case was
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