Harry Vinson v. William Benson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-00342-COA
IN RE: THE APPOINTMENT OF A CONSERVATOR
FOR WOODROW W. VINSON AND KERNITH B.
VINSON: HARRY VINSON
APPELLANT
v.
WILLIAM BENSON, CONSERVATOR
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/12/2005
HON. DOROTHY WINSTON COLOM
LEE COUNTY CHANCERY COURT
B. SEAN AKINS
WILLIAM M. BEASLEY
REBECCA L. HAWKINS
CIVIL - WILLS, TRUSTS, AND ESTATES
CHANCELLOR APPROVED ACCOUNTING
AND DISCHARGED CONSERVATOR.
AFFIRMED: 05/22/2007
BEFORE KING, C.J., IRVING AND ROBERTS, JJ.
KING, C.J., FOR THE COURT:
¶1.
Harry Vinson appeals the chancellor’s decision approving the conservator’s final accounting
of the estate of Kernith B. Vinson and discharging the conservator, William Benson.
FACTS
¶2.
In 1996, two petitions were filed with the Chancery Court of Lee County, Mississippi,
requesting a conservatorship for Woodrow W. Vinson and Kernith B. 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. The chancery court appointed a temporary conservator. Following
protracted litigation between the parties, in March 1999, the issue of a permanent conservator came
before the chancellor, who held a hearing on the matter.
¶3.
At the time of the hearing, Rita notified the chancellor that she no longer wished to be
considered for appointment. Harry, however, testified and called numerous witnesses to testify as
to his fitness to serve as conservator. Woodrow was in extremely poor health in March 1999 and
was unable to testify, but Kernith testified that she adamantly opposed the appointment of her son
as conservator. The chancellor found that Harry was not qualified to serve as chancellor 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. In accordance with Mississippi Code Annotated Section 9313-21 (Rev. 2004), the chancellor appointed William Benson, the Chancery Clerk of Lee County,
Mississippi, as conservator of the persons and estates of Woodrow W. Vinson and Kernith B. Vinson
on March 19, 1999.
¶4.
Woodrow died on September 2, 1999. William Benson was appointed administrator of his
estate and presented a will for probate to the chancery court. He also continued to serve as
conservator over the person and estate of Kernith. Benson testified that he spent approximately three
to four hours a week handling issues arising from that appointment.
¶5.
Kernith’s health was poor. Although her daughter, Rita, lived with her parents from a period
that pre-dated the conservatorship, due to health problems of her own, she became physically unable
to provide the type of daily assistance that Kernith required. Kernith had expressed a wish to stay
in her own home rather than enter a nursing home, but fulfilling that wish required around-the-clock
care.
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¶6.
To provide for Kernith’s wishes required additional monies. In October 2002, 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. Benson submitted an accounting of expenses paid and
income received from the date of his appointment. The chancellor heard the petition on January 13,
2003, and in an order dated January 30, 2003, 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. In accordance with that order, Benson acquired the additional funds and provided
around-the-clock care for Kernith until her death on August 14, 2003.
¶7.
On July 6, 2005, Benson filed his petition for a final accounting and discharge. A hearing
was held on October 4, 2005. Both Harry and Rita were present, with each represented by counsel.
Rita did not oppose the final accounting and closing of the conservatorship, but Harry did.
¶8.
Harry’s attorney questioned Benson regarding annual accountings, an initial inventory of the
estates following his appointment, appraisals on the real property in the estates, payment of the
property taxes, failure to obtain insurance on all of the properties, alleged waste of the estate, and
failure to charge rent to Rita, who lived with her parents.
¶9.
Harry also objected to the approval of the final accounting and discharge on the grounds that
the administrator of his mother’s estate was not present. At the time of the hearing, the Sheriff of
Lee County had unofficially been appointed to administer the estate, but the order appointing him
had not been signed. Harry argued that nobody was present to represent the interests of the ward.
The chancellor determined that because both heirs to the estate were present, the ward’s interest was
not compromised by proceeding with the hearing.
¶10.
The chancellor approved the final accounting and discharged Benson as the conservator. In
her opinion, the chancellor stated that “[t]he Petitioner has performed extraordinary services for the
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conservation of the Wards’ property even with the interference of Harry and his failure to abide by
previous orders of this Court.” The chancellor further held that “the distributions itemized in the
Accounting were necessary for the welfare and benefit of the Wards during the accounting period”
and that Harry’s objections were without merit. The chancellor also approved attorney’s fees in the
amount of $10,000 and conservator’s fees in the amount of $5,000.
¶11.
On appeal, Harry challenges the chancellor’s order granting the petition and awarding fees.
He raises the following issues:
(1)
The chancellor erred in approving the accounting and discharging the
conservator for the following reasons: (a) the estate was a necessary party and
was not represented at the hearing; (b) the conservator failed to take an
inventory of the estate within three months of his appointment; (c) the
conservator failed to file annual accountings; and (d) the conservator failed
to properly care for the real property contained in the estate.
(2)
The chancellor erred in awarding fees to the conservator and to the attorneys
because the conservator should not have been discharged and because the
conservator and attorneys were not entitled to fees.
Finding no error, this Court affirms.
STANDARD OF REVIEW
¶12.
In reviewing a chancellor’s findings of fact, this Court “will not disturb the factual findings
of a chancellor unless such findings are manifestly wrong or clearly erroneous.” Bardwell v.
Bardwell (In re Bardwell), 849 So. 2d 1240, 1245 (¶16) (Miss. 2003) (citation omitted). “Whenever
there is substantial evidence in the record to support the chancellor's findings of fact, those findings
must be affirmed.” Id. (citations omitted). Accordingly, “[t]he standard of review employed by this
Court for review of a chancellor's decision is abuse of discretion. However, for questions of law,
the standard of review is de novo.” Creely v. Hosemann, 910 So. 2d 512, 515 (¶11) (Miss. 2005)
(citations omitted).
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ANALYSIS
I.
The chancellor did not err in approving the final accounting and discharging the
conservator.
¶13.
Harry argues that the chancellor should not have approved the final accounting and discharge
of the conservator for the following reasons: (1) the estate was a necessary party and was not
represented at the hearing; and (2) the conservator failed to uphold his duties as required by statute.
The Court addresses each of these issues in turn.
A.
¶14.
The chancellor did not err in proceeding with the hearing despite a lack of
representation for the estate.
At the hearing, Harry argued that his mother’s estate was not represented. He requested a
continuance so that the sheriff could attend the hearing on behalf of the estate, as a representative
of the estate and a necessary party to the proceeding. He argued that without a representative of the
estate present at the hearing, the interests of the creditors and others with an interest in the estate
would not be represented. Additionally, he argued that any claims that the estate might have against
the conservator would be res judicata following the chancellor’s decision, leaving the administrator
with no recourse.
¶15.
Benson argued that the sheriff was not yet formally appointed to serve as the administrator
of Kernith’s estate; therefore, no representative existed, and the sheriff was not a necessary party.
He further argued that because both heirs with the potential to inherit under the wills of both
Woodrow and Kernith were present, there was no need to have the sheriff, who was not yet the
administrator and who had no working knowledge of the complexities of the underlying facts of the
case, present for the hearing. Rita took no position on the sheriff’s attendance.
¶16.
The chancellor overruled the motion and proceeded with the hearing. On appeal, Harry
argues that Mississippi Code Annotated Section 93-13-77 (Rev. 2004) requires that the ward must
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have notice and opportunity to review the proposed final accounting and raise any objections to the
approval of the final accounting. He further argues that the sheriff had already been appointed as
administrator of his mother’s estate and that the chancellor ruled that the administrator lacked
standing to participate in the hearing.
¶17.
Harry misstates these facts in his appellate brief. At the hearing, his counsel acknowledged
that the sheriff “has not been formally appointed” to serve as the administrator. Counsel for Rita
also represented to the chancellor that the order appointing the sheriff had not yet been signed. The
chancellor concluded that the estate had no representative who could be joined as a party and opted
to move forward with the hearing. The chancellor did not hold that an administrator of the ward’s
estate would lack standing. She simply acknowledged that the estate had no representative.
¶18.
This Court holds that the chancellor did not err in proceeding with the hearing to approve the
final accounting and discharge the conservator. Mississippi Rule of Civil Procedure 19 sets forth
the standards for determining the joinder of necessary parties. The rule reads in pertinent part as
follows:
(a) Persons to Be Joined if Feasible. A person who is subject to the jurisdiction of
the court shall be joined as a party in the action if:
(1) in his absence complete relief cannot be accorded among those already parties[.]
....
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described
in subdivision (a) hereof cannot be made a party, the court shall determine whether
in equity and good conscience the action should proceed among the parties before it
or should be dismissed, the absent person being thus regarded as indispensable.
M.R.C.P. 19. In this case, joinder was not feasible 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
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behalf of that party because no such person existed at the time of the hearing. Thus, the chancellor
had the discretion to determine whether the action should proceed.
¶19.
The Court finds no error in the chancellor’s determination to proceed because the Court is
satisfied that the estate suffered no prejudice as a result of the chancellor’s decision. First, as
previously noted, all of the legal heirs of Kernith were present and represented by counsel. Rita had
no objection to the final accounting. Harry did object, and had the opportunity, through counsel, to
argue those objections and to cross-examine Benson regarding his actions as the conservator.
Further, a chancellor “is the ‘ultimate guardian’ of wards.” Bardwell, 849 So. 2d at 1246 (¶19)
(citing Jackson v. Jackson, 732 So. 2d 916, 920 (¶5) (Miss. 1999)). Having reviewed the transcript
of the hearing, the Court is satisfied that the chancellor conducted the hearing in a manner consistent
with her duty to the estate.
B.
¶20.
The chancellor did not err in holding that the conservator adequately
performed his duties to the person and estate of Kernith B. Vinson.
Harry argued that Benson had failed to perform his duties as conservator in the following
ways: (1) failure to take an inventory of the estate within three months of his appointment; (2) failure
to file annual accountings; and (3) failure to properly care for the property contained in the estate.
Counsel for Harry cross-examined Benson regarding these issues. The chancellor found these
objections to be without merit and held that Benson “has performed extraordinary services for the
conservation of the Wards’ property even with the interference of Harry and his failure to abide by
previous orders of this Court.”
1.
¶21.
Duties of the conservator with respect to the estate.
Harry questioned Benson about his failure to complete an inventory of the property of the
estates of his parents within three months of his appointment, as required by Mississippi Code
Annotated Section 93-13-33 (Rev. 2004). Benson testified that the temporary conservator initially
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appointed by the chancery court had taken an initial inventory, and he had a copy of that document.
Harry then questioned Benson about his failure to file annual accountings with the court. Benson
admitted that he had not filed an annual accounting for the years 1999-2002, until it became
necessary to petition the court for permission to sell some of the property of the estate to create
additional income for Kernith’s care. At that time, however, Benson testified that he presented a full
accounting to the court. Thereafter, Benson did not submit another annual accounting until he
submitted the final accounting for approval. Finally, Harry questioned Benson regarding his failure
to pay property taxes, to obtain appraisals of the real property, and to maintain insurance on some
of that property. Benson testified that he sometimes delayed payment on the property taxes because
Harry, who had collected rents on those properties and refused to turn them over to the estate and
who also owed the estate a substantial sum of money, paid the property taxes. Only when Harry was
delinquent in doing so did Benson make those payments. Benson further testified that he was in the
process of obtaining appraisals on all of the real property when Kernith died. At that point, Benson
accepted the completed appraisals and canceled the incomplete ones. Additionally, Benson stated
that he maintained insurance on the properties that carried insurance at the time of his appointment.
Finally, Harry questioned Benson generally about the issue of waste and cited the $6,000 monthly
nursing bill and Rita’s rent-free residence at her mother’s home. Benson responded that Rita lived
with her parents prior to the conservatorship, that she remained there at her mother’s request, and
that she provided assistance to her mother and to Benson by coordinating her mother’s care schedule.
¶22.
The chancellor concluded that Benson had adequately met his duties as a conservator and
approved the final accounting. The Court holds that the chancellor’s decision to approve the final
accounting and discharge the conservator was squarely within her discretion.
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¶23.
Mississippi Code Annotated Section 93-13-67 does require a conservator to file an annual
accounting, and the failure to file such annual accountings is a breach of the conservator’s duties.
See In re Chambers, 458 So. 2d 691, 693 (Miss. 1984) (failure of an executor to file annual
accountings1). However, neither the statute nor case law indicates that the failure to file accountings
is fatal to the approval of a final accounting. In Chambers, the Mississippi Supreme Court held that
the failure to file annual accountings impacted only the amount of fees payable to the executor and
attorneys. 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.
¶24.
With respect to the appraisals and insurance policies, Mississippi Code Annotated Section
93-13-41 (Rev. 2004) requires only that the conservator “not commit waste on the real estate of his
ward.” Appraisals are not required. Moreover, the statute does not require that the conservator
expend income or capital of the estate to obtain insurance policies. In this case, Harry failed to
establish that there was a need for insurance. He presented no evidence of the value of the properties
to establish that insurance was a reasonable expense. Harry did raise the issue of a fire that damaged
one of the rental properties in the estate, but he later conceded that the damage occurred after the
death of Kernith, at which time the conservatorship ceased.
¶25.
Harry also raised the issue of failure to pay the property taxes on some of the rental
properties. Benson testified that because Harry continued to collect rents and to owe the estate a
1
While Chambers addresses an executor’s failure to file annual accountings and not a
conservator’s duty, pursuant to Mississippi Code Annotated Section 93-13-259 (Rev. 2004), a
“conservator shall have the same duties, powers and responsibilities as a guardian of a minor, and
all laws relative to the guardianship of a minor shall be applicable to a conservator.” Under
Mississippi Code Annotated Section 93-13-67, guardians of minors are required to make annual
accountings for receipts and disbursements. Likewise, Mississippi Code Annotated Section 91-7277 (Rev. 2004) contains an almost identical requirement for annual accountings. Accordingly, case
law for executors and administrators is applicable to conservators on this point.
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large sum of money and because Harry unilaterally paid the property taxes, Benson often delayed
payment to allow Harry the opportunity to do so. Benson argues in his appellate brief that by his
actions, he saved the estate the expense of the property taxes.
¶26.
The chancellor considered all of this testimony and found that Harry’s arguments were
without merit. 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.
Accordingly, the chancellor’s decision was not an abuse of discretion.
2.
¶27.
Duties of the conservator with respect to the ward
Harry also argues that Benson failed to properly discharge his duties as conservator with
respect to the expenses of Kernith’s care. Harry contends that although the chancellor approved the
2003 petition for the sale or encumbrance of certain real property in the estate for expenditure on
Kernith’s care, the chancellor did not approve the amount of such care. Harry argues that the $6,000
monthly expense for around-the-clock care for his mother was excessive and that Benson should be
held personally liable for that expense.
¶28.
Mississippi Code Annotated Section 93-13-38 provides that it is the duty of a conservator
“to apply so much of the income, profit, or body thereof as may be necessary for the comfortable
maintenance and support of the ward and of his family, if he have any, after obtaining an order of
the court fixing the amount.” Miss. Code Ann. § 93-13-38(2). Applicable case law, however, has
consistently held that the chancellor may later ratify any such expenditures that were made without
prior approval. See United States Fidelity & Guar. Co. v. Melson, 809 So. 2d 647 (Miss. 2002);
Neville v. Kelso, 247 So. 2d 828 (Miss. 1971).
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¶29.
In the case sub judice, 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 $6,000 monthly expenditure because she permitted Benson to reimburse himself in the amount
of $6,000 for money he personally expended for her care following the filing of his petition.
However, even if the chancellor did not approve the $6,000 expenditure in the order granting
Benson’s 2003 petition, she certainly had the authority to ratify the expenditure. It appears, from the
order discharging Benson from his duties that the chancellor did ratify the expense, and this Court
finds that it was within her discretion to do so.
¶30.
Based on Benson’s testimony and his final accounting, the Court finds that there was
substantial evidence to support the chancellor’s decision to overrule Harry’s objections and
discharge Benson as conservator. Accordingly, the chancellor did not abuse her discretion in this
case.
II.
The chancellor did not err in awarding fees in the amount of $5,000 to the conservator
and in the amount of $10,000 to the attorneys representing the estate.
¶31.
The chancellor awarded Benson $5,000 for his services. The chancellor approved an award
of $10,000 for the attorneys who provided services to Benson in carrying out his duties. Harry
argues that these fees were not justified in light of what he terms Benson’s “negligence” in managing
the estate.
¶32.
Benson was appointed conservator in 1999, following a determination that Harry was not a
suitable conservator. Benson testified during the hearing that this appointment was “the worst thing
I have done in 14 years.” Benson also 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.
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¶33.
The chancellor noted in her order that Benson “performed extraordinary services for the
conservation of the Wards’ property even with the interference of Harry Vinson and his failure to
abide by previous orders of this Court.” By this statement, it is clear to this Court that the chancellor
considered Benson’s services in their totality in granting his request for fees. Based on the brief
history of this case provided in the limited record before the Court, the Court agrees that Benson
served ably as conservator under difficult circumstances. Accordingly, the Court finds that the
chancellor did not abuse her discretion in awarding Benson fees in the amount of $5,000 for his
services.
¶34.
The attorneys for the conservatorship submitted an itemized bill in the amount of $15,691.66
for fees and disbursements rendered between August 2000 and September 2005. Those fees
included services rendered in defending the conservatorship against Harry’s appeal of the
chancellor’s decision appointing Benson as conservator. The chancellor did not grant the attorneys
the entire amount of fees requested. Instead, she awarded $10,000 in fees. Again, it appears that the
chancellor considered all of the circumstances of the case before awarding the attorneys less than the
amount requested. Accordingly, the Court finds that the chancellor did not abuse her discretion.
¶35. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND
CARLTON, JJ.,CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.
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