Kishna Shirese Minor v. Anne M. Heishman Commissioner of Accounts
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Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Fulton PUBLISHED
Argued at Fredericksburg, Virginia
KISHNA SHIRESE MINOR, ET AL. OPINION BY v. Record No. 0980-22-4 JUDGE JUNIUS P. FULTON, III OCTOBER 10, 2023 ANNE M. HEISHMAN, COMMISSIONER OF ACCOUNTS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
Joseph W. Stuart for appellants.
Robert B. McEntee, III, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Amicus Curiae: Virginia Conference of Commissioners of Accounts (John K. Cottrell; Cottrell Fletcher & Cottrell PC, on brief), for appellee.
This appeal arises out of proceedings initiated by Anne M. Heishman, the Commissioner
of Accounts for Fairfax County (“Commissioner”), to forfeit the bond of Kishna S. Minor, the
conservator for the estate of Eric Witt Wilder (“Mr. Wilder”), an incapacitated adult. After
receiving information indicating that Minor had underreported the assets of Mr. Wilder’s estate,
the Commissioner commenced hearings to determine the veracity of the allegations. The
hearings led the Commissioner to discover that Minor had indeed underreported certain assets,
and in fact was abusing her power as conservator by misappropriating funds from Mr. Wilder’s
estate in violation of her fiduciary duties. The Commissioner prepared a report recommending
bond forfeiture and filed that report with the trial court. The trial court held a hearing and
subsequently confirmed the Commissioner’s report. In a final order dated June 3, 2022, the trial court entered judgment against Minor and Liberty Mutual Insurance Company (“Liberty
Mutual”), the bond surety, and ordered that the bond be forfeited in the amount of $575,126.27.1
Both Minor and Liberty Mutual appeal. For the following reasons, we affirm the trial court’s
decision.
BACKGROUND
Eric Witt Wilder was born on July 31, 1926, and died on August 5, 2019. He was
married to Thelma Wilder (“Mrs. Wilder”) and had three adult children: Eric R. Wilder (“Eric”),
Brian Wilder (“Brian”), and Cynthia Bowers (“Cynthia”). On October 12, 2018, acting on the
petition of Kishna Minor, the trial court adjudicated Mr. Wilder an incapacitated adult2 and
appointed Minor, his granddaughter, as his temporary guardian and temporary conservator of his
estate. On November 16, 2018, the trial court appointed Minor as the permanent legal guardian
for Mr. Wilder, and the permanent conservator for his estate. In its order, the trial court noted
the need for a permanent guardian and conservator for Mr. Wilder based on “the financial
dissipation conducted by Brian Wilder and allowed by Mrs. Thelma Wilder.” Minor qualified on
the same day, and posted bond in the amount of $1,200,000, with surety provided by Liberty
Mutual.
Relevant to this appeal, the trial court’s orders gave Minor “the power to access, spend,
transfer, sell, liquidate, encumber, and otherwise manage [Mr. Wilder’s] income and assets,
including any accounts jointly titled with Thelma Wilder.” In addition, both orders stated that
1 This amount included the amount of funds that Minor misappropriated while acting as conservator of Mr. Wilder’s estate ($574,462.27), as well as the fee and costs owed to the Commissioner for the commission of her duties ($664). 2 In its order, the trial court noted that the then 92-year-old Mr. Wilder had dementia and other ongoing health conditions that made Mr. Wilder “incapable of receiving and evaluating information effectively.” The trial court further noted that Mr. Wilder “lack[ed] the capacity necessary to mak[e] responsible decisions regarding the management of his property or personal affairs.” -2- the “Conservator shall make those reports required by Virginia Code §§ 64.2-1305 and
64.2-2021.” Neither the October 2018 order nor the November 2018 order identified the assets
and income of Mr. Wilder. Pursuant to the duties outlined in Code §§ 64.2-1305 and -2021,
Minor filed an initial inventory, an amended inventory, a first accounting, and a second and final
accounting of Mr. Wilder’s estate with the Office of the Commissioner of Accounts.3 These
filings identified various assets and bank accounts belonging to Mr. Wilder’s estate. However,
Minor failed to identify five joint bank accounts held by Mr. Wilder and his wife, as well as an
additional bank account Mr. Wilder held with Burke & Herbert Bank identified as “-4200”
(“Account -4200”). It was this undisclosed bank account that gave rise to this appeal.
I. Minor misappropriates estate funds.
On October 15, 2018—just three days after her appointment as Mr. Wilder’s temporary
guardian and conservator—Minor opened Account -4200 with funds Mr. Wilder already
maintained in another account—identified as “-4197”—with Burke & Herbert Bank (“Account
-4197”). During the latter part of 2018 and 2019, Minor made a number of questionable
purchases with funds from Account -4200. For instance, within two weeks of Minor’s initial
qualification as conservator, she put a $6,000 deposit on hold with Safford of Tysons, a luxury
car dealer. In November of 2018, she used the account to purchase $3,000 in goods from Balsam
Hill, $25,437.92 in furniture at Restoration Hardware, and over $6,000 at Next Day Blinds. She
used the account to make a purchase with Carnival Cruise in January 2019 in the amount of
$2,018.20. She used $2,489 from the account to purchase a Peloton exercise bike, and paid the
attendant $39 monthly membership fee with funds from the account as well. The bank
3 The first three filings were initially reviewed and approved by a different commissioner. Mrs. Heishman took over the administration and supervision of Minor and Mr. Wilder’s estate after the second and final accounting was filed. -3- statements from Account -4200 further reflect 15 “Transf to Kishna” transactions totaling
$166,813.57.
In addition to these questionable transactions, Minor withdrew $200,000 from Account
-4200 on October 30, 2018, and used those funds to pay $100,000 each to Cynthia and Eric. In
total, the questionable transactions from the undisclosed Account -4200 totaled $574,539.45.
II. The filings with the Office of the Commissioner of Accounts and subsequent proceedings
In January of 2019, Minor filed her initial inventory of Mr. Wilder’s estate with the
Office of the Commissioner of Accounts. In April of 2019, Minor filed an amended inventory.
Neither of these filings contained information regarding the five joint accounts or Account
-4200. The prior commissioner approved the amended inventory in May of 2019. No
exceptions were filed to the prior commissioner’s report approving the inventory. Minor filed
the first accounting of Mr. Wilder’s estate with the Office of the Commissioner of Accounts on
May 14, 2019. Mr. Wilder passed away on August 5, 2019. Minor filed the second and final
accounting of Mr. Wilder’s estate on October 1, 2019. Again, the aforementioned bank accounts
were not contained in either of Minor’s accountings for the estate. On December 17, 2019, the
prior commissioner approved the first accounting filed by Minor. No exceptions were filed to
the prior commissioner’s report approving this account. However, on December 18, 2019, prior
to the review and approval of Minor’s second account, Eric wrote to the predecessor
commissioner alleging that Minor understated the assets of Mr. Wilder’s estate in the inventory
she had filed.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Fulton PUBLISHED
Argued at Fredericksburg, Virginia
KISHNA SHIRESE MINOR, ET AL. OPINION BY v. Record No. 0980-22-4 JUDGE JUNIUS P. FULTON, III OCTOBER 10, 2023 ANNE M. HEISHMAN, COMMISSIONER OF ACCOUNTS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
Joseph W. Stuart for appellants.
Robert B. McEntee, III, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Amicus Curiae: Virginia Conference of Commissioners of Accounts (John K. Cottrell; Cottrell Fletcher & Cottrell PC, on brief), for appellee.
This appeal arises out of proceedings initiated by Anne M. Heishman, the Commissioner
of Accounts for Fairfax County (“Commissioner”), to forfeit the bond of Kishna S. Minor, the
conservator for the estate of Eric Witt Wilder (“Mr. Wilder”), an incapacitated adult. After
receiving information indicating that Minor had underreported the assets of Mr. Wilder’s estate,
the Commissioner commenced hearings to determine the veracity of the allegations. The
hearings led the Commissioner to discover that Minor had indeed underreported certain assets,
and in fact was abusing her power as conservator by misappropriating funds from Mr. Wilder’s
estate in violation of her fiduciary duties. The Commissioner prepared a report recommending
bond forfeiture and filed that report with the trial court. The trial court held a hearing and
subsequently confirmed the Commissioner’s report. In a final order dated June 3, 2022, the trial court entered judgment against Minor and Liberty Mutual Insurance Company (“Liberty
Mutual”), the bond surety, and ordered that the bond be forfeited in the amount of $575,126.27.1
Both Minor and Liberty Mutual appeal. For the following reasons, we affirm the trial court’s
decision.
BACKGROUND
Eric Witt Wilder was born on July 31, 1926, and died on August 5, 2019. He was
married to Thelma Wilder (“Mrs. Wilder”) and had three adult children: Eric R. Wilder (“Eric”),
Brian Wilder (“Brian”), and Cynthia Bowers (“Cynthia”). On October 12, 2018, acting on the
petition of Kishna Minor, the trial court adjudicated Mr. Wilder an incapacitated adult2 and
appointed Minor, his granddaughter, as his temporary guardian and temporary conservator of his
estate. On November 16, 2018, the trial court appointed Minor as the permanent legal guardian
for Mr. Wilder, and the permanent conservator for his estate. In its order, the trial court noted
the need for a permanent guardian and conservator for Mr. Wilder based on “the financial
dissipation conducted by Brian Wilder and allowed by Mrs. Thelma Wilder.” Minor qualified on
the same day, and posted bond in the amount of $1,200,000, with surety provided by Liberty
Mutual.
Relevant to this appeal, the trial court’s orders gave Minor “the power to access, spend,
transfer, sell, liquidate, encumber, and otherwise manage [Mr. Wilder’s] income and assets,
including any accounts jointly titled with Thelma Wilder.” In addition, both orders stated that
1 This amount included the amount of funds that Minor misappropriated while acting as conservator of Mr. Wilder’s estate ($574,462.27), as well as the fee and costs owed to the Commissioner for the commission of her duties ($664). 2 In its order, the trial court noted that the then 92-year-old Mr. Wilder had dementia and other ongoing health conditions that made Mr. Wilder “incapable of receiving and evaluating information effectively.” The trial court further noted that Mr. Wilder “lack[ed] the capacity necessary to mak[e] responsible decisions regarding the management of his property or personal affairs.” -2- the “Conservator shall make those reports required by Virginia Code §§ 64.2-1305 and
64.2-2021.” Neither the October 2018 order nor the November 2018 order identified the assets
and income of Mr. Wilder. Pursuant to the duties outlined in Code §§ 64.2-1305 and -2021,
Minor filed an initial inventory, an amended inventory, a first accounting, and a second and final
accounting of Mr. Wilder’s estate with the Office of the Commissioner of Accounts.3 These
filings identified various assets and bank accounts belonging to Mr. Wilder’s estate. However,
Minor failed to identify five joint bank accounts held by Mr. Wilder and his wife, as well as an
additional bank account Mr. Wilder held with Burke & Herbert Bank identified as “-4200”
(“Account -4200”). It was this undisclosed bank account that gave rise to this appeal.
I. Minor misappropriates estate funds.
On October 15, 2018—just three days after her appointment as Mr. Wilder’s temporary
guardian and conservator—Minor opened Account -4200 with funds Mr. Wilder already
maintained in another account—identified as “-4197”—with Burke & Herbert Bank (“Account
-4197”). During the latter part of 2018 and 2019, Minor made a number of questionable
purchases with funds from Account -4200. For instance, within two weeks of Minor’s initial
qualification as conservator, she put a $6,000 deposit on hold with Safford of Tysons, a luxury
car dealer. In November of 2018, she used the account to purchase $3,000 in goods from Balsam
Hill, $25,437.92 in furniture at Restoration Hardware, and over $6,000 at Next Day Blinds. She
used the account to make a purchase with Carnival Cruise in January 2019 in the amount of
$2,018.20. She used $2,489 from the account to purchase a Peloton exercise bike, and paid the
attendant $39 monthly membership fee with funds from the account as well. The bank
3 The first three filings were initially reviewed and approved by a different commissioner. Mrs. Heishman took over the administration and supervision of Minor and Mr. Wilder’s estate after the second and final accounting was filed. -3- statements from Account -4200 further reflect 15 “Transf to Kishna” transactions totaling
$166,813.57.
In addition to these questionable transactions, Minor withdrew $200,000 from Account
-4200 on October 30, 2018, and used those funds to pay $100,000 each to Cynthia and Eric. In
total, the questionable transactions from the undisclosed Account -4200 totaled $574,539.45.
II. The filings with the Office of the Commissioner of Accounts and subsequent proceedings
In January of 2019, Minor filed her initial inventory of Mr. Wilder’s estate with the
Office of the Commissioner of Accounts. In April of 2019, Minor filed an amended inventory.
Neither of these filings contained information regarding the five joint accounts or Account
-4200. The prior commissioner approved the amended inventory in May of 2019. No
exceptions were filed to the prior commissioner’s report approving the inventory. Minor filed
the first accounting of Mr. Wilder’s estate with the Office of the Commissioner of Accounts on
May 14, 2019. Mr. Wilder passed away on August 5, 2019. Minor filed the second and final
accounting of Mr. Wilder’s estate on October 1, 2019. Again, the aforementioned bank accounts
were not contained in either of Minor’s accountings for the estate. On December 17, 2019, the
prior commissioner approved the first accounting filed by Minor. No exceptions were filed to
the prior commissioner’s report approving this account. However, on December 18, 2019, prior
to the review and approval of Minor’s second account, Eric wrote to the predecessor
commissioner alleging that Minor understated the assets of Mr. Wilder’s estate in the inventory
she had filed. Later, Cynthia joined Eric as an objector, though no report was ultimately filed by
the Commissioner concerning Eric and Cynthia’s objections.
On June 15, 2020, Eric filed a hearing request with the Commissioner, Mrs. Heishman,
also requesting production of certain bank records, including records from Burke & Herbert
Bank. The Commissioner initially set a hearing on the objections for December 1, 2020, -4- pursuant to Code § 64.2-1209. However, although the hearing was convened on that date, it was
continued until January 5, 2021, because the Commissioner had received documents and
allegations which indicated the potential for forfeiture of the surety bond, and she wanted the
surety on Minor’s bond to appear as well. Prior to adjourning the December 1 hearing, Minor
confirmed the existence of the undisclosed Account -4200. In anticipation of the January 5
hearing, counsel for Minor filed a hearing brief, asserting, among other arguments, that Eric and
Cynthia were not “interested parties” within the meaning of Code § 64.2-1209, and therefore the
proceeding was improper. On January 5, 2021, the Commissioner re-convened the hearing and
again continued it to allow Eric’s counsel to file a response to the brief filed by Minor’s counsel.
On the same date, the Commissioner issued a subpoena duces tecum to Burke & Herbert Bank,
based on the allegations made by Eric as well as the admission made by Minor during the
December 1 hearing. The bank’s response reflected both statements from Account -4197, which
accurately reflected and accounted for transactions spent on Mr. Wilder’s guardianship and his
estate, and from Account -4200, transactions for which Minor never accounted. Finally, on
February 3, 2021, the Commissioner convened the hearing concerning the objections of Eric and
Cynthia for the third time.
It was during the first of these three hearings (the “investigatory hearings”) that the
Commissioner confirmed the existence of Account -4200. Minor acknowledged opening and
controlling two separate accounts, explaining that Account -4200 was a “guardian account” that
was only to be reported to “the State” and not to the Commissioner. During the final hearing on
February 3, which Minor did not attend, evidence was presented which detailed the existence of
Account -4200 and the myriad transactions Minor had made with the funds therein. Minor’s
counsel offered no evidence to explain or justify the transactions from Account -4200. However,
-5- no report or further action was taken by the Commissioner as a direct result of these
investigatory hearings.
After the February hearing, an auditor with the Office of the Commissioner of Accounts
wrote to Minor requesting documentation explaining the propriety of the expenditures from
Account -4200. Minor’s counsel responded via letter on March 3, 2021, stating that “much of
the non-conservator funds went to address perceived inequities or improprieties within the
family” and that “[i]n terms of the expenses paid from Account 4200, most of the funds went to
prepare an ‘in-law’ suite for her grandfather in her own house.” Minor never provided any
documentation or evidence to support the propriety of these transactions.
The Commissioner determined that Minor’s response was insufficient, and, due to
inconsistencies with the documentary evidence the Commissioner had subpoenaed from Burke &
Herbert Bank, concluded that she had yet to properly account for the transactions reflected in the
bank statements concerning Account -4200. The Commissioner therefore issued a summons to
Minor pursuant to Code § 64.2-1216(A)4 on April 13, 2021, and following the procedure set
If any fiduciary required to account fails to make a complete and proper account within the time allowed, the commissioner of accounts shall either (i) proceed against the fiduciary in accordance with the procedures set forth in § 64.2-1215 or (ii) file with the circuit court and the clerk at such times as the court shall order, but not less than twice a year, a list of all fiduciaries who have failed to make a complete and proper account within the time allowed, excepting those fiduciaries to whom the commissioner of accounts has granted additional time. Upon the filing of this list, the clerk shall issue a summons against each fiduciary on the list, returnable to the first day of the next term of court, and the court shall take action against the fiduciary in accordance with the procedures set forth in § 64.2-1215.
Code § 64.2-1216(A). -6- forth in Code § 64.2-1215(A),5 instructed Minor to file a proper final account within 30 days.
Minor did not file a proper account, and on May 21, 2021, the Commissioner filed a report of
noncompliance with the Fairfax County Circuit Court, pursuant to Code § 64.2-1215(A).
On May 26, 2021, pursuant to the Commissioner’s report, the trial court entered a show
cause summons to be heard on August 13, 2021. On August 6, 2021, Minor filed a response to
the show cause order, again arguing that the proceeding was a “nullity,” and also arguing that the
Commissioner had made certain statements during the investigatory hearings that illustrated that
she was not an impartial adjudicator. On August 13, 2021, the trial court heard the arguments of
Minor and the Commissioner with regard to the show cause order. The trial court then entered
an order proffered by the Commissioner, which read, in part: “[T]he Commissioner of Accounts
is directed to hold a hearing to determine whether the Court should remove the fiduciary and
whether, and in what amount, the fiduciary’s bond should be forfeit.” On the same date, August
13, 2021, the Commissioner filed a petition to remove Minor as the fiduciary of Mr. Wilder’s
estate, and to forfeit bond. That petition stated: “Your [C]ommissioner is of the opinion that the
fiduciary’s failure to file a proper account requires that she be removed as conservator and that
her fiduciary bond be forfeit.”
If any fiduciary fails to make the return required by § 64.2-1300, the commissioner of accounts shall issue, through the sheriff or other proper officer, a summons to the fiduciary requiring him to make such return. If the fiduciary fails to make the required return within 30 days after the date of service of the summons, the commissioner of accounts shall report the fact to the circuit court. The court shall immediately issue a summons to the fiduciary requiring him to appear . . . . If, after his appearance before the court, the fiduciary continues to fail to make the required return within such time as the court may prescribe, the fiduciary shall be punished for contempt of court.
Code § 64.2-1215(A). -7- On September 29, 2021, the Commissioner presided over a hearing conducted pursuant to
the trial court’s order to determine “whether and, what amount, if any, of Ms. Minor’s bond
should be forfeited.” Counsel for Minor and counsel for her surety, Liberty Mutual, appeared at
the hearing, though Minor herself was not present. Although Minor was not present, her counsel
provided evidence concerning joint accounts held by the Wilders. However, no evidence was
offered to explain how the funds from Account -4200 were used to benefit Mr. Wilder. Minor’s
counsel objected that she was denied due process because the Commissioner was acting both as a
prosecutor and as an adjudicator, and she again argued that the proceedings were a “nullity”
because they were instituted by Eric and Cynthia, both of whom lacked standing as “interested
person[s]” under Code § 64.2-1209. Counsel for Minor and for Liberty Mutual also argued in
the alternative that the amount that they ought to be liable for was far less than the $574,462.27
that the Commissioner asserted. Cynthia attended the hearing remotely but offered no evidence
or argument. Eric did not attend this hearing.
III. The trial court’s rulings
On October 15, 2021, the Commissioner filed her report of the hearing as ordered by the
trial court, recommending forfeiture of the bond. On November 1, 2021, Minor and Liberty
Mutual each separately filed exceptions to the report. On November 8 and November 10, 2021,
the trial court confirmed the Commissioner’s report. No appeal was noted from the November
orders.
On January 21, 2022, the parties appeared before the circuit court for an order
memorializing the now confirmed Commissioner’s report, as well as her petition to forfeit bond.
The trial court took the matters under advisement, and on April 11, 2022, the trial court issued a
letter opinion addressing “whether the Commissioner of Accounts can hold a hearing pursuant to
Va. Code § 64.2-1209 based on information received from a non-interested party.” The trial
-8- court noted Minor’s argument that she had been deprived of due process because the
Commissioner was acting both as an adverse party and as an arbiter, but it did not expressly
address that argument in its opinion. Instead, it addressed the role of the Commissioner of
Accounts under Code § 64.2-1200, and held that the Commissioner had “general supervision
authority over . . . fiduciaries” and the authority “to make ex parte settlements of the fiduciaries’
accounts.” The trial court agreed that Eric and Cynthia lacked standing under Code § 64.2-1209
to seek a hearing, but it held that, “while the statute does prescribe a method by which the
Commissioner can have a hearing, the statute does not say that is the only way a commissioner
may conduct a hearing.” Noting that “the Commissioner has the authority to review and report
an accounting under § 64.2-1200,” it decided that “it would be . . . absurd . . . to require the
Commissioner to approve Ms. Minor’s accounting and not look into a claim brought by an
uninterested person that Ms. Minor’s accounting was deficient.” It therefore concluded that “the
Commissioner was correct in conducting a hearing after being contacted by the decedent’s son.”
On May 20, 2022, Minor filed a motion for clarification and reconsideration of the trial
court’s April 11, 2022 letter opinion. On May 27, 2022, at the trial court’s request, the
Commissioner filed a response to that motion. On June 3, 2022, the trial court heard argument
from Minor and the Commissioner regarding the motion and entered a final order denying the
motion and entering judgment against Minor. Minor and Liberty Mutual appealed.
ANALYSIS
I. Appellants’ assignments of error on appeal
On appeal, Minor and Liberty Mutual (“appellants”) present ten assignments of error.
However, these assignments of error can be broken up into four distinct categories:
(1) assignments of error related to the hearing process carried out by the Commissioner,
(2) assignments of error related to the Commissioner herself, (3) assignments of error related to
-9- the supposed remedies available to Eric and Cynthia, and (4) assignments of error related to the
evidence considered by the Commissioner.
II. Standard of Review
To resolve the issues presented by appellants, “we must look to the statutory provisions
governing the procedures for the approval of final accountings submitted by a . . . conservator for
an estate to a Commissioner of Accounts and a circuit court.” Henderson v. Cook, Trustee for
Noojin, 297 Va. 699, 711 (2019). “[A]n issue of statutory interpretation is a pure question of law
which we review de novo.” Id. (alteration in original) (quoting Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104 (2007)).
When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.
Id. (quoting Conyers, 273 Va. at 104). “Additionally, ‘[t]he plain, obvious, and rational meaning
of a statute is to be preferred over any curious, narrow, or strained construction.’” Id. (alteration
in original) (quoting Meeks v. Commonwealth, 274 Va. 798, 802 (2007) (citation and internal
quotation marks omitted)). “Further, although the report of a commissioner [of accounts] does
not carry the weight of a jury’s verdict, ‘an appellate court must give due regard to the
commissioner’s ability, not shared by the [trial court], to see, hear, and evaluate the witnesses at
first hand.’” Heath v. Heath, 38 Va. App. 727, 731 (2002) (citations omitted). “‘A
commissioner’s findings of fact which have been accepted by the trial court “are presumed to be
correct when reviewed on appeal and are to be given ‘great weight’ by this Court. The findings
will not be reversed on appeal unless plainly wrong.”’” Id. at 731-32 (citation omitted).
- 10 - III. The nature and history of Commissioners of Accounts in Virginia
We next turn to the nature and history of the commissioner of accounts in Virginia. “The
office of the Commissioner of Accounts is unique to Virginia and West Virginia.” Gray v.
Binder, 294 Va. 268, 276 (2017) (citing Frank O. Brown, Jr., Virginia Practice: Probate
Handbook, § 2:11 (2014)). “Since their creation, Virginia circuit courts have been vested with
jurisdiction over fiduciary matters, including the administration of estates.” Id. “It would be
‘impracticable’ for circuit courts to perform every aspect of estate administration.” Id. (quoting
Shipman v. Fletcher, 91 Va. 473, 477 (1895)). “The Commonwealth established the office of the
Commissioner of Accounts ‘to afford a prompt, certain, efficient, and inexpensive method’ for
the settlement of fiduciaries’ accounts and the distribution of estates.” Id. (quoting Carter Adm’r
v. Skillman, 108 Va. 204, 207 (1908)).
As a quasi-judicial official, the commissioner of accounts is “one of the most important
[offices] known in the administration of justice.” Henderson, 297 Va. at 711-12 (quoting Gray,
294 Va. at 276). Its origins can be traced back to the office of the commissioner in chancery, and
it is considered to have “the same general authority as a commissioner in chancery, in addition to
the statutory duties and responsibilities of the commissioner of accounts.” Phillips v.
Rohrbaugh, 300 Va. 289, 307 (2021) (quoting The Standing Comm. on the Comm’rs of Accts. of
the Jud. Council of Va., Manual for Commissioners of Accounts at 293-94 (6th ed. 2019)
(footnotes omitted)). The Supreme Court of Virginia has agreed with the Judicial Council that
“[b]ased upon these background principles, . . . ‘the circuit court may refer any matter it deems
appropriate to the commissioner of accounts pursuant to its general referral powers to
commissioners in chancery.’” Id. (quoting Manual for Commissioners of Accounts at 293-94).
“A commissioner in chancery is an officer appointed by the [circuit court] to aid [it] in the proper
and expeditious performance of [its] official duties.” Gray, 294 Va. at 276 (quoting Raiford v.
- 11 - Raiford, 193 Va. 221, 226 (1952)). “A good commissioner is the right arm of the court, and his
services are indispensable to the due administration of justice.” Id. (quoting Raiford, 193 Va. at
226). “[T]he office of commissioner in chancery is one of the most important known in the
administration of justice.” Id. (quoting Bowers Adm’r v. Bowers, 70 Va. (29 Gratt.) 697, 700
(1878)). “Nonetheless, commissioners serve to assist the court, not to supplant it.” Id. (citing
Shipman, 91 Va. at 477). “A commissioner’s authority to assist the circuit court with the
settlement of estates is simply an extension of the circuit court’s subject matter jurisdiction to
administer estates.” Id. at 278.
“[F]rom the very necessity of their appointment and the nature of their office, [a
commissioner of accounts’] work is subject to the review of the court.” Henderson, 297 Va. at
712 (quoting Gray, 294 Va. at 276-77). “[The court] may accept or reject it, in whole or in part,
as its judgment, upon such review, may dictate, whether it be of law or fact.” Id. (quoting Gray,
294 Va. at 276-77). Finally, the General Assembly has enacted Code §§ 64.2-1200 et seq. and
64.2-1300 et seq. to govern Commissioners of Accounts and fiduciaries in Virginia. These
statutes will be laid out, as relevant, in detail below.
IV. Appellants timely noted their appeal.
Before we reach appellants’ assignments of error, we must first address the
Commissioner’s argument that appellants have procedurally defaulted their appeal. The
Commissioner argues that “Appellants failed to note any appeal to the circuit court’s order[s]
confirming the Commissioner’s Report over their exceptions within thirty (30) days, which was a
final, appealable order. In failing to do so, they have waived their right to appeal the same in this
proceeding” pursuant to Code § 8.01-675.3. That statute provides that “a notice of appeal to the
Court of Appeals in any case within the jurisdiction of the court shall be filed within 30 days
from the date of any final judgment order, decree, or conviction.”
- 12 - The Commissioner argues that the trial court’s orders entered November 8 and 10, 2021,
confirming the Commissioner’s report “were final as to Minor and Liberty Mutual” based on
language contained in Code § 64.2-1213. That statute provides that “[t]he report, to the extent to
which it is confirmed by an order of the circuit court upon exceptions filed pursuant to
subsection B of § 64.2-1212 . . . shall be taken to be correct, except so far as it may . . . be
surcharged or falsified.” However, if a party files exceptions to the report, that party may not
bring a suit to surcharge or falsify the report; rather, “the action of the court on the report shall be
final as to such party, except that it may be appealed from as in other suits.” Code § 64.2-1213
(emphasis added). Based on this language, the Commissioner argues that the trial court’s
confirmation of the Commissioner’s report was a final order for purposes of appeal. We
disagree.
We do not read the language contained in Code § 64.2-1213 (specifically the use of the
word “final”) as altering the traditional analysis of whether an order is a final, appealable order
under Rule 1:16 by per se transforming a circuit court’s confirmation of a commissioner’s report
into a final order for purposes of appeal. Instead, we read the cited language simply as a
restriction that the General Assembly has placed upon certain litigants—those who have already
had their opportunity to challenge a commissioner’s factual findings and legal conclusions
contained in her report—in potential future legal actions. See Lister v. Virginia Nat’l Bank.,
209 Va. 739, 741-42 (1969) (holding that former Code § 26-34 “does not prohibit a beneficiary,
6 Rule 1:1(b) provides:
Unless otherwise provided by rule or statute, a judgment, order, or decree is final if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order, or decree. - 13 - who did not file exceptions to the commissioner’s report within the statutory period (now 15
days), from seeking equitable relief by instituting a suit in proper time to surcharge and falsify an
[e]x parte settlement of the fiduciary’s account. A beneficiary may elect whether to file
exceptions to the report or to institute a suit to surcharge and falsify. If he files exceptions to the
report then he is barred from prosecuting such a suit.”).
In addressing the question of timeliness of appellants’ notice of appeal in this matter, we
therefore turn to the traditional legal analysis concerning Rule 1:1 and whether a trial court’s
order “dispose[d] of the whole subject, [gave] all the relief contemplated, . . . and [left] nothing
to be done in the cause save to superintend ministerially the execution of the order.” Jefferson v.
Commonwealth, 298 Va. 473, 475 (2020) (quoting Daniels v. Truck & Equip. Corp., 205 Va.
579, 585 (1964)).
Here, as appellants correctly point out, though the trial court confirmed the
Commissioner’s report in November of 2021, those orders did not “dispose[] of the entire
matter,” pursuant to Rule 1:1(b), because the issues pertaining to the propriety of the process
carried out by the Commissioner, as well as bond forfeiture, were still to be decided. Even
though the trial court had confirmed the Commissioner’s report, the concurrent petition filed by
the Commissioner to remove Minor as fiduciary and forfeit bond was still pending before the
trial court. In fact, after the trial court confirmed the Commissioner’s report in November of
2021, the trial court held an additional show cause hearing on the issue of bond forfeiture. The
trial court explicitly took the matter of bond forfeiture under advisement, not ruling on the legal
arguments raised by appellants until it issued its April 11, 2022 letter opinion. Further, the trial
court only formally memorialized its rulings regarding bond forfeiture and the process carried
out by the Commissioner in its final order, entered on June 3, 2022. “A ‘trial court speaks only
through its written orders’ and written ‘orders speak as of the day they were entered.’” Jefferson,
- 14 - 298 Va. at 477 (quoting Davis v. Mullins, 251 Va. 141, 148 (1996)). The final order entered by
the trial court on June 3, 2022, was the final, appealable order in this case. Therefore, appellants’
notice of appeal filed on June 28, 2022, was timely.7
V. The hearing process carried out by the Commissioner complied with her statutory duties and authorities.
Appellants’ first assign error to the trial court’s ruling by arguing that the entire
proceeding was a “nullity” because it was instituted by Eric and Cynthia. Before the
Commissioner approved the final accounting filed by Minor, Eric contacted the Commissioner,
notifying her that Minor had underreported the assets in her initial and amended inventories and
sought a hearing in front of the Commissioner pursuant to Code § 64.2-1209. That statute
provides that:
Any interested person, or the next friend of an interested person, may, before the commissioner of accounts, insist upon or object to anything which could be insisted upon or objected to by such interested person if the commissioner of accounts were acting under an order of a circuit court for the settlement of a fiduciary’s accounts made in a suit to which such interested person was a party.
Appellants argue that Eric and Cynthia were not “interested persons” pursuant to that statute.
Appellants acknowledge that the Commissioner did not file a report with the trial court
concerning the hearings she held on December 1, 2020, January 5, 2021, and February 3, 2021.
Nevertheless, appellants argue that the Commissioner “receive[d] evidence upon which she later
based her October 15, 2021, Report.”
Appellants believe this to be a standing issue, citing to Johnston Mem’l Hosp. v.
Bazemore, 277 Va. 308, 312 (2009), for the proposition that Virginia “jurisprudence is clear that
7 In coming to this conclusion, we expressly decline to opine on whether, in a different case where no petition was pending, a trial court’s confirmation of a commissioner’s report would constitute a final order for purposes of appeal. - 15 - when a party without standing brings a legal action, the action so instituted is, in effect, a legal
nullity.” Appellants argue that, because Eric and Cynthia were not “interested persons” under
the statute, “the only thing the Commissioner could do with the objections before her would be
to dismiss the objections for lack of standing.” Appellants also make a similar argument with
respect to the Commissioner herself, arguing that she also was not an “interested” party pursuant
to Code § 64.2-1209. These arguments fail for the same reason: they misunderstand the
proceedings carried out below, as well as the nature of the position of the Commissioner of
Accounts.
“The law with respect to the settlement of fiduciary accounts prior to the adoption of the
Code of 1849 was in a very unsatisfactory condition.” Carter’s Adm’r, 108 Va. at 206. In an
effort to remedy these issues, the General Assembly created the office of the commissioner of
accounts. The language from the revisors’ report illustrates their recognition of the pitfalls that
existed at the time concerning the proper settlement and distribution of estates:
Far better would it be for him that his accounts should be settled correctly in the first instance, . . . [and that] . . . it must be a great improvement to have such accounts settled by commissioners holding their offices under appointment of the circuit courts; commissioners appointed such because of their acquaintance with the principles on which the accounts should be stated, and from whom, therefore, a settlement on proper principles may generally be expected.
Report of Revisors of Virginia Code, 1849, ch. 132, p. 676 n.* (January 1849) (emphasis added).
Further, the Supreme Court of Virginia has recognized “how minute, how careful, and
how sufficient [are the provisions laid out in the Virginia Code] for the settlement of the
accounts of fiduciaries. [The law] is full, ample, and complete. It guards and protects every
interest as amply as could be done by a formal suit in chancery.” Carter’s Adm’r, 108 Va. at
213. “[A]t every step of [her] administration the law provides proper machinery by which the
- 16 - fiduciary can be compelled to collect and distribute the funds committed to [her] care, and to
settle [her] accounts showing the manner in which [the] trust has been executed.” Id.
Code § 64.2-1200 provides that “[t]he commissioner of accounts shall have general
supervision of all fiduciaries admitted to qualify in the court or before the clerk of the circuit
court and shall make all ex parte settlements of the fiduciaries’ accounts.” That statute further
provides that “[e]ach commissioner of accounts shall retain the power of supervision over every
account, matter, or thing referred to him until a final account is approved for such account,
matter, or thing . . . .” Trustees, conservators, and other types of fiduciaries have an obligation to
“account before the Commissioner of Accounts.” Code § 64.2-1206. Code § 64.2-1312
provides that “[t]he commissioner of accounts shall state, settle, and report to the circuit court an
account of the transactions of a fiduciary, as provided by law.” Code § 64.2-1203 provides that
“Commissioners of accounts . . . shall have the power to issue subpoenas to require any person to
appear before them and to issue subpoenas duces tecum to require the production of any
documents or papers before them.” And Code § 64.2-1204 provides that:
When any fiduciary of an estate has given a bond to the court and then absconds with or improperly disburses any or all of the assets of the estate, the commissioner of accounts may petition the court in which the order was made conferring his authority on the fiduciary and ask the court to order that such bond be forfeited.
The statutory scheme places affirmative duties upon both the fiduciary and the
Commissioner. As laid out above, circuit courts in Virginia have jurisdiction over fiduciary
matters, including the proper administration of estates. The Commissioner of Accounts serves at
the pleasure of the trial court, and the purpose of the Commissioner is to aid the trial court in
carrying out the prompt settlement of fiduciaries’ accounts and the proper distribution of estates.
The Commissioner’s duty in this regard is to assess the fiduciaries’ inventory and accountings, as
well as any evidence before it, and file a report with the trial court, recommending a disposition
- 17 - for the trial court to adopt. This duty includes an assessment of whether a fiduciary has
“improperly disburse[d] any or all of the assets of the estate.” Code § 64.2-1204. The
Commissioner thereby serves as the first step in the process of administering estates. In doing
so, the Commissioner’s duty is not simply to ensure the job is done, but to make certain that the
job is done right.
Here, we agree with the trial court that “while [Code § 64.2-1209] does prescribe a
method by which the Commissioner can have a hearing, the statute does not say that is the only
way a commissioner may conduct a hearing.” The General Assembly has charged the
Commissioner with the duty and authority to ensure the correct administration of estates.
Pursuant to this duty, Code § 64.2-1203 grants the Commissioner the power to subpoena “any
person to appear before them.” The record demonstrates that that is what occurred here, and we
see no issue with that process. The investigatory hearings that appellants complain of were well
within the Commissioner’s “supervisory” authority outlined in Code § 64.2-1200, and her
authority to require “any person” to appear before her pursuant to Code § 64.2-1203. Further,
the Commissioner was carrying out her statutory obligation to ensure Minor made a “complete
and proper account.” Code § 64.2-1216(A). When Minor failed to do so, the Commissioner was
required to take steps against Minor, and ultimately bring the issue to the trial court’s attention
pursuant to Code §§ 64.2-1215 and -1216. Finally, upon learning of Minor’s “improper
disburs[ement]” of certain estate funds, the Commissioner was entitled to “petition the court . . .
and ask the court to order that [the] bond be forfeited.” Code § 64.2-1204.
The trial court considered the petition and accompanying report from the Commissioner,
as well as the exceptions filed by Minor and Liberty Mutual to that report, and ultimately
confirmed the Commissioner’s report, subsequently entering an order forfeiting a portion of the
bond. Given that the proceedings below were properly conducted pursuant to the
- 18 - Commissioner’s statutory authority—and not as the result of Code § 64.2-1209—nothing about
this process was improper as to constitute error.
VI. The Commissioner remained a neutral arbiter, notwithstanding the statements she made.
Finding no success in their attempt to challenge the hearing process carried out by the
Commissioner, appellants next call into question the propriety of the Commissioner herself.
Appellants seize upon several statements made by the Commissioner during the investigatory
hearings wherein she intimated that, notwithstanding the fact that Eric and Cynthia may not be
“interested persons” under Code § 64.2-1209,8 she, herself, was an “interested person” for
purposes of the hearing, that she “had standing in the case,” and that she was not “neutral.”
Appellants argue that these statements evince bias on the part of the Commissioner and that the
hearing process, in turn, violated their due process rights. In making this argument, appellants
cite to Palmer v. Atl. Coast Pipeline, LLC, 293 Va. 573 (2017), for the proposition that due
process “includes, among other things . . . the opportunity to be heard before an impartial
tribunal.” Id. at 585 (McCollough, J., concurring). Further, and notwithstanding their arguments
concerning the Commissioner’s alleged bias, appellants also argue that the process generally was
unfair because the Commissioner engaged in both an adjudicatory role as well as a prosecutorial
role. This, appellants argue, also violates their due process rights.
8 In agreeing with appellants that Eric and Cynthia were not “interested person” under Code § 64.2-1209, the trial court ruled that an “interested person” was a person who had standing. In the context of the statute, the trial court explained that that meant a person who had a “pecuniary interest” in the outcome of the case, a definition which neither Eric nor Cynthia meet. We express no opinion on the correctness of the trial court’s adopted definition of “interested person,” determining that we can resolve the case on other grounds. See Commonwealth v. White, 293 Va. 411, 419 (2017) (“The doctrine of judicial restraint dictates that we decide cases on the best and narrowest grounds available.” (cleaned up) (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))). - 19 - Here, the record makes clear that the Commissioner, in making the assertions that she
was “interested,” “had standing” in the case, and was not “neutral,” merely intended to express
the fact that she, as Commissioner of Accounts, had a duty to assess the evidence presented to
her and ensure the proper administration and distribution of Mr. Wilder’s estate. For instance,
during the January 5 hearing, in response to the contention that no interested party had come
forward with objections, the Commissioner replied: “I appreciate that. But you know, I also, as
the Commissioner of Accounts, have an interest in this, as well. And this statute provides me
with general authority over fiduciaries.” And further, during the hearing on February 3, the
Commissioner stated:
I think that, given my duties under 64.2-1200, and what this office is charged with, now that these objections have been brought to my attention, I believe I do have the authority to move forward and hear [the] case as to these funds that were allegedly used by Ms. Minor.
Such an “interest” is not improper, and the Commissioner’s statements do not render her
an impartial adjudicator. In fact, the trial court came to this very conclusion, stating: “[M]y
understanding [of these statements is that] she was referring to . . . the duties of the
Commissioner of Account[s].” The trial court further acknowledged that “although the words
that she used might not have been the most artful words to use in that context, [she was saying]
that the Commissioner of Accounts had duties and obligations.” On appeal, “we will not fix
upon isolated statements . . . taken out of the full context in which they were made[] and use
them as a predicate for holding the law has been misapplied.” Yarborough v. Commonwealth,
217 Va. 971, 978 (1977). The trial court’s finding in this regard is entitled to deference, and we
cannot say that such a finding was plain error. Heath, 38 Va. App. at 732.
Similarly, appellants argue that the Commissioner violated their due process rights by
exercising both “enforcement” and “adjudicatory” authority. Appellants rely on Williams v.
- 20 - Pennsylvania, 579 U.S. 1 (2016), for the proposition that “an unconstitutional potential for bias
exists when the same person serves as both accuser and adjudicator in a case.” Id. at 8. Further,
citing to a Pennsylvania case, Lyness v. Pennsylvania, 605 A.2d 1204 (Pa. 1992), they argue that
any appearance of bias and partiality, including “commingling prosecutorial and adjudicatory
functions . . . must be viewed with deep skepticism.” Id. at 1207.
This assignment of error again misunderstands the role of a Commissioner of Accounts
and the statutory scheme established for the protection of fiduciary accounts. Though the
Commissioner is a “quasi-judicial” officer, Phillips, 300 Va. at 306, and is tasked with generally
supervising fiduciaries in Virginia, Code § 64.2-1200, the Commissioner does not act as a
“prosecutor” or “enforcer” in carrying out her duties. The Commissioner makes findings of fact
and conclusions of law in her report, which, upon submission to the trial court, are merely
recommendations which the trial court may accept or reject. See Henderson, 297 Va. at 712.
“[F]rom the very necessity of their appointment and the nature of their office, their work is
subject to the review of the court. It may accept or reject it, in whole or in part, as its judgment,
upon such review, may dictate, whether it be of law or fact.” Gray, 294 Va. at 276-77 (alteration
in original) (quoting Shipman, 91 Va. at 477). The statutes governing Commissioners of
Accounts and requiring them to make reports to the trial court do not place upon Commissioners
the duty to act as a prosecutor. The Commissioner is simply required to “report every account
stated under [Code § 64.2-1200 et seq.] . . . along with any matters specially stated deemed
pertinent by the commissioner of accounts.” Code § 64.2-1210. If the fiduciary takes issue with
the report filed by the Commissioner, the fiduciary may file her own exceptions to the
Commissioner’s report. Code § 64.2-1212. However, the Commissioner bears no duty to prove
the facts, opinions, and legal conclusions contained in her report. Rather, the duty to properly
account for all funds under her control as fiduciary always remains with the fiduciary, and she is
- 21 - personally liable for a breach of her fiduciary duty. See Code § 64.2-2021(D), (E) (setting out
the “[g]eneral duties and liabilities of [a] conservator,” expressly clarifying that “[a] conservator
stands in a fiduciary relationship to the incapacitated person for whom [s]he was appointed
conservator,” and requiring that “[a] conservator shall comply with and be subject to the
requirements imposed upon fiduciaries generally under . . . [Code] § 64.2-1200 et seq., . . .
specifically including the duty to account set forth in § 64.2-1305”). Therefore, the
Commissioner here did not take on the role of prosecutor or enforcer.9 Instead, as has been
explained above, the Commissioner merely aided the trial court in the proper administration and
distribution of Mr. Wilder’s estate. No error arises from this.
In the same vein, appellants argue that the trial court erred by not dismissing the action
“where the Commissioner sought referral of a matter for the Commissioner’s adjudication to
determine whether a fiduciary should be removed and her bond be forfeit and simultaneously
asked the Court to remove the fiduciary and order her bond forfeit.” Appellants’ brief makes
clear that this assignment of error is predicated upon the same alleged “lack of impartiality” of
9 Though appellants do not come right out and say it, implicit in their argument concerning these “dual roles” is the contention that, in any case where a commissioner determines that the evidence she has received indicates the misuse or misappropriation of funds, the Commissioner must delegate the task of filing the petition—and possibly the report—to a separate individual, such as an assistant commissioner appointed pursuant to Code § 64.2-1201, so as to avoid any appearance of bias or impropriety. It seems to us that such a sweeping rule, if provident, would have been expressly stated by the General Assembly in the relevant statutory scheme. In fact, Code § 64.2-1201 provides both the trial court and the Commissioner with discretion in making the determination whether she should be recused from the administration and supervision of a certain case. See Code § 64.2-1201 (“The judges of each circuit court may appoint, in addition to commissioners of accounts, assistant commissioners of accounts who shall perform all the duties and exercise all of the powers required of the commissioner of accounts in all cases in which the commissioner of accounts is so situated that he cannot perform the duties of his office or in which the commissioner of accounts is of the opinion that it is improper for him to act. . . . Assistant commissioners of accounts shall act only in such cases that the commissioner of accounts delegates to him.”). We have found no evidence in the relevant statutes of the broad-sweeping rule that appellants advance, and we decline to adopt such a rule here. - 22 - the Commissioner, as well as the same arguments concerning the “dual roles” she supposedly
engaged in. As we have already refuted those notions—and given the statutory obligations
incumbent upon the Commissioner to report fiduciary malfeasance to the trial court, and, where
appropriate, initiate proceedings against such a fiduciary—this assignment of error fails.
VII. The assignment of error related to Eric and Cynthia’s statutory remedy misunderstands the nature of the proceedings below.
Appellants next argue that even if Eric and Cynthia were “interested persons” under Code
§ 64.2-1209, their remedy was limited to a suit to surcharge and falsify under Code
§ 64.2-1213.10 Appellants’ argument again misunderstands the nature of the proceedings below.
The trial court’s order and rulings were not made on behalf of Eric and Cynthia, as “interested
persons” proceeding pursuant to Code § 64.2-1209. In fact, neither Eric nor Cynthia were parties
to the instant case; they received no judgment or remedy, and their legal rights were not affected
in any way by the trial court’s ruling. Therefore, any arguments related to what remedies may or
10 Code § 64.2-1213 provides that an approved inventory of the assets contained in an estate “shall be taken to be correct, except so far as it may, in a suit, in proper time, be surcharged or falsified.” A suit to surcharge and falsify an accounting entails the “surcharge” of the account (compensation for misspent funds) and “falsification” (rejection of the prior proposed accounting as improper). The Court in Listor, explained in detail the mechanics of a suit to surcharge and falsify:
When errors or mistakes only are shown to exist in an account the settlement will not be opened, as will be done where fraud or accident affecting the entire action of the probate court is shown, but the person alleging the error or mistake in the account will be permitted to surcharge and falsify it. The distinction between opening an account and surcharging and falsifying it is that when an account is opened the whole of it becomes subject to review, while when it is merely surcharged and falsified the inquiry is limited to particular items alleged to have been improperly included or omitted, and in all other respects the account is left to stand as it is.
209 Va. at 742 (citation omitted). - 23 - may not have been available to Eric and Cynthia are not relevant to the instant case.11 Instead,
the trial court, in evaluating the report and recommendations filed by the Commissioner, was
tasked with determining whether Minor had properly accounted for Mr. Wilder’s estate, as his
conservator. Determining that she had not properly accounted for Mr. Wilder’s estate, but
instead had abused her powers as conservator, the trial court correctly entered an order finding
that Minor had violated her fiduciary duties, thereafter revoking her bond. Such order was not
error and had no connection with the initial objections brought to the attention of the
Commissioner by Eric and Cynthia.
VIII. The assignments of error related to the evidence considered by the Commissioner fail because appellants failed both to offer certain evidence before the Commissioner and to proffer what evidence they would have actually offered.
Appellants next challenge the ruling below on the ground that the Commissioner failed to
consider certain evidence. Specifically, appellants argue that the Commissioner: (1) “failed to
apply the presumptions under Virginia Code § 6.2-606 concerning multiple-party accounts held
by spouses and failed to consider evidence that an account in question contained non-
conservatorship assets,” and (2) “failed to consider evidence that the Administrator of the Estate
of Eric W. Wilder assented to and ratified certain distributions.”
11 To the extent that appellants argue on brief that any party (including the Commissioner) would be required to first file suit to surcharge and falsify the approved inventory, that argument is waived as it was not contained in appellants’ seventh assignment of error, which states, in whole: “The [trial] [c]ourt erred by not dismissing the proceeding where, even if the original objectors were ‘interested persons’ and had standing to object, their remedy was limited to a suit to surcharge and falsify under Virginia Code § 64.2-1213.” This language is clearly tailored only towards Eric and Cynthia, as the “original objectors.” Rule 5A:20(c)(1) (“Only assignments of error listed in the brief will be noticed by this Court.”); see also Banks v. Commonwealth, 67 Va. App. 273, 289 (2017) (“This Court is limited to reviewing the assignments of error presented by the litigant. [W]e do not consider issues touched upon by the appellant’s argument but not encompassed by his assignment of error. (internal citations omitted)). - 24 - Regarding the former assignment of error, appellants argue that any alleged joint
accounts held by Mr. and Mrs. Wilder are governed by Code § 6.2-606. That statute states that
any account owned by a married couple “shall belong to them equally.” In Lewis v. House, 232
Va. 28 (1986), the Supreme Court of Virginia wrote, regarding this statutory provision: “[w]e
construe the word ‘equally’ to mean ‘in equal proportions.’ . . . [We find no merit in the]
contention that, because a joint account belongs to spouses ‘equally,’ the entire account is owned
by each.” Id. at 31. Appellants argue that “[t]he Commissioner received no evidence of the
intent of the parties regarding these accounts . . . [and] found that any failure by Ms. Minor to
account for funds, whether they belonged to [Mr.] Wilder or [Mrs.] Wilder constituted grounds
for a bond forfeiture.” Appellants also argue that Minor did not have a duty to account for joint
accounts held by both Mr. and Mrs. Wilder.
In other words, the general thrust of appellants’ argument is: (1) the funds contained in
Account -4200 were joint funds owned by both Mr. and Mrs. Wilder, (2) Code § 6.2-606
requires that these funds be viewed separately, not jointly, as between the two of them, (3) Minor
was only a fiduciary of Mr. Wilder’s assets, not Mrs. Wilder’s, and (4) the court should view any
funds used by Minor as Mrs. Wilder’s funds, not Mr. Wilder’s funds, thereby exculpating Minor
of any violation of her fiduciary duties. Similarly, appellants also argue that the Commissioner
did not receive any evidence with regard to how Mr. and Mrs. Wilder may have viewed the funds
in Account -4200—i.e., that it is possible that the couple would have viewed most or all of the
funds contained in Account -4200 as belonging to Mrs. Wilder, thereby placing those funds
outside of the fiduciary control and responsibility of Minor, as conservator for Mr. Wilder’s
estate.
To the extent that appellants argue that Minor had no duty to account for bank accounts
held jointly by Mr. and Mrs. Wilder, that contention is belied by the trial court’s initial orders
- 25 - appointing Minor as temporary and then permanent conservator of Mr. Wilder’s estate. Those
orders specifically provided:
It is therefore ORDERED, ADJUDGED AND DECREED: . . . That Kishna Minor is hereby appointed permanent Conservator for Eric Witt Wilder, with all the rights powers, and duties, set forth in Virginia Code §§ 64.2-2021, 64.2-2022, and 64.2-2023, including but not limited to: the power to access, spend, transfer, sell, liquidate, encumber, and otherwise manage Respondent’s income and assets, including any accounts jointly titled with Thelma Wilder.
(Emphasis added). The trial court granted Minor the power to manage accounts jointly held by
Mr. and Mrs. Wilder. Minor therefore had a duty to properly account for any such joint
accounts, and further had the duty not to misappropriate any funds contained in those joint
accounts. See Asberry’s Adm’r v. Asberry’s Adm’r, 74 Va. (33 Gratt.) 463, 469 (1880) (“The use
of the assets by the personal representative [conservator or guardian] for his own private
purposes, or for the payment of his own debts, is necessarily a misapplication of trust funds, and
a breach of trust. . . . These are elementary principles.”).
Further, to the extent that appellants argue that the Commissioner erred by not receiving
pertinent evidence on the intent of Mr. and Mrs. Wilder as to how the funds contained in the joint
accounts should be disbursed or to whom they belonged, appellants had the opportunity to
introduce any such evidence in front of the Commissioner during the September 29, 2021
hearing, but chose not to. Because appellants did not offer any such evidence at that hearing,
they waived any argument regarding this issue in front of the trial court, and subsequently here
on appeal. See Heath, 38 Va. App. at 733-34 (finding no abuse of discretion where trial court
refused “to consider the . . . issue on the merits, for the first time [in front of the trial court,
where]” “wife had the opportunity to request and present evidence on the issue [in front of the
commissioner] but failed to do so”).
- 26 - Appellants have also failed to proffer on appeal what that evidence may have been, how
any such evidence would affect our analysis, and whether and how that evidence would affect
the trial court’s final order forfeiting the bond. Rule 5A:20(d), (e) (Appellants’ opening brief
must contain “[a] clear and concise statement of the facts that relate to the assignments of error”
as well as “the argument (including principles of law and authorities) relating to each assignment
of error.”).
Regarding the latter assignment of error—that the Commissioner failed to consider any
evidence that Mrs. Wilder may have assented to and ratified the improper transactions and
distributions made by Minor—appellants note that the Commissioner gave notice of the
September 29, 2021 hearing to Mrs. Wilder, the “only interested person who could have asked
the Commissioner for a hearing under Va. Code § 64.2-1209.” Because Mrs. Wilder did not
intervene or object to Minor’s conduct in managing Mr. Wilder’s estate, appellants argue that
Mrs. Wilder constructively assented to and ratified Minor’s conduct.
This assignment of error fails for reasons similar to the one above. If a fiduciary acts
regarding estate property to her own advantage, that action is only excused if she affirmatively
shows that:
[T]he beneficiary, being sui juris, had full information and complete understanding of all the facts concerning the property and the transaction itself, and the person with whom [s]he was dealing, and gave a perfectly free consent, and that the price paid was fair and adequate, and that [s]he made to the beneficiary a perfectly honest and complete disclosure of all the knowledge or information concerning the property possessed by [her]self, or which he might, with reasonable diligence, have possessed, and that [s]he has obtained no undue or inequitable advantage, and especially if it appears that the beneficiary acted in the transaction upon the independent information and advice of some intelligent third person, competent to give such advice, then the transaction will be sustained by a court of equity.
- 27 - Owens v. Owens, 196 Va. 966, 972-73 (1955) (quoting 3 Pomeroy on Equity Jurisprudence,
§ 958(d), p. 814 (5th ed. 1941)). The burden was therefore upon Minor to show that the
transactions and disbursements she made were freely consented to by Mrs. Wilder. However,
while appellants had ample opportunity to present evidence regarding Minor’s knowledge of the
ownership of Account -4200 and the myriad disbursements she made, they chose not to. Our
holding in Heath therefore bars any consideration of those arguments on appeal. See Heath,
38 Va. App. at 733-34. Further, appellants again failed to proffer on appeal what evidence, if
any, they would have introduced to prove Mrs. Wilder’s consent or the propriety of the
expenditures. See Rule 5A:20(d), (e). Instead, appellants argue that the trial court should have
intuited that Mrs. Wilder’s failure to intervene and object illustrated that she “constructively
assented” to the inappropriate transactions and disbursements. This we decline to do, given the
“presumption of invalidity” set out in Owens.
Finally, appellants assign error to the Commissioner’s reliance “upon . . . ex parte
communications and documents submitted after the hearing” and her rejection of “Appellant
Liberty Mutual’s suretyship defenses, specifically by impairing the opportunity for full discovery
based on the ex parte evidence.” Specifically, appellants point to an email from Brian sent after
the September 29, 2021 hearing wherein Brian purportedly claimed that he was Mrs. Wilder’s
power of attorney, and represented that he objected to Minor’s mismanagement of Mr. Wilder’s
estate on behalf of Mrs. Wilder. Appellants argue that they were not allowed an opportunity to
respond to the email before the Commissioner filed her report. Appellants argue that they would
have had certain “suretyship defenses” available to them, “including laches,” and that they were
“precluded . . . from engaging in discovery, including issuing third-party subpoenas and/or
conducting third-party depositions to gather the facts necessary to develop [their] defenses.”
- 28 - Because the trial court did not conduct its own evidentiary hearing, appellants contend that they
were denied “the legal tools to put on a defense.”
This argument yet again misunderstands the proper roles and duties of the actors in this
case. Mrs. Wilder was not required to object to Minor’s conduct; Minor was required by the
Code of Virginia to fulfil her fiduciary duties. See Code §§ 64.2-1305 and -2021. The
Commissioner was required to ensure the prompt and proper administration and distribution of
Mr. Wilder’s estate, and report to the trial court her factual findings, legal conclusions, and her
recommendations. In that regard, Minor had ample opportunity to present evidence of her
suretyship defenses—assent, ratification, laches, etc.—at the multiple hearings that the
Commissioner held throughout 2020 and 2021. Minor failed to offer any evidence of such
defenses before the Commissioner. And further, Minor failed to explain her actions by providing
a proper second and final accounting to the Commissioner. Based on the evidence actually
presented to the Commissioner during the several hearings she conducted, there was sufficient
evidence to support the trial court’s ruling below that Minor failed to fulfil her fiduciary duties
and to properly account for the assets of Mr. Wilder’s estate. Further, to the extent that the
appellants argue that they were not given an opportunity to conduct discovery regarding Brian’s
email specifically, the report filed by the Commissioner makes clear that the Commissioner did
not rely on Brian’s email in coming to the conclusions she did in her report. Concerning the
email, the Commissioner noted in her report that “it is not necessary for [Mrs.] Wilder to object”
to Minor’s misuse of the funds under her control. We think it is clear that the email was not a
pivotal piece of evidence relied upon by the Commissioner or the trial court. Therefore, no
evidentiary hearing or discovery process was required in order to develop a factual record
concerning this email.
- 29 - CONCLUSION
The only connection to Code § 64.2-1209 in the proceedings below was that the
Commissioner initially held three investigatory hearings based on complaints by Eric and
Cynthia about the amount of money detailed in the initial and amended inventories as transferred
to Mrs. Wilder upon Mr. Wilder’s death. It was those complaints which led to the discovery of
the hidden account and other questionable disbursements by Minor. Nevertheless, the
Commissioner did not file a report based on these hearings. Every action she took after those
hearings was independent of Eric and Cynthia’s complaints. Instead, she acted pursuant to her
statutory duties to determine the propriety of the second and final accounting filed by Minor,
relying on her own statutory authority to subpoena “any person” and bank records pursuant to
Code § 64.2-1203, demand a proper accounting pursuant to Code § 64.2-1216, and seek Minor’s
removal and forfeiture of her bond when such accounting was not provided pursuant to
Code § 64.2-1204. Further, the Commissioner’s neutrality cannot fairly be called into question
here, based on the statements taken out of context during the investigatory hearings. The record
demonstrates that she acted appropriately, pursuant to her statutory duties, in filing her report and
offering her recommendations to the trial court. Additionally, the contention that the
Commissioner took on “dual roles” in performing her duties is belied by the statutory scheme
contained in Code §§ 64.2-1200 et seq. and 64.2-1300 et seq. Finally, none of the evidentiary
issues that appellants raise are meritorious. The trial court therefore did not err in confirming the
Commissioner’s report and entering a final order forfeiting Minor’s bond.
Affirmed.
- 30 -
Related
Cite This Page — Counsel Stack
Kishna Shirese Minor v. Anne M. Heishman Commissioner of Accounts, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kishna-shirese-minor-v-anne-m-heishman-commissioner-of-accounts-vactapp-2023.