Before Prather, C.j., McRAE And Mills, JJ.
The opinion of the court was delivered by: McRAE, Justice, For The Court
DATE OF JUDGMENT: September 10, 1997
TRIAL JUDGE: HON. W. HOLLIS McGEHEE, II
COURT FROM WHICH APPEALED: PIKE COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART- January 28, 1999
MOTION FOR REHEARING FILED:
¶1. The Chancery Court of Pike County removed C. E. Jackson, Sr., as conservator of his wife's estate. Jackson appeals offering several issues for review. While we affirm as to six of the issues, we reverse and remand in part because Mr. Jackson did not receive proper notice as to the matter of his removal as conservator.
STATEMENT OF THE CASE AND FACTS
¶2. This appeal arises from an order of the Chancery Court of Pike County removing C. E. Jackson, Sr., as conservator of the estate of his wife, Ilda Lee Jackson, who long had suffered from Alzheimers' Disease. Mr. Jackson was appointed conservator of Mrs. Jackson's person and estate in 1989, during the course of a boundary line dispute filed against the couple. Thereafter, in 1994, Mr. Jackson, represented by one of his sons, Jerry Jackson, who also represented the couple in the boundary line dispute, petitioned the court for approval and ratification of past charges and authority to incur various expenses including future nursing expenses. The primary beneficiary of these expenses would have been Jerry Jackson, who would have been given, under the terms of the motion, a lien upon jointly held real estate and other property to secure the sums allowed to him for past and future services. The appellees here, other children of the Jacksons, objected to the expenses and moved for annual accountings, inventories and appraisals and the appointment of a guardian ad litem as well as a special commissioner. No accountings had been filed up to that time. The chancellor ordered accountings, inventories and appraisals for the years from 1989 through 1994 and, ultimately, appointed a guardian ad litem and a special master. By order dated November 6, 1996, the chancellor disallowed the request for attorney's fees and expenses as well as farm labor and nursing services which would exceed the income available in the conservatorship, and ordered the filing of amended inventories, accountings and appraisals.*fn1 The amended accounting reflects on its face that there are several tracts of real estate listed as joint property, but that Mr. Jackson disputes the value of his wife's estate. Finally, by order dated July 1, 1997, Mr. Jackson was removed as conservator of Mrs. Jackson's estate, but not her person, the chancellor finding that an unresolved potential conflict of interest existed which impeded Mr. Jackson's ability to serve as conservator for Mrs. Jackson. Motions for new trial and recusal of the chancellor were considered and denied.
¶3. Mr. Jackson now presents seven issues for this Court's review:
"I. WHETHER THE CHANCELLOR ERRED IN FINDING THERE WAS A POTENTIAL CONFLICT OF INTEREST OVER OWNERSHIP OF CATTLE ACQUIRED DURING THE SIXTY-TWO YEAR MARRIAGE OF MR. AND MRS. JACKSON AS A BASIS FOR REMOVING HIM AS HER CONSERVATOR, IN ANTICIPATION OF AN EQUITABLE DIVISION OF THE CATTLE WHERE THERE WAS NO DIVORCE PROCEEDINGS INVOLVED NOR ANY EVIDENCE OF IMPROPER CONDUCT BY MR. JACKSON; "II. WHETHER THE CHANCELLOR ERRED IN REMOVING THE CONSERVATOR WHERE HE WAS REMOVED WITHOUT BEING GIVEN PROPER ADVANCE NOTICE OF THE CAUSE FOR HIS REMOVAL AND WITHOUT AN EVIDENTIARY DUE PROCESS HEARING TO DEFEND AGAINST THE CHARGES BEFORE BEING REMOVED; "III. WHERE THE RECORD DISCLOSED IMPORTANT, MATERIAL, AND PERTINENT FACTS AND AVAILABLE WITNESSES, WHETHER THE CHANCELLOR ERRED IN DENYING APPELLANT A HEARING TO DEFEND HIS INVENTORY AND ACCOUNTING AND IN DECIDING THE ISSUE OF APPELLANT'S REMOVAL WITHOUT ALLOWING APPELLANT TO CALL HIS WITNESSES AND PRODUCE HIS EVIDENCE TO FULLY DEVELOP THE FACTS BEFORE BEING REMOVED; "IV. WHETHER THE CHANCELLOR ERRED IN FINDING A CONFLICT OF INTEREST AND IN REMOVING THE CONSERVATOR WITHOUT FIRST GIVING THE CONSERVATOR A HEARING TO DEFEND HIS RIGHT TO SERVE AND NOT TO BE REMOVED, WHERE THE REMOVAL WAS BASED UPON THE UNSWORN ALLEGATIONS IN RESPONDENTS' MOTION OR THE CHANCELLOR'S STATEMENT THAT THE WARD MIGHT OWN A JOINT OWNERSHIP INTEREST WITH HER HUSBAND, THE CONSERVATOR, IN COWS WHICH WERE ACQUIRED DURING THE MARRIAGE; "V. WHETHER THE RESPONDENTS ADMITTED AND THE COURT STATED THERE WAS NO EVIDENCE OF WRONGDOING BY THE CONSERVATOR AND WHERE STATUTE 93-13-13 MISS. CODE, 1972, GRANTS APPELLANT A LEGAL RIGHT TO APPOINT AS GUARDIAN AS NEXT OF KIN UNLESS MANIFESTLY UNSUITABLE, WAS THERE JUDICIAL KNOWLEDGE OF THE CHANCELLOR PRODUCED BY SWORN WITNESSES TESTIMONY IN COURT INTO EVIDENCE ...