Conservatorship of Mathews, Matter of
| Decision Date | 10 March 1994 |
| Docket Number | 91-CA-00214,Nos. 91-CA-00886,s. 91-CA-00886 |
| Citation | 633 So.2d 1038 |
| Parties | In the Matter of the CONSERVATORSHIP OF Frances W. MATHEWS. (Two Cases) Dan MATHEWS v. Jesse L. WILLIAMS. |
| Court | Mississippi Supreme Court |
Joe B. Moss, Keyes Danks Moss & Leonard, Jackson, James W. Younger, Jr., Clinton, Jack G. Moss, Raymond, for appellant.
Larry D. Allen, Clinton, William W. Ferguson, Raymond, for appellee.
Before HAWKINS, C.J., and SULLIVAN and SMITH, JJ.
Dan Mathews has appealed the order of the chancery court of the second judicial district of Hinds County removing him as conservator of the estate of Frances W. Mathews and awarding attorneys' fees to petitioner's counsel.
We affirm his removal, remand for proceedings, and reverse the award of attorneys' fees.
Andrew Mathews died December 23, 1985. His sole heir is his widow, Frances W. Mathews. Mrs. Mathews was advanced in age, and on November 19, 1986, pursuant to a petition filed by her, and her husband's nephews Joe P. and Dan Mathews, a decree was entered by the chancery court of the second judicial district of Hinds County appointing Dan conservator. Letters issued November 21. At the time, Mrs. Mathews was living in her home out from Utica, and she had a personal estate of approximately $160,000 and owned approximately 360 acres of land.
On June 1, 1988, Jesse L. Williams, Jr., a nephew of Mrs. Mathews, filed a motion to remove Dan, which the chancellor denied by order on October 18, 1988, when he required Dan to file an amended first annual account and inventory contemporaneously with his second annual accounting. On July 16, 1990, Williams again moved to remove Dan as conservator. Following a hearing on November 26, 1990, the chancellor entered an order removing Dan as conservator. He overruled Dan's motions to reconsider, and on August 20, 1991, entered an order awarding attorneys' fees to Williams' attorneys in the amount of $1,425 to William W. Ferguson and $1,275 to Larry D. Allen, to be paid by the estate.
Dan has appealed his removal as conservator and the award of attorneys' fees to Williams' attorneys.
A chancery court-appointed conservator has the "same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator." Miss.Code Ann. Sec. 93-13-259 (1972).
Miss.Code Ann. Sec. 93-13-33 (1972) states:
Every guardian shall, within three months after his appointment, return to the court, under oath, a true and perfect inventory of the estate, real and personal, and of all money or other things which he may have received as the property of his ward; and he shall return additional inventories of whatever he may subsequently receive. And he shall annually return an inventory, under oath, of the increase of the estate, if there be any. A guardian who shall fail to return inventories may be removed and his bond put in suit, unless he can show cause for the default. (Emphasis added)
The first inventory was not filed until February 23, 1988, a year and two months following Dan's appointment. It did not mention bonds owned by the estate. The third inventory filed May 13, 1990, purporting to show the inventory of the estate as of December 31, 1989, lists "Series E. Bonds $2,063.22."
The bonds were first identified by serial number and date of purchase in the fourth inventory showing assets as of December 18, 1990, and filed January 7, 1991, which states: "Series E Bonds (all $25.00/7 year Bonds)," and then lists twenty-seven bonds by serial number and showing dates of purchase from July 1966 through July 1969. Subsequent inventories were not timely filed, and no reason was given therefor. There is no explanation for failure to include the bonds.
The annual accounts required by Miss.Code Ann. Sec. 93-13-67 (1974) were not timely filed, and no reason was offered therefor. 1
Much more serious is the failure of Dan to seek court approval prior to making expenditures. Section 93-13-38 (1993) provides:
It shall be the duty of the guardian ... to improve the estate committed to his charge, and to apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and of his family, if he have any, after obtaining an order of the court fixing the amount.... The guardian is empowered to collect and sue for and recover all debts due his said ward ... (Emphasis added)
This statute requires that a court order fixing the amount to be spent for the care and maintenance of the ward be obtained prior to making such expenditures. Dan simply made the expenditures as he saw fit. When this Court addressed such action in Welch v. Childers, 195 Miss. 415, 420, 15 So.2d 690, 691 (1943), we held:
A minor under guardianship is a ward of the Chancery Court. All receipts and disbursements of his estate are required to be under the authority and direction of the Chancery Court or the Chancellor in vacation. The expenses for the maintenance and support of the ward cannot be proved in any other way. The object of the law is to guard against dishonesty and mismanagement of the estate by the guardian.... The law does not leave the amount of the expenditures by the guardian for the maintenance, support and education to (the guardian's) discretion. The sum must be fixed by the court. If the guardian contracts therefor without the sanction of the Chancery Court or Chancellor, the liability therefor is personal to him, and he cannot be allowed for it in his accounts for the ward. The guardian has no power to bind the estate of his ward without the sanction of the Chancery Court or the Chancellor.
That prior court approval is absolutely required by statute before a conservator makes expenditures seems never to have occurred to counsel representing Dan or the chancellor who then examined and approved them. Expenditures for the care and maintenance of Mrs. Mathews and her property were made by Dan as though he had some blanket power of attorney to spend as he thought best, and only then report it to a chancellor. No explanation was offered to the chancellor for all these expenditures having been made without court approval, nor did the chancellor require one. This is of profound concern to this Court. We again remind attorneys for estates of wards and decedents and the chancellors who examine accounts and inventories that they, too, have special and far-reaching fiduciary duties. It was the obligation of the attorney to advise the conservator as to his statutory duties, responsibilities, and limitations on expenditures. As for chancellors, a chancellor who must approve accounts and inventories has a duty beyond deciding lawsuits. He is under an obligation first to see that accounts and inventories filed comply with the statutes before he approves them. He is also the "superior guardian" of the ward. This Court long ago in Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826, 827, 138 So. 593, 595 (1932), held:
Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability. This inherent and traditional power and protective duty is made complete and irrefragable by the provisions of our present state constitution. It is not competent for the Legislature to abate the said powers and duties or for the said court to omit or neglect them. It is the inescapable duty of the said court and or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and cannot permit the rights of an infant to be prejudiced by an waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the power of the court to prevent or correct. Grif.Chan.Prac. Secs. 45, 360, 530, 533. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and act to the contrary thereof at their peril. (Emphasis added)
Also, Mississippi State Bar Association v. Moyo, 525 So.2d 1289, 1293 (Miss.1988).
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