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ESTATE OF KATHERINE VAN RYAN & ESTATE OF ANTHONY VAN RYAN v. JAMES O. McMURTRAY & NELLIE M. BAUMAN

APRIL 15, 1987

ESTATE OF KATHERINE VAN RYAN & ESTATE OF ANTHONY VAN RYAN
v.
JAMES O. McMURTRAY & NELLIE M. BAUMAN



BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.

PRATHER, J., FOR THE COURT:

This appeal challenges the award of quantum meruit by Jackson County Chancery Court Judge Glen Barlow to James O. McMurtray (trustee) for the estate of Katherine Van Ryan and Nellie M. Bauman (conservator) of the estate, for assistance rendered the Van Ryans during the last years of their lives. For the personal use of funds entrusted to them, Nellie Bauman was ordered to return $41,492.77 of $71,492.77 spent for her personal use, James O. McMurtray was ordered to return $1,346.30 of $31,346.30 deposited into his personal account, affording each defendant $30,000 quantum meruit. The lower court ordered that the amounts plus the interest from day of judgment were to be paid to the estates and that Bauman and McMurtray pay one-half the court cost. The estate of Katherine Van Ryan and the estate of Anthony Van Ryan appeal contesting the award of quantum meruit and the denial of prejudgment interests. Bauman and McMurtray cross-appeal alleging the chancellor erred in failing to find wholly for Bauman and McMurtray and the chancellor erred in not applying laches to the claim of the Van Ryans' estates.

I.

 Katherine and Anthony Van Ryan were immigrants from Holland who, in 1969, settled in Ocean Springs, Mississippi next door to Nellie M. Bauman. They lived there until their deaths approximately ten years later. Mrs. Nellie Bauman and her brother, James O. McMurtray, developed a close relationship with the Van Ryans in many personal ways. Nellie Bauman prepared meals on special occasions, ran errands to the bank, post officer and grocery, visited in the home and rendered personal services to Mrs. Van Ryan when she was confined to a wheelchair and in declining health, and became Mrs. Van Ryan's confidant. Mr. James McMurtray and Anthony Van Ryan also became close associates and friends. They performed chores together, such as car repairs, house maintenance, cutting firewood, and enjoyed fishing and playing chess. This friendship brought the parties together to share holidays, birthdays, and other special occasions.

 Both Mr. and Mrs. Van Ryan had relatives in Holland. Mr. Van Ryan has at least two sisters and a brother, and child born outside his marriage. Mrs. Van Ryan had a brother who did not enjoy a close relationship to the Van Ryans.

 Mr. Van Ryan held a degree of engineering while in

 Holland and was a man of intelligence reportedly knowing a great deal regarding legal and financial matters. He had accumulated an estate of some substantial value.

 The appellants' statement of facts succinctly set forth the facts of this case. On September 2, 1976, Mr. Van Ryan established a trust, appointing James O. McMurtray as trustee, to provide for Mrs. Van Ryan's care in the event that Mr. Van Ryan became incapable of doing so. Mr. Van Ryan was advanced in years and in poor health. Assets of the trust were certificates of deposit, and its provisions provided that the trust could be revoked only in writing.

 Around August, 1979, Anthony Van Ryan found that he was suffering from terminal cancer. At that time, the appellee, Nellie Bauman, the sister of James O. McMurtray, was appointed attorney-in-fact for Katherine Van Ryan and later for Anthony Van Ryan as well. That same year, Mrs. Bauman's name was placed on bank accounts and certificates of deposit belonging to Mr. and Mrs. Van Ryan. The signature cards authorizing the addition of Mrs. Bauman's name were signed at the Van Ryan home.

 On November 1, 1979, a conservatorship was set up to preserve Mrs. Van Ryan's assets. Nellie Bauman was appointed conservator of Katherine Van Ryan. On November 15, 1979, while Mrs. Bauman was conservator of Katherine Van Ryan and was attorney-in-fact for Katherine and Anthony Van Ryan, Mrs. Bauman withdrew $16,454.75 from the joint account of Mr. and Mrs. Van Ryan on deposit at the Coast Federal Savings & Loan Association. On that same day, Mrs. Bauman opened a new account at Southern Savings & Loan Association in Gulfport, Mississippi, in the names of Anthony Van Ryan and Nellie M. Bauman. Mrs. Bauman opened the account at Southern Savings without obtaining Mr. Van Ryan's signature but by attaching to the signature card of the account the limited power of attorney.

 Anthony Van Ryan died on December 19, 1979, and L. C. Corban, Jr., was appointed executor on January 14, 1980. On or about January 4, 1980, the appellee James O. McMurtray withdrew $31,346.30, which represented the remaining assets of the Katherine Van Ryan trust, from the trust, endorsing the four checks he received as trustee and depositing them to his own account.

 On that same day, at a time when Mrs. Van Ryan was hospitalized, the appellee, Nellie Bauman, while acting as conservator and attorney-in-fact, withdrew an additional total of $55,038.02 from Mr. Van Ryan's passbook savings

 account and certificates of deposit at a time when the certificates of deposit had not matured. Three checks in the amount of $10,000 and one check in the amount of $516.57 were obtained from First Federal Savings & Loan Association at their branch in Pascagoula, Mississippi. On that same date, Mrs. Bauman also withdrew $14,521.45 from the passbook account at First Federal Savings & Loan in Ocean Springs, Mississippi, closing that account out. On that same date, Nellie Bauman also went to the Coast Federal Savings & Loan Association in Gulfport, Mississippi, and withdrew $10,000.00. The checks obtained from First Federal in Pascagoula were cashed at the Merchant & Marine Bank in Pascagoula. The $10,000 check from the passbook account was cashed at the Pascagoula and Moss Point Bank. The check for $4,521.45 from the passbook account was cashed at First National Bank of the South in Ocean Springs. On the same day, $10,000 was withdrawn from Coast Federal Savings & Loan Association. It was cashed at the Peoples Bank of Biloxi. The total of all those withdrawals was placed in Mrs. Bauman's safety deposit box.

 By letter dated February 12, 1980, Katherine Van Ryan informed James O. McMurtray that she was revoking the trust agreement in which Mr. McMurtray was named as trustee. Mrs. Van Ryan requested that all assets of the trust be turned over to her new conservator, Fred W. Huebner, and that an accounting of the trust assets be delivered to Mr. Huebner. Mr. McMurtray responded to that letter by declaring that the ...


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