Estate of Brill v. Phillips, 2009–CA–01968–COA.

• Decision Date: 21 June 2011
• Docket Number: No. 2009–CA–01968–COA.,2009–CA–01968–COA.
• Parties: In the Matter of the ESTATE OF Bobbye N. BRILL, Deceased and Annie Hobson Nichols, Deceased: Frank Nichols, Appellant v. Shirlee N. PHILLIPS and Kathryn Kennington, Appellees.
• Court: Mississippi Court of Appeals

76 So.3d 709

In the Matter of the ESTATE OF Bobbye N. BRILL, Deceased and Annie Hobson Nichols, Deceased: Frank Nichols, Appellant

v.Shirlee N. PHILLIPS and Kathryn Kennington, Appellees.

No. 2009–CA–01968–COA.

Court of Appeals of Mississippi.

March 22, 2011.Rehearing Denied June 21, 2011.

Rhett R. Russell, Tupelo, Clarence McDonald Leland, W.O. Dillard, Jackson, attorneys for appellant.

Robert David Marchetti, Camille Henick Evans, Ridgeland, attorneys for appellees.

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

CARLTON, J., for the Court:

¶ 1. Frank Nichols (Frank), in his individual capacity and as the executor of the Estate of Annie Hobson Nichols, appeals the decision of the Hinds County Chancery Court denying his petition to remove his sister, Shirlee Phillips (Shirlee), and Kathryn Kennington (Kathryn) as co-administratrices of the will of his other sister, Bobbye Brill (Bobbye). Frank also claims that the chancellor erred in determining that Bobbye's will set forth a condition precedent which Shirlee must perform in order to obtain the residuary assets, and she also erred by not enforcing the requirements of the will for a bond, an inventory, and an accounting as mandated by Mississippi Code Annotated sections 91–7–41 (Rev. 2004), 91–7–93 (Rev. 2004), and 91–7–277 (Rev. 2004). Finding no error, we affirm.

FACTS

¶ 2. Bobbye died on April 1, 2004. Bobbye's two sons predeceased her, and she was survived by her mother, Annie, and her siblings, Frank and Shirlee. Bobbye's holographic will, dated March 10, 1904 ¹, states in its entirety:

I, Bobbye Brill, leave my home and contents to my sister, Shirlee Phillips. My Thunderbird car I leave to my brother, Frank Nichols. The remainder of my estate I leave to my sister, Shirlee Phillips, with the understanding she will take care of my mother, Annie Nichols. Please be sure this is carried out.The chancery court appointed Shirlee and Kathryn as co-administratrices of Bobbye's will. On May 12, 2004, the chancellor entered a decree admitting Bobbye's will to probate.

¶ 3. On January 11, 2005, Annie died testate, and Frank was appointed executor of his mother's estate. On June 16, 2004, Frank filed a caveat against the probate of the will in common and solemn form, alleging that Bobbye lacked testamentary capacity at the time of the execution of her holographic will, and he alleged that his sister's will was the product of undue influence by Shirlee.

¶ 4. After a hearing held on November 17, 2005, which addressed Frank's motion to discharge the co-administratrices, the chancellor entered an order on February 9, 2006, denying the motion, stating that he found no inappropriate behavior on the part of Shirlee that would rise to the level of a violation of her fiduciary duty as co-administratrix.

¶ 5. As to the issue of testamentary capacity, the chancellor entered a judgment on May 8, 2007, finding that Frank failed to provide substantial evidence to show that Bobbye lacked testamentary capacity at the time she drafted and executed her will; thus, the chancellor held that the will was valid.

¶ 6. On May 25, 2007, Shirlee and Kathryn filed a petition for construction of Bobbye's will with a request that the will be construed to leave the residuary of the estate to Shirlee, as sole residuary beneficiary, free of any expressed or resulting trust. The chancellor issued a bench opinion on August 17, 2007, and interpreted the will as conditioning that if Shirlee took care of Annie, then Shirlee would be entitled to the remainder of Bobbye's estate. On August 23, 2007, Frank filed another motion to remove Shirlee and Kathryn as co-administratrices, claiming that Shirlee and Kathryn had utilized their fiduciary positions to seek personal gain for Shirlee to the detriment of other beneficiaries of Bobbye's will.

¶ 7. On February 5, 2008, the chancellor held a hearing and considered witnesses' testimonies to determine whether Shirlee had fulfilled the conditional bequest of taking care of Annie until her death. On June 6, 2008, the chancellor entered an opinion finding that Shirlee had rendered reasonable and appropriate care to her mother, and she found that the residuary bequest should be upheld. Frank then filed a petition for an interlocutory appeal, taking issue with the chancellor's interpretation of the language of the will, which was summarily denied by the Mississippi Supreme Court.²

¶ 8. With respect to Frank's final motion, the chancellor held a hearing on April 14, 2009, addressing Frank's motion to remove Shirlee and Kathryn as co-administratrices. The chancellor subsequently issued a judgment finding that no partiality resulted from Shirlee's dual role as fiduciary and beneficiary, and she denied Frank's petition to remove the co-administratrices.³ The chancellor did, however, direct the law firm representing both the co-administratrices and Shirlee in her individual capacity, to elect to represent either one such party or the other.

¶ 9. On June 8, 2009, upon petition of Shirlee and Kathryn, the chancellor waived all annual accountings except for the first and second annual accountings and the final accounting. On November 16, 2009, the chancellor entered a judgment approving the accountings and closing Bobbye's estate. Frank now appeals on behalf of himself and Annie's estate.

STANDARD OF REVIEW

¶ 10. This Court may not disturb a chancellor's findings if they are supported by substantial evidence. In re Estate of Johnson v. Moore, 735 So.2d 231, 236 (¶ 24) (Miss.1999) (citing In re Estate of Harris v. Bradley, 539 So.2d 1040, 1043 (Miss.1989)). We will not disturb a chancellor's findings unless he abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. (citing Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990)). However, “[w]hen presented with a question of law, ... [this Court] conducts a de novo review.” Estate of Wright v. Cromwell, 829 So.2d 1274, 1276 (¶ 5) (Miss.Ct.App.2002) (citation and quotation omitted). Finally, “[t]his Court must determine if effect was given to the testat[rix]'s intent when reviewing the decision of the chancellor.” In re Estate of Homburg v. Clark, 697 So.2d 1154, 1157 (¶ 11) (Miss.1997) (citing Tinnin v. First United Bank of Miss., 502 So.2d 659, 663 (Miss.1987)).

DISCUSSION

I. Untimely Appeal

¶ 11. As a preliminary issue, we will address Shirlee and Kathryn's claim that this appeal, filed on December 10, 2009, regarding the 2007 and 2008 rulings interpreting the will, was untimely filed under Mississippi Rule of Appellate Procedure 4(a), which requires an appeal to be filed within thirty days after entry of the judgment or order being appealed.⁴ Shirlee and Kathryn argue that Frank filed an interlocutory appeal, and not a direct appeal, of the June 6, 2008 judgment in which the chancellor determined that Shirlee had properly completed the condition precedent established in Bobbye's will; thus, she could receive the residuary estate. Shirlee and Kathryn claim that the June 6, 2008 order constituted a final judgment; thus, a direct appeal challenging the construction or interpretation of the will should have been made at that time.

¶ 12. However, the record reflects that the 2008 judgment did not settle all issues pending before the parties; thus, we find that this judgment did not constitute a final judgment. See M.R.C.P. 54(b). Frank also points out that the supreme court denied his petition for interlocutory appeal without ruling upon its merits. We find Frank's appeal to be timely and properly before this Court.

II. Bond, Inventory, and Accounting Requirements; Removal of Co-administratrices

¶ 13. Frank argues that the chancellor erred by not enforcing the bond, inventory, and accounting requirements of Bobbye's will. He also argues that the chancellor erred in denying his motions to remove Shirlee and Kathryn as co-administratrices. Frank asserts that he made numerous pleas for the chancellor to remove and substitute the co-administratrices, to disqualify the attorneys who were simultaneously representing both the co-administratrices and Shirlee, and to compel Shirlee and Kathryn's fulfillment of statutory and fiduciary duties.

¶ 14. Frank filed motions to discharge Shirlee and Kathryn as co-administratrices on November 8, 2005, and August 21, 2007. The chancellors denied these motions, finding that no conflict existed between the interest of Shirlee as a fiduciary and her interest as beneficiary. In the second order denying Frank's motion to discharge the co-administratrices, the chancellor acknowledged that in Watson v. Caffery, 236 Miss. 223, 236–37, 109 So.2d 862, 868 (1959) the Mississippi Supreme Court held that hostility existing between executor and one of the legatees would not justify the executor's removal from office.

¶ 15. Frank also claims that the chancellor erred by not enforcing the bond, inventory, and accounting requirements of the will. Frank alleges that section 91–7–93 requires the co-administratrices to return an inventory verified on oath of the property of the decedent within ninety days of the granting of the letters of administration. Frank additionally charges that Shirlee and Kathryn failed to file any accounting with the court, as required by section 91–7–277, until August 13, 2009, despite Franks's numerous requests.

¶ 16. In the present case, the chancellor entered a judgment waiving the bond requirements and all accounting requirements except the first and second annual accountings and the final accounting. We note that a court possesses the discretion to waive annual accountings if the beneficiaries approve and the interests of creditors are not jeopardized. Estate of Holt v. Scott, 806 So.2d 296, 298 (¶¶ 6–9) (Miss.Ct.App.2001). See also Robert E. Williford, Miss. Probate and Administration of Estates § 20:1 (3d ed. 2010). In a judgment entered on November 16, 2009, the chancellor deemed Shirlee the...