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PIRNIE v. PIRNIE

February 9, 1996

ROBERT M. PIRNIE, III
V.
BILLIE JO PIRNIE, AS EXECUTRIX OF THE ESTATE OF ROBERT M. PIRNIE, JR., DECEASED.



Appeal from the Circuit Court, Montgomery County, No. CV-92-349, Charles Price, J.

The opinion of the court was delivered by: Cook, Justice.

Robert M. Pirnie III appeals from a ruling that he lacks standing to request the removal of his mother, Billie Jo Pirnie, as the executrix of the estate of his father, Robert M. Pirnie, Jr. The sole issue raised on this appeal is whether Mr. Pirnie III is a "distributee" within the meaning of § 43-2-293, Ala. Code 1975. We affirm.

Mr. Pirnie, Jr., died in May 1991. Pursuant to his will, his wife, Billie Jo Pirnie (hereinafter "the wife"); his son, Mr. Pirnie III (hereinafter "the son"); and AmSouth Bank were named co-executors of his estate. Shares in Ropir Industries, which is a holding [675 So2d Page 401]

company for several other entities, constitute the primary assets in the estate.

The decedent's will provided specific bequests to his wife, with the remainder of the estate assets pouring over into the already-established R.M. Pirnie 1989 Trust. The trial court found the 1989 Trust to be an inter vivos trust; that finding is not challenged on appeal. The trustees — the wife, the son, and AmSouth — were to divide those assets into two smaller trusts, the Marital Trust and the Family Trust. Both trusts were for the benefit of the wife for her lifetime. Upon her death, the assets in the Marital Trust were to pass pursuant to the wife's will and the assets in the Family Trust were to pass to the son and in trust for a second son, Ron. The wife, the son, and AmSouth were also named co-trustees of the Marital and Family Trusts.

The administration of the estate was removed to the circuit court in February 1992. The wife disclaimed any interest she had in the Family Trust and her interest in 4,323 shares of Ropir Industries, Inc., allocated to the Marital Trust; AmSouth resigned as co-executor of the estate and as co-trustee of all trusts; the wife resigned as co-trustee of the Family Trust; and the son resigned as coexecutor and as co-trustee of the Marital Trust. The wife then filed a separate action, which was consolidated with the seeking removal of the son as co-trustee of the 1989 Trust, the Family Trust, and the Ronald K. Pirnie Trust. The son, in turn, sought removal of the wife as executrix and as co-trustee of all trusts except the Marital Trust.

In December 1993, the trial court removed both the wife and the son as trustees of the 1989 Trust and removed the son as trustee of the Family Trust. The trial court then appointed attorneys Linda Smith and James Cameron as co-trustees of the 1989 Trust and Ms. Smith as trustee of the Family Trust. Ms. Smith was later replaced as co-trustee by James M. Sizemore, Jr. The trial court then found in favor of the wife on the son's application for her removal as executrix. As a result of the resignations and the trial court's order, the wife became the sole executrix of the estate; James Cameron and Sizemore were named as co-trustees of the 1989 Trust; the wife was sole trustee of the Marital Trust; Sizemore became sole trustee of the Family Trust; and the wife was sole trustee of the Ron Pirnie Trust. In dismissing the son's application for removal, the trial court determined that he did not have standing to seek the removal of his mother as executrix of the estate. That order was made final pursuant to Rule 54(b), Ala.R.Civ.P. He appeals.

The trial judge made the following findings:

"This matter came on for hearing . . . on the Motion of Billie Jo Pirnie, as Executor of the Estate of Robert M. Pirnie, Jr., to dismiss, for lack of standing, the Petition of Robert M. Pirnie, III to remove Billie Jo Pirnie as Executor of the Estate of Robert M. Pirnie, Jr. Having considered the legal authorities presented by the parties and the arguments of counsel, it is hereby, ORDERED, ADJUDGED and DECREED as follows: The Motion of Billie Jo Pirnie, as Executor of the Estate of Robert M. Pirnie, Jr. is due to be and is hereby GRANTED. The Court finds that Robert M. Pirnie, III lacks standing to attempt to remove his mother, Billie Jo Pirnie, from her position as Executor of her husband's estate. Under Alabama law, standing to attempt to remove an executor of an estate is conferred by statute. Section 43-2-293, Ala. Code (1975), provides that the following persons may file an application for removal of an executor or, in the case of intestacy, an administrator: '. . . creditor, legatee, devisee, heir or distributee, or . . . any coexecutor, coadministrator or the sureties, or any of them.' Robert M. Pirnie, III does not fit into any of these categories.

"Robert M. Pirnie, III is only a remote beneficiary of his father's estate. Other than certain specific bequests to his surviving spouse, Billie Jo Pirnie, Decedent's Will left the remainder of his estate to a 'pour over' revocable inter vivos trust — the R.M. Pirnie, Jr. 1989 Trust. The Trustees of that Trust are to divide its assets into a 'Marital Trust' and a 'Family Trust'. Robert M. Pirnie, III is a beneficiary of the [675 So2d Page 402]

Family Trust and a contingent beneficiary of the Marital Trust.

"On August 28, 1992, Robert M. Pirnie, III resigned as Co-Executor of the Decedent's estate and that resignation was filed and entered of record in the Probate Court of Montgomery County on November 30, 1992. On February 28, 1992, Robert M. Pirnie, III resigned as Co-Trustee of the 'Marital Trust'. By Order of this Court, entered on December 14, 1993 (Pirnie v. Pirnie, CV-92-1889-PR), Robert M. Pirnie, III was removed as Co-Trustee of the R.M. Pirnie, Jr. 1989 Inter Vivos Trust and was also removed as Trustee of the 'Family Trust'. Thus, Robert M. Pirnie, III is not an executor of the Decedent's Estate; nor is he a Trustee of the Trust receiving the bulk of the assets ...


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