In Re: Estate of Ruth Swann Hubert

• Court: Court of Appeals of Georgia
• Decided: November 22, 2013
• Docket: A13A1484
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

November 22, 2013

In the Court of Appeals of Georgia A13A1484, A13A1485, A13A1486, A13A2131. IN RE ESTATE OF RUTH SWANN HUBERT (four cases).

MCFADDEN, Judge.

These cases, which we have consolidated for appeal, involve a dispute

between four siblings who are co-executors of their mother’s estate. The parties

dispute how to achieve the intent of their mother, Ruth Swann Hubert (“Mrs.

Hubert”), to equalize estate assets among them. Judith Hubert Manning brought a

petition in probate court against Richard Hubert, Marilyn Hubert Kemper, and

Deborah Hubert to enforce a mediated settlement agreement regarding the

distribution of the estate. Richard Hubert, Marilyn Kemper, and Deborah Hubert

counterclaimed for, inter alia, breach of fiduciary duty against Judith Manning. After

a bench trial, the probate court entered an order of judgment in which she set forth how the estate was to be distributed, found that Judith Manning had not breached her

fiduciary duty, ordered all of the siblings removed as co-executors, and ordered

Richard Hubert and Deborah Hubert to pay attorney fees to Judith Manning. Richard

Hubert, Marilyn Kemper, and Deborah Hubert appealed in Cases No. A13A1484,

A13A1485 and A13A1486, respectively, and the probate court ordered them each to

post a bond pursuant to OCGA § 53-7-55, which allows a probate court, upon good

cause, to require additional security from the personal representative of an estate.

Richard Hubert, Marilyn Kemper, and Deborah Hubert argue that, in ruling on

how the estate assets should be distributed among the parties, the probate court

improperly modified the terms of the settlement agreement in her order. We agree,

because the unambiguous terms of the settlement agreement require an accountant to

complete certain determinations before the equalization of the estate assets can be

calculated, and it is undisputed that the accountant has not yet completed those

determinations. Accordingly, we reverse that part of the probate court’s order

regarding the distribution of estate assets and remand the case for proceedings not

inconsistent with this opinion. In light of this ruling, we also reverse the award of

attorney fees against Richard Hubert and Deborah Hubert.

2 In addition, Richard Hubert challenges the probate court’s ruling that Judith

Manning did not breach her fiduciary duty. He challenges the probate court’s

admission of the testimony of Judith Manning’s husband on the value of certain real

property that the husband owned. He challenges the probate court’s denial, as

untimely, of his motion to recuse. And Marilyn Kemper and Deborah Hubert

challenge their removal as co-executors. We find no error in any of these rulings, and

we affirm them.

Because we affirm the dismissal of the parties as co-executors of the estate,

Richard Hubert’s appeal from the bond order in Case No. A13A2131 is moot.

Accordingly, as detailed below, we affirm in part and reverse in part the

probate court’s order in Cases No. A13A1484, A13A1485 and A13A1486, and

remand those cases with direction, and we dismiss as moot the appeal in Case No.

A13A2131.

1. Facts and procedural posture.

The parties’ father, O. C. Hubert, died in 1986, leaving a substantial estate.

Litigation over the estate ensued, resulting in a settlement agreement that, among

other things, placed four pieces of real property into four qualified terminable interest

property trusts (the QTIPs). See IRC § 2056 (b) (7). Each QTIP held the real property

3 in trust for one of the four Hubert children, who served as trustee for that QTIP, and

each QTIP designated Mrs. Hubert as the income beneficiary for her life. Under the

settlement, Mrs. Hubert had general power of appointment over a trust containing

other assets. See IRC § 2056 (b) (5). She placed some of those assets into three trusts

(the GPA trusts) that she then contributed into the QTIPs associated with Richard

Hubert, Marilyn Kemper, and Deborah Hubert, to equalize their asset value with that

of Judith Manning’s QTIP, which contained more valuable real property.

As part of Mrs. Hubert’s estate planning, the QTIP assets were contributed to

limited partnerships affiliated with the Hubert family, giving the QTIPs ownership

interests in the limited partnerships. This reduced the marketability of the QTIP

assets, discounting their value for estate tax purposes. Initially, Richard Hubert,

Marilyn Kemper, and Deborah Hubert each contributed the real estate in their QTIPs

to Hubert Properties, LLLP. Subsequently, they contributed their ownership interests

in Hubert Properties to Hubert Consolidated, LLLP. Judith Manning contributed the

real estate in her QTIP to Manning Family Investments, LLLP.

Mrs. Hubert died in 2006, and the four Hubert children were named co-

executors of her will. Her will pertinently expressed her intent “to equalize among

[her] four children (and their respective lineal descendants) the bequests made by

4 [her] deceased Husband pursuant to (1) his Last Will and Testament . . . , (2) the

Settlement Agreement [pertaining to her husband’s estate], and (3) any gifts or other

bequests [she] may have made during [her] lifetime[.]” The parties disputed how to

accomplish this goal. A mediation facilitated by Judge Marion Pope on that issue led

to the 2010 settlement agreement that is the subject of this case.

The 2010 settlement agreement designated an accountant to review the books

and records of specified Hubert-related entities (including Hubert Properties, Hubert

Consolidated, and Manning Family Investments) and to make certain determinations

about the fair market value of assets and liabilities contributed to those entities. The

accountant produced a draft report, aspects of which the parties disputed. The

accountant also identified open issues about which he needed more information or

had unanswered questions.

Judith Manning then filed a petition in the probate court seeking to enforce the

2010 settlement agreement. Richard Hubert, Marilyn Kemper, and Deborah Hubert

counterclaimed for, inter alia, breach of fiduciary duty, essentially alleging that Judith

Manning personally benefitted from the assets in her QTIP at Mrs. Hubert’s expense.

The probate judge voluntarily recused, and the Honorable Adele Grubbs of the

5 Superior Court of Cobb County, who was presiding over a related superior court

matter, was designated to sit as the probate court in this case.

After a bench trial, the probate court entered an order holding that “[e]ach of

the four children should receive $4,132,302 to equalize the estate.” This meant that

Marilyn Kemper and Deborah Hubert would pay certain amounts to the estate, and

the estate would pay certain amounts to Judith Manning and Richard Hubert. The

probate court found no evidence to support the counterclaim for breach of fiduciary

duty. The probate court ordered all four children removed as executors and appointed

a new executor. And the court ordered Richard Hubert and Deborah Hubert to pay

$60,000 in attorney fees to Judith Manning under OCGA § 13-6-11 for stubborn

litigiousness. The probate court denied motions filed by Richard Hubert and Deborah

Hubert for, alternatively, a new trial or an amendment of its findings of fact and

conclusions of law. Richard Hubert, Marilyn Kemper and Deborah Hubert appealed,

and the probate court ordered that each of them post a $5,000,000 bond pursuant to

OCGA § 53-7-55.

2. Enforcement of the settlement agreement.

“A trial court’s order on a motion to enforce a settlement agreement based on

undisputed facts is subject to de novo review.” Anaya v. Coello, 279 Ga. App. 578,

6 579 (632 SE2d 425) (2006) (citations omitted). But if the trial court made factual

findings in deciding a motion to enforce a settlement agreement, we will uphold those

findings if there is any evidence to support them. In re Estate of Huff, 287 Ga. App.

614, 615 (652 SE2d 203) (2007).

The unambiguous terms of a settlement agreement must be strictly enforced

and cannot be modified by the trial court. Scherer v. Testino, 291 Ga. 75, 77 (1) (727

SE2d 490) (2012); see King Cotton v. Powers, 200 Ga. App. 549, 550 (2) (409 SE2d

67) (1991) (“It is the duty of the courts to construe and enforce contracts as made, and

not to make them for the parties.”) (citation, punctuation and emphasis omitted).

Richard Hubert, Marilyn Kemper, and Deborah Hubert argue that the probate court

improperly modified the settlement agreement in several respects.

First, they argue that the probate court improperly decided the final issue of

how the estate was to be equalized, rather than merely resolving the disputed or open

items arising from the accountant’s draft report and then allowing the accountant to

complete his work. As detailed below, we agree that the procedures established by

unambiguous language of the settlement agreement do not permit equalization until

after the accountant’s identified issues are resolved and the accountant issues his final

report. Consequently, the case must be remanded for these steps to occur.

7 Second, they argue that the probate court improperly construed a provision of

the settlement agreement requiring the removal of all discounts when valuing those

assets to determine equalization. They argue that this requirement does not apply to

what they refer to as “intermediate discounts” that arose when they contributed their

interests in Hubert Properties into Hubert Consolidated. As detailed below, we find

that whether the “intermediate discounts” are the type of discounts that must be

removed under the settlement agreement is a factual question appropriate for the

probate court’s resolution on remand.

Third, they argue that the probate court improperly construed the settlement

agreement to impose interest upon certain payments that the estate had made to

Richard Hubert, Marilyn Kemper, and Deborah Hubert, when those payments were

taken into account in the equalization calculation. As detailed below, we agree that

the settlement agreement does not provide for such imposition of interest.

(a) Procedures for determining equalization.

Paragraph 1 of the settlement agreement provides, among other things, that

“[t]he Executors of the Estate shall engage the firm of Frazier & Deeter, LLC, a

qualified independent certified public account firm (the ‘Accountant’) for the limited

purpose of examining the books and records of [the specified Hubert-related entities]

8 (the ‘Entities’).” The settlement agreement sets forth the scope of the accountant’s

examination, which is to include certain determinations, made in accordance with

Generally Accepted Accounting Principles and the entities’ limited partnership

agreements, regarding: the formation of the entities; the fair market value of assets

contributed to the entities; each trust’s percentage interest in the entities; other

transactions affecting equity interests in the entities; and, pertinently,

the determination of the assets and liability of each of the Entities for purposes of the valuation thereof as of the date of death of Mrs. Ruth S. Hubert (but not any review or critique of the valuation methodology employed by the appraisers engaged for the Estate for federal estate tax purposes unless specifically otherwise authorized by the parties).

The settlement agreement requires the entities to make available to the

accountant certain books and records, along with “such other materials as the

Accountant may request in order to enable him to provide the opinion sought.” The

settlement agreement then provides:

If any disagreement arises among the parties regarding the Accountant’s treatment of any items within an Entity, or any other issues which the Accountant identifies as being relevant to the inquiry, and if that disagreement cannot be resolved among the Parties, the Parties will submit the matter for final determination to Judge Marion Pope for determination so long as he is required to make such determination in

9 conformity with the law governing the partnerships and generally accepted accounting principles and in accordance with the Limited Partnership Agreement of each entity.

The settlement agreement further provides that, “[o]nce all such issues are identified

and resolved, the Parties will make any such adjustments, if any, necessary to

properly account for the equity interests of each participant in each Entity and the

valuation thereof.”

Paragraph 2 of the settlement agreement provides that “[a]fter the examination

in Number 1 above is complete the Parties shall recompute the allocation of all assets

among Deborah, Richard, Judith, and Marilyn (the ‘Children’) upon the death of Mrs.

Hubert, including the net asset value passing to each of them from and through the

respective QTIP trusts, GPA trusts, and the Estate.” (Emphasis supplied.) It provides

details about how the parties will perform this computation (including the removal

of discounts, discussed infra), and it states that this computation “shall implement the

provisions of Mrs. Hubert’s Last Will and Testament in the manner reflected in [an

exhibit attached to the settlement agreement].” The settlement agreement then

imposes the costs of administration expenses and taxes equally upon each of the four

Hubert sibling’s shares, at which point, according to the settlement agreement, “the

10 Estate has been equalized.” The referenced exhibit provides a model for the

equalization computation.

Thus, the unambiguous language of the settlement agreement sets forth a two-

step process for equalizing the estate among the four Hubert siblings. In the first step,

the accountant is to make certain determinations, and any disputes among the parties

regarding those determinations, or any open questions raised by the accountant, shall

be resolved. Then, in the second step, the parties are to use the accountant’s

determinations to reallocate the estate assets among them according to specific

parameters.

At trial, the accountant testified that he had not completed the work called for

in Paragraph 1 of the settlement agreement because of outstanding questions and

other disputed issues. The parties apparently agreed that the probate court, in lieu of

Judge Pope, could resolve the open issues identified by the accountant. Richard

Hubert, Marilyn Kemper, and Deborah Hubert put into evidence an exhibit compiled

by the accountant that reflected those issues, and in his appellate brief, Richard

Hubert summarizes the open issues as:

(1) [R]emoval of the allocation of a portion of the estimated estate tax liability of O. C. Hubert;

11 (2) Adjustments based on an over-distribution to Mrs. Hubert by Hubert Properties during the first [eight] years after its formation . . . ;

(3) Direction as to whether [the accountant’s] assumption is correct in his adjusted percentages of assets from [another of the Hubert-related entities] . . . ;

(4) Direction as to how to handle the fact that [Manning Family Investment’s] values placed on properties other than [Judith Manning’s] QTIP . . . at the date of contribution were determined by Aymar Manning without documentation; and

(5) The need for additional support for distributions made to Mrs. Hubert.

(Citations omitted.)

Instead of addressing the open issues identified by the accountant and then

returning the matter to the accountant, however, the probate court performed the final

equalization calculation called for in Paragraph 2. This approach did not comply with

the procedure established by the unambiguous terms of the settlement agreement.

Judith Manning argues that the parties stipulated to this approach during a

proceeding in their related case before Judge Grubbs in the superior court. Those

proceedings are properly before us because, at the trial in this case, Judith Manning’s

12 counsel read into the record the relevant excerpts of the transcript of the superior

court proceeding. But those excerpts do not support her argument. They show merely

a representation by her counsel that the parties had agreed for the probate court to try

“every . . . dispute that exists between these parties,” aside from a dispute concerning

Judith Manning’s ownership in a Hubert-related entity that had been raised in the

proceedings in this case but also was the subject of the related superior court case.

This reference appears to concern the parties’ agreement to remove that additional

dispute from the matters before the probate court. In any event, the language to which

Judith Manning points does not authorize the probate court to substitute a different

mechanism for distributing the estate from that set forth in the parties’ settlement

agreement. And, contrary to Judith Manning’s assertion of a stipulation, Richard

Hubert, Marilyn Kemper, and Deborah Hubert continued to argue throughout the

probate court proceedings that, to enforce the settlement agreement, the probate court

must return the matter to the accountant after resolving the open issues in accordance

with Paragraph 1.

The probate court’s desire to bring an end to this protracted litigation between

family members is understandable. In enforcing the parties’ settlement agreement,

however, the probate court was bound to follow the procedures to which the parties

13 agreed, inefficient though they might be. The probate court diverged from those

procedures when she declined to decide the accountant’s open issues and then send

the matter back to him to complete the work called for in Paragraph 1, but instead

proceeded to make the Paragraph 2 equalization calculation. Accordingly, we must

reverse that portion of the probate court’s order and remand the case for the probate

court to enforce the procedures set forth in the settlement agreement, as written, and

for other proceedings not inconsistent with this opinion.

(b) Treatment of discounts.

One of the accountant’s unresolved questions concerned the treatment of

discounts in valuing the estate assets. The parties’ dispute on this issue turns on

whether the settlement agreement requires the valuation of the estate assets to be

adjusted to remove what Richard Hubert, Marilyn Kemper, and Deborah Hubert refer

to in their appellate briefs as “intermediate discounts” – discounts that were applied

when they contributed the interests in Hubert Properties to Hubert Consolidated. We

address this issue because it is likely to recur on remand.

Paragraph 2 of the settlement agreement pertinently provides that

the Parties shall recompute the allocation of all assets among Deborah, Richard, Judith, and Marilyn (the “Children”) upon the death of Mrs.

14 Hubert, including the net asset value passing to each of them from and through the respective QTIP trusts, GPA trusts, and the Estate. Such computation shall be implemented using fair market values of all such assets upon the date of Mrs. Hubert’s death, as finally determined for purposes of the Federal Estate Tax liability of her estate, adjusted to remove the impact of any valuation discounts or adjustments applied by the appraisers to account for lack of marketability, lack of control, or restricted transferability of any such asset for federal estate tax purposes, and adjusted to reflect any changes required to correct any errors identified by the Accountant resulting from the Accountant’s review pursuant to paragraph 1 above.

Although convoluted, the language in this paragraph is unambiguous. It provides that

the parties are to recompute the net value of the assets they have received from or

through the QTIPs, GPA trusts and estate. They will use in this computation the fair

market value of the assets at the time of Mrs. Hubert’s death. That fair market value

will be adjusted to remove any discounts applied by appraisers to account (for estate

tax purposes) for the assets’ lack of marketability, control or transferability.

The probate court held simply that “the Settlement Agreement says there

should be no discounts.” (Emphasis supplied.) But as the above recitation of the

settlement agreement’s language demonstrates, the settlement agreement requires the

removal of discounts under specific circumstances, namely when those discounts

15 were applied by appraisers to account (for estate tax purposes) for the assets’ lack of

marketability, control or transferability. The relevant question in this case is whether

those circumstances existed as to the “intermediate discounts.” The “intermediate

discounts” arose when, prior to Mrs. Hubert’s death, Richard Hubert, Marilyn

Kemper, and Deborah Hubert contributed their QTIP interests in one limited

partnership to another limited partnership. So the question is whether those

“intermediate discounts” were applied by appraisers to account (for estate tax

purposes) for the lack of marketability, control or transferability of the assets that

ultimately passed to the Hubert children at the time of Mrs. Hubert’s death. If the

answer is yes, then the settlement agreement requires their removal. If the answer is

no, then it does not require their removal. This is a question of fact that the probate

court appears not to have considered, in light of her conclusion that the settlement

agreement allows “no discounts.” Accordingly, this question is appropriate for the

probate court, as factfinder, to address on remand when resolving the open issues

presented by the accountant.

(c) Imposition of interest.

The settlement agreement provides that certain payments that the estate had

made to Richard Hubert, Marilyn Kemper, and Deborah Hubert must be taken into

16 account in the equalization calculation. The probate court held that the equalization

calculation also must take into account interest on these payments. Richard Hubert,

Marilyn Kemper, and Deborah Hubert argue that the settlement agreement does not

authorize such imposition of interest. As this is a question of contract interpretation

that may affect the proceedings on remand, we address it here.

The settlement agreement pertinently provides:

The equalization of the Estate shall be computed based on the assets of the Estate at the date of Mrs. Hubert’s death, and shall take into account the payments made to three of the Children in the aggregate amount of $750,000.00, each, and shall take account of any overpayment by Judith Manning, on behalf of [Manning Family Investments], to the Estate of $27,129.00 (plus accrued interest at the judgment rate from day of payment).

(Punctuation omitted.) Any ambiguity in this sentence concerning the imposition of

interest can be resolved by looking at the sentence’s structure, which reflects that the

interest is to be imposed upon Judith Manning’s overpayment to the estate (the clause

of the sentence to which the interest requirement is appended), and not upon the

estate’s payments to Richard Hubert, Marilyn Kemper, and Deborah Hubert (which

are addressed in a separate clause). See OCGA § 13-2-2 (6) (rules of grammatical

construction usually govern in construing contracts).

17 3. Motions to amend and motions for new trial.

Marilyn Kemper and Deborah Hubert challenge the probate court’s denial of

their motions to amend the findings of fact and conclusions of law and for new trial.

In light of our decision reversing that portion of the probate court’s order pertaining

to the enforcement of the settlement agreement, and remanding the cases for further

proceedings, these claims of error are moot.

4. Attorney fees.

The probate court ordered Richard Hubert and Deborah Hubert to pay attorney

fees to Judith Manning on the ground that they had been stubbornly litigious for

“refusing to accept that to which they had agreed in the Settlement Agreement.” The

probate court criticized the position taken by Richard Hubert and Deborah Hubert that

the settlement agreement did not require the removal of the “intermediate discounts”

in the equalization calculation. Nevertheless, there is a bona fide controversy on the

point. Indeed, in Division 2 (b), supra, we reverse the probate court on that point. “[I]f

there is a bona fide controversy there can be no stubborn litigiousness as a matter of

law.” Trust Co. Bank of Augusta, N. A. v. Henderson, 185 Ga. App. 367, 372 (4) (364

SE2d 289) (1987) (citation omitted); see also Milam v. Attaway, 195 Ga. App. 496,

498 (2) (393 SE2d 753) (1990). In light of our conclusions in Division 2, supra,

18 regarding the enforcement of the settlement agreement, the award cannot stand, and

we reverse it.

5. Counterclaim for breach of fiduciary duty.

The probate court found that Richard Hubert, Marilyn Kemper, and Deobrah

Hubert failed to prove their counterclaim that Judith Manning breached fiduciary

duties imposed upon her as a trustee of one of the QTIPs and as a co-executor of the

mother’s estate. Alternatively, the probate court found that the terms of the settlement

agreement precluded the counterclaim against Judith Manning. Richard Hubert

challenges this ruling on appeal.

“It is well settled that a claim for breach of fiduciary duty requires proof of

three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3)

damage proximately caused by the breach.” Jonas v. Jonas, 280 Ga. App. 155, 160

(3) (b) (633 SE2d 544) (2006) (citation and punctuation omitted). Richard Hubert

argues that Judith Manning breached her fiduciary duties by personally profiting from

the trust estate through an ownership interest in Manning Family Investments while

failing to pay Mrs. Hubert the income to which she was entitled from Judith

Manning’s QTIP. See Hasty v. Castleberry, __ Ga. __, __ (4) (__ SE2d __) (Case No.

S13A0989, decided Oct. 7, 2013) (“Generally, it is not permitted for a fiduciary to be

19 in a position where his interests might conflict with that of a beneficiary and a trustee

shall administer the trust solely in the interests of the beneficiaries.”) (citations and

punctuation omitted). But as Judith Manning points out, evidence was presented at

trial that Manning Family Investments paid Mrs. Hubert more than what was required

by the terms of the trust. This evidence authorized the probate court’s ruling. See

generally Ludwig v. Ludwig, 281 Ga. 724, 726 (4) (642 SE2d 638) (2007) (where

record established that plaintiffs were not damaged by trustees’ alleged breaches of

fiduciary duty, trustees were entitled to summary judgment despite evidence “that

[they] ha[d] not perfectly performed all of their administrative obligations under the

trust and that they improperly expended trust assets”).

6. Admission of opinion testimony.

Richard Hubert argues that the probate court erred in allowing Judith

Manning’s husband, Aymar Manning, to testify to his opinion about the value of real

property that had been contributed to Manning Family Investments. We consider this

issue because it is likely to recur on remand.

Pretermitting whether Aymar Manning (a credentialed real estate appraiser )

could testify as an expert in this case, the probate court held that he could give lay

opinion testimony on the properties’ values based on his ownership interest in the

20 property. Under former OCGA § 24-9-66, which was in effect at the time of the trial,

“[d]irect testimony as to market value is in the nature of opinion evidence. One need

not be an expert or dealer in the article in question but may testify to its value if he

has had an opportunity for forming a correct opinion.” (A similar rule is found in

Georgia’s new evidence code at OCGA § 24-7-701 (b).) Aymar Manning testified

that he was familiar with the properties at issue, in which he had an ownership

interest, and that he also was familiar with comparable properties, which he had

considered in reaching his opinion. His testimony provided a sufficient foundation

for the probate court to consider his opinion as to the properties’ market values under

former OCGA § 24-9-66. See Beale v. O’Shea, 319 Ga. App. 1, 6-7 (1) (735 SE2d 29)

(2012). Accordingly, it is not error to admit that testimony to the extent it is relevant

to the issues to be decided by the probate court on remand (the open issues that must

be resolved before the accountant can complete his work under the settlement

agreement).

7. Motion to recuse.

Richard Hubert challenges the probate court’s denial of his motion to recuse

the superior court judge who was designated to sit as the probate court in this case.

The record shows that on September 17, 2012, Richard Hubert sent the probate court

21 a letter in which he requested the judge to recuse herself, primarily due to the manner

in which she had conducted this and related proceedings. But he did not move to

recuse until the morning of trial, September 24, 2012. The probate court denied the

motion as untimely under Uniform Superior Court Rule 25.1, which requires that a

motion to recuse be filed “not later than ten (10) days prior to the hearing or trial

which is the subject of recusal or disqualification, unless good cause be shown for

failure to meet such time requirement” and further provides that “[i]n no event shall

the motion be allowed to delay the trial or proceeding.” Uniform Probate Court Rule

6.10 (A) contains identical language.

From the record, there is no question that Richard Hubert failed to meet this

timeliness requirement, and he has cited to no authority to support his argument that

the probate court was required to recuse herself despite the untimeliness of the

motion. We find no error.

8. Removal of executors.

The probate court removed all four siblings as co-executors, finding that

“[t]here is eminent distrust on both sides and the situation is untenable.” There was

evidence to support this finding, and the decision to remove the parties as co-

executors fell within the probate court’s discretion under OCGA § 53-7-55 to remove

22 an executor for “good cause.” See generally Benefield v. Martin, 276 Ga. App. 130,

132 (622 SE2d 469) (2005) (the “probate court can order an accounting, remove

executors or require they post additional security, or issue such other order as in the

probate court’s judgment is appropriate under the circumstances of the case” to

address issues pertaining to the performance of executors) (citations and punctuation

omitted); In re Estate of Zeigler, 273 Ga. App. 269, 270 (1) (614 SE2d 799) (2005)

(“The relevant question in reviewing a removal order is whether the trial court had

grounds to conclude that there was ‘good cause’ for removal.”) (citation omitted).

9. Bond order.

Richard Hubert appeals from the probate court’s order requiring him to post a

bond under OCGA § 53-7-55. That Code section permits a probate court, in its

discretion and upon a finding of good cause, to “[r]equire additional security” from

an executor. OCGA § 53-7-55 (2). As we have affirmed on appeal the probate court’s

decision to remove Richard Hubert as executor, the matter of the bond is now moot.

See Ruskin v. AAF-McQuay, 284 Ga. App. 49, 53 (643 SE2d 333) (2007).

Judgment in Cases No. A13A1484, A13A1485 and A13A1486 affirmed in part,

reversed in part, and cases remanded with direction. Appeal in Case No. A13A2131

dismissed as moot. Doyle, P. J., and Boggs, J., concur.