“Either way this happens, its going to end up in Circuit Court where it is already headed,” Wilkins said.
By: Lydia Crawley
The Parsons Advocate
The Tucker County Commission denied a request to reopen the estate of Eric G. Poling. On July 10th, attorneys for both parties currently engaged in a battle in Circuit Court, addressed the Commission regarding the request made by the petitioners in the case, Gary Herron on behalf of Agnes and Kenneth Poling. Herring and the Polings are represented by Attorney Pat Nichols. The Respondent Ashley Sweeney was represented by Attorney Jeffery Triplett in the matter.
The Commissioners heard from both sides in the matter. Nichols said the decedent was his clients’ only child. According to Nichols, Sweeney, as the only child, was appointed administratrix of the estate after the death without a will. Nichols further said that an initial appraisal of the estate was filed with a amended appraisal later filed following the closure of the estate.
According to Nichols, the amended appraisal contained many more assets then the initial appraisal. According to Nichols, his clients have interests in the guns listed in the amended appraisal. “We are of the contention that there are several assets that were listed on the amended appraisal that belong to Kenneth and Agnes,” Nichols said.
Nichols further said that the estate was only reopened for six or seven days following the amended appraisal. “What the amended appraisal, at that point in time, consisted of many, many assets concerning especially a bunch of guns that we are interested in and then closed the estate in about six or seven days later,” Nichols said.
Triplett, on behalf of the respondent Sweeney, disputed Nichol’s claim that the estate was only reopened for six or seven days following the filing of an amended appraisal. According to Triplett, the estate was closed 31 days following the filing of the amended appraisal. “Mr. Nichols was not correct that she closed the estate six or seven days after filing the amended appraisal,” Triplett said. “The estate was not closed until 31 days after the filing of the amended appraisal.”
Triplett said his client objected to the action for two reasons. “Ashley objects to the reopening of the estate for a few reasons,” Triplett said. “First of all, Mr. Herron had 31 days after the filing of the amended appraisal in which to make a claim. Second, Mr. Herron has already sought, Mr. Herron’s civil action against Ashley is still pending.”
According to Triplett, regardless to whether the Commission reopened the estate or not, the matter would end up in Circuit Court with either side filing on the outcome of the matter. “That action is actually pending in Circuit Court of Tucker County, as we speak,” Triplett said. “Which is where this matter is going to end up either way if this Commission wastes it assets, wastes its resources to reopen this.”
Triplett further said that the guns were not the property of Herron or the Polings. Two of the decendent’s ex-wives had signed statements and were present and willing to testify that Poling had the guns in his possession during their marriages, Triplett said. “The matter is already in Circuit Court,” Triplett said. “Reopening this estate would really create two parallel actions to allow Mr. Herron to take a bite of the apple to get possession of property that does not belong to him or Agnes and Kenneth Poling.”
Triplett said that Herron had removed the guns from the home the day after the death and reached out to Sweeney and her husband for them to claim the weapons. Triplett further said that Sweeney and her husband traveled from out of state to recover the weapons. “And it was there after, that Gary apparently had second thoughts about giving up the guns,” Triplett said. “Because after that, beginning on the 17th, he began texting, expressing frustration that Ashley had taken the guns. He wanted the guns back.”
Tucker County Prosecuting Attorney Savannah Hull Wilkins said that she reviews all the estates prior to closure and that she was aware that the Probate Clerk had called Herron regarding the filing of an amended appraisal. “I review all the estates before they are closed,” Wilkins said. “After this was filed, the Commission brought it to my attention and I met with Ms. Evans the Probate Clerk. My understanding from her is that when the amendment was filed, despite the fact that Mr. Herron is not a direct heir, she personally called him to let him know that the amended appraisment had been filed. She informed him that he would need to come in and file.”
Tucker County Clerk Sherry Simmons said that the phone call was a courtesy. Simmons further said that Herron stated he would be in the following day to file his estate, but never showed. “She called you Gary as a courtesy,” Simmons said, “to tell you that the granddaughter had brought in an amended appraisment and you could come in and file your estate. You specified to her that you would be in the following day to take care of that. Sir, you never came in.”
Simmons said that Nichols had claimed that the County never reopened the estate and had forced blame in the matter upon the County. “In your statement, Pat, in your petition stating that it appears that we never reopened the estate, causing blame to our office and we followed the code,” Simmons said. “It is not our problem that your client did not file a claim.”
Wilkins said she had reviewed the matter on several occasions and the matter would eventually end up in Circuit Court regardless to what the County did currently. Wilkins also said she felt a Circuit Court Judge would be better equipped to decide the matter since it would likely end up appealed to the Court eventually anyway. “I reviewed it when we initially closed it,” Wilkins said. “I reviewed it when this petition was filed to reopen it. As far as I can tell, the County Clerk’s office filed the statutory requirements. And as far as I can tell, even went a step further to personally notify him to come and file a claim. My other view is that really, as Mr. Triplett said, either way this happens, its going to end up in Circuit Court where it is already headed.”
Wilkins said the County did everything according to Code and said the matter should not be reopened “My position is that the County Clerk’s office did follow code,” Wilkins said. “And that the matter really should be hashed out in Circuit Court and not through reopening of the estate.”
According to Wilkins, following a question on the matter by Nichols, state law does not stipulate a time frame that a amended appraisment must be opened. “From what I can tell, they followed the case law as it was written,” Wilkins said. “I really wish the case law was a little more clear, but as far as I can tell, they followed their timelines.”
Tucker County Commissioner Fred Davis agreed that the matter should not be reopened. “So this goes onto the next court,” Davis said. “So no matter what we say here today, its still going to move on.”
Tucker County Commission President Mike Rosenau said he felt the next step for the matter would be in Circuit Court. Rosenau also said that he felt the County had followed state code in the matter. “The point that I took into consideration here was we followed what state code was on our end,” Rosenau said. “That’s our responsibility. To me, the next step would be Circuit Court.”
Nichols agreed that code had been followed, but asserted that his client had a right to reopen the estate. “The question is does he have a right to reopen the estate,” Nichols said. “We have a right to reopen, too. That happens all the time…and its granted freely. I have never had a hearing before where you objected to a reopening because I’ve filed many of them to reopen when you find lost assets.”
Simmons said that the reopening is done by an administrator of the estate. Nichols said that the code does not specify that it must be reopened by an administrator, only that it could be reopened. Triplett said that in the cases that are freely granted, the are mostly not contested and rarely, if ever, have a pending Circuit Court case attached to them. “In those instances where permission is freely granted to an administrator to add asserts would submit in the larger majority of those cases, that its not contested and probably never, hardly ever, would a Circuit Court proceeding already be pending,” Triplett said.
The matter is currently the subject of a battle in Circuit Court and is scheduled to be heard by a Circuit Court Judge. The County Commission voted unanimously in a motion made by Commissioner Tim Knotts to not reopen the estate.