In re Estate of Ladner

• Decision Date: 10 November 2004
• Docket Number: No. 2002-CA-01705-SCT.,2002-CA-01705-SCT.
• Citation: 909 So.2d 1051
• Parties: In the Matter of the ESTATE OF Garland LADNER, Deceased. Fred Ladner and Jack Parsons v. Luther Ladner.
• Court: Mississippi Supreme Court

909 So.2d 1051

In the Matter of the ESTATE OF Garland LADNER, Deceased.

Fred Ladner and Jack Parsons v. Luther Ladner.

No. 2002-CA-01705-SCT.

Supreme Court of Mississippi.

November 10, 2004.

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

Richard C. Fitzpatrick, Poplarville, attorney for appellee.

Before WALLER, P.J., EASLEY and CARLSON, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. This appeal involves an apparent deep-seated family feud between two brothers, Fred and Luther Ladner. When a third brother, Garland, died, a dispute between Fred and Luther arose regarding the ownership of certain livestock. Threats of violence were made, and Fred, as executor of Garland's estate, obtained an order from the chancery court permitting him to retrieve the livestock from Luther's property and directing the sheriff to accompany him. Guns were brandished, and Luther was arrested. After the dust settled, the chancellor found that Garland had made inter vivos gifts of part of the livestock and that Fred and his attorney, Jack Parsons, violated M.R.C.P. 11 and the Litigation Accountability Act because they failed to inform the court of Luther's claims of ownership when they obtained the order for seizing the livestock. As a result of this violation, the chancellor awarded Luther attorney's fees and expenses in the amount of $2500 to be paid by Fred and Parsons. We find that the chancellor was correct and affirm.

FACTS

¶ 2. Fred Ladner filed a petition to probate the Last Will and Testament of Prentiss Garland Ladner. Fred, one of Garland's brothers, was named executor in the will. The estate consisted of, among other things, certain livestock¹ which were located on real property owned by a third brother, Luther Ladner. Fred requested permission from the chancery court to remove the livestock from Luther's property and take the cattle to a stockyard for processing. He also alleged that, after Garland's death, Luther went onto Garland's property and removed five horses, a cattle trailer, saddles, bridles, blankets, a big screen television and a VCR. Fred requested the chancery court to order Luther to return the horses and the other items to him so he could distribute the same according to the will.

¶ 3. The chancery court issued letters testamentary to Fred and ordered the Sheriff to assist Fred in retrieving the livestock and personal property from Luther. While Fred was retrieving the livestock, firearms were brandished, and Luther was arrested.

¶ 4. After the livestock were removed from Luther's property, Luther sent notices to two stockyards contesting the ownership of the cattle and ordering the stockyards not to sell them. Fred, as executor, filed suit in the chancery court against Luther, Heber Ladner and Camille Martin, for an order directing the three defendants to release certain property (cattle, a television, a VCR, and horses) belonging to the estate. Thereafter, the court ordered Fred not to dispose of any estate property, including the livestock. Luther filed a response to the complaint and a counterclaim, alleging that Fred should be removed as executor and that he violated the Litigation Accountability Act, Miss.Code Ann. §§ 11-55-1 to -15 (Rev.2002), and demanding damages, attorney's fees and costs.

¶ 5. After a hearing, the chancellor entered findings of fact and conclusions of law in which he found as follows:

1. Garland's will bequeathed his estate to his siblings, for them to share equally.

2. The complaint filed by Fred did not inform the court of Luther's alleged ownership of the livestock.

3. The evidence overwhelmingly showed that Garland owned the cattle at the time of his death and that Luther was merely allowing them to graze on his property.

4. The evidence showed that Luther removed the personal property from Garland's house after Garland's death; therefore there was no inter vivos gift.

5. Garland did make an inter vivos gift of the horses to Luther and Camille Martin. Supporting this finding are documents signed at Garland's direction and the fact that Luther cared for Garland towards the end of his life.

6. Fred and his attorney Jack Parsons knew or had reason to know of others' claim of possession and ownership of the livestock.

7. The fact that Luther did not actually own the cattle did not shield Fred and Parsons from liability.

8. Luther's arrest and the "strong arm" divestment of the livestock were performed without any legal authority.

9. The actions of Fred and Parsons violated the Litigation Accountability Act² and M.R.C.P. 11.³

STANDARD OF REVIEW

¶ 6. We cannot interfere with or disturb a chancellor's findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. G.B. "Boots" Smith Corp. v. Cobb, 860 So.2d 774, 776-77 (Miss. 2003); Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So.2d 67, 71 (Miss.2003). The standard of review for questions of law is de novo. Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED WHEN HE REMOVED FRED AS EXECUTOR.

¶ 7. Fred and Parsons argue that executors may not be removed unless a conflict of interest arises between the executor and the estate or when the executor fails to perform properly his duties. In re Chambers, 458 So.2d 691 (Miss.1984). Fred alleges that he was merely attempting to garner the assets of the estate and that his actions were not in conflict with the estate's interests. He points out that he had reason to request the Sheriff's assistance because Luther had stated that things would become violent if Fred attempted to seize the subject property.

¶ 8. Miss.Code Ann. § 91-7-85, removal or resignation of fiduciary, provides that executors may be removed "if he become disqualified, or for improper conduct in office...." The chancellor found that Fred "employed the strong arm of this Court to wrest control of cattle and horses off the land of Luther Ladner, which also precipitated Luther Ladner's arrest by law enforcement." We find that Fred's misrepresentation of the true facts (i.e., Luther's claims of ownership) to the court amounted to "improper conduct" under the statute, and we affirm the chancellor's removal of Fred as executor of Garland's estate.

II. WHETHER THE CHANCELLOR ERRED IN DETERMINING THAT INTER VIVOS GIFTS OF THE HORSES HAD BEEN MADE.

¶ 9. A party attempting to prove that an inter vivos gift was made must show the following by clear and convincing evidence: (1) that the donor was competent to make a gift; (2) that the donation was a voluntary act and the donor had donative intent; (3) that the gift must be complete and not conditional; (4) that delivery was made; and (5) that the gift was irrevocable. In re Estate of Holloway, 515 So.2d 1217, 1223 (Miss.1987) (superceded on other grounds by statute).

¶ 10. Fred contends that neither title to nor possession of horses was delivered to Luther. He alleges that the horses were still in Garland's possession at the time of his death. However, there was undisputed testimony that Garland directed Camille Martin to fill out a form transferring the horses to Luther and to Martin's daughter. He also directed Martin to sign his name on the form. Others heard Garland say that he wanted Luther and Martin's daughter to have the horses. Martin testified that she handled all paperwork related to the horses for Garland prior to his death and that it was common practice for Garland, who was paralyzed, to instruct others to sign paperwork in his name.

¶ 11. There was conflicting testimony, however, about whether the horses were on Garland's property or Luther's property at the time of Garland's death. The chancellor found that the horses were on Luther's property, and this finding is supported by evidence.

¶ 12. However, on appeal, Fred claims that the horses were on Garland's property; therefore there was no delivery of the inter vivos gift. Delivery and relinquishment of control are requisites of an inter vivos gift. "A delivery either actual, constructive, or symbolical is an element essential to the validity of a[n inter vivos gift]." Thomas v. Eubanks' Estate, 358 So.2d 709, 713 (Miss.1978) (citing Johnson v. Grice, 140 Miss. 562, 106 So. 271 (1925); Pace v. Pace, 107 Miss. 292, 65 So. 273 (1914)). One of the essentials of a valid inter vivos gift that the property must be delivered in such manner that the donor retains no control or dominion over it. Thomas, 358 So.2d at 713.

¶ 13. We find that it does not matter whether the horses were found on Luther's property or Garland's property, because a valid inter vivos gift was made. Garland instructed that papers be drawn up to transfer ownership and directed Martin to sign the papers for him. Even if the horses were on his property, the evidence shows that he was paralyzed and Garland clearly could not exercise any right of ownership to the horses. The testimony unequivocally shows that Luther took care of the horses and that he and Martin and Martin's daughter rode the horses.

¶ 14. We find no error in the chancellor's finding that Garland made a valid inter vivos of his horses to Luther and to Martin's daughter.

III. WHETHER THE CHANCELLOR ERRED WHEN HE FOUND THAT THE LITIGATION ACCOUNTABILITY ACT AND M.R.C.P. 11 HAD BEEN VIOLATED.

¶ 15. The chancellor, in finding that the Litigation Accountability Act and M.R.C.P. 11 had been violated, awarded $2500 in attorneys fees and expenses to Luther, to be paid by Fred and Parsons. The imposition of sanctions raises a question of law, the standard of review of which is de novo. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 945-46 (Miss.2001). Fred and Parsons contend that Fred "rightfully called the police to keep the peace and prevent injury" because Luther had "brandished weapons and threatened" Fred. However, testimony was introduced at trial that Luther and Fred had at least two confrontations about the...