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Nesmith v. Pierce
Citations: 487 S.E.2d 687; 226 Ga. App. 851; 97 Fulton County D. Rep. 2394; 1997 Ga. App. LEXIS 794Docket: A97A0745
Court: Court of Appeals of Georgia; June 17, 1997; Georgia; State Appellate Court
Carnie Nesmith appealed the probate court's decision to remove her as co-executor of her daughter Azilee Henry's estate and to deny her petition for attorney fees while granting co-executor John Pierce's request for additional compensation. The court affirmed the removal, citing a dispute over property valuation where Nesmith insisted on a higher listing price despite two appraisals provided by Pierce, who is an attorney and real estate professional. Pierce attempted to sell the property and received a cash offer of $155,000, which he accepted against Nesmith's wishes. Testimony indicated that Nesmith lacked understanding of her duties as executor and acted contrary to the estate's interests, leading the court to conclude she was unfit for the role. The court emphasized its broad discretion under OCGA § 53-7-148 in removing executors due to mismanagement or conflicting interests. Regarding Pierce's extra compensation, Nesmith argued that he previously stated he would not charge for the sale and that this task fell within ordinary executor duties; however, the court deemed his services extraordinary. Pierce acknowledged initially stating he would not charge a commission for the property sale but claimed he was justified in requesting additional compensation due to issues with Nesmith regarding the sale. He testified about obtaining two appraisals; however, Nesmith's insistence on a $170,000 listing price led to only two offers after showing the property eighteen times. Pierce argued that hiring a real estate agent would have yielded a lower sale price for the estate. The court awarded him $8,835 in extra compensation by deducting his five percent executor's commission from the $155,000 sale price and awarding six percent of that amount. The probate court has jurisdiction to award additional compensation for extraordinary services, as per OCGA 53-6-150. Pierce was permitted to hire an agent, who would have been entitled to a commission. His testimony regarding the time and effort involved in the sale was unchallenged, and the court did not abuse its discretion in granting the extra compensation. Nesmith's claim that the probate court erred in denying her petition for attorney fees under OCGA 53-7-10 was also addressed. An executor can hire legal counsel for estate needs, but cannot bind the estate for attorney fees arising from their own misconduct. The court determined that Nesmith's requested fees were unrelated to estate administration, totaling $4,472.25 for services between September 30, 1994, and February 7, 1995. Nesmith was removed as executor on December 20, 1994, and the court found no evidence that her legal fees were necessary for defending her position as executor. The last invoice dated February 7, 1995, came after her removal, further supporting the court's decision. Consequently, the trial court did not abuse its discretion in denying Nesmith's petition for attorney fees. The judgment was affirmed, with McMurray, P.J. and Beasley, J. concurring.