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In re Estate of Simms

Executors' appeal of order prohibiting them from using estate funds to defend allegations of maladministration is dismissed for lack of jurisdiction since the probate court had not made a final accounting of the estate.

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This is the third appearance of this case before this Court. As set out in Sims v. Sims, 265 Ga. 55 452 SE2d 761 1995, the controversy involves the distribution of the estate of Curtis Richard Sims Sims. In that case, the Supreme Court determined that the probate court erred in not granting the motion j.n.o.v. of Edward and Wayne Sims, Sims’ sons and co-executors, after a jury verdict for the granddaughters/caveators children of Sims’ deceased son Marshall on the petition to probate Sims’ will. The Supreme Court found insufficient evidence of undue influence by Edward and Wayne on their father with regard to the preparation and execution of the will and the matter was returned to probate court where, by order of March 23, 1995, the will was admitted as proven and letters testamentary issued to Wayne and Edward.

On June 27, 1996, Brenda Sims Heath, Sims’ daughter and a beneficiary, filed a Petition to Remove the Co-Executors pursuant to OCGA § 53-7-148.1 The probate court entered its order of March 11, 1997, finding that any improper actions by Edward and Wayne did not rise to such a level as would make removal appropriate. Further deeming it in the estate’s best interest, the probate court entered

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