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Witkowski v. Gennings4/6/2005
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Clead Randall Gennings died testate on July 19, 1998. Appellant Dana Witkowski, his daughter, appeals from various orders of the Pulaski County Circuit Court and charges that court with multiple errors: failing to remove appellee Sandra Gennings, the decedent's spouse, as executrix of the estate; failing to set aside a September 24, 2002 order that found that an asbestos claim brought by the estate was a survival claim; labeling the asbestos claim as a survival claim and not a wrongful death claim; finding that an agreement between Witkowski and Gennings precluded Witkowski from recovering damages from the asbestos litigation; and error in approving the final amount of attorney fees. We hold that the trial court committed no reversible error. Thus, we affirm.
Factual and Procedural History
The relevant provisions of the decedent's will left $10,000 and other personal items to Witkowski and the remainder of his estate to Gennings. The will specifically mentioned the proceeds of a $49,000 life insurance policy as property left to Gennings; however, the policy listed Witkowski as the beneficiary. Because of legal uncertainty about who was entitled to the life insurance proceeds, Gennings and Witkowski reached a family settlement agreement to avoid litigation on the issue. Witkowski signed the agreement on March 8, 1999, and Gennings signed it on March 19, 1999. Among other things, the agreement stated:
1. Decedent was insured by a $49,000 life insurance policy with Metropolitan Life Insurance Company. . . . Rather than file an interpleader action, MetLife has encouraged the parties to agree on a distribution of the insurance proceeds. Upon advice of their respective attorneys that the outcome of litigation would be uncertain, time consuming and costly, the parties agree to divide said proceeds, half to spouse and half to daughter.
2. Decedent's last will and testament dated July 5, 1998, leaves daughter the sum of $10,000, a cluster ring and a 1981 Ford truck and the rest, residue and remainder of the estate to spouse. Spouse contends that the only cash asset of the estate is $3513.77 from his employer for vacation and sick pay. Spouse reports that there were funeral and last illness expenses which total $18,854.77. Daughter has asked for and spouse has agreed to provide an authorization for daughter to receive information from Regions Bank, formerly First Commercial Bank, about any accounts there which were solely in the name of decedent at the time of his death on July 18, 1998. In the event there are no further accounts belonging to decedent's estate, daughter agrees to accept the diamond cluster ring, the 1981 pickup truck (with tool boxes, Randy's Bear and weedeater) and negatives and copies of photographs of decedent as a full and final settlement of all claims she might have against decedent's estate.
In the event there are additional accounts belonging to the estate, said accounts shall be first applied to the aforesaid funeral and last illness expense and next to the $10,000 bequest to daughter. Any amount in said account(s) over $28,854.77 shall be the property of the spouse.
Despite an initial decision to avoid probate, Gennings filed a petition to appoint herself the executrix of her husband's estate on January 3, 2000, because of potential assets coming from asbestos litigation in Arkansas and in New York. In the petition, she listed that the estate had assets of $75,000. The trial court granted the petition. On April 12, 2001, the clerk's office issued Gennings notice that an inventory and accounting of the estate were due. This was followed by Witkowski's ow
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