In Re Estate of Carson

986 So. 2d 1072, 2008 WL 2806316
CourtCourt of Appeals of Mississippi
DecidedJuly 22, 2008
Docket2006-CA-02006-COA
StatusPublished
Cited by1 cases

This text of 986 So. 2d 1072 (In Re Estate of Carson) 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 Estate of Carson, 986 So. 2d 1072, 2008 WL 2806316 (Mich. Ct. App. 2008).

Opinion

986 So.2d 1072 (2008)

In the Matter of the ESTATE of Hubert Earl CARSON, Deceased, and Lela Irma Carson, Deceased.
Carson Family Trust and Edwin Dale Carson, Appellants,
v.
Hubert Douglas Carson, Executor, Appellee.

No. 2006-CA-02006-COA.

Court of Appeals of Mississippi.

July 22, 2008.

*1073 Martha del Guillotte Carson, attorney for appellants.

Jack Parsons, Tadd Parsons, Wiggins, attorneys for appellee.

Before KING, C.J., IRVING and CHANDLER, JJ.

CHANDLER, J., For the Court.

¶ 1. On January 28, 2005, the Chancery Court of Harrison County entered a judgment approving the final accounting of the estates of Hubert Earl Carson and Lela Irma Carson by their son Hubert Douglas Carson, the executor of their wills. The judgment also approved other distributions from the estates, including attorney's fees. Aggrieved, the other parties in interest, Carson Family Trust and Edwin Dale Carson, now appeal. They raise the following issues, which we quote verbatim:

I. Whether the trial court erred by granting comprehensive protective orders to the co-defendants, Hubert Douglas Carson and Mary Frances Carson, or by declining jurisdiction of the inter vivos matters arising from a confidential relationship between the co-defendants and the decedents, or by providing a forum for the protection of the estate interests for the majority of the beneficiaries.
II. Whether the trial court erred by appointing the executor of the will without a bond, sans hearing on objections, when the executor was personally profiting from rental and sale of estate assets without the consent of other heirs.
III. Whether the trial court erred in distributing the entire liquid assets of the estate as attorney's fees for the executor, and closing the estate with the personalty of the decedents in the hands of the executor with probate claims for attorney's fees and outstanding expenses.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Hubert Earl Carson (Hubert) died on July 1, 2002. His wife, Lela Irma Carson, followed soon after, dying on September 15, 2002. Each decedent was living in a separate personal care center when he or she died. The decedents were survived by three sons: Hubert Douglas Carson (Douglas), Edwin Dale Carson (Edwin), and Gary Roger Carson (Gary).

¶ 4. Upon their deaths, the decedents' wills devised all of their assets to their three sons equally. 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 (Mary Frances), a general power of attorney. The decedents also *1074 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.

¶ 5. 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. On November 15, 2002, 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.

¶ 6. 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. No one contested the validity of the wills or any of the provisions contained therein.

¶ 7. Douglas claimed to have kept the wills in a safe deposit box since his parents gave them to him in 1994. He also said his parents had requested that he not probate the wills for six months following their deaths. However, he decided to proceed with probate after Martha was appointed to administer the decedents' intestate estates, which were not actually intestate. Douglas claimed that he initially retained Jeff White as an attorney to probate the will, but White failed to do so. Douglas said he then retained Jack Parsons, who proceeded to probate the will and who represented Douglas as executor throughout the proceedings that followed. In June 2003, Douglas filed an Inventory and a First Annual and Final Account.

¶ 8. 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: (1) to set aside all inter vivos transfers from the decedents to Douglas and Mary Frances, (2) to remove Douglas as executor and to require him to indemnify the estate for his acts as executor, (3) to appoint an administrator de bonis non, (4) to compel discovery, and (5) to show cause for contempt.

¶ 9. Initially, Martha contested Douglas's appointment as executor of the will. She alleged that Douglas claimed that he "deserved the lion's share" of the estate, which was contrary to the express provisions of the will providing for equal distribution. Martha also argued it was improper for Douglas to have rented his parents' home to a tenant for approximately $495 per month, an amount she said Douglas converted to a personal benefit. Douglas rented the house before his parents' deaths, and he continued to do so for a few months following their deaths. Nevertheless, the inventory he filed accounted for income from renting the home since January 2001. Regarding the decedents' home, Martha also took issue with Douglas's failure to obtain insurance to cover any liability for which Hubert and Lela's sons would have been responsible.

¶ 10. Martha further alleged that Douglas was in breach of the fiduciary duty that he owed to the estate. It was her contention *1075 that Douglas concealed the wills of Hubert and Lela. Martha also alleged that Douglas failed to claim the life insurance policy proceeds on the life of Hubert on behalf of his incompetent mother, Lela.

¶ 11. Lastly, Martha argued that the addition of Mary Frances as a joint account holder to the decedents' checking account was a void inter vivos transfer. It was Martha's argument that Mary Frances and Douglas were in a confidential relationship with Hubert and Lela because they were solely responsible for arranging for the physical care of the decedents. Martha claimed that such a relationship, combined with Hubert's medical difficulties and Lela's incompetence, should have rendered any transactions void.

¶ 12. In response, 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. Douglas argued that because the matters occurred years before the decedents' deaths, the matters were unrelated to the estate proceedings, and discovery of such matters was not proper in the ongoing matter.

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Bluebook (online)
986 So. 2d 1072, 2008 WL 2806316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-carson-missctapp-2008.