In re Estate of Zeigler
| Decision Date | 24 February 2003 |
| Docket Number | No. A02A2339.,A02A2339. |
| Parties | In re ESTATE OF ZEIGLER. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Clark & Clark, Fred S. Clark, Savannah, for appellant.
David H. Fritts, Savannah, for appellee.
Stacy Green Hatchett appeals from the probate court's order removing her as executor of the estate of her grandmother, Alma J. Zeigler. Because we find that the probate court abused its discretion in removing Hatchett as executor, we reverse and remand to the probate court for action consistent with this opinion.
The relevant facts are as follows: Zeigler died in June 2001 and Hatchett, her granddaughter and a resident of Illinois, was named executor in her will. The petition to probate the will was filed on July 20, 2001, and letters testamentary were issued to Hatchett on January 10, 2002.
On March 7, 2002, Rita Williams, one of the will's beneficiaries, filed a petition in the probate court requesting that the court order Hatchett to provide her with information about the property she would inherit under the will. Specifically, she wanted to know whether a house was protected by insurance and whether the mortgage payments were current. Williams complained that, although she had called Hatchett on several occasions, Hatchett refused to talk with her.
On March 7, the probate court issued a rule nisi order instructing Hatchett to appear at a hearing on April 9 to show cause why "the relief prayed for should not be granted." Hatchett did not appear at the hearing, but her attorney appeared on her behalf.1 Following the hearing, the probate court entered an order removing Hatchett as executor because "of [the] Executor's failure to appear and respond to the Petition and Rule Nisi."
On April 15, Hatchett filed a notice of appeal. Subsequently, however, the probate court entered an order vacating its order of removal and then issued a second rule nisi directing Hatchett to appear at a hearing on May 21, to show cause why her letters testamentary should not be revoked. Hatchett did not appear at the May hearing and was once again represented by her attorney. Following the hearing, the probate court again ordered Hatchett removed as executor because she did not comply with the April rule nisi by appearing at the hearing and accounting for her actions as a fiduciary. The probate court also named a new executor. Hatchett appeals from this second order.
1. (Citations and punctuation omitted.) Anaya v. Brooks, 208 Ga.App. 491, 493(1), 430 S.E.2d 825 (1993). See also DeClue v. City of Clayton, 246 Ga.App. 487, 493(5), 540 S.E.2d 675 (2000). Accordingly, any "subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect." Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga.App. 525, 531(2), 258 S.E.2d 139 (1979). Because the April 15 notice of appeal was still pending, the probate court was without authority to vacate the April 9 order, issue a second rule nisi, or issue the subsequent order of removal, and those proceedings are null and void. Thus, the May 30 notice of appeal is also a nullity because the orders it seeks review of were void, and we will only consider the appeal of the April 9 order of removal.
The probate court has broad discretionary powers to remove an estate administrator upon a showing of unfitness for the trust reposed in him. Nesmith v. Pierce, 226 Ga.App. 851, 852(1), 487 S.E.2d 687 (1997). "[T]he relevant question in reviewing a removal order is whether the trial court had grounds to conclude that there was `good cause' for the removal." In re Estate of Davis, 243 Ga.App. 58, 63(1), 532 S.E.2d 169 (2000) () See In re Estate of Jackson, 241 Ga.App. 392, 394-395(2), 526 S.E.2d 884 (1999) (). See also In re Estate of Williams, 241 Ga.App. 17-18(1), ...
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