In re Estate of Carson v. Carson
| Docket Number: | 2006-CA-02006-COA Linked Case(s): 2006-CA-02006-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-22-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Inter vivos transfers - M.R.C.P. 3(a) - Posting of bond - Section 91-7-45 - Attorney’s fees Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: BARNES, J. without separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 06-21-2006 Appealed from: Harrison County Chancery Court Judge: J. Larry Buffington Disposition: DENIED PLAINTIFF’S RULE 52 MOTION Case Number: C2401-02-02780 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN THE MATTER OF THE ESTATE OF HUBERT EARL CARSON, DECEASED, AND LELA IRMA CARSON, DECEASED: CARSON FAMILY TRUST AND EDWIN DALE CARSON |
MARTHA DEL GUILLOTTE CARSON |
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| Appellee: | HUBERT DOUGLAS CARSON, EXECUTOR | JACK PARSONS, TADD PARSONS |
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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 - Inter vivos transfers - M.R.C.P. 3(a) - Posting of bond - Section 91-7-45 - Attorney’s fees |
| Summary of the Facts: | The wills of Hubert and Lela Carson devised all of their assets equally to their three sons, Hubert Douglas Carson (Douglas), Edwin Carson, and Gary Carson. The wills nominated the couple’s eldest son, Douglas, as executor. Some years prior to their deaths, the decedents granted Douglas’s wife, Mary Frances Carson, general power of attorney. The decedents also placed their checking account in their name and in that of Mary Frances as a survivor. At the time of their deaths, the funds in that account passed immediately to its joint owner, Mary Frances. Nevertheless, she paid into the estate the remaining funds from the account that were not spent for the benefit of the decedents. While Gary was entitled to one-third of his parents’ estates under the will, he declined his share in favor of the Carson Family Trust, which his wife, Martha Carson, oversaw as trustee. Martha, as trustee, filed a petition with the chancery court to administer the estates of the Hubert and Lela. She claimed to have been unable to discover any wills executed by the decedents, and she asked the chancellor to appoint her as administratrix. The chancellor issued letters of administration appointing Martha as administratrix, and she proceeded to notice creditors and determine the heirs at law. Thereafter, Douglas filed a motion requesting that the chancellor remove Martha as administratrix, appoint Douglas as executor, and probate the wills of Hubert and Lela. After Douglas produced the wills, the chancellor admitted them for probate in common form. As requested in the wills, the chancellor appointed Douglas as executor and did not require him to post any bond. Douglas filed an Inventory and a First Annual and Final Account. Taking issue with Douglas’s accounting, Martha filed a motion for a perfect accounting. The chancellor refused to grant the motion and required her to file a written objection specifying her objections to the accounting. Additionally, Martha filed the following motions: to set aside all inter vivos transfers from the decedents to Douglas and Mary Frances, to remove Douglas as executor and to require him to indemnify the estate for his acts as executor, to appoint an administrator de bonis non, to compel discovery, and to show cause for contempt. Douglas and Mary Frances filed a motion for a protective order, claiming that all assets were accounted for and that the discovery sought by Martha related to matters occurring before the deaths of Hubert and Lela. The chancellor granted the motion for a protective order. In addition, the chancellor denied the motion to set aside all inter vivos transfers, finding that Martha should file a separate claim to resolve the issue. The parties agreed to divide the real property of the decedents into thirds, with Douglas to receive the portion of the property on which the decedents’ home was located. In exchange, the amount of land Douglas received was one-half acre less than that received by Edwin or the Carson Family Trust. In the final judgment, the chancellor approved the final accounting by Douglas and denied Martha’s motions except the motion to set a deposition for Mary Frances. For her services as administratrix, the chancellor awarded Martha the following sums: $750, $100 for administrator’s bond, $87 for filing fees, $259.44 for publication costs, and $150 for service of process. The chancellor awarded the executor’s attorney $10,000 in attorney’s fees. The chancellor ordered Douglas to distribute to Edwin and the Trust their portions of any rental proceeds that Douglas collected from renting the decedents’ home after their deaths. Martha appeals. |
| Summary of Opinion Analysis: | Issue 1: Inter vivos transfers Martha argues that the chancellor erred in dismissing her motion to set aside all inter vivos transfers from the decedents to Douglas, because the transfers were a result of a confidential relationship. The chancellor found that it was not proper to litigate in the estate proceedings potential transactions that took place prior to the decedents’ deaths. There was no error with the chancellor’s decision that Martha should file a separate claim to settle the inter vivos matters. The issues were unrelated to Douglas’s actions as executor of the estate. Martha did not challenge the will or any of the provisions of the will. M.R.C.P. 3(a) provides that a civil action is commenced by filing a complaint with the court. The proper procedure for challenging the transfers that took place during the decedents’ lives was to file a claim alleging that the transfers were the result of a confidential relationship which Martha failed to do. Issue 2: Posting of bond Martha argues that the chancellor erred in appointing Douglas to serve as executor without a hearing to determine his fitness for the position and that the chancellor should have required Douglas to post a bond in order to serve as executor. While section 91-7-41 requires that the executor of a will give bond equal to the full value of the estate, section 91-7-45 provides for an exception if the will directs the executor not to give bond. Here, there was no evidence of any error in the executor’s administration of the estate. Furthermore, posting a bond would not have secured any funds that Martha claimed were misappropriated during the lifetime of the decedents. Also, the will contained a provision that waived any bond. Issue 3: Attorney’s fees Martha argues that the award of attorney’s fees was excessive, because the estate was too small to support such an award. Attorney’s fees for the executor are provided for by section 91-7-299. In light of the time and work that went into this case in the chancery court, the chancellor did not abuse his discretion in making the award of attorney’s fees. The fees were reasonable and not far out of line with the fees claimed by Martha, and the attorney submitted a detailed billing statement. |
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