Stаcy Green Hatchett appeals from the probate court’s order removing her as executor of the estate of her grаndmother, Alma J. Zeigler. Because we find that the probate court abused its discretion in removing Hatchett as executor, we reverse and remand to the probate court for action consistent with this opinion.
The relevant facts are as follows: Zeigler died in June 2001 and Hatchett, her granddaughter and a resident of Illinois, was named executor in her will. The petition to probate the will was filed on July 20, 2001, and letters testamentary were issued to Hatchett on January 10, 2002.
On March 7, 2002, Rita Williams, one of the will’s beneficiaries, filed a petition in the probate court requesting that the court order Hatchett to provide her with information about the property she would inherit under the will. Specifiсally, she wanted to know whether a house was protected by insurance and whether the mortgage payments were current. Williams cоmplained that, although she had called Hatchett on several occasions, Hatchett refused to talk with her.
On March 7, the probate court issued a rule nisi order instructing Hatchett to appear at a hearing on April 9 to show cause why “the relief prayed for shоuld not be granted.” Hatchett did not *808 appear at the hearing, but her attorney appeared on her behalf. 1 Following the hearing, thе probate court entered an order removing Hatchett as executor because “of [the] Executor’s failure to appear and respond to the Petition and Rule Nisi.”
On April 15, Hatchett filed a notice of appeal. Subsequently, however, the probatе court entered an order vacating its order of removal and then issued a second rule nisi directing Hatchett to appear at a hearing on May 21, to show cause why her letters testamentary should not be revoked. Hatchett did not appear at the May hearing and was once again represented by her attorney. Following the hearing, the probate court again ordered Hatchett removed as .executor because she did not comply with the April rule nisi by appearing at the hearing and accounting for her actions as a fiduciary. The probate court also named a new executor. Hatchett appeals from this second order.
1. “OCGA § 5-6-46 (a) provides that the filing of a notice of appeal serves as supersedeas when all costs in the trial court are paid. This аutomatic supersedeas deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeаl.” (Citations and punctuation omitted.)
Anaya v. Brooks,
2. OCGA § 53-7-55 (1) provides that,
[u]pon the petition of any person having аn interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the lеtters of a personal representative or impose other sanctions, the court shall cite the personal represеntative to answer to the charge. Upon investi *809 gation, the court may, in the court’s discretion . . . [r] evoke the personal representative’s letters.
The probate court has broad discretionary powers to remove an estate administrator upon a showing of unfitness for the trust reposed in him.
Nesmith v. Pierce,
Although Hatchett argues that the evidence does not demonstrate “good cause” to rеmove her as executor, in this case, evidence of “good cause” for Hatchett’s removal is not the determinative factor in our decision. OCGA § 53-7-55 requires that (1) there appear to be “good cause” or a petition to remove the executor, and (2) the executor be given notice of the charge and opportunity to answer.
Here, Williams petitioned for a rule nisi only so that she might оbtain information about her property. The rule nisi directed Hatchett to appear only to show cause “why the relief prayed for should not be granted.” There was no petition made to remove her as executor, nor any indication that she might be removed as executor. 2 Following this hearing, the probate court ordered Hatchett removed “because she failed to appeаr and respond to the Petition and Rule Nisi.” Nothing in the record indicates that Hatchett was on notice that her letters testamentary cоuld be revoked.
The record suggests that Hatchett did not respond to numerous requests for information from Williams and that there was a lengthy delay before Hatchett took the oath to become executor. Arguably, these might have presented evidence of “good cause” for Hatchett’s removal as executor, but because the probate court did not provide Hatchett with the notice rеquired by OCGA § 53-7-55, we must reverse and remand for the probate court to act in accordance with the statute.
Judgment reversed and remanded.
Notes
The transcript of the hearing is not included with the record. Hatchett’s attorney filed an affidavit of his recollection of the hearing with the trial court, which is included with the record. While the transcript of the rule nisi hearing is not necessary for our consideration in this case, we note that the affidavit of appellant’s counsel does not meet the requirements of OCGA § 5-6-41 (g) regarding the correction of the record for purposes of appeal.
Henderson v. Lewis,
In an affidavit purporting to be a recollection of the first rule nisi hearing, Hatchett’s attorney said that Williams made an oral motion to remove Hatchett as executor.