Wills. Henry Probate Court. Before Judge Powell.
Hodges, McEachern & King, Timothy K. King, for appellant.
Stephen H. DeBaun; Gregory A. Futch, for appellee.
NAHMIAS, Justice. All the Justices concur.
James T. Myers, Sr. (Decedent) executed his last will and testament on June 9, 2008, and died on September 29, 2012. He was survived by his wife and two sons, James T. Myers, Jr. (Appellant) and Anthony Lee Myers (Appellee). Appellant was appointed executor by the will. After a motion by Appellee and a hearing, the probate court entered an order on August 1, 2014, finding that Appellant had violated his fiduciary duty in numerous ways, removing him as executor, and appointing a county administrator to replace him. Appellant filed a timely notice of appeal to this Court. We affirm.
The will directs that Decedent's house be placed in trust as a life estate for his wife, with the remainder to be divided between Appellant and Appellee, who must pay equally for the house's maintenance. Except for certain personal effects, the rest of Decedent's estate is divided evenly into separate trusts for each son. The will names Appellant as the first choice for executor and trustee and Appellee as the second choice. The probate court admitted the will to probate in solemn form on November 15, 2012, and letters testamentary were issued to Appellant that day. As executor, Appellant established the trusts and began managing Buckshot Properties, LLC (Buckshot), a company previously owned solely by Decedent, which is one of the estate's major assets. During his time as executor, Appellant withdrew $63,401.05 in executor fees.
On October 7, 2013, Appellee filed a " Petition To Cite Executor To A Settlement Of His Account And Further To Inquire Whether The Executor Should Be Sanctioned, Including Removal, Due To Breach Of Fiduciary Duty, Misconduct And/Or Mismanagement Of The Estate Assets." The petition alleged, among other things, that Appellant had failed to provide complete information about the estate, used estate funds to pay personal expenses, and used a truck owned by the estate as his personal vehicle. The petition also alleged that Appellant had a conflict of interest as executor of the estate because he was operating a business on land owned by Buckshot without paying rent, was using estate resources to fund Buckshot's expenses, and was paying personal expenses from Buckshot's business account. In his answer to the petition, Appellant sought to remove Appellee as a beneficiary under the will based on a portion of the will's in terrorem clause that requires
the removal of a legatee or devisee who unsuccessfully seeks the removal of a personal representative.
Appellee then filed an amended petition " expressly withdraw[ing] his request that the Executor be removed and for other sanctions and expressly limit[ing] his Petition to request an accounting for the Executor." The amended petition, however, repeated the original petition's allegations of breach of fiduciary duty and conflict of interest. The probate court issued a scheduling order, setting a hearing on the " Petitions to Cite Executor and Motion to Remove Executor." Appellant filed a motion again requesting the removal of Appellee as a devisee or legatee of the will, this time based on the will's provisions requiring disinheritance of any beneficiary who " objects in any manner to any action taken or proposed to be taken in good faith by my Personal Representative" or who " claims entitlement to (or any interest in) any asset alleged by my Personal Representative to belong to my Probate Estate." The court then issued an amended scheduling order setting a hearing on the " Petitions to Cite Executor, Motion to Remove Executor, and Motion to Remove Devisee or Legatee."
The hearing was held on May 21, 2014. At the outset, Appellee acknowledged that his petition to remove Appellant as executor had been withdrawn, but in his closing argument, he noted that although he had withdrawn his original petition in the face of the threat of disinheritance, the probate court still had " the authority to take action." Appellant admitted that he was driving a truck belonging to the estate and that he used estate funds to pay for maintenance on Decedent's house. Appellant also testified that he had worked for Decedent at Buckshot and continued to run the business ...