In re Estate of Flowers, 010218 MSCA, 2016-CA-00799-COA

Docket Nº:2016-CA-00799-COA
Opinion Judge:CARLTON, J.
Party Name:IN THE MATTER OF THE ESTATE OF RICHARD HAROLD FLOWERS, JR.: CLAIRE C. FLOWERS AND BRENDA JANE FLOWERS PAIXAO APPELLANTS v. THE ESTATE OF BRENDA LOUISE BARGAS FLOWERS, THROUGH ITS EXECUTOR DE BONIS NON WITH WILL ANNEXED, KNOX LEMEE FLOWERS, CECIL C. LANG AND LINDA S. LANG APPELLEES
Attorney:ATTORNEY FOR APPELLANTS: DAVID NEIL MCCARTY ATTORNEYS FOR APPELLEES: FLOYD M. MELTON JR., FLOYD M. MELTON III RICHARD A. OAKES
Judge Panel:BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. LEE, C. J., GRIFFIS, PJ, GREENLEE AND TINDELL, JJ, CONCUR IRVING, PJ, AND BARNES, J, CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION WILSON, J, CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR AND WESTBROOKS, JJ., NOT ...
Case Date:January 02, 2018
Court:Court of Appeals of Mississippi
 
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IN THE MATTER OF THE ESTATE OF RICHARD HAROLD FLOWERS, JR.: CLAIRE C. FLOWERS AND BRENDA JANE FLOWERS PAIXAO APPELLANTS

v.

THE ESTATE OF BRENDA LOUISE BARGAS FLOWERS, THROUGH ITS EXECUTOR DE BONIS NON WITH WILL ANNEXED, KNOX LEMEE FLOWERS, CECIL C. LANG AND LINDA S. LANG APPELLEES

No. 2016-CA-00799-COA

Court of Appeals of Mississippi

January 2, 2018

DATE OF JUDGMENT: 05/06/2016

LEFLORE COUNTY CHANCERY COURT HON. MICHAEL H. WARD

ATTORNEY FOR APPELLANTS: DAVID NEIL MCCARTY

ATTORNEYS FOR APPELLEES: FLOYD M. MELTON JR., FLOYD M. MELTON III RICHARD A. OAKES

BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

CARLTON, J.

¶1. Claire Flowers and Brenda Jane Flowers Paixao (Jane) appeal the final judgment entered by the Leflore County Chancery Court in the probate of the estate of their father, Richard Harold Flowers Jr.1

¶2. On appeal, Claire and Jane assert the following assignments of error: (1) their brother, Knox Lemee Flowers, lacked standing to be named executor of Richard's estate; (2) the chancellor's final decree failed to follow Richard's intent as expressed in his will; (3) the chancellor erred in awarding attorneys' fees to Knox's attorneys; (4) the chancellor erred by denying Claire and Jane's Mississippi Rule of Civil Procedure 15(a) motion to amend their petition. We find no abuse of discretion by the chancellor, and we therefore affirm. See generally Nichols v. Phillips (In re Estate of Brill), 76 So.3d 695, 698 (¶13) (Miss. 2011).

FACTS

¶3. On December 19, 2001, the Leflore County Chancery Court2 appointed Brenda Bargas Flowers to represent her husband, Richard Flowers Jr., as his conservator due to Richard's physical and mental incapacity and inability to manage his affairs and his estate.

¶4. On December 14, 2005, Richard and Brenda filed a petition to adopt D.A., 3 the biological child of Richard and Brenda's daughter, Claire. The chancellor granted the petition on December 15, 2005, and entered an order of adoption, stating that D.A. be, and he is hereby decreed to be, the child of [Richard and Brenda], who shall have the exclusive custody of [D.A.], and equal parental rights, duties and responsibilities of and toward him to the extent they both were his natural parents with all the incidents, mutual rights, privileges, benefits, duties and responsibilities arising from a natural born parent and child relationship[.]

The order also provided that D.A. "shall inherit from and through" Richard and Brenda.

¶5. Sadly, the record reflects that on April 25, 2006, a few months after adopting D.A., Richard died. In his last will and testament, dated January 21, 1983, Richard named his widow, Brenda, as the executor of the estate. Brenda filed a petition to probate the will, and on July 14, 2006, the chancellor appointed Brenda as executor of Richard's estate. Regarding the appointment of alternate executors, Richard's will specified: [I]f [Brenda] fails to qualify or ceases to act, I appoint as executrix of this will my wife's biological mother, Helen Audry Creasay Baker, to serve . . ., or should she fail to qualify or cease to act[, ] I appoint as executor of this will The First Greenwood Bank, a Branch of Grenada Bank, in Greenwood, Mississippi[.]

¶6. Richard left to Brenda all of his "clothing and personal effects, all boats, boat trailers, boat motors, and all automobiles and vehicles" registered in his name, and stock, among other things. Richard expressed in his will that he made no disposition of household furniture or chattels located in his and Brenda's residence, as the items also belonged to Brenda.

¶7. Significant to the issues raised in this appeal, Richard further devised all of his "residuary estate, being all property, real and personal, wherever situated, in which [he] may have any interest at the time of [his] death not otherwise effectively disposed of . . . to Brenda . . . should she survive [him] for a period of 179 days[.]" Richard's will explained that should Brenda fail to survive Richard for 179 days, the property would then be held in a trust for his son, Knox; daughter, Claire; and any other child or children born to my wife, Brenda[, ] . . . and me, in such proportions and in such manner as my trustee shall deem necessary or desirable in their absolute discretion, for the beneficiaries' health, education, welfare, support and maintenance in their accustomed manner of living.

(Emphasis added).4

¶8. Richard's will further provided as follows: This Trust shall exist until the youngest living child of mine and my wife attains the age of twenty-five years, at which time the trust will terminate and all the remaining assets of this Trust shall be conveyed and delivered, to my children, Claire Clements Flowers, Knox Lemee[] Flowers and any other child or children born to my wife, Brenda Bargas Flowers, and me, in equal shares, per stirpes[.]

¶9. Brenda began her duties as executor after her appointment on July 14, 2006. However, Brenda died on August 25, 2006, approximately 122 days after Richard's death. Brenda's will named Knox as the executor.

¶10. On September 6, 2006, Knox filed a petition for appointment as Executor De Bonis Non with Will Annexed (hereafter "Executor").5 In his petition, Knox acknowledged that Richard's will named Brenda as executor of Richard's estate. Due to Brenda's death, Knox requested to be substituted as Executor of Richard's estate. Knox also filed a petition to probate Brenda's estate and requested that a guardian ad litem be appointed for D.A., who was two years old at the time of the filing.6

¶11. The record reflects that while Knox served as Executor of Richard's estate, the chancellor approved and authorized Knox's sale of real property owned by Richard's estate as follows: (1) a May 16, 2008 order approving the sale by Knox of real property located at 304 East Monroe Street, Greenwood, Mississippi, for the amount of $65, 000, less the prorated taxes for the year 2008, a six-percent commission to Bowie Realty in the amount of $3, 900, and a termite inspection in the amount of $107; (2) a September 11, 2009 order approving the sale of real property located at 306 West Church, Greenwood, Mississippi, for the amount of $20, 200 and authorizing the execution of any and all documents necessary to complete the sale, less the prorated taxes for the year 2009 in the amount of $1, 225.32, and a six-percent commission to Bowie Realty in the amount of $1, 212. The record shows that all of the beneficiaries of Richard's will received notice of the sale of the real property. The chancellor then ordered Knox, as Executor, to deposit the balance of the funds in the estate account.

¶12. Additionally, in his capacity as Executor of Richard's estate, and again with notice to all of the intended beneficiaries named in Richard's will, Knox liquidated Richard's investment account and deposited the balance of the funds in the estate account.

¶13. The record reflects that during the course of the lengthy litigation below, Claire filed several motions relating to Richard's estate, including a December 2007 motion seeking a full accounting of Richard's estate and Brenda's estate, and a January 2008 motion to disqualify Knox as the Executor. The chancellor addressed all of Claire's motions in an order dated February 8, 2008. The chancellor ultimately ordered as follows: The Conservatorship [of Richard by Brenda] is terminated and closed[.]

. . . .

Knox, as Executor of [Brenda's Estate], . . . will list the household goods and personal belongings of Brenda . . ., as well as lockbox contents that came into his possession as Executor and will state where these items are presently located, and any items converted to his personal possession or disposed of for his benefit will be noted and charged against any Executor's fee, as may be determined and approved by this Court.

. . . .

Knox, as Executor of [Brenda's Estate], shall furnish an accounting of the Estate from the date of death to the date of any final decree granting [Claire] Guardianship of [D.A.] due to the appeal on file at this time . . . and that [Claire] is entitled to an accounting, if and when she becomes a vested remainder beneficiary of this estate from the date of such vesting until delivery of assets to her.

. . . .

[T]he probated claim of [Claire] . . . is granted in the amount of $1, 200.00 and this court authorizes and directs [Knox] to pay said sum in full satisfaction of the probated claim.

The record also reflects that in the February 2008 order, the chancellor granted Claire "leave to withdraw her Petition for Disqualification of [Knox as the] Executor (Fiduciary) dated January 28, 2008, " and ruled that "it is therefore withdrawn."

¶14. Claire later filed a...

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