Kappus v. Kappus

284 S.W.3d 831 (2009)

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Nature of the Case

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Facts

James, his brother D, and their father Walter formed a partnership called Kappus Farms. They purchased 49.482 acres of land. James married Sandra (P), and they had two children. Walter died in 2001. James and D owned the land 50/50 as co-tenants. Several improvements were added to the property: some by James alone, some by James and Sandra, and some by D alone. James and P divorced, and P was given an equitable lien on the real estate for her half of the community improvements made to the land. James executed a new will that named D as independent executor (an appointment that nobody challenged) and P's brother as alternative, independent executor. The will also set up a testamentary trust with James's children as beneficiaries and D as trustee. James and P divorced, and P was given an equitable lien on the real estate for her half of the community improvements made to the land. James executed a new will that named D as independent executor (an appointment that nobody challenged) and P's brother as alternative, independent executor. The will also set up a testamentary trust with James's children as beneficiaries and D as trustee. P opposed the distribution from the property sale, and P obtained an injunction preventing the sale from closing. P also sought to remove D as independent executor and trustee of the testamentary trust, alleging that he had a conflict of interest, and wasted estate assets. The court refused to remove D and found that the Anderson County property should be divided 58.59% for the estate and 41.41% for D. P appealed claiming the estate was owed at least 63.45% of the proceeds and the trial court erred as a matter of law in not removing D as both independent executor and trustee. The court of appeals affirmed the trial court's division of the property but reversed the trial court's decision on removal. D appealed.