In Re Estate of Miller

Jasper C. Rowe appeals from an August 1, 2006 order removing him as independent executor for the Estate of Garcia Talmadge Miller and ordering him to reimburse the estate for amounts paid by the estate to him as "attorneys fees." In five issues, Rowe argues the probate court erred when it: (1) excluded evidence which he claims would corroborate the existence of the oral instructions from the testator that Rowe take a one-third fee from the proceeds of the estate; (2) failed to enforce the contracts which authorized the compensation for his legal services; (3) found grounds to remove Rowe as independent executor; (4) interfered with his discretionary powers as independent executor to administer the estate in accordance with the wishes of the testator; and (5) exceeded its jurisdiction in entering an order for reimbursement of fees from him as the attorney for the independent executor when the action was against him in his capacity as independent executor. Madison Miller responds that the probate court did not err because: (1) the exclusion of evidence was proper under the Statute of Frauds and Rowe failed to properly make a bill of exceptions; (2) the alleged contracts were unenforceable and Rowe failed to make a claim against the estate for payment ; (3) the evidence is legally sufficient to support the probate courts findings that Rowe had grossly mismanaged and embezzled from the estate; (4) the Probate Code expressly empowers the probate court to remove the independent executor when there is a finding of gross mismanagement; and (5) the probate court was within its powers to order Rowe to return the money because it has the power to do what is necessary to protect the estate from mismanagement or unauthorized dissipation.