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Levingston v. Stovall3/9/2005
te, failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by § 28-48-101(b)(6), then the court may remove him. The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed. The removal of a personal representative after letters have been duly issued to him does not invalidate his official acts performed prior to removal.
Ark. Code. Ann. § 28-48-105.
After the hearing on appellants' removal motion, the court determined that no evidence or testimony was produced to provide any basis for removing Ms. Stovall. Appellants argue that the court erred in its conclusion because they presented sufficient evidence of fraud and conflict-of-interest to warrant Ms. Stovall's removal. Most notably, appellants allege that Ms. Stovall committed fraud in her petition for appointment by failing to list all of the decedent's heirs. However, as correctly noted by appellee, the class of beneficiaries entitled to inherit directly from the estate is composed of the decedent's two minor children and appellee (had she chosen to pursue a dower claim). Appellants are in the class of beneficiaries that stand in a position to take in the pending wrongful-death action, pursuant to Arkansas's wrongful-death statute. While it is true that Ms. Stovall originally omitted appellants' claims from the wrongful-death action, the judge-who is also the circuit judge handling the wrongful-death action-ordered her to properly recognize all potential beneficiaries in that action, and she promptly complied with the court's order.
As to appellants' other claims of unsuitability, they are also without merit. As personal representative of the estate appellee is entitled (and in some instances required) to account for assets of the estate, gather estate property, select counsel to represent the estate in the wrongful-death action, and file a wrongful-death action on behalf of the decedent. Appellants have failed to show specifically how Ms. Stovall has neglected to perform any duty pertaining to the office or how she has mismanaged the estate, so as to require her removal.
It is unfortunate that the Stovalls were near divorce when the decedent was killed; this fact will undoubtably complicate the administration of the estate and the wrongful-death action. However, at the time the decedent was killed, he and Ms. Stovall were legally married, and Ms. Stovall is now solely responsible for the couple's two minor children-the decedent's primary heirs. Because the record contains sufficient evidence to prove that Ms. Stovall has adequately carried out her duties as the priority representative of the estate, we cannot say that the court erred in its decision to retain her service as administratrix.
Affirmed.
Pittman, C.J., and Gladwin, J., agree.
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