dissenting.
I must disagree with the majority holding that the trial court did not err in refusing to order the removal of William T. Grasty as executor of the will of Robert Vanderpoel Clark, Jr., deceased. This court’s approval of the trial court’s injunction in Record No. 6859 and the tenor of the language of the majority opinion in this appeal show that the actions of Grasty were detrimental to the best interests of the estate for which he was acting as fiduciary. That, in my view, is conclusive of the issue whether Grasty should have been removed.
It is true that the trial court found no fraud, breach of trust, or gross neglect on Grasty’s part. But Code § 26-3 provides for the re*39moval of a fiduciary by the court having supervision over him “whenever from any cause it appears proper” to take such action. The grounds for removal are thus not limited to fraud, breach of trust, or gross neglect.
Beyond those three grounds,, I can conceive of no clearer case for removal than one where the actions of a fiduciary are so inimical to the interests of his trust that he must be enjoined from further conduct of the same sort. The idea of the necessity of injunctive sanctions against a fiduciary is foreign and repugnant to the very nature of the trust relationship.
If Grasty had not been enjoined by the trial court and had been successful in his efforts to have the tax returns of the estate declared void, an additional tax liability of $1,000,000.00 or more might have been imposed upon the estate. It should not be necessary to point out that it was Grasty’s duty as executor, within the bounds of legal propriety, to try to lessen the tax burden upon the estate, rather than to seek to increase it.
Grasty’s actions have also caused extreme dissension between him on the one hand and the beneficiaries of the estate and the New York executor on the other, all to the detriment of the estate. This expensive and prolonged litigation is another result of his actions and, unless he is removed or further enjoined, there is no assurance that he will not, after this phase of the controversy is ended, continue his efforts to have declared void the tax returns of the estate.
And for what purpose did Grasty take the actions he did? Because, as the majority says, “the commission allowable to an executor in administering [the whole estate] was inviting.”
The majority says that Grasty’s “primary and pervading duty was to the testator and the legal directions in his will.” The majority further says that Grasty’s “conduct did not meet that requirement and in the judgment of the [trial] court an injunction was required to compel him to stop his course of conduct.” With all that I agree. But to me the next logically required step would be to remove Grasty as executor. I think it will come as a real surprise to those of the legal profession involved in the administration of estates in this Commonwealth that such step is not taken.
Snead and Gordon, JJ., join in this dissent.