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Johnson v. Greene Acres Nursing Home Association12/1/2005
ation was pursued, then appellant was required to petition the court, as he did, to be reappointed as personal representative to pursue it.
We agree with the appellees. The language in the court's order clearly discharges the executor, stating as follows:
he Executor and his sureties be and the same are hereby released and discharged from their trust herein and any and all liability or accountability thereunder, and the administration of the estate is closed subject to the payment of the claims as filed herein represented to be paid from proceeds of private sale after set off as herein provided.
While it is arguable that the closing of the estate was "subject to the payment" of certain claims, the record indicates that those claims have been paid, and appellant has not suggested otherwise. In any case, he does not argue that his discharge was subject to such payments, but argues instead that his discharge was contingent upon the filing of a wrongful-death action.
Although not specifically citing any statute in its order, the court's order appeared to be pursuant to Ark. Code Ann. ยง 28-53-104 (Repl. 2004), which governs orders of final distribution. Section 28-53- 104(a) requires a court to make certain statements regarding claims, notices, and other matters in an order of final distribution. The probate court did so in this case. Section 28-53-104(b) states that the order shall discharge the personal representative and the surety on his or her bond " f there has been a determination that there is no liability to the estate by the personal representative or his or her surety and if the order approves a final distribution previously made[.]" Id. In accordance with this statute, the court stated, "distribution previously made or to be made hereunder is hereby approved and the Executor and his sureties be and the same are hereby released and discharged from their trust herein and any and all liability or accountability thereunder . . . ." Nothing in the court's statement discharging the executor indicated that the discharge was subject to a lawsuit being filed. The court's subsequent paragraph - stating that " his estate shall remain open pending a determination of potential litigation of personal injury and/or mal-practice claims pending, etc." - does not state that the executor shall not be discharged pending such a determination. We will not rewrite the court's order to include such a provision.
We hold that the probate court's order entered on October 25, 2002, discharged appellant as the executor for the estate of Ms. Mears. Therefore, he had no standing to file a lawsuit on behalf of the estate, and the complaint that he filed against the appellees on July 25, 2003, was a nullity. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002). We affirm the judgment of the circuit court.
Affirmed.
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