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In re Estate of McMillin

Court of Appeals of Tennessee, Knoxville

February 12, 2015

IN RE ESTATE OF DOROTHY JEAN MCMILLIN

Assigned on Briefs January 23, 2015

Appeal from the Chancery Court for Knox County No. 731563 Michael W. Moyers, Chancellor

Appellant Paul L. McMillin, Knoxville, Tennessee, pro se.

Bruce Hill, Sevierville, Tennessee, for the appellees, James McMillin and Iris Davenport.

Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE

I. Background

Dorothy Jean McMillin ("Decedent") died testate on November 18, 2012. The devisees under the Decedent's will were her children: Paul McMillin ("Appellant"), James McMillin, Iris Davenport, and Linda Cole. The will designated Paul McMillin as executor of the estate. On March 28, 2013, James McMillin and Iris Davenport (together, "Appellees") brought suit against Paul McMillin for depletion of the estate ("the depletion case") in Knox County Chancery Court. In their lawsuit, the Appellees alleged that the Appellant had exercised undue influence over the Decedent and had, thereby, obtained hundreds of thousands of dollars from the estate. After a two-day trial, a jury awarded the estate a judgment against Paul McMillin in the amount of $284, 800. The Knox County Chancery Court entered its final order in the jury trial on March 4, 2014. On March 18, 2014, Appellant appealed that award to this Court in a separate appeal.[1]

On September 26, 2013, before the depletion case was decided, the Appellees filed a motion in the Probate Division of the Knox County Chancery Court where the estate case was pending to remove Paul McMillin as executor of the estate. On March 6, 2014, the Clerk and Master of Chancery Court, acting as a Special Master, heard the motion. At the hearing on the motion, Appellees argued that the Appellant had a conflict of interest that prevented him from being able to carry out his fiduciary duties to the estate. The Special Master orally presented findings and conclusions on March 31, 2014 and recommended, in his report dated April 1, 2014, that Paul McMillin be removed as executor of the estate and the estate letters be revoked. On May 23, 2014, Chancellor Moyers, acting as Probate judge, entered an order adopting the Special Master's report and removing Appellant as executor of the estate. Paul McMillin appeals.

II. Issue

The only issue before this court is whether the Probate Division of the Knox County Chancery Court had jurisdiction to remove Paul McMillin as executor of Decedent's estate.

III. Analysis

We review this case to determine whether the trial court had jurisdiction to remove the Appellant as executor of the estate while the depletion case is on appeal. Although not specifically implicated by Appellant's argument, we first review whether the trial court had subject matter jurisdiction. "Subject matter jurisdiction may be raised at any time by the parties or by the appellate court sua sponte on appeal." Holley v. Holley, 420 S.W.3d 756 (Tenn. Ct. App. 2013) (citing County of Shelby v. City of Memphis, 365 S.W.2d 291 (Tenn. 1969)). Because "a determination of whether subject matter jurisdiction exists is a question of law, our standard of review is de novo, without a presumption of correctness." Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

"Tennessee's courts derive subject matter jurisdiction from the state constitution or a legislative act." Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013). Tennessee Code Annotated Section 16-16-201(a) provides that "In all counties where not otherwise specifically provided by public, private, special or local acts, all jurisdiction relating to the probate of wills and the administration of estates…is vested in the chancery court of the respective counties." It is well settled that courts exercising probate jurisdiction may remove an executor. See Tenn. Code Ann. § 30-1-151 ("An executor or administrator may be removed in accordance with the procedure in [Tennessee Code Annotated] § 35-15-706."); In re Estate of Thompson, 952 S.W.2d 429, 432 n.1 (Tenn. Ct. App. 1997). A court may remove an executor if, "[b]ecause of unfitness, unwillingness, or persistent failure of the [executor] to administer the [estate] effectively, the court determines that removal of the [executor] best serves the interest of the beneficiaries." Tenn. Code Ann. ยง 35-15-706(b)(3). In removing the Appellant, ...


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