Lynn v. Lynn, et al.
| Docket Number: | 2001-CA-00922-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-20-2004 Opinion Author: Bridges, P.J. Holding: ON DIRECT APPEAL: AFFIRMED IN PART AND REVERSED IN PART. ON CROSS-APPEAL: AFFIRMED |
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| Additional Case Information: |
Topic: Wills & estates - Partition of property - Special commissioner - M.R.C.P. 53(g)(2) - Contempt - Injunction - M.R.C.P. 65 (d)(2) - Attorney’s fees Judge(s) Concurring: King, C.J., Southwick, P.J., Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 04-25-2001 Appealed from: Warren County Chancery Court Judge: Donald Patterson Disposition: FINAL JUDGMENT OF PARTITION ENTERED AS TO BOTH PARTIES. ATTORNEY FEES NOT AWARDED TO APPELLEES/CROSS APPELLANTS. Case Number: 21,204 |
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| Party Name: | Attorney Name: | |||
| Appellant: | In the Matter of the Last Will and Testament of Mary Ellen Lynn, Deceased: James E. Lynn, Sr. |
C. ASHLEY ATKINSON |
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| Appellee: | Grace Lynn, Johnny Lynn, Jerry Lynn, Raymond Lynn, George Lynn, Patricia Barnes and Frances Holliday, Co-Executrixes of the Estate of Mary Ellen Lynn | LEE DAVIS THAMES HARRY JONES ROSENTHAL |
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| Topic: | Wills & estates - Partition of property - Special commissioner - M.R.C.P. 53(g)(2) - Contempt - Injunction - M.R.C.P. 65 (d)(2) - Attorney’s fees |
| Summary of the Facts: | The estate of Mary Ellen Lynn consisted primarily of fifty acres in Warren County. Since Mary’s death, her children have been in dispute over the partition of this property. A special commissioner was called on to conduct surveys and equitably divide the property. The chancellor held judgment against the estate based on the fourth report of the special commissioner. |
| Summary of Opinion Analysis: | Issue 1: Partition James argues the chancellor did not have authority to reject the third report of the special commissioner nor did he have authority to give the special commissioner specific instructions on how to reach a decision on how to partite the property. He believes that he is entitled to the improvements made before the death of Mary Ellen and the partition should accommodate them. M.R.C.P. 53(g)(2) allows the chancellor to reject the ruling of the special commissioner if he believes the ruling is manifestly wrong or objected to within ten days. The objections to the third report brought by the family members were beyond the ten day time period. Therefore, the only permissible method of rejecting to the report was if the chancellor found the report manifestly wrong. The chancellor did not err in objecting to the report of the special commissioner. The gross inequity of the parcels of property is sufficient to meet the standard for modification. Issue 2: Contempt The chancellor required Theresa, James’ wife, to pay the expenses incurred when she ran the surveyors off the property. There was a standing order almost since the appointment of the special commissioner that no party should interfere with the commissioner or his surveyors and the completion of their tasks. M.R.C.P. 65 (d)(2) states that an injunction is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Theresa is not a party to this action, nor is she the servant, agent, officer, employee or attorney. Since the chancellor did not have Theresa personally served with notice of the injunction, the chancellor’s decision holding Theresa in contempt of court is reversed. Issue 3: Attorney’s fees The chancellor ruled that, while the expenses incurred by the estate were reasonable, valuable and necessary, the estate has no assets with which to award attorney’s fees, finding that the estate was “defacto insolvent.” The co-executrixes argue that the chancellor did not follow proper procedure for determining an estate insolvent. Attorney’s fees are the responsibility of the executrix and they may be paid out of the estate. Since paying these expenses out of estate assets is not mandatory and is within the discretion of the court, the chancellor did not abuse his discretion in denying the payment of attorney’s fees from the estate assets. |
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