In Re Conservator for Vinson
| Docket Number: | 2006-CA-00342-COA Linked Case(s): 2006-CA-00342-COA ; 2006-CT-00342-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-22-2007 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Final accounting - Joinder of parties - M.R.C.P. 19 - Section 93-13-67 - Section 93-13-41 - Fees Judge(s) Concurring: LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): IRVING AND BARNES, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 12-12-2005 Appealed from: LEE COUNTY CHANCERY COURT Judge: Dorothy W. Colom Disposition: CHANCELLOR APPROVED ACCOUNTING AND DISCHARGED CONSERVATOR. Case Number: 96-1110 |
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| Party Name: | Attorney Name: | |||
| Appellant: | IN RE: THE APPOINTMENT OF A CONSERVATOR FOR WOODROW W. VINSON AND KERNITH B. VINSON: HARRY VINSON |
B. SEAN AKINS |
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| Appellee: | WILLIAM BENSON, CONSERVATOR | WILLIAM M. BEASLEY REBECCA L. HAWKINS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Final accounting - Joinder of parties - M.R.C.P. 19 - Section 93-13-67 - Section 93-13-41 - Fees |
| Summary of the Facts: | Two petitions were filed with the Lee County Chancery Court requesting a conservatorship for Woodrow Vinson and Kernith Vinson and their estates. The first petition, filed by their son, Harry Vinson, requested that he be appointed conservator for his parents and their estates. The second, filed by the Vinsons, nominated their daughter, Rita Vinson, to serve as conservator. At the time of the hearing, Rita notified the chancellor that she no longer wished to be considered for appointment. The chancellor found that Harry was not qualified to serve as conservator due to his past actions, which included transferring his parents’ assets to himself, defying court orders, refusing to return his parents’ money, neglecting their physical needs, and preventing his mother and sister from visiting Woodrow in the hospital. The chancellor appointed William Benson, the Chancery Clerk of Lee County, as conservator. After Woodrow died, Benson filed a petition with the chancellor, requesting permission to sell some of the property of the estate in order to secure funds for Kernith’s care. The chancellor granted Benson permission to sell certain property in the estate and acquire a home-equity loan to repay some $6,000 that Benson personally had expended for Kernith’s care. Following Kernith’s death, Benson filed his petition for a final accounting and discharge. Rita did not oppose the final accounting and closing of the conservatorship, but Harry did. The chancellor approved the final accounting and discharged Benson as the conservator. The chancellor also approved attorney’s fees in the amount of $10,000 and conservator’s fees in the amount of $5,000. Harry appeals. |
| Summary of Opinion Analysis: | Issue 1: Final accounting Harry argues that the chancellor should not have approved the final accounting and discharge of the conservator, because the estate was a necessary party and was not represented at the hearing and the conservator failed to uphold his duties as required by statute. The chancellor did not err in proceeding with the hearing to approve the final accounting and discharge the conservator. Joinder was not feasible under M.R.C.P. 19 because no person had been appointed to represent the estate of Kernith. Although the party to be joined – the administrator of the estate of Kernith – existed in an abstract legal sense, the chancellor could not compel a person to appear on behalf of that party because no such person existed at the time of the hearing. The estate suffered no prejudice as a result of the chancellor’s decision since all of the legal heirs of Kernith were present and represented by counsel, and Harry had the opportunity, through counsel, to argue those objections and to cross-examine Benson regarding his actions as the conservator. While section 93-13-67 requires a conservator to file an annual accounting, and the failure to file such annual accountings is a breach of the conservator’s duties, neither the statute nor case law indicates that the failure to file accountings is fatal to the approval of a final accounting. Accordingly, the chancellor’s decision to approve the final accounting and discharge Benson despite his failure to file annual accountings is not an abuse of discretion. With respect to appraisals and insurance policies, section 93-13-41 requires only that the conservator not commit waste on the real estate of his ward. Moreover, the statute does not require that the conservator expend income or capital of the estate to obtain insurance policies. Harry failed to establish that there was a need for insurance. Harry also raised the issue of failure to pay the property taxes on some of the rental properties. Benson’s undisputed testimony that he maintained the status quo on the real property parcels with regard to the property tax and insurance policies constitutes substantial evidence on which the chancellor could rely in approving the final accounting and discharging Benson. Harry also argues that Benson failed to properly discharge his duties as conservator with respect to the expenses of Kernith’s care. Benson sought permission to create the necessary cash flow in the estate to provide the required care for Kernith. It appears that the chancellor also implicitly approved the monthly expenditure because she permitted Benson to reimburse himself for money he personally expended for her care following the filing of his petition. However, even if the chancellor did not approve the expenditure in the order granting Benson’s 2003 petition, she certainly had the authority to ratify the expenditure. Issue 2: Fees Harry argues that the conservator’s fees were not justified in light of Benson’s negligence in managing the estate. Benson testified that, with the exception of a six-month period in 2002 when Kernith was in relatively good health, he spent three to four hours a week between March 1999 and November 2004 handling the responsibilities of this conservatorship. Based on the brief history of this case, the record shows that Benson served ably as conservator under difficult circumstances. Accordingly, the chancellor did not abuse her discretion in awarding Benson fees in the amount of $5,000 for his services. In addition, the chancellor did not abuse her discretion in awarding attorney’s fees. She considered all of the circumstances of the case before awarding the attorneys less than the amount requested. |
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