In re Estate of Ellis v. Turner
| Docket Number: | 2008-CA-01993-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-08-2009 Opinion Author: IRVING, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Wills and estates - Appointment of conservator - Notice - Section 93-13-253 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ. Concurs in Result Only: CARLTON, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 11-12-2008 Appealed from: LEE COUNTY CHANCERY COURT Judge: Jaqueline Mask Disposition: REQUEST TO SET ASIDE CONSERVATORSHIP DENIED Case Number: 08-0626 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN RE: APPOINTMENT OF A CONSERVATOR
OF THE PERSON AND ESTATE OF RUBY
CHISM ELLIS: BOBBIE L. ELLIS |
RHETT R. RUSSELL |
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| Appellee: | STEPHANIE CHISM TURNER | THOMAS M. MCELROY | ||
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 and estates - Appointment of conservator - Notice - Section 93-13-253 |
| Summary of the Facts: | Bobbie Ellis and Ruby Ellis are married. When it became clear that Ruby’s mental state was deteriorating, Ruby was admitted to a nursing home. After becoming suspicious that Bobbie had let a paramour move into Ruby’s home, Stephanie Turner, Ruby's granddaughter, filed a petition to be appointed as Ruby’s conservator. Attached to the petition were statements from two physicians, both of whom opined that Ruby was mentally incompetent. The petition did not mention that Ruby was married. Jerry Chism, Stephanie’s father and Ruby’s son, signed a joinder to Stephanie’s petition. At the hearing, Stephanie informed the chancellor that her grandmother was married and that Ruby’s present husband, Bobbie, lived in Ruby’s house. Stephanie was asked whether Bobbie had been made aware of the proceedings, and she responded in the affirmative. The chancery court ordered that Stephanie be appointed as Ruby’s conservator. Bobbie thereafter filed a complaint requesting that Stephanie’s appointment as conservator be set aside or, in the alternative, that he be appointed conservator if one was deemed necessary. Bobbie’s complaint alleged that a conservatorship was unnecessary because Ruby had executed a valid power of attorney prior to her incompetency. The power of attorney at issue applies to both Bobbie and Stephanie. Bobbie later filed a motion requesting the return of funds that Stephanie had taken; the motion also requested that Stephanie file an accounting and inventory of Ruby’s estate with the chancery court. The chancery court entered an order appointing Jonathan Martin as guardian ad litem on Ruby’s behalf, continuing the case, and prohibiting Stephanie from exercising her fiduciary powers as Ruby’s conservator. Martin filed a report as guardian ad litem with the chancery court. After a hearing, the court declined to dissolve the conservatorship and further declined to appoint Bobbie in Stephanie’s place. Bobbie appeals. |
| Summary of Opinion Analysis: | Bobbie argues that the chancery court erred in finding that the establishment of a conservatorship is in Ruby’s best interest. He specifically questions the conservatorship in light of the durable powers of attorney that he and Stephanie both possess. However, nothing in Mississippi law prohibits the appointment of a conservator when a durable power of attorney already exists. Bobbie also argues that notice of the first hearing was not properly served in accordance with section 93-13-253. Stephanie's father, Jerry, joined in her petition for a conservatorship. There is nothing in the record indicating specifically that Jerry received notice of the hearing. However, his joinder in the petition waived his right to receive notice of the hearing. Despite Jerry’s notice, the statute prefers that notice be given first to a spouse. Stephanie later conceded that she had not given Bobbie notice of the hearing. Regardless, any defect in Bobbie’s notice was cured by the later hearings regarding the conservatorship. Bobbie also argues that, even if a conservator is needed, he is the proper party to act as conservator. Our laws concerning conservatorships give no preference to a spouse as conservator. While Stephanie has engaged in questionable behavior during the course of these proceedings, the chancellor and guardian ad litem were both fully aware of these transgressions. They were also both aware of Bobbie’s adulterous conduct and the fact that he lied about that conduct under oath. There were also questions regarding whether Bobbie had spent Ruby’s excess money on her care or on himself. Given these facts, the chancery court did not err in finding that Stephanie was the appropriate party to act as Ruby’s conservator. |
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