In Highland v. Empire National Bank of Clarksburg, 114 W.Va. 498, 501, 172
S.E. 551, 554 (1933), this Court's holding established an unambiguous principle that,
[w]here inharmonious or unfriendly relations exist between the trustees, or between them
and the cestui que trust [the beneficiaries], there may be sufficient reason for removal.
(Citation omitted). Highland makes it clear that an executrix can be removed for something
other than failure to perform her fiduciary duty. Moreover, a thorough reading of Highland shows that it stands for the proposition that carrying out the primary purposes of a testator's
will must supercede keeping a particular fiduciary when the two objectives conflict. Highland provides that, it is not essential how such relations originated, or whether the
trustee, whose removal is sought, caused them by his own misconduct or not. Id. at 555
Additionally, in Welsh v. Welsh, 136 W.Va. 914, 928, 69 S.E. 2d 34, 42 (1952), this Court held that the general mandate to give effect to the testator's intent should not prevent the prompt removal of a personal representative who is incompetent or who fails or refuses to perform his clear duties. It should be clear to anyone reviewing the case at hand that the primary intent of Mr. Haines was to pass his entire estate to his daughter, Ms. Haines, while his secondary and subordinate intent was to name Ms. Kimble as executrix.
This Court's original March 17, 2006, opinion correctly decided this case in a fair, competent, and appropriate manner. As we said in that opinion,
[W]hile there may be facts in dispute as to the specific reasons surrounding the hostile relations between the appellee and the appellant, there is no dispute that such hostile relations in fact do exist and that the parties cannot work together with any sense of civility or common purpose. We believe that such hostile relations, regardless of who is at fault, necessarily have already damaged, and in the future will continue to damage, the estate and the appellant's interest in it.
Haines v. Kimble, No. 32844, Majority slip op.at 6 (March 17, 2006).
With regard to the disharmony between Ms. Haines and Ms. Kimble, we pointed out that:
This disharmony between the appellant and the appellee has brought to light numerous troubling allegations surrounding the administration of the testator's estate. For instance, the appellant maintains that the record is replete with examples of how the appellee's actions have hindered the proper administration of the estate. Specifically, she contends that the appellee made extensive corrections to the initial lists of the decedent's property to the detriment of the appellant and the estate and that the appellee appropriated $200,000 of the testator's bearer bonds in alleged contemplation of his imminent death and concealed those bonds for several months prior to giving them to the appellant. With regard to those bonds, the appellant maintains that the appellee initially filed a federal estate tax return reporting that the appellant contributed funds for the acquisition of the bearer bonds, but later reversed herself and filed a supplemental federal estate tax return indicating that the testator died owning the bonds solely and the appellant had no pre-mortem interest in them. The appellant argued such action resulted in her owing significant additional federal taxes.Id. at 6, 7. We also explained:
The appellant further declares that in spite of evidence
that the testator had given her a collection of antique firearms in
1967, the appellee filed tax returns with the IRS reporting the
guns as a part of the testator's estate. She also charges that the
appellee persistently inflated appraisals on the testator's
property to bolster her expected commission, that the estate
unreasonably had to incur fees for the services of three different
law firms at a cost of several hundred thousand dollars, and that
the appellee unnecessarily obtained a wasteful loan purportedly
to pay a portion of the federal estate taxes. Finally, the appellant
states that the appellee mishandled the closing of the testator's
law practice including the maintenance of his clients' files in a
manner contrary to governing legal and ethical practices and that
the appellee failed to maintain, secure, and insure the testator's
property subject to the claims of creditors of his estate including
his extensive real estate holdings.
Id at 7.
The result of the majority opinion is mind-boggling. Allegations swirled of inflated appraisals to increase Ms. Kimble's commission; improper appropriation of two hundred thousand dollars in Mr. Haines' bearer bonds by Ms. Kimble; unreasonable actions by Ms. Kimble causing Ms. Haines to incur hundreds of thousands of dollars in unnecessary federal and state taxes; more than one million dollars in legal fees from three separate law firms; and mishandling of the closing of Mr. Haines' law practice by Ms. Kimble. As we clearly explained in our first opinion in this case, regardless of the truth or veracity in the disputed items above and without determining blame or responsibility for the dispute, there are clear issues that simply cannot be ignored with regard to the administration of the testator's will. Haines v. Kimble, No. 32844, Majority slip op.at 9 (March 17, 2006).
The record strongly establishes the parties' hostile relations which have continued from the moment of Mr. Haines' death through his memorial service, funeral, and ever since. Ms Kimble even attempted to preclude any face-to-face interaction with Ms. Haines. In one letter to Ms. Haines, Ms. Kimble explained . . . it would be to the best interest of both of us that we are not in the office at the same time. I will be in the office from 9-12 each day until further notice. During that time period, Ms Haines was trying to deal with the death of her father and with the finalization of his estate. Instead, she encountered continuous problems as even the most routine matters demanded the attention of legal counsel. Of course, this added to the already growing legal fees subtracted from Mr. Haines' estate.
We have consistently held that decisions involving the construction of a will always begin with the recognition that: The paramount principle in construing or giving effect to a will is that the intention of the testator prevails, unless it is contrary to some positive rule of law or principle of public policy. Syllabus Point 1, Farmers and Merchants Bank v. Farmers and Merchants Bank, 158 W.Va. 1012, 216 S.E.2d 769 (1975); see also Syllabus Point 4, Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957); In re Conley, 122 W.Va. 559, 561,12 S.E.2d 49, 50 (1940). The majority has strayed far afield from this well- established principle.
In sum, there is no dispute that Mr. Haines clearly intended to leave all of his
worldly possessions to Ms. Haines as his sole heir. Does anyone reading this seriously
believe that Mr. Haines would have appointed Ms. Kimble if he had known there would be
such aggressive and acrimonious battles between her and Ms. Haines in the administration
of his estate? Likewise, it is inconceivable that had Mr. Haines envisioned the massive
amounts of money being spent in legal fees alone, now estimated at more than one million
dollars, that he would have appointed Ms. Kimble. The result of the majority opinion is not
simply an injustice to Ms. Haines, it is also an outrage to Mr. Haines whose lifetime
accumulation of assets is slowly being squandered dollar by dollar.
Therefore, for the reasons set forth above, I respectfully dissent. I am authorized to state that Chief Justice Davis joins me in this dissent.