Harold G McNeil v. Linda L Hester ( 1996 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-CA-00048-SCT
CONSOLIDATED WITH
NO. 97-CA-01107-SCT
CONSOLIDATED WITH
NO. 97-CA-01469-SCT
HAROLD G. McNEIL
v.
LINDA L. HESTER AND TERRY O. HESTER AS EXECUTORS OF THE ESTATE OF
NELBERT P. HESTER, DECEASED AND INDIVIDUALLY
DATE OF JUDGMENT: 11/07/1997
TRIAL JUDGE: HON. JOHN C. ROSS, JR.
COURT FROM WHICH TISHOMINGO COUNTY CHANCERY COURT
APPEALED:
ATTORNEYS FOR HAL H. H. McCLANAHAN, III
APPELLANT:
ROGER K. RUTLEDGE
ATTORNEY FOR PHIL R. HINTON
APPELLEES:
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART;
AND REMANDED- 02/10/2000
MOTION FOR
REHEARING FILED:
MANDATE ISSUED: 3/2/2000
BEFORE SULLIVAN, P.J., SMITH AND MILLS, JJ.
SMITH, JUSTICE, FOR THE COURT:
¶1. This appeal arises from a dispute between the co-executors, Terry Hester and Linda Hester, and a
devisee, Harold McNeil, of the estate of Nelbert P. Hester regarding the ownership of certificates of
deposit held jointly by Nelbert Hester and the co-executors at the time of Nelbert Hester's death. The case
is appealed by McNeil from the order of the Chancery Court of Tishomingo County, Mississippi, denying
McNeil's request for an accounting, for removal of the co-executors, for payment of all principal and
interest accrued on the certificates of deposit, and for attorneys' fees. Consolidated with the appeal from the
chancellor's denial of the requested relief are the appeals from the chancellor's denial of McNeil's motion to
correct the record and from the chancellor's denial of McNeil's motion to vacate the chancellor's order
authorizing the closing of the estate and discharging the co-executors.
STATEMENT OF FACTS
¶2. Nelbert P. Hester resided on a farm in Tishomingo County with his three sisters, Grace Hester, Hettie
Hester, and Reba Hester. None had children. Reba Hester was disabled and required the care of her
siblings. Grace died in 1985, and on May 13, 1986, and Nelbert and Hettie began planning their estates so
that Reba would be taken care of if Nelbert and Hettie died before Reba. In 1986, Nelbert and Hettie
executed mirroring wills. According to the wills, the entire estate was left to co-executors Terry Hester and
Linda Hester, nephew and niece, respectively, of Nelbert and Hettie, for the benefit of Reba. The wills also
provide that if Reba predeceased Nelbert, which she did, Terry and Linda were to divide the proceeds of
the estate equally between thirteen devisees. The will waives any requirement of an accounting. Terry and
Linda are among the thirteen devisees, as is the Appellant, Harold McNeil.
¶3. Between 1985 and Hettie's death in November 1990, Nelbert and Hettie created numerous certificates
of deposit with Iuka Guaranty Bank, Bank of Red Bay, Alabama, and People's Bank. Some of the
certificates of deposit were payable to Nelbert or Hettie, some were payable to Nelbert or Hettie or Linda,
some were payable to Nelbert or Hettie or Terry, and one was payable to Nelbert or Linda or Terry.
Nelbert and Hettie also placed Terry and Linda on their checking account and safe deposit box, both at the
Iuka Guaranty Bank. Neither Terry nor Linda opened the safe deposit box until after Nelbert's death, and
neither wrote checks on the checking account until after Nelbert's death.
¶4. At the time of Hettie's death in November 1990, the following certicates of deposit existed:
1. CD No. 17301 in the amount of $52,769.07 and in the name of Nelbert or Hettie. Iuka Guaranty
Bank.
2. CD No. 896186 in the amount of $15,165.84 and in the name of Nelbert or Linda or Terry.
Peoples Bank, Iuka, Mississippi.
3. CD No. 13963 in the amount of $41,766.22 and in the name of Nelbert or Hettie or Linda. Bank
of Red Bay, Red Bay, Alabama.
4. CD No. 13972 in the amount of $27,105.01 and in the name of Nelbert or Hettie or Terry. Bank
of Red Bay.
5. CD No. 6226 in the amount of $27,760.38 and in the name of Hettie or Nelbert. Iuka Guaranty
Bank.
6. CD No. 7806 in the amount of $29,458.03 and in the name of Hettie or Nelbert or Linda. Iuka
Guaranty Bank.
7. CD No. 12598 in the amount of $26,000.00 and in the name of Nelbert or Hettie. Iuka Guaranty
Bank.
8. CD No. 13602 in the amount of $32,000.00 and in the name of Nelbert or Hettie. Iuka Guaranty
Bank.
9. CD No. 14291 in the amount of $13,919.02 and in the name of Hettie or Nelbert. Iuka Guaranty
Bank.
10. CD No. 14554 in the amount of $21,500.00 and in the name of Hettie or Nelbert. Iuka Guaranty
Bank.
¶5. Days after Hettie's death, Nelbert renewed the certificates of deposit at Iuka Guaranty Bank. The two
certificates of deposit at the Bank of Red Bay remained, as did the certificate of deposit at Peoples Bank.
In 1992, Nelbert renewed the certificates of deposit at Iuka Guaranty Bank into No. 20269 in the amount
of $58,437.71; No. 20270 in the amount of $55,132.25; No. 20271 in the amount of $58,437.71; and
No. 20272 in the amount of $55,132.24, all in the name of Nelbert or Terry or Linda. Also in 1992,
Nelbert created certificate of deposit number 20308 at Southbank, Iuka Mississippi, in the amount of $29,
000.00 and in the name of Nelbert, Terry or Linda; and certificate of deposit number 14870 at the Bank of
Red Bay in the amount of $27,296.57 and in the name of Nelbert or Linda.
¶6. As of November 1992, the value of the certificates of deposit totaled approximately $365,000. Both
Terry and Linda testified that Nelbert never consulted them regarding his financial affairs and that neither
had knowledge of the certificates of deposit until they opened the safe deposit box after Nelbert's death.
¶7. Reba passed away in February of 1993, and Nelbert died days later on March 1, 1993. At Nelbert's
death, the estate consisted of Nelbert's checking account, which contained roughly $10,000; Nelbert's car;
personal and household items; and the family farm. The crux of the dispute at hand concerns whether the
jointly payable certificates of deposit pass with Nelbert's estate. Terry and Linda maintain that they are the
owners of the certificates of deposit. Harold McNeil appeals, inter alia, the chancellor's refusal to declare a
constructive trust of the certificates of deposit and the interest accrued thereon.
¶8. Upon learning of Nelbert's death, Terry and Linda opened the safe deposit box to which Nelbert had
given them keys. In the box, they found Nelbert's will as well as the certificates of deposit. Prior Nelbert's
funeral, Terry and Linda consulted attorney Barry Finch about the administration of the will. Based on their
consultation with Finch, Terry and Linda believed the estate consisted only of the farm and house,
household items, and car - not the certificates of deposit. Terry read the will to the devisees the day of
Nelbert's funeral. On March 9, 1993, the Honorable John C. Ross, Chancellor of the Chancery Court of
Tishomingo County, Mississippi, granted the Petition for Letters Testamentary filed by Terry and Linda, and
the will was admitted to probate.
¶9. Finch died in May 1993, and the co-executors proceeded without benefit of counsel from May 1993
until May 1994. Terry and Linda used Nelbert's checking account, a non-interest bearing account, to hold
estate funds until they opened an estate account in May 1994. In June 1993, Terry and Linda conducted
two private sales of household and personal items. Proceeds from the sales totaled $9,568.25, which Linda
deposited in the joint checking account.
¶10. On January 6, 1994, Terry and Linda created a certificate of deposit in the amount of $46,074.16 and
in the name of the Nelbert's estate. The money for certificate of deposit came from the Southbank
certificate of deposit created by Nelbert and from the checking account. Terry and Linda testified that they
created the certificate of deposit with the intent to give the other devisees a gift from the proceeds of the
certificates of deposit which, they believe, they own. However, the two testified that they later discovered
that by making a gift they would incur tax penalties, so they renewed the certificate of deposit on July 7,
1994, but only in their own names. Linda testified that at the time the certificate of deposit was created, she
and Terry believed that the entire amount taken from the checking account, $17,000, consisted of their own
personal funds. They later realized, however, that about $4,000 of the $17,000 belonged to the estate.
Linda testified that any co-mingling of funds was corrected, and the money was returned to the estate.
¶11. In April 1994, Terry and Linda called a meeting of devisees to discuss the sale of the farm. At the
meeting, Terry announced that there was approximately $390,000 in joint certificates of deposit. Terry
testified that he did not, at that time, consider the money to be part of the estate. Montez Hannon, a devisee
present at the meeting, testified that she understood Terry's announcement to mean that the certificates of
deposit were part of Nelbert's estate. Harold McNeil, also present, testified that he just assumed the
amount would be divided, but that Terry never stated that the certificates of deposit belong to the estate.
¶12. The farm was sold in May 1994. The attorney who handled the closing recommended to Terry and
Linda that they set up an estate account. It was not until May 1994 that Terry and Linda actually obtained
legal counsel, and at that time a separate estate account was established. The proceeds from the farm sale,
totaling $150,250, were deposited in the estate account and then distributed.
¶13. In June of 1994, Terry and Linda deposited $105,991.91 in the estate account. The source of this
money was the proceeds from three of the certificates of deposit at the Bank of Red Bay. Terry and Linda
testified that it was, again, their intent to distribute to devisees as a gift, but that they decided against making
the gift because of the tax that they would incur. Terry and Linda then removed the money from the estate
account and put it back in the joint account at Red Bay. That same day, they cashed the jointly held
certificates of deposit at the Bank of Red Bay. Linda deposited her check in a certificate of deposit,
payable to Terry or Linda, in the Federal Credit Union in Memphis, Tennessee, for $75,637.39. Terry
received $32,043.73, and he procured a certificate of deposit at First American National Bank in the name
of Terry and Linda.
¶14. On July 13, 1994, Terry and Linda filed a Petition to Discharge Co-Executors and to Close the
Estate. They mailed to the devisees a Joinder and Waiver of Process and Entry of Appearance by which,
when signed, each devisee waived process and joined in the petition to close the estate and discharge the
co-executors. Harold McNeil refused to sign the joinder and waiver and sought the advice of counsel,
Joseph Rutledge. Rutledge requested copies of tax returns filed on behalf of the estate, copies of all banking
statements and certificates of deposit in which Nelbert had an interest, a statement of indebtedness, and a
statement of the sale of any real and personal property of Nelbert. In September 1994, counsel for the
executors, Elizabeth Brown, sent Rutledge the tax returns, bank statements, an accounting of all expenses
incurred, a list of all assets in the estate, and copies of the certificates of deposit with the amounts blackened
out. Also included was a letter from Iuka Guaranty Bank attesting to Terry and Linda's joint ownership of
the four certificates of deposit at that bank.
¶15. Rutledge and McNeil scheduled a meeting with Ms. Brown and Terry Hester. McNeil was informed
at the meeting of the amounts of the certificates of deposit. Terry told McNeil that if McNeil would sign the
joinder and waiver, Terry and Linda might be willing to make a gift of a portion of the value of the CDs.
However, Linda did not agree with the offer, and the offer was withdrawn.
¶16. McNeil filed a Motion for Accounting and Other Relief on February 10, 1995. In that motion, he
requested an accounting and inventory by the co-executors, payment of all interest accrued or paid on the
certificates of deposit and repayment of the certificates of deposit themselves, removal of the co-executors,
prohibition against the co-executors' using estate funds to pay their legal expenses, cessation of spoilation of
the assets of the estate, and attorneys' fees. On September 20, 1995, Terry and Linda filed an accounting
and an explanation of the accounting, as well as a list of all jointly held certificates of deposit, their amounts
and interest rates.
¶17. The two-day trial took place on October 23-24, 1995. At the close of McNeil's case-in-chief, the
chancellor granted McNeil's motion to amend the pleadings to conform to the proof whereby McNeil
requested that the court impress a constructive trust on the nine certificates of deposit plus accrued interest
or renewals of the certificates of deposit. On November 15, 1996, the chancellor issued his opinion and
judgment denying all requested relief. McNeil filed a Motion to Alter or Amend Judgment, arguing that the
facts are sufficient to support a finding that the certificates of deposit were received by Terry and Linda
under a constructive trust, that the co-executors should be ordered to pay interest that would have been
earned on the estate but for the co-executors' failure to place the funds in an interest-bearing account, and
that McNeil's attorneys should be awarded fees under Mississippi's "common pool" statute. The chancellor
denied this motion on December 2, 1996, stating that all matters raised by McNeil were adequately
considered by the court in its previous order. McNeil filed a notice of appeal on December 26, 1996, from
the opinion and judgment of the court of November 15, 1996, and the order overruling McNeil's Motion to
Alter or Amend.
¶18. On June 6, 1997, McNeil filed, in the chancery court, a Motion to Correct the Record, alleging that
the court reporter had omitted a response of Terry Hester upon cross-examination by McNeil's attorney. A
hearing was held before the chancery court on October 31, 1997, and the chancellor denied McNeil's
motion on September 8, 1997. From this order, McNeil filed an Amended Notice of Appeal on September
22, 1997.
¶19. The chancellor entered an Order Authorizing Closing of Estate and Discharge of Executors on June
23, 1997, and McNeil filed a Motion to Vacate and Set Aside the chancellor's order. In the motion,
McNeil argued that the order had been obtained on an unnoticed, ex parte basis, and that because he had
already filed his appeal with this Court, the chancery court was without jurisdiction to enter the order
closing the estate. The chancellor denied McNeil's Motion to Vacate on November 12, 1997, and McNeil
filed a notice of appeal to this Court on November 24, 1997.
¶20. The three appeals have been consolidated. McNeil raises the following issues:
I. THE JUDGMENT OF THE CHANCELLOR WAS CONTRARY TO THE LAW AND TO
THE GREATER WEIGHT OF THE EVIDENCE.
II. THE CHANCELLOR'S FINDING THAT THE CERTIFICATES OF DEPOSIT, INTEREST
ACCRUED THEREON, AND THE RENEWAL CERTIFICATES OF DEPOSIT ARE NOT
SUBJECT TO A CONSTRUCTIVE TRUST FOR THE BENEFIT OF THE DEVISEES IS
CONTRARY TO THE LAW AND THE GREATER WEIGHT OF THE EVIDENCE.
III. THE CHANCELLOR ERRED IN FAILING TO REMOVE THE CO-EXECUTORS FOR
CONFLICT OF INTEREST.
IV. THE CHANCELLOR ERRED BY REFUSING TO REQUIRE THE CO-EXECUTORS TO
PAY INTEREST ON THE ESTATE FUNDS THAT WERE NOT HELD IN AN INTEREST-
BEARING ACCOUNT.
V. THE CHANCELLOR ERRED BY REFUSING TO AWARD ATTORNEYS' FEES UNDER
THE "COMMON POOL" APPROACH.
VI. THE CHANCELLOR ERRED IN DENYING THE MOTION TO CORRECT THE
RECORD.
VII. THE CHANCERY COURT WAS WITHOUT JURISDICTION TO CLOSE THE ESTATE.
STANDARD OF REVIEW
¶21. A limited standard of review is employed by this Court in reviewing decisions of a chancellor. Reddell
v. Reddell, 696 So. 2d 287, 288 (Miss.1997) (citing Carrow v. Carrow, 642 So. 2d 901, 904
(Miss.1994)). The findings of a chancellor will not be disturbed on review unless the chancellor was
manifestly wrong, clearly erroneous, or applied the wrong legal standard. Bank of Mississippi v.
Hollingsworth, 609 So. 2d 422, 424 (Miss. 1992) (citing Smith v. Dorsey, 599 So. 2d 529
(Miss.1992); Bowers Window & Door Co. v. Dearman, 549 So. 2d 1309 (Miss.1989)). The standard
of review employed by this Court for review of a chancellor's decision is abuse of discretion. Church of
God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So. 2d 200, 204 (Miss.
1998). However, for questions of law, the standard of review is de novo. Consolidated Pipe & Supply
Co. v. Colter, 735 So. 2d 958, 961 (Miss. 1999) (citing Harrison County v. City of Gulfport, 557 So.
2d 780, 784 (Miss. 1990); Cole v. National Life Ins. Co., 549 So. 2d 1301, 1303 (Miss. 1989)).
DISCUSSION OF LAW
I. THE JUDGMENT OF THE CHANCELLOR WAS CONTRARY TO THE LAW AND TO
THE GREATER WEIGHT OF THE EVIDENCE.
¶22. In this assignment of error, McNeil argues only that the chancellor erred as a matter of law in not
imposing a constructive trust on the nine certificates of deposit. Because this discussion merely duplicates
the second issue discussed below, it is there considered.
II. I. THE CHANCELLOR'S FINDING THAT THE CERTIFICATES OF DEPOSIT,
INTEREST ACCRUED THEREON, AND THE RENEWAL CERTIFICATES OF DEPOSIT
ARE NOT SUBJECT TO A CONSTRUCTIVE TRUST FOR THE BENEFIT OF THE
DEVISEES IS CONTRARY TO THE LAW AND THE GREATER WEIGHT OF THE
EVIDENCE.
¶23. McNeil argues that because he offered clear and convincing proof of abuse of confidence on the part
of the executors, the chancellor erred in refusing to impose a constructive trust on the certificates of deposit.
McNeil asserts that the executors hold legal title to property which, by equity and conscience, they should
not have.
¶24. A constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment by
one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to
another. Allgood v. Allgood, 473 So. 2d 416 (Miss. 1985); Russell v. Douglas, 243 Miss. 497, 138
So. 2d 730 (1962). This Court has defined a constructive trust as follows:
A constructive trust is one that arises by operation of law against one who, by fraud, actual or
constructive, by duress or abuse of confidence, by commission of wrong, or by any form of
unconscionable conduct, artifice, concealment, or questionable means, or who in any way against
equity and good conscience, either has obtained or holds the legal right to property which he ought
not, in equity and good conscience, hold and enjoy.
Saulsberry v. Saulsberry, 223 Miss. 684, 690, 78 So. 2d 758, 760 (1955). See also Alvarez v.
Coleman, 642 So. 2d 361, 367 (Miss. 1994); Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024,
1034 (Miss. 1990); Sojourner v. Sojourner, 247 Miss. 342, 153 So. 2d 803, 807 (1963).
¶25. Clear and convincing proof is necessary to establish a constructive trust. Planters Bank at 1034
(citing Allgood v. Allgood, supra; Shumpert v. Tanner, 332 So. 2d 411, 412 (Miss.1976)). This Court
has stated that "[i]t is the [confidential] relationship plus the abuse of confidence imposed that authorizes a
court of equity to construct a trust for the benefit of the party whose confidence has been abused."
Davidson v. Davidson, 667 So. 2d 616, 620 (Miss. 1995) (quoting Summer v. Summer, 224 Miss.
273, 80 So. 2d 35, 37 (1955)). Fraud need not be shown. Russell, 243 Miss. at 505-06, 138 So.2d at
734.
¶26. It should be noted that this Court's review of a chancellor's findings of fact, including those regarding a
constructive trust, is limited in that this Court cannot set aside a chancellor's findings of fact so long as they
are supported by substantial credible evidence. Davidson at 620 (citing Allgood, 473 So. 2d at 421).
However, this Court conducts a de novo review of questions of law, including those regarding the
applicability of a constructive trust. Davidson at 620 (citing Seymour v. Brunswick, 655 So. 2d 892
(Miss. 1995); Harrison County v. City of Gulfport, 557 So. 2d 780, 784 (Miss. 1990)). Because the
testimony offered at trial on this issue is not disputed by the parties, the sole question is whether the
chancellor erred in not applying a constructive trust to the set of facts at hand. Thus, this issue is a question
of law.
¶27. In order for the chancellor to have properly imposed a constructive trust, he must have found that
there was a confidential relationship between Nelbert and the co-executors, plus substantial credible
evidence that the co-executors abused the relationship to obtain property which they ought not, in equity
and good conscience, hold and enjoy. See Davidson at 620. The chancellor's opinion states:
There is no proof whatsoever before the Court that either Linda L. Hester or Terry O. Hester
exercised any undue influence over Nelbert P. Hester. Quite to the contrary, the proof established
that neither Linda L. Hester or Terry O. Hester had any influence or control over Nelbert P. Hester.
The Court specifically finds that the allegation by movants is not supported by the proof.
The proof does establish that one of Nelbert P. Hester's main goals after the death of Grace Hester in
1985 was to see after the invalid sister, Reba Hester, but there is not [sic] proof that he intended for
any of his certificates of deposit to pass to all of his named beneficiaries in his will....
This Court specifically finds that all of the certificates of deposit which Nelbert P. Hester had at the
time of his death with Linda L. Hester or Terry O. Hester passed outside of his estate and in no way
can be considered assets of his estate.
¶28. The chancellor made no finding regarding the existence of a confidential relationship between the
executors and Nelbert Hester. McNeil asserts that there was such a relationship, while the executors argue
that there was not. This Court has stated that "the terms 'confidence' and 'confidential relationship' are
construed liberally in favor of the confider and against the confident for purposes of raising a constructive
trust." Alvarez, 642 So. 2d at 367 (citing Russell, 243 Miss. at 505, 138 So. 2d 730; Adcock v.
Merchants & Mfrs. Bank of Ellisville, 207 Miss. 448, 42 So. 2d 427 (1949)). A familial relationship is
not intrinsically one of confidence. Saulsberry v. Saulsberry, 232 Miss. 820, 834, 100 So. 2d 593, 599
(1958). The record shows that Nelbert managed his own financial affairs until the time of his death and that
the executors never advised Nelbert in any of his financial affairs and never handled any business affairs for
Nelbert. Terry and Linda did not know they were joint owners of the certificates of deposit until Nelbert's
death. On one occasion, Linda drove Nelbert and Hettie to their attorney's office, at which time they
executed their wills, but Linda testified that she remained in the car and did not know that the two were
executing wills. Also, Terry and Linda did not know they were named as co-executors of the estate until
after Nelbert's death. On the other hand, the record shows that Nelbert often asked Linda, an accountant,
to prepare his tax returns. Linda and Terry often performed various services for Nelbert, such as doing his
yard work, driving him to the grocery store, and taking care of Nelbert when he was ill. Their names were
also on the safe deposit box and signature card of Nelbert's checking account, though they testified that
they never accessed the safe deposit box until after Nelbert's death and that they never wrote checks on the
account until his death. Furthermore, Terry testified that, a few days before Nelbert's death, Nelbert gave
him his wallet and keys and told Terry that he would have to "take care of things."
¶29. Again, the chancellor made no finding regarding the existence of a confidential relationship. His failure
to do so, however, is of no consequence in light of his determination that McNeil offered no proof that the
executors exercised any influence or control over Nelbert Hester or that Nelbert intended the certificates of
deposit to pass to the devisees under his will. The mere existence of a confidential relationship between the
parties is insufficient to warrant the imposition of a constructive trust. Alvarez at 368. McNeil must show
there existed conduct, on the part of the executors, influential in Nelbert's having placed the certificates of
deposit in the names of the executors. Lipe v. Souther, 224 Miss. 473, 483-84, 80 So. 2d 471, 475
(1955). McNeil must demonstrate that but for the conduct of the executors, Nelbert would not have placed
their names on the certificates of deposit. Id.
¶30. As the chancellor states, there is absolutely no evidence in the record that either Terry or Linda was
influential in causing Nelbert to place their names on the certificates of deposit. No evidence was offered to
show that the certificates of deposit were made jointly payable at the suggestion or request of Terry or
Linda or that they in any manner induced such. There was no evidence that Nelbert made the certificates of
deposit jointly payable with any understanding, express or implied, that the co-executors would hold the
certificates for the benefit of the other heirs. Neither was there any proof that Terry or Linda, by act, word
or deed, expressly or impliedly, led Nelbert to believe they would hold the certificates for the benefit of the
other heirs. In fact, it is undisputed that neither Terry nor Linda even knew about the certificates of deposit
until after Nelbert's death. Both Terry and Linda testified that they never advised Nelbert in his financial
affairs. In fact, McNeil offered testimony that Nelbert was an individual unlikely to take the advice of others
when it came to his financial affairs.
¶31. McNeil contends that the proof clearly established that Nelbert intended the certificates to pass with
his estate. The chancellor, however, found no evidence of Nelbert's intent that Terry and Linda hold the
certificates in trust or that the certificates pass with the estate. The chancellor thus found the outcome to be
controlled by this Court's decision in Estate of Stamper v. Edwards, 607 So. 2d 1141 (Miss. 1992).
McNeil asserts that the chancellor incorrectly applied Stamper and that In re Estate of Holloway, 515
So. 2d 1217 (Miss. 1987), superseded by statute as stated in Cooper v. Crabb, 587 So. 2d 236 (Miss.
1991), should control.
¶32. The issue in Stamper was whether certificates of deposit held by Stamper at her death belonged to the
co-payees on the certificates or to Stamper's estate. Stamper died intestate in 1985. At the time of her
death, she held two certificates of deposit which she had procured in 1975 and renewed in 1981. One
certificate of deposit was payable to Stamper or Francis Williams, and the other was payable to Stamper or
Marcus Williams. The lower court held that the certificates of deposit passed outside Stamper's estate. The
question before this Court on appeal was whether Miss. Code Ann. § 81-5-63, as amended in 1988,
controlled the disposition of the certificates of deposit. Applying the amended version of § 81-5-63, the
lower court determined that the certificates passed outside of Stamper's estate. In 1981, when Stamper first
purchased the certificates of deposit, the early version of § 81-5-63 read as follows:
When a deposit has been made or shall hereafter be made in the name of two (2) or more persons,
payable to any one (1) of such persons, or payable to any one (1) of such persons or the survivor, or
payable to any one (1) of such persons or to any one (1) of the survivors, such deposit or any part
thereof or interest or dividends thereon may be paid to any one (1) of the said persons, whether one
or more of said persons be living or not, and the receipt of acquittance of the person so paid shall be
a valid and sufficient release and discharge to the bank for any payment so made. . . .
¶33. In Holloway, decided in 1987, this Court held that certificates of deposit were not "deposits" within
the statutory presumption of this early version of § 81-5-63. The Court held that, in the absence of express
survivorship provisions, the co-payee of a certificate of deposit acquired no rights unless the "donor"
satisfied the requisites of a valid and enforceable inter vivos gift. Holloway at 1223. The Legislature,
however, reacted quickly, amending § 81-5-63 to provide for a conclusive presumption of survivorship.
Stamper at 1148. The statute, as amended, contained the above language plus the following additional
language:
The making of a deposit in such form, or the making of additions thereto, shall create a presumption in
any action or proceeding to which either the bank or any survivor is a party of the intention of all the
persons named on the deposit to vest title to the deposit and the additions thereto and all interest or
dividends thereon in the survivor or survivors. . . . The term "deposit" as used in this section shall
include, but not be limited to, any form of deposit or account, such as a savings account, checking
account, time deposit, demand deposit or certificate of deposit, whether negotiable, nonnegotiable or
otherwise.
¶34. In Stamper, the administratrix of the estate argued that the 1988 amendments did not apply
retroactively, and that because Stamper renewed the certificates of deposit in 1981, Holloway should
control. Stamper at 1148. The Court rejected this argument. The Court explained that because the law
says to citizens, "if you do it this way, the courts will give it this effect," the issue before the Court was what
the law said to Stamper in 1981. Id. at 1149. The Court stated that it presumed Stamper had fair
knowledge of the content of the law in 1981 when she last renewed the certificates of deposit, and asked
whether enforcement of the law as clarified by the 1988 amendment would give what Stamper did in 1981
an effect she had no reason to expect. Id. The Court found that because there was nothing in pre-
Holloway law to give an informed person in 1981 the notion that the term "deposit" in § 81-5-63 did not
include certificates of deposit, that Stamper reasonably believed that she had created a right of survivorship
in the co-payees. The Court held that the certificates of deposit belonged to the co-payees and did not pass
through the estate. Id. at 1150.
¶35. McNeil asserts that because the amendment to § 81-5-63 "altered a legal presumption" upon which
Nelbert's attorney "undoubtedly counseled Nelbert when he finalized his estate plan in 1986," this Court's
holding in Holloway applies. This assertion is misplaced for two reasons. First, Nelbert and Hettie began
their estate planning with the creation of their wills and the procurement of certificates of deposit in 1986.
Holloway was not decided until 1987. As this Court explained in Stamper, there was nothing in pre-
Holloway law that would lead an informed person to reasonably believe that the procurement of
certificates of deposit jointly payable did not create survivorship rights in a co-payee. Second, as in
Stamper, the question before this Court is whether the law as clarified by the 1988 amendment to § 81-5-
63 gives what Nelbert did in 1992, the last date on which he renewed and created the certificates of
deposit, an effect he had no reason to expect. Holloway was applicable law from November 25, 1987, the
date it was decided, until April 27, 1988, the date it was superseded by the amendment to § 81-5-63.
Nelbert renewed the certificates of deposit created by Nelbert and Hettie in 1990, and continued to renew
the certificates of deposit and create others until 1992. Though Stamper was not decided until 1992, the
law with regard to the ownership rights in jointly payable certificates of deposit changed in 1988 with the
clarification of and amendment to § 81-5-63, not in 1992 with the Stamper decision. Nelbert's intent in
procuring the jointly-held certificate of deposit is to be determined as of 1992, when the last of the
certificates of deposit were created and/or renewed, not 1986, when Nelbert supposedly last consulted an
attorney. As the executors assert, this Court presumes that Nelbert Hester knew the law. Pearson v.
Weaver, 252 Miss. 724, 173 So. 2d 666 (1965). This Court has stated:
While the law recognizes that there is no method known to the law by which to make people prudent
. . ., every person must be presumed to know the law, and the absence of some misrepresentation or
illegal concealment of facts, the person must abide the consequences of his contracts and actions. . . .
[I]n the absence of fraud, deceit, or fiduciary relations of some kind, the court cannot relieve a person
from the consequences of his acts merely because he has not acted prudently or diligently. . . ."
Id. at 731-32, 173 So. 2d at 669.
¶36. Thus, according to § 81-5-63, as amended, the co-executors presumptively held title to the
certificates of deposit. The chancellor correctly recognized the statutorily-created presumption of an intent
on Nelbert's part to vest title in the co-executors. Because McNeil offered no proof that Nelbert intended
otherwise, the chancellor held that legal title to the certificates of deposit was held by Terry Hester and
Linda Hester. Because McNeil failed to prove by clear and convincing evidence that Terry and Linda
should not hold equitable title as well, the chancellor refused McNeil's request that a constructive trust be
imposed on the certificates of deposit.
¶37. McNeil also contends that, though Terry and Linda testified that Nelbert never told them what to do
with the certificates of deposit, Nelbert's instructions were left in the will, and that the will makes Terry and
Linda "de facto trustees" for the heirs. This argument is without support. There is simply no reference in the
will to the certificates of deposit, nor was evidence presented that Terry or Linda even knew of the
certificates of deposit prior to Nelbert's death. The fact that the will named Terry and Linda co-executors
of the estate does not make them "de facto" trustees of the certificates of deposit for the devisees under the
will.
¶38. Additionally, McNeil argues that the actions of the co-executors demonstrate that they recognized the
certificates to be part of the estate. As support for this argument, McNeil offers the evidence that Terry and
Linda kept the funds from the certificates of deposit separate from their other personal funds and the
evidence that they at one time intended to make a gift of the proceeds of the certificates of deposit. This
argument is merely speculative and falls far short of McNeil's burden of clear and convincing evidence.
¶39. McNeil lastly argues that because the certificates of deposit were an inter vivos gift, the gift is
presumed invalid, shifting the burden to the executors. McNeil cites Madden v. Rhodes, 626 So. 2d 608,
618 (Miss. 1993), for the proposition that where there exists a confidential relationship between the parties
to a transaction, there is an automatic presumption that the conveyance of an inter vivos gift was the product
of undue influence. In such a situation, the gift is presumptively invalid, and unless the presumption is
rebutted by clear and convincing evidence offered by the party wishing to uphold the validity of the gift, the
conveyance must fail. Madden at 618-19. See also Cooper v. Crabb, 587 So. 2d 236, 243 (Miss. 1991).
McNeil argues that the chancellor erred in requiring McNeil to present clear and convincing evidence of a
constructive trust and in not requiring the co-executors to rebut a presumption of undue influence.
¶40. McNeil's argument is misplaced. As Madden states, where the presumption of undue influence arises,
a gift is presumed invalid, and unless the donee rebuts the presumption, the conveyance must fail. Madden
at 618-19. This Court has applied this presumption only in cases where a party has challenged the validity
of a transaction, seeking to set aside the transaction as invalid. McNeil argued before the trial court and
before this Court that, though the gift to the executors is valid, a constructive trust should be imposed under
principles of equity. McNeil does not argue that the gift is invalid. The presumption discussed in Madden
does not apply where a party's only requested relief is the imposition of a constructive trust.
¶41. Madden involved an action in which the executor of the decedent's estate sought to set aside the
decedent's creation of certificates of deposit payable to the decedent or Madden. This Court affirmed the
chancellor's finding that a confidential relationship existed between the decedent and Madden, raising the
presumption of undue influence, which Madden failed to rebut with clear and convincing evidence. Griffin
v. Armana, 687 So. 2d 1188 (Miss. 1996), also relied upon by McNeil, involved a like analysis. In
Griffin, the grantor of real property brought an action against his niece to recover the property. Griffin had
deeded the property to his niece and placed the deed in a safe deposit box, to which the niece had a key,
with the promise to leave the property to the niece upon his death. The niece took the deed from the box
prior to Griffin's death and recorded the deed. In addressing Griffin's request that the deed be canceled, this
Court held that the chancellor correctly determined that a confidential relationship existed between Griffin
and his niece, and recognized the presumption of undue influence. Id. at 1192-94. The Court held that the
chancellor erred in finding that the niece had rebutted the presumption, and the Court reversed the
chancellor's decision and rendered judgment that the deed should be canceled. Id. at 1194. Significantly,
the Court separately addressed Griffin's request that a constructive trust be imposed on pieces of jewelry
belonging to Griffin but wrongfully in the niece's possession. The Court stated that it is the confidential
relationship plus the abuse of the confidence imposed that authorizes the court to construct a trust. Griffin
at 1195 (citing Summer v. Summer, 224 Miss. 273, 80 So. 2d 35 (1955)). The Court held that because
the niece had abused the confidential relationship with Griffin, the chancellor erred in failing to impose a
constructive trust concerning the jewelry. Never in the discussion of Griffin's request for a constructive trust
did the Court apply the presumption of undue influence, even though the Court had clearly found a
confidential relationship between Griffin and his niece.
¶42. The presumption of undue influence has been recognized by this Court in numerous cases in which the
complainant sought to set aside various transactions. See, e.g., Cooper v. Crabb, 587 So. 2d 236 (Miss.
1991) (action to set aside decedent's procurement of certificates of deposit in the name of the decedent and
her sister); In re Launius, 507 So. 2d 27 (Miss. 1987) (action to set aside decedent's will); Norris v.
Norris, 498 So. 2d 809, 813-14 (Miss. 1986) (ex-husband brought action to set aside quitclaim deed he
gave to his former wife); Kelly v. Shoemake, 460 So. 2d 811, 819-20 (Miss. 1984) (action to set aside
various deeds, codicils, and transfers of funds); Leggett v. Graham, 218 So. 2d 892 (Miss. 1969) (action
to cancel deeds executed by complainants' father to his other children).
¶43. Nevertheless, the presumption has never been recognized by this Court in cases in which the
complainant requests, not that a transaction be set aside as invalid, but, rather, that a constructive trust be
established. For instance, in Fletcher v. Nemitz, 186 So. 2d 232 (Miss. 1966), this Court held that there
was no constructive trust in favor of Nemitz, despite her performance of an oral agreement with her mother
that her mother would deed her a flower shop if Nemitz would move to Mississippi and pay off the loan on
the shop. The Court stated that though there existed a confidential relationship between Nemitz and her
mother, there was no evidence that the mother had abused that relationship. Never was the presumption
discussed in any of the above cases applied in Nemitz.
¶44. Likewise, in Davidson v. Davidson, 667 So. 2d 616 (Miss. 1995), this Court, in addressing a
mother's change of beneficiary on her life insurance policy from her husband to her son, held that, though
there existed a confidential relationship between the mother and her son, there was no abuse of that
confidence. Again, the Court engaged in no analysis of a presumption of undue influence.
¶45. In the case at hand, McNeil did not request that the transaction involving the certificates of deposit be
set aside. He requested, both before the chancery court and before this Court on appeal, only that the court
impose a constructive trust. This Court has never shifted the burden of proof to a grantee in cases where a
complainant requests a constructive trust. The sole analysis engaged in by this Court has been only that
required by cases such as Davidson, 667 So. 2d at 620; Campbell v. Campbell, 249 Miss. 670, 163
So. 2d 649 (1964); and Summer v. Summer, 224 Miss. 273, 80 So. 2d 35, 37 (1955), where the
pertinent inquiry is whether there existed a confidential relationship and whether there was an abuse of that
confidence, with the burden of clear and convincing evidence on the party seeking the imposition of the
constructive trust.
¶46. McNeil offered no evidence of fraud, duress, abuse of confidence, or any type of unconscionable
conduct, concealment or questionable means on the part of the executors. Furthermore, McNeil offered no
evidence that Nelbert intended Terry and Linda to hold the certificates of deposit in trust for the other
devisees under the will or for the certificates of deposit to pass with the estate. McNeil had the burden of
proving the existence of a constructive trust by clear and convincing evidence. He failed to do so. The
chancellor did not err in denying McNeil's request for the imposition of a constructive trust.
III. THE CHANCELLOR ERRED IN FAILING TO REMOVE THE CO-EXECUTORS FOR
CONFLICT OF INTEREST.
¶47. McNeil initially requested, in his Motion for Accounting and Other Relief, that the chancellor remove
the co-executors because of their alleged failure to provide an accounting. At the close of McNeil's case-in-
chief, McNeil's attorney requested that the court amend the pleadings to reflect McNeil's request that a
constructive trust be imposed. It was not until after the trial that McNeil submitted a brief requesting, among
other things, that the chancellor remove the co-executors for conflict of interest. The chancellor denied the
request, stating only that "[t]he Court does not find this to be well-taken and is denied." On appeal, McNeil
argues that the chancellor's refusal to remove the co-executors was error.
¶48. McNeil relies on this Court's decisions in Estate of Ratliff, 395 So. 2d 956 (Miss. 1981), and In re
Chambers, 458 So. 2d 691 (Miss. 1984). Ratliff involved a probate dispute between the decedent's
heirs and the executor of the estate. The executor petitioned the chancery court for authority to sell certain
real property of the decedent to satisfy expenses of the estate. Attached to the petition was the decedent's
tax return, which represented that he owned a partnership interest at the time of his death. However, at trial,
witnesses for the executor testified that, prior to his death, the decedent gave his partnership interest to the
executor. The heirs appealed the chancellor's determination that the decedent's partnership interest was not
in his estate at death. The Court held that the chancellor was manifestly wrong in finding that the decedent
made an inter vivos gift of his interest in the partnership to the executor. The Court stated, "In the absence
of fraud or mistake, the executor may not take, in the course of the same cause or proceeding, inconsistent
positions which would be detrimental to the appellants, on the one hand, and beneficial to himself, on the
other hand." Ratliff at 957.
¶49. As the executors note, the above statement by the Ratliff Court is not applicable in the case at hand.
In Ratliff, the executor made conflicting representations to the court -- that is, for purposes of his request
that he be able to sell off property of the estate, the executor maintained that the partnership interest was
part of the estate, while at the same time arguing that the decedent made an inter vivos gift of the partnership
interest. In the case at hand, the co-executors have made no conflicting representations to the court, having
maintained at all times that the certificates of deposit do not belong to the estate. While this representation
may be beneficial to the co-executors and detrimental to the other devisees, the co-executors do not
maintain the "inconsistent positions" condemned by this Court in Ratliff.
¶50. More accurate is McNeil's reliance on In re Chambers, 458 So. 2d 691 (Miss. 1984). Chambers
involved an appeal by devisees under the decedent's will of the chancery court's approval of the accounting
offered by the executors. The decedent had deeded property to one of the executors, and the devisees of
the estate brought suit to bring the property back into the estate. This Court stated:
In defending this suit and attempting to prevent the subject property from being returned to the corpus
of the estate, [the executor] obviously had a conflict of interest with the estate. As we have held in
Ratliff v. Ratliff, 395 So. 2d 956 (Miss. 1981), an executor may not take inconsistent positions
which would be detrimental to the heirs on the one hand and beneficial to himself on the other. When
an executor finds his own interest in conflict with those of the estate, the sanctity of the fiduciary
relationship is invaded and he should immediately resign as executor.
Chambers at 693. The Court's reliance on Ratliff in this situation was perhaps unfortunate given the
distinction addressed above. However, whether based on Ratliff or not, the Court's statement, "when an
executor finds his own interest in conflict with those of the estate, ... he should immediately resign as
executor," clearly applies to the situation in Chambers as well as the case at hand. The Court in Chambers
went on to find that the co-executors breached their duties in failing to make an accounting until thirteen
years after the decedent's death. The Court also held that the fees awarded to the executors and to the
attorney for the estate were excessive. The Court reversed the chancellor's order approving the final
accounting and remanded the case for a determination of appropriate fees, ordering the chancellor to take
into consideration the inappropriate conduct of the executors.
¶51. The executors in the case at hand attach significance to the fact that the Chambers Court did not
remove the executors or order the chancellor to remove the executors. The executors submit that though it
might have been advisable for Terry and Linda to voluntarily resign upon the commencement of McNeil's
action, this Court is not compelled by Chambers to reverse the finding of the trial court and order their
removal. The executors contend that when the chancellor, in the case at hand, determined that the
certificates of deposit were owned by Terry and Linda and that no constructive trust could be imposed, the
potential for conflict was resolved, and the issue of whether Terry and Linda should have resigned pending
the action brought by McNeil is rendered moot.
¶52. This Court addressed the failure of a lower court to remove an executor for conflict of interest in In re
Estate of Holloway, 515 So. 2d 1217 (Miss. 1987), superseded by statute as stated in Cooper v.
Crabb, 587 So. 2d 236 (Miss. 1991). In Holloway, the decedent's widow filed a complaint against the
executor, seeking recovery of a promissory note and certificates of deposit which listed the decedent and
executor as payee. The chancellor determined that the assets at issue were not part of the decedent's estate.
This Court reversed the judgment of the chancellor, finding that the executor failed to demonstrate that the
decedent had made a gift of the certificates of deposit. The Court also noted that the executor had a conflict
of interest with the estate "which necessitated his resignation as executor." Id. at 1225 (citing Chambers,
458 So. 2d at 693; Ratliff, 395 So. 2d at 957). The Court held that the failure of the chancellor to appoint
a new executor upon request was error, and stated that such should be done on remand. Id. at 1225.
¶53. In light of this Court's opinions in Chambers and Holloway, the chancellor's failure in the case at bar
to remove the executors for conflict of interest was error. The fact that McNeil did not request removal of
the executors for conflict of interest until after the trial is of no consequence. He requested their removal in
his initial request for relief, and the conflict was obvious even at that time. The executors should have
resigned, and, when they failed to do so of their own initiative, the chancellor should have granted McNeil's
request that they be removed by order of the court. The conflict of interest was not rendered moot by the
chancellor's determination that no constructive trust should be imposed on the certificates of deposit as
McNeil timely appealed that determination.
IV. THE CHANCELLOR ERRED BY REFUSING TO REQUIRE THE CO-EXECUTORS TO
PAY INTEREST ON THE ESTATE FUNDS THAT WERE NOT HELD IN AN INTEREST-
BEARING ACCOUNT.
¶54. McNeil argues that Miss. Code Ann. § 91-13-1 (1994) places upon executors a duty to invest estate
funds. He submits that because the estate account established by the executors was not an interest-bearing
account, the executors should be surcharged at least the statutory rate of interest on funds held in the estate
account. The chancellor denied McNeil's request, but made no particularized finding on this issue.
¶55. Miss. Code Ann. § 91-13-1 (1994) provides:
All trustees, guardians, and other fiduciaries in this state, unless prohibited by the will, deed, or trust
instrument of the testator or other person establishing the trust, agency, or fiduciary relationship, or
unless by any such instrument another mode of investment is prescribed, may, in addition to methods
of investment now authorized by law, invest all funds held in trust or for investment as provided in this
chapter.
(emphasis added).
¶56. Miss. Code Ann. § 91-13-6 (1994) provides:
All trustees, guardians, administrators, executors and other fiduciaries may, without court order, if not
prohibited by the instrument, judgment, decree or order establishing the fiduciary relationship, invest
or deposit funds held in a fiduciary capacity in time certificates of deposit, savings accounts or other
interest-bearing accounts of (a) any state or national bank (including itself, if such fiduciary be a bank)
whose main office is located in the state and the deposits of which are insured by the Federal Deposit
Insurance Corporation, or (b) any state or federal savings and loan association (including itself, if such
fiduciary be a savings and loan association) whose main office is located in the state and the deposits
of which are insured by the Federal Savings and Loan Insurance Corporation.
(emphasis added).
¶57. The executors argue that the above sections place no duty on executors to deposit estate funds in
interest-bearing accounts, but merely provide that such "may" be done by the executors. As the executors
note, this Court, in construing the meaning of statutes, has stated that the word "may" is generally
considered permissive or discretionary as opposed to mandatory, unless a contrary legislative intent is
evident. Chandler v. City of Jackson Civil Serv. Comm'n, 687 So. 2d 142, 145 (Miss. 1997). See,
e.g., Cook v. Cook, 725 So. 2d 205, 207 (Miss. 1998) (construing Miss. Code Ann. § 93-5-2 (Supp.
1994)); American Sand & Gravel Co. v. Tatum, 620 So. 2d 557 (Miss. 1993); Godsey v. Houston,
584 So. 2d 389, 391 (Miss. 1991) (construing 18 U.S.C.A. § 182); Parnell v. Smith, 309 So. 2d 853,
855 (Miss. 1975) (construing Miss. Code Ann. § 11-31-21 (1972)); Murphy v. State, 253 Miss. 644,
649, 178 So. 2d 692, 693 (1965) (construing Miss. Code Ann. § 1647 (1956)). The purpose of the
subdivisions of Title 91, Chapter 13 is to grant authority to fiduciaries to invest funds, not to impose a duty
to invest funds. Section § 91-13-9, entitled "application of chapter," refers to the "powers granted by this
chapter," not the duties imposed by the chapter.
¶58. However, though there may be no "per se" duty to place funds in an interest-bearing account, Miss.
Code Ann. § 91-13-3 (1994) imposes upon fiduciaries who invest funds a duty to invest funds prudently.
That section states:
In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property held in
fiduciary capacity, the fiduciary shall exercise the judgment and care under the circumstances then
prevailing which men of prudence, discretion, and intelligence exercise in the management of their own
affairs, not in regard to speculation, but in regard to the permanent disposition of their funds,
considering the probable income as well as the probable safety of their capital. . . .
¶59. Thus, a fiduciary could exceed the authority granted by the chapter by managing the funds under his or
her care in an imprudent manner. Nevertheless, whether the executors exercised the requisite standard of
care in regards to the management of the estate funds is a question of fact. Though the chancellor made no
specific finding of fact on this issue, this Court should proceed on the assumption that he resolved all such
fact issues in favor of the executors. Goode v. Village of Woodgreen Homeowners Ass'n, 662 So. 2d
1064, 1071 (Miss. 1995) (citing Newsom v. Newsom, 557 So. 2d 511, 514 (Miss.1990)); PMZ Oil Co.
v. Lucroy, 449 So. 2d 201, 205 (Miss. 1984)). Furthermore, McNeil has not alleged, before the chancery
court or this Court, that the executors acted imprudently under § 91-13-3. He argues only that § 91-13-1
mandates that the executors invest estate funds. As discussed above, § 91-13-1 does not impose such a
duty.
V. THE CHANCELLOR ERRED BY REFUSING TO AWARD ATTORNEY FEES UNDER
THE "COMMON POOL" APPROACH.
¶60. McNeil contends that, should this Court hold that the chancellor erred in refusing to impose a
constructive trust, the Court should also find that the chancellor erred in refusing to award McNeil
attorneys' fees under the "common pool" approach from the interest generated by the certificates of deposit
as well as from the principal of the certificates of deposit. As discussed above, the chancellor did not err in
refusing to impose a constructive trust. Thus, this Court need not reach this issue.
VI. THE CHANCELLOR ERRED IN DENYING THE APPELLANT'S MOTION TO
CORRECT THE RECORD.
¶61. McNeil argues that the chancellor erred in denying his Motion to Correct the Record filed pursuant to
Rule 10(e) of the Mississippi Rules of Appellate Procedure. The portion of the transcript in question, which
involves the direct examination of Terry Hester by Hal H.H. McClanahan, III, McNeil's attorney, reads as
follows:
Q. It's a fact, isn't it, that you were prepared to give this money in the CD's to do this with, because
you knew Uncle Helbert, Uncle Nelbert wanted it to be done with his money. Isn't that right?
A. He didn't tell me what he wanted to be done with his money.
Q. You were prepared - (interrupted by Mr. Hester)
A. I guess you could say he told me. He left it joint accounts. If you want to really know. He
entrusted me to have money, Linda to have the money.
Q. So he did leave it to you in trust, didn't he, Terry?
A. He. To me, not to nobody else, and Linda.
Q. In trust to you and Linda?
A. Not, not in a trust now, I'm talking about he left it for us. I didn't say in a trust.
Q. But he left it to you trusting that you and Linda would get the money to the heirs, didn't he?
A. No. I didn't say that. I'm not sure that he said that, 'cause he never did tell me.
Q. Let's go back to your deposition.
A. Okay.
Q. Page one seventy-three. The question is: Well, do you think that's what Neb intended, that it
would go to you and Linda or to your heirs? What's you, what's your answer:
A. Where is that at?
Q. Right here.
A. I think he had trust that we would do what that, we'd do whatever is right about anything.
Q. Thank you.
A. But I wasn't talking about the money right there.
Q. You weren't talking about the money?
A. I didn't answer that question on that basis.
Q. Well let's just go back a second. I'm going to start on page one seventy-two (172). Question:
Well, all right, I'm curious. If you claims this money came, that came through the CD is yours and you
were to die that night, would, would the heirs of Neb Hester, all of these ten people specified in the
will, would they get any of the money that Neb left?
A. Would they get any of the money from?
Q. I said: Any of the three hundred and ninety thousand. What's your answer then?
A. It'd be up to Linda. She's co-owner in it.
Q. And then question I asked you: Well, do you think that's what Neb intended, that it would go to
you and Linda or to your heirs? And what's your answer?
A. I think he had trusted we would do whatever is right about anything.
Q. And we're still talking about the three hundred and ninety thousand dollars, weren't we,
Terry?
A. (No response audible to the court reporter.)
Mr. McClanahan: May I have one second, Your Honor?
Chancellor: All right.
Mr. McClanahan: I tender the witness, Your Honor.
(emphasis added).
¶62. McNeil argued, in his Motion to Correct the Record, that Terry Hester gave a "yes" response, and
that, had the court reported indicated that she did not hear the response, his attorney would have repeated
the question to get the answer on the record. The chancery court held a hearing regarding the motion, at
which McClanahan, Terry Hester, and the court reporter, Shirley Wadkins, testified.
¶63. McClanahan testified that he distinctly understood Terry Hester to say "yes," and that had Terry
Hester not given a response to the question, McClanahan would have repeated the question. Terry Hester
testified that he did not answer the question because Mr. McClanahan "wanted to refer to counsel" and cut
off his response. Terry Hester also testified that he answered "no" to the same question in his deposition.
¶64. Shirley Wadkins testified that she recalled the testimony in question and that she heard no answer from
Terry Hester. She stated that she had listened to a tape of the proceeding both prior to receiving McNeil's
Motion to Correct the Record and after receiving the Motion. Wadkins testified that she listened to the tape
intently several times and that she did not hear an answer on the tape. She testified that it is unlikely that
Terry Hester could have given a response which she did not hear because she sits within two feet of the
witness and because Terry's other responses were clear and distinctly made. She stated that the courtroom
had four microphones as well as a P/A system and a microphone next to the witness. She explained that,
according to her training as a court reporter, her job is to take, not make, the record, and that she can only
report what she hears. She stated that the lawyer is responsible for making the record. On cross-
examination, Wadkins testified that it is possible, though unlikely, that Terry Hester gave a response which
she did not hear. She also stated that she was not facing the witness in the courtroom and that she could not
have discerned a non-verbal answer.
¶65. The chancellor denied McNeil's motion to correct the transcript. McNeil appeals this order, arguing
that the judgment is contrary to the law and the greater weight of the evidence. McNeil has failed to support
this assignment of error with authority. It is the duty of an appellant to provide authority in support of an
assignment of error. Hoops v. State, 681 So. 2d 521, 526 (Miss. 1996); Kelly v. State, 553 So. 2d 517,
521 (Miss. 1989); Smith v. State, 430 So. 2d 406, 407 (Miss. 1983); Ramseur v. State, 368 So. 2d
842, 844 (Miss. 1979). This Court considers assertions of error not supported by citation or authority to
be abandoned. Thibodeaux v. State, 652 So. 2d 153, 155 (Miss. 1995). Because McNeil has failed to
meet the burden of providing authority to support this assignment of error, this issue is procedurally barred.
Drennan v. State, 695 So. 2d 581, 585-86 (Miss. 1997).
¶66. Furthermore, the chancellor's determination that the transcript should not be altered was correct. The
dispute over whether Terry Hester responded to McClanahan's inquiry was a dispute of fact. This Court
will not disturb a chancellor's findings of fact unless the chancellor was manifestly wrong, clearly erroneous,
or applied the wrong legal standard. Bank of Mississippi v. Hollingsworth, 609 So. 2d 422, 424 (Miss.
1992) (citing Smith v. Dorsey, 599 So. 2d 529 (Miss. 1992); Bowers Window & Door Co. v.
Dearman, 549 So. 2d 1309 (Miss.1989)). Clearly, there was substantial evidence upon which the
chancellor could have based his determination that no response was given.
VII. THE CHANCERY COURT WAS WITHOUT JURISDICTION TO CLOSE THE ESTATE.
¶67. McNeil appealed the chancellor's denial of his Motion for Accounting and Other Relief on December
26, 1996. On June 23, 1997, while the appeal was pending, the chancellor entered an order authorizing the
closing of the estate and discharging the executors. On September 8, 1997, McNeil filed a Motion to
Vacate and Set Aside the chancellor's order, arguing that the order is void because the chancery court no
longer had jurisdiction to close the estate as McNeil had already noticed his appeal to this Court. McNeil
also argued that the order was allegedly procured through the misconduct of the executors' counsel, Ms.
Brown. McNeil requested that Brown be held in contempt of court and assessed with sanctions for
earwigging the chancellor under Rule 3.10 of the Uniform Chancery Rules. McNeil also argued that Brown
violated Rule 4.2 of the Mississippi Rules of Professional Conduct by communicating directly with McNeil,
who was represented by counsel. The chancery court held a hearing on McNeil's motion on October 31,
1997, and the chancellor subsequently denied the motion on November 7, 1997.
¶68. All parties to this appeal concede that the chancery court lacked jurisdiction to enter its order of June
23, 1997, and that the order is therefore void. This Court has held that the filing of a notice of appeal
transfers jurisdiction of a matter from the lower court to this Court, and that the lower court is thus without
authority to amend, modify, or reconsider its judgment. Wright v. White, 693 So. 2d 898, 903 (Miss.
1997) (citing In re Estate of Moreland, 537 So. 2d 1345, 1346-47 (Miss. 1989) (when a proper appeal
is taken, the case is ipso facto removed to the appellate court)). See also Dunavant Enterprises, Inc. v.
Ford, 294 So. 2d 788, 792 (Miss. 1974); Crocker v. Farmers & Merchants Bank, 293 So. 2d 444
(Miss. 1974); Lindsey v. Lindsey, 219 Miss. 720, 723, 69 So. 2d 844, 844-45 (1954). If the appeal is
without supersedeas, as is the appeal at hand, the appellee may proceed to execute on the decree in the
lower court. Lindsey, 219 Miss. at 723, 60 So. 2d at 844-45. The lower court may not, however,
broaden, amend, modify, vacate, clarify, or rehear the decree. Moreland at 1346. The chancellor's order
discharging the executors and closing the estate broadens its judgment of November 15, 1996.
Consequently, the order entered June 23, 1997, must be vacated as null and void because it exceeds the
subject matter jurisdiction of the lower court. See Duvall v. Duvall, 224 Miss. 546, 552, 80 So. 2d 752,
754 (1955).
¶69. McNeil also contends that counsel for the executors, Brown, should be sanctioned for professional
misconduct. First, McNeil asserts that Brown violated Rule 4.2 of the Mississippi Rules of Professional
Conduct by mailing directly to McNeil, who was represented by counsel, a copy of the order closing the
estate and a check disbursing McNeil's share of the estate proceeds. Second, McNeil argues that Brown
violated Rule 3.10 of the Uniform Chancery Court Rules by securing the order closing the estate without
notice to McNeil.
¶70. McNeil presented these arguments to the chancellor at the hearing on McNeil's Motion to Vacate and
Set Aside the order closing the estate. The chancellor found that "after full consideration of the matter
including the record in this cause, the testimony of witnesses and exhibits received at the hearing," the relief
requested should be denied. McNeil's request for sanctions against Brown are likewise denied by this
Court. The chancellor's order closing the estate is void, as is his denial of McNeil's Motion to Vacate and
Set Aside that order. There is thus no denial of relief from which to appeal to this Court. The proper forum
for an ethics complaint against Brown is specified in Rule 8 of the Mississippi Rules of Discipline. If McNeil
receives an unfavorable disposition, he may then appeal to this Court pursuant to Rule 9 of the Rules of
Discipline.
CONCLUSION
¶71. The chancellor's denial of McNeil's Motion to Alter or Amend the court's judgment of November 15,
1996, is affirmed in part and reversed in part. The chancellor's denial of McNeil's requests for the
imposition of a constructive trust and for interest on estate funds not held in an interest-bearing account is
affirmed. The chancellor's denial of McNeil's request that the executors be removed for conflict of interest
was error and is reversed. The case is remanded to the chancery court with instructions to appoint an
executor with no interest in the matter.
¶72. The chancellor's denial of McNeil's Motion to Correct the Record is affirmed. The chancellor's Order
Authorizing the Closing of the Estate and Discharging the Executors is vacated as null and void, and this
case is remanded for further proceedings consistent with this opinion.
¶73. AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; AND
REMANDED.
SULLIVAN AND PITTMAN, P.JJ., BANKS, MILLS, WALLER AND
COBB, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
PRATHER, C.J., NOT PARTICIPATING.