In Re Allen

962 So. 2d 737, 2007 WL 2303421
CourtCourt of Appeals of Mississippi
DecidedAugust 14, 2007
Docket2006-CA-00537-COA
StatusPublished
Cited by11 cases

This text of 962 So. 2d 737 (In Re Allen) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Allen, 962 So. 2d 737, 2007 WL 2303421 (Mich. Ct. App. 2007).

Opinion

962 So.2d 737 (2007)

In the Matter of Adron ALLEN.
Betty Russell, Appellant
v.
James Bruce Allen, Robert Lee Allen, Ronda Nail, Fonda Kannada, Bradley Howard Allen and Cory Scott Allen, Appellees.

No. 2006-CA-00537-COA.

Court of Appeals of Mississippi.

August 14, 2007.

*739 Omar D. Craig, Oxford, attorney for appellant.

Carter C. Hitt, Oxford, Jerry P. "Jay" Hughes, for attorneys for appellees.

Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. Betty Allen Russell appeals from the judgment of the Chancery Court of Lafayette County setting aside the conservatorship of Adron Allen and subsequent sales of his land. Russell argues that the chancellor erred in finding the conservatorship invalid, in setting aside two conveyances of Allen's property, and in ordering a full accounting of funds expended from Allen's estate.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Adron Allen was born on November 6, 1913. He married Lizzie Myrtle Brummett on April 28, 1934. The couple had two children, Bobby Lee Allen and Betty Allen Russell. Bobby passed away from cancer on May 31, 1991, leaving behind a wife and six children. Allen's wife, Lizzie, passed away the next year on March 8, 1992. Shortly following Lizzie's death, Russell admitted Allen to a nursing home in Jackson, Mississippi, and filed a petition for conservatorship on April 28, 1992 in the Lafayette County Chancery Court. Allen was served with a summons for the conservatorship, but no other relative of Allen's was given notice or served. Russell did not contact Bobby's widow or any of his six children despite the fact that she knew where most, if not all, of them lived.

¶ 4. The Chancery Court of Lafayette County appointed Russell conservatrix of *740 Allen on May 22, 1992. At the time of this appointment, Allen's real property assets consisted of two tracts of rolling hills in Lafayette County, Mississippi. One tract held 18.5 acres and the other 79 acres. Russell's attorney filed a first annual accounting of the assets, income and expenditures made on behalf of the ward on July 21, 1993. Copies of cancelled checks were included in the accounting. An amended accounting was filed on May 31, 1994, which appears to be a duplication of the first annual accounting, with the exception that the copies of the cancelled checks were not attached.

¶ 5. In 1994, Russell filed a petition with the chancery court to sell Allen's 18.5 acre tract to herself. Although her original attorney remained the attorney of record, Russell employed another attorney to handle the land sale. No summons or notice of the land sale was issued to any of Allen's relatives and the sale was not advertised. The chancery court authorized the sale of the property to Russell for the appraised value of $8,973. A few years later, Russell sold timber from the land for $14,000.

¶ 6. Russell filed a second amended accounting on January 19, 1995. It also appeared to be a duplication of the first annual accounting; yet again, no vouchers were attached as they had been to the first annual accounting. On January 24, 1995, the court entered a judgment approving the second amended accounting, which described the assets, inventory on hand, and income received during 1992 and 1993, and expenditures made through May of 1993.

¶ 7. Russell then filed second and third annual accountings, respectively. Both accountings were approved by the chancery court. In the third annual accounting, Russell also requested the court to dispense with future accountings due to Allen's assets totaling less than $3,000, with no prospect of future income. The chancery court agreed to dispense future accountings pursuant to Section 93-13-67 of the Mississippi Code Annotated (Rev. 2004).

¶ 8. In 1998, Russell filed another petition for authority to sell Allen's remaining tract of 79 acres to herself. Again, no summons or notice was issued to any of Allen's relatives and the sale was not advertised. Russell employed the same attorney who handled the first land sale approval. The court approved the sale of 79 acres to Russell for the appraised value of $17,816.

¶ 9. Allen died on June 5, 2003. Upon learning of the land sales only after Allen's death, his six grandchildren filed a petition to set aside the deeds on February 28, 2004. The petition sought to set aside the decrees authorizing and approving both land sales to Russell. The grandchildren argued that the deeds conveying the property were fraudulently procured without proper notice, which rendered the deeds invalid.

¶ 10. On April 4, 2005, the Lafayette County Chancery Court conducted a hearing to determine the validity of the subsequent land sales. While the hearing was conducted in the same court as the initial proceedings filed by Russell to establish the conservatorship and approve Allen's land sales, a different chancellor presided over these hearings. The new chancellor ordered that the conservatorship was invalid because the proper parties were not served with notice, as prescribed by statute. The court also set aside the two deeds conveying property from Allen's conservatorship estate to Russell because notice was not given to the required number of Allen's kin. The court noted that Russell, as conservatrix, was in a fiduciary relationship which required her to act in the ward's best interest and that she had "breached this trust." Thus, the title to *741 both properties was vested in Allen's estate. The $14,000 realized from the sale of timber on the 18.5 acre tract was also put back into Allen's estate.

¶ 11. The distribution of Allen's estate was to be completed in a separate matter. In order to determine the funds due to the estate, the chancellor ordered Russell to provide a full accounting covering all assets, liabilities, income, and expenditures, with supporting documentation, as well as a full inventory of Allen's personal property and assets for the period of May 22, 1992, through the date of Allen's death. In addition, the clerk of court was appointed to serve as an independent administratrix of Allen's estate. The chancellor noted that upon the future calculation of distribution of the estate's assets, Russell would be entitled to a credit for the property taxes paid on the real property from the time she acquired such tracts of land under the conservatorship.

¶ 12. Russell submitted to the court an inventory and accounting of the conservatorship, which included copies of cancelled checks Russell had written from Allen's bank account. A detailed inventory of Allen's furniture and personal property was not included, other than a general reference. The grandchildren objected to the inventory and accounting due to the lack of supporting invoices for the expenses, other than copies of cancelled checks. They also objected to the omission of supporting evidence for the sale of thirty head of Allen's cattle, which Russell sold for profit while her petition for the conservatorship was pending, and to the omission of evidence supporting the land and timber sales.

¶ 13. The chancery court heard live testimony from witnesses and received evidence for each side on the matter on November 1, 2005. At that time, the court granted an extension for discovery due to incomplete proof of expenditures Russell claimed, and a final hearing on the matter took place on February 27, 2006. During the final hearing, the court issued an order finding that Russell owed Allen's estate $30,032.29 because she failed to justify certain expenses she claimed were for Allen's benefit.

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Cite This Page — Counsel Stack

Bluebook (online)
962 So. 2d 737, 2007 WL 2303421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-allen-missctapp-2007.