IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-CA-01534-SCT

IN THE MATTER OF THE ESTATE OF GRACE

CARTER, DECEASED: MAR Y HELEN ROBBINS

FRAZIER, EXECUTRIX

v.

DANIEL SHACKELFORD, MI S SISSIPPI BAPTIST

FOUNDATION, MISSISSIPPI BAPTIST CHILDREN’S

VILLAGE AND BLUE MOUNTAIN COLLEGE

DATE OF JUDGMENT: 06/18/2004

TRIAL JUDGE: HON. EDWIN H. ROBERTS, JR.

COURT FROM WHICH APPEALED: TIPPAH COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: B. SEAN AKINS

ATTORNEYS FOR APPELLEES: JENNIFER LEE SHACKELFORD

LEONARD D. VAN SLYKE, JR.

RUSTY ALAN FLEMING

NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: AFFIRMED - 10/06/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE COBB, P.J., EASLEY AND CARLSON, JJ.

CARLSON, JUSTICE, FOR THE COURT:

¶1. This case comes before us on appeal from the Tippah County Chancery Court’s entry

of a judgment finding that due to maladministra tion, fraud and contempt, Mary Helen Robbins

Frazier, the executrix of the Estate of Grace Carter, should be removed and held accountable

for the sum of $297,327.05. Finding that the chancellor’s judgment was well-founded

inasmuch as the executrix m ust be held accountable for her blatant mismanagement of the

estate, we affirm.1 Even the chancellor acknowledged that for various reasons, including the lengthy and disjointed

history of this case, “the true facts have become somewhat muddled.”

2 FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. A fter a thorough review of the record, we are unfortunately unable to deciph er a clear

recitation o f the facts to engage in a detailed discussion of all the relevant facts and the

procedural history of this case. We r ecognize that this case has been in litigation for ten years

before several different chancellors and has been plagued by misrepresentations which clo u ded

the efficient disposition of the pertine nt issues. We are thus compelled to rely heavily on

portions of the chancellor’s factual presentation as found in his Final Order on Mot ion for

New Trial. 1

¶3. From July 1958 to July 1977, G race Carter purchased a large amount of U.S. Series E

Bonds. Never exercising her option to sell, Carter allowed these bonds to appreciate and

accumulate interest, resul

ting in a sizeable gain in value over the next three decades. Notably,

Carter’s last will and testament devised each of these bonds and specifically designated them

according to their serial number to various charitable organizations.

¶4. In 1985, Mary Helen Robbins Frazier, Carter’s niece, rec eived from Carter a power of

attorney concerning the affairs of Carter’s estate. In December of 1993 or January of 1994,

Carter was admitted to a nursing home facility. Shortly thereafter and up until the time of

Carter’s death in No vember of 1994, Frazier redeemed twenty-three of Carter’s Series E bonds

with a f ace value of $18,500, receiving $100,583 in proceeds from these bonds. However,3

Frazier never rend ered an accounting for these generated funds. Importantly, Frazier’s actions

in prematurely cashing in these bonds caused the estate to i ncur a sizeable tax of $21,822.40.

¶5. Subsequent to Carter’s death in Novembe r of 1994, Frazier’s legal relationship with

Carter’s estate became that of court-app ointed executrix pursuant to the terms of Carter’s will.

Conferred with the duty to administer Carter’s estate, Frazier provided due notice to creditors

by placing such notice in a weekly newspaper which circulate d within Tippah County. On

October 31, 1995, Frazier filed a motion requesting the chancery cou rt to close the estate, bar

future claims, and discharge her as executrix of Carter’s estate. On November 28, 1995,

Chancellor Don Grist granted Frazier’s motion, closed the estate, an d entered an order which

stated that, contingent upon compliance with the conditions and requirements enumerated

therein, the time for probating and registering claims against the estate had expired. In

granting Frazier’s motion, Chancellor Grist provided that the remaining assets of the estate be

disbursed to Carter’s devisees and legatees pursuant to the terms of the Last Will and

Testament. The designated beneficiaries were wholly unaware of the chancery court

proceedi ngs and did not even gain knowledge of their status under Carter’s will until after the

estate had been closed.

¶6. By order

dated March 22, 1996, Chancellor Grist released Frazier from the obligation

to pay Blue Mountain United Methodist Church, Lowery Memorial Baptist Church, and the

Southern Baptist Convention’ s Cooperative program based upon Frazier’s representation that

all bank and savings accounts had been fully depleted prior to Carter’s death. Additionally, this

same order adopted Frazier’s representat ions regarding amounts owed by the estate to the2 Of important note and consistent with the holding of this opinion, this motion, while substan tively

appropriate, moves the court for something it need not do - reopen the estate.

3 About three yea

rs earlier, the foundation had received an unsigned check for $5,500 from the

Executrix, who then failed to produce a signed check despite multiple requests by the foundation.

4 Although Chancell or Gillespie’s order is not in the record, its existence is verified by numerous

references to this order in the record.

4 charities, the executrix, the attorney, the accountant, and a creditor of the estate. Finally, the

order further provided that Frazier would be discharged as executrix after the court-ordered

disbursements had been made and t he necessary documents evidencing these payments had

been filed with the chancery court.

¶7. On August 26, 1999, the Mississippi Baptist Foundation filed a Motion to Reopen the

Estate and Provide an Accoun ting. 2 Specifically, the motion was filed as a result of Frazier’s

failure to send a

signed check for $5,500 owed to the foundation as a named devisee in

Carter’s Last Will and Testament. 3 Although the Mississippi Baptist Foundation eventually

received a properly signed che c k from Frazier on May 16, 2001, Chancellor Norman L.

Gillespie, on September 16, 2002, granted the Mississippi Baptist Foundation’s motion and

entered an order directing Frazier to file an inventory and a fully substantiated accounting with

the chancery court by October 25, 2002. 4 The order set the matter for hearing before

Chancellor Gillespie; however, due to Chancellor Gillespie’s subsequent retirement, this

matter was eventually reset for hearing on March 31, 2003, before Chancellor Edwin H.

Roberts, Jr.5

¶8. In response to Chancellor Gillespie’s court order, Frazier filed a rudimentary, handscripted accounting which was subsequently adjudged to fall well short of what was statutorily

required and to conta

in several glaring discrepancies. In finding that the accounting was

insufficient, Chancellor Roberts noted several in explicable inconsistencies. First, the will

stipulated that a certain tract of land was to be sold for its appraised v alue and the proceeds of

this sale divided among three identi fied individuals. The property was appraised at $30,000,

and it was stipulated to the chancery court that a buyer had bee n located who was willing to pay

that amount. Interestingly, Frazier’s accounting was found to evidence a sale of $19,716.67

for the land and only two disbursements of these proceeds.

¶9. S econdly, there was a disparity among the bank statements. According to the bank

statements attached to the accounting, the estate had no bank account until June 23, 1995, when

Frazier opened an estate account with a deposit of $407.90. According to the will, Carter had

bank deposits and other deposits in Leader Federal Savings and Loan Association in Memphis,

Tennessee. Several pleadings asserted that these accounts had been completely depleted prior

to Carter’s death and that no bonds had been red eemed nor land sold between Carter’s death

and the opening of the estate account. However, Frazier’s undocumented accounting listed a

receipt of $407.90 on June 26, 1995, and anothe r receipt of $813.29 on July 24, 1995. In

addressing Frazier’s accounting, Chancellor Roberts found that Frazier had mad e fraudulent

misrepresentations to the court, and in support of this finding, the chancellor noted that while

there were zero balances in all other accounts and no assets yet sold, there was a receipt of

$407.90 from an unidentified source.6

¶10. The third problem noted by Chancellor Robe rts concerned the manner in which Frazier

distributed the bonds which were specifically listed in the will and designated by bond number

to various charitable institutions. Accordingly, the distributions to these charities were paid

out of the fully appreciated proceeds of the bonds r edeemed, but were paid according to face

value amounts. Thus, the distributions did not reflect the true appreciated value of Carter’s

bond bequests, resulting in each designated beneficiary being grossly underpaid.

¶11. According to the e xpress provisions of the will, Carter bequeathed each bond by serial

number. Moreover, there were only two bequests in the entire will which made reference to

specific dollar amounts, and these were made to two churches to be p aid out of money left in

Carter’s checking and savings accounts. The remaining money in these accounts was to be

given to the Southern Baptist Convention’s Cooperative Program. In consideration of these

factors, Chancellor Roberts reasoned that it was clear from a reading of the will that Carter

intended all of her assets, ex cept the real estate, to go to charities and not to individuals.

Frazier’s disbursements unquestionably did not reflect this intent.

¶12. Aft er the bonds were redeemed and all debts of the estate paid, each charity was sent

a check representing the face value of the bond in existence at the time of Carter’s death.

Ignoring in

terest, Frazier disbursed face value payments to the charities and kept $38,713.14

f rom the estate as the residuary devisee. Frazier had also retained over $20,000 from the

estate disbursements in a savings account. All total, there was $94,569.80 in proceeds from

the bonds redeemed after Carter’s death.7

¶13. As a result of the March 31, 2003, hea ring, Chancellor Roberts determined that he had

insufficient information to render a decision; therefore, he took the matter under advisement

and by subsequent order directed Frazier to provide certain records. Ultimately, the chancery

court issued orders to Union Planters Bank and the United States Treasury De partment

requesting the production of records dating back to the year Frazier obtained a legal interest

in Carter’s estate via a power of attorney.

¶14. On November 12, 2003, the Mississippi Baptist Foundation, Inc., Blue Mountain

College and Mississippi Baptist C hildren’s Village filed a motion for the executrix to show

cause why she should not be required to refund monies to the estate and why sh e should not

be removed

as executrix for failure to cooperate with the court. A hearing on this motion was

conducted on December 16, 2003, and as a result of this hearing, the chanc ellor entered a

judgment which, in

ter alia, found that Frazier was indebted to the estate in the amount of

$321,760.20; that the amount of the indebtedness was subje c t to reduction if Frazier could

justify that she was entitled to credits; that Frazier was removed as the executrix; and, that the

Tippah County Chancery Clerk was named a s the administrator of Carter’s estate and directed

to execute on the judgment entered against Frazier.

¶15. After Frazier filed a motion for a new trial, the chance llor, on March 15, 2004, entered

an order denying Frazier’s motion , finding Frazier to be in contempt of court due to her having

committed fraud and having breached her fiduciar y duty to the estate beneficiaries, and,

reaffirming final judgment a gainst Frazier in the amount of $321,760.20. Additionally, in his

order denying Frazier’s motion for a new trial, Chancellor Roberts stated, inter alia:8

This case has been in litigation for ten y ears. Due to the length of the case, the

number of Chancellors who have heard di fferent parts of it, and the intentional

misrepresentations to the Court early on, the true facts have bec ome somewhat

muddled. To the best of this Court’s ability, only facts pertinent to the case or

to its understanding are laid out below.

************

During the latest round of hearings, the Executrix has claimed it would be unfair

to require her to provide an accounting since she h ad never been asked to

provide one. This claim has been proven false.

¶16. After a hearing on Frazier’s motion to reduce judgment, the chancellor entered on order

granting relief by way of certain credits, thus reducing the judgment by the sum of $34,082.49.

After the reduction, the total am ount of the judgment, including post-judgment interest through

June 30, 2004, was $297,327.05. Via this order, the chancellor further stated: “The Court

finds that no Order of the Court is binding when fraud is committed on the Court. The Court

finds that fraud was committed on the Court and any such Orders are hereby void and set aside,

which is the finding of the Court at this time.”

¶17. Aggrieved by the chancellor’s decision, Frazier now appeals to this Court for relief.

DISCUSSION

¶18. We employ a limit ed standard of review on appeals from chancery court. M iller v.

Pannell, 815 So.2d 1117, 1119 (Miss. 2002); Reddell v. Redde ll , 696 So.2d 287, 288 (Miss.

19 97) (citing C

arrow v. Carrow

, 642 So.2d 901, 904 (Miss. 1994)). If substantial credible9

evidence supports the chan cellor's decision, it will be affirmed. W illiams v. Williams

, 843

So.2d 720, 722 (Miss. 2003). The Court will not interfere with t he findings of the chancellor

unless the chancellor was manifestly wrong, clearly erroneous or applied the wrong legal

standard. Id

. (citing Cox v. F-S Prestress, Inc.

, 797 So. 2 d 839, 843 (Miss. 2001); Holloman

v. Holloman, 691 So.2d 897, 898 (Miss. 1996)). S ee also Phillips v. Phillips

, 904 So.2d 999,

1001 (Miss. 2004). Our standard of review is indeed deferential, as we recognize that a

chancellor, being the only one to hear the testimony of witnesses and observe thei r demeanor,

is in the best position to ju d ge their credibility. C ulbreath v. Johnson

, 427 So.2d 705, 708

(Miss. 1983). Moreover, since the chancellor is best able to determine the credibility of the

witnesses’ testimo ny, it is not this Court’s province to undermine the chancellor's authority

b y replacing the chancellor’s judgment with our own. Madden v. Rhodes

, 626 So.2d 6 08, 616

(Miss. 1993) ( See Mullins v. Ratcliff

, 515 So.2d 1183, 1189 (Miss. 1987); Hall v. State ex

rel. Waller , 247 Miss. 896, 903, 157 So.2d 781, 784 (1963)).

I. WHETHER A CHANCELLOR HAS JURISDICTION TO RENDER

A JUDGMENT AGAINST A REMO VED EXECUTRIX FOR

FAILING TO ACCOUNT FOR B ONDS SOLD FOR THE

DECEDENT PRIOR TO THE DECEDENT’ S DEATH WITHOUT

FIRST FILING A COMPLAINT AGAINST THE EXECUTRIX.

¶19. Frazier asserts that the ruling of the chancellor holdi ng her accountable for over

$320,000 of estate assets was a personal judgment and a s such required the filing of a

complaint. Frazier contends that when Chancellor Grist closed the estate in 1996, he released

Frazier in her representative capacity, and that when the Mississippi Baptist Foundation filed10

a motion to re-open the es tate in 1999, it should have commenced a civil action by filing a

complaint. In addressing this argument, we thus consider the specific rights and duties

assigned to a fiduciary charged with administering an estate. It is thus important to determine

whether Frazier ever fully executed her duties and responsibilities so as to legally justify her

release from the fiduciary responsibilities conferred upon her as a duly appointed officer of

the court.

¶20. The nature of the relationships formed in this case are fiduciary in nature. In H endricks

v. James , 421 So. 2d 1031 (Miss. 1982), we stated:

Whenever there is a

relation between two people in which one person is in a

position to exercise a dominant influence upon the ot her because of the latter’s

dependency upon the forme r, arising either from weakness of mind or body, or

through trust, the law does not hesit ate to characterize such relationship as

fiduciary in character.

Id. at 1041.

¶21. In Harper v. Harper

, 491 So.2d 189 (Miss. 1986), this Co urt determined that we hold

trustees and other

fiduciaries accountable to the same standard of care that we use to review

the actions of an executor who has been charged with the maladministration of an estate. Id.

at 194. In H

arper

, we specifically addressed the duties of executors and the standard of ca r e

by which we expected these duties to be executed:

[T]he executor’s duties are “(1) to reduce to possession the per sonal assets of

t he testator; (2) to pay the testator's debts; (3) to pay legacie s ; and (4) to

distribute the surplus to the parties entitled thereto.” [quo ting from Y eates v.

Box

, 198 Miss. 602, 22 So.2d 411 (1945)]. Powers granted an executor are11

coextensive with the will and t herein grounded. R icks v. Johnson

, 134 Miss.

676, 99 So. 142 (1924); Grant v. Spann

, 34 Miss. 294 (1857).

The duly a ppointed executor shall carry out all of the provisions of the will that

may be l awful. The will is the source and measure of the power of the executor.

Ricks

, 99 So. at 146. And in determining the powers of executors, the basis for

all construction of language with in the will is to determine first the intention of

the testator as gathered from the whole will. Yeates v. Box

, 198 Miss. at 602,

22 So.2d at 411.

One serving in the capacity of executor or administrator is an officer of the

Court and holds a fiduciary relationship to all parties having an in terest in

the estate

. A trust arises from the appointment of the executor or a dministrator.

Schreiner v. Cincinnati Altenheim

, 61 Ohio App. 3 44, 22 N.E.2d 587 (1939);

33 C.J.S., Executors and Administrators, § 3, p. 878 (1942).

Thus in answe ring questions of the powers, duties, and liabilities of executors,

this Cou rt applies the above Mississippi statutory and case law, as well as the

expressed intent of the testamentary instrument itself.

In answering these questions this Court must est ablish a standard of care

chargeable to an executor in evaluating charges of maladministratio n. It appears

proper that since a trust and fiduciary relationship is established by these

c onnections, this Court holds that the same standard of care applicable to

a general tr

ustee applies to an executor or administrator. T his standard is

expressed as follows:

Ordinary care, skill, and prudence ar e normally required of

trustees in the perfor

mance of all their duties, unless the trust

instrument provides otherwise . The rule is "that trustees are

bound in the management of all the matters of the trust to act in

good fai th and employ such vigilance, sagacity, diligence and

prudence as in general prudent [persons] of discretion and

intelligence in like matters employ in their own affairs.............

Bogert, Law of Trusts, § 93 (5th ed. 1973). S ee also , Scott, S cott on Trusts

, § 174 (3rd ed. 1967).

491 So.2d at 193-94 (emphasis added).

¶22. Today’s case involves a direct fiduciary relationship which was memorialized in 1985

when Carter conferred a power of attorney over her e state to Frazier. At the moment Frazier

became Carter’s attorney-in-fact, she was charged wi th a fiduciary duty to act in good faith and12

employ such vigilance, sound judgment, diligence and prudence as exercised by general prudent

persons of discretion and intelligence in handling their own affairs. Clearly, Mississippi law

recognizes the important role tha t fiduciaries play in the administration of estates.

Coordinately, our law fully considers the u nique position of power given to executors, trustees

and attorneys-in-fact when executing their duties and mandates, and we hold these fiduciaries

strictly accountable to this high standard of care w h en we review their execution of such

duties. Our chancery courts thus no doubt have an essential role in serving to protect a weaker,

dependent party who has conferred power to a fiduciary under the auspices of confidence and

influence.

¶23. Given this unique interplay between parties to a fiduciary relat ionship in a court of

equity, it becomes obvious that Frazier’s argument misapprehends the broad remedial powers

pro vided to a chancellor. To this end, Frazier’s argument ignores the continued relationship

she had with Carter’s estate, its beneficiaries, and the chancery court, and instead relies on a

theory that a formal pleading was required to re establish her fiduciary duty. In essence, Frazier

is using a smoke and m

i rrors argument in order to avoid dealing with the very simple fact that

she has not and can not provide any substantiation for the expenditure of a la rge portion of

Carter’s estate assets. In issuing his decision in this case, Chancellor Roberts noted this

monumental dereliction:

At le ast two Chancellors have requested an accounting from the Executrix since

the Exec utrix [Frazier] failed to comply with Chancellor Grist’s order to pay

these entities and file copies of the negotiated instr uments evidencing the

distributions and payments with the Court. Further, this Judge has given the13

Executrix at least three occ asions to present evidence to the Court of where

money was spent to justify the cashing in of the savin gs bond prior to Ms.

Carter’s death. This Court has repeatedly stated that any money the Executrix

can show was spent on Ms. Carter during her life, while Executrix was acting

under power of attorney, will reduce the Executrix’s monetary liability to the

Estate. Not only would the potential award of over $ 320,00 be reduced by the

a mount spent but further reductions would be made for the tax liability and

unearned interest.

(emphasis added).

¶24. It is clear from reading the will that Carter intended all of her assets, except the real

es tate, to go to charities and not to individuals. She enumerated her bonds according to bond

number and specifically designated these assets to indivi dually named charities. While it

follows that the assets, which were specifically spent for the benefit of Carter during her life,

or for the settlement of her estate in the time following her death, should be accounted for and

deducted from the estate, assets specifically designated to charitable organizations which have

not been abated should indeed be expected to be paid over to these organizations in their

entirety. This duty of administration, which was Frazier’s singular responsibility as executrix

of Carter’s estate, was complicated by the fact that she also served as Carter’s attorney-in-fact.

It is clear that Frazier abused, or at the very least, wholly neglected her responsibilities in both

capacities.

¶25. Prior to her death, Carter granted Frazier a power-of- attorney concerning Carter’s

affairs. In exercising this power, Frazier, who possessed full knowledge of Carter’s intent as

stated by her will, liquidated almost half of the assets as identified in the wil l. Moreover she

redeemed twenty-three Class E savings bonds in the year prior to Carter’s death and effectively14

disposed o f assets intended for charitable distribution. Over the course of the litigation in this

matter, Frazier has consistently failed to produce any recor ds substantiating the need to sell

these bonds. No expenses are documented, and Frazier testified that she cannot remember any

specific monetary needs of Carter or how much they may have cost. Ultimately, Frazier failed,

after mu ltiple requests, to produce a single satisfactory accounting to the chancery court

proving a proper dis tribution of assets. In no uncertain terms, Frazier has not only usurped her

duty as prescribed by Carter’s will, but breached her fiduciary duty as prescribed by law.

¶26. An accounting is an important mechanism for the chancery court to employ i n order to

m onitor the administration of an estate. Moreover, an accounting is an opportunity for an

individual charged with the distribution of the assets of an estate to document and justify

his/her lawful execution of the duties conferred upon him/her. While an accounting may be

waived by a testator, the chancellor, in the interest of equity, has the power to nullify this

waiver:

The executor

is also required to file an accounting at least once a year, showing

the disbursements and receipts of estate. Miss. C ode Ann. § 91-7-277 (1972).

This accounting may be waived by the testator th rough the will. W

ill of

McCaffrey v. Fortenberry

, 592 So.2d 52, 65 (Miss. 1991). However, the

chancery court may requi re an accounting even when the testator has waived it

where there are charges of mismanagement or maladminist ration of the estate.

Harper, 491 So.2d at 200.

In re Estate of Hollaway , 631 So.2d 127, 134 (Miss. 1993).

¶27. In Van Zandt v. Van Zandt

, 227 Miss. 528, 86 So .2d 466 (1956), a case involving a

suit by co-tenants against their fellow co-tenant for the accounting of proceeds received upon5 Cited in support of the principle announced here are numerous cases from the jurisdict ions of this

state an d other states, including B uckner v. Calcote

, 28 Miss. (6 Cushm.) 432 (1855) (writ of error

dismissed).

15 the sale of timber on th

e parties’ commonly owned land, this Court examined the necessity of

an accounting as it relates to a fiduciary’s duty of disclosure. Under the facts of V an Zandt

,

this Court had to determine the duty to disclose as it relates to a co-tenant holding a power-ofattorney for his other co-tenants. We focused on the fiduciary relationship between the parties

and the accompanying conditions of trust and confidence, and upheld the chancery court’s

finding that the facts and circumstances established a concealed fraud. Van Zandt, 86 So.2d

at 469-70. Specifically, we held that “[u]nder the facts as found to be true by the chancellor,

the appellant made no disclosure of the sale whatsoever to the appe llees, and made no

accounting to the appellees for their pro-rata share of the proceeds, as was his duty to do under

th e fiduciary or trust relationship existing between him and the appellees.” I d

. at 470. In so

holding, we noted the general rule in such cases:

It i s the prevailing rule that, as between persons sustaining a fiduciary or trust

or other confidential rela tionship toward each other, the person occupying the

relation of fiducia ry or of confidence is under a duty to reveal the facts to the

plaintiff (the other party), and that his silenc e when he ought to speak, or his

failure to disclose what he ought to disclose, is as much a fraud at law as an

actual affirmative false representation or act; and that mere silence on his part

as to a cause of action, the facts giving rise to which it was his duty to disclose,

amounts to a fraudulent concealment within the rule under consideration. 5

86 So.2d at 470 (citing 173 A.L.R., page 588).

¶28. Here, Frazier is charged with maladministrat ion inasmuch as she has never accounted

f or the proceeds of the estate assets. In accord with our holding in V an Zandt

, Frazi er has16

breached her fiduciary duty of disclosure by fraudulently concealing bond proceeds, having

never produced an accounting which lends one iota of documentation as to the whereabouts of

such proc eeds. To this end, the beneficiaries to Carter’s estate and the chancery court have

been left in the dark for almost ten yea rs concerning the distribution of these assets. Frazier

unquestionably failed to complete her duties as an executrix and certainly never complied with

her duties as a fiduciar

y. Given these clear facts, it stands to reason that the chancery court

never lost jurisdiction over her.

¶29. The closing of an estate in a chancery proceeding is not a license for an executor or

executrix to rob the coffers of the dead. Moreover, when indicia of fraudulent activity are

present, t here is no legal barrier preventing a chancellor, clothed with the powers of equity,

from reopening a closed estate and demanding a fiduciary to pr oduce evidence in an effort to

disprove m

aladministration. In serving the interests of fairness, expediency and justice, a

chancellor rel

ies on executors/attorneys-in-fact to carry out the full gamut of their

responsibilities while paying homage to their unique fiduciary duties. According to

Mississippi la w, “one serving in the capacity of executor or administrator is an officer of the

court and hold s a fiduciary relationship to all parties having an interest in the estate.” H olloway

,

6 31 So.2d at 133. Based on this relationship, Mississippi law provides a chancellor with broad

equitable powers and encourages the imposition of regulatory measures which insure tha t an

estate and the will of its owner are protected from fr aud. It is therefore the distinct duty of a

chancellor to hold those serving in positions of trust accountable for their administrative17

actions and, in this way , hold a fiduciary fully accountable for the property with which the

fiduciary has been entrusted.

¶30. Regardless of her official title, Frazier owed a strict fiduciary duty to both Carter and

to all parties bearing an interest in the estate. This became true the minute she agreed to

become Carter’s attorney-in-fact. Based on Frazier’s continued responsibility over Carter’s

assets, both in life and upon her death, Chancellor Roberts had the power to hold Frazier fully

accountable for the sum of the assets for which she was responsible. To this end, the

chancellor diligent ly performed his duties; and therefore, there is no merit to this assignment

of error.

II. WHETHER THE CHANC ELLOR ABUSED HIS DISCRETION BY

ENTERING A JUDGMENT AGAINST A REMOVED EX ECUTRIX

FOR MISAPPROPRIATION OF ESTATE FUNDS WHEN THE

EXECUT RIX DISTRIBUTED FUNDS ACCORDING TO AN

ORDER OF A FORMER CHANCELLOR.

¶31. Frazier argues that Chancellor Grist’s Order of November 28, 1995, was final in

character and, as such, bound Chancellor Roberts to his findings in the absence of an

independent action alleging fraud on the court and seeking specific relief pursuant to Miss. R.

Civ. P. 60. Accordingly, Frazier maintains that such an action is required to properly set aside

Chancellor Grist’s order closing the estate, and she asserts that the language of Rule 60

prevents one chancellor from setting aside the order of another.

¶32. While Rule 60 is in deed the proper means in which to collaterally attack an effective

fina l order, such an order does not exist in this case. In entering the order to close the estate,18

bar future claims of creditors and d ischarge the executrix, Chancellor Grist relied on

representations made to him by Frazier and provided the followin g contingent language in his

order: “It further appears to the court that, after the payment of all fees and costs in this cause,

the remaining assets of the Estate should be disbursed to the devisees and legatees of the

Decedent as directed by her Last Will and Testament .” (emphasis added). In the same order,

Chancellor Grist reiterated the above-noted lang uage and cemented the contingent nature of

Frazier’s duty to both the chancery court and to the estate by ordering:

That, after the payment of all fees and costs of this proceedi ng and the

disbursem ent of the remaining funds of said Estate to the devisees and legatees

of the Decedent as directed by her Last Will and Testament

, the Executrix,

Mary Helen

Robbins Frazier, is hereby relieved and discharged from further

duties and liabilities in connection with said Estate and the Estate of Grace

Carter shall then be considered terminated and the Estate is hereby ordered

closed upon compliance with the conditions and requirements hereof

.

(emphasis added).

¶33. Fin ally, in his order approving the report of the executrix, Chancellor Grist once again

incorporated express contingency la nguage into this separate, later order that would have

served to discharge Frazier upon her forthright compliance:

That the Executrix shall be fully and finally discharged from her duties a n d

obligations as Executr

ix upon her compliance with this Order and the filing with

the Court of copies of the negotia ted instruments evidencing the making of

distributions approved herein and the paym ent of fees and expenses approved

herein.

(emphasis added).19

¶34. In executing her duties as outlined in C arter’s will and echoed by the very language

contained in Chancellor Grist’s orders, which included the fundamental r esponsibility of

making final

disbursements to the devisees and legatees as directed by the will, Frazier was

governed by the explicit rules of the chancery court. Elemental to the Mississippi Uniform

Chancery Court Rules governi ng fiduciaries, is the mandate that there be a proper and

expedient disposition of estate assets to beneficiaries. Specifically, UCCR 6.02 contemplates

this basic tenet:

Every fiduciary and his attorney must be dil igent in the performance of his

duties. They must see to it that publication for creditors is promptly made, that

inventories, appraisements, accounts and all other reports and proceedings are

made, done, filed and presented within the time required by law , and that the

estates of decedents are completed and assets distributed as speedily as may be

possible...Failure to observe this rule wi thout just cause shall constitute

contempt for which the Chancellor will impose appropriate penalties.

¶35. Frazier’s argument is premised on the fact that Chancellor Grist’s order in this matter

was final. In support of this argument, Frazier alludes to case law as holding that a successor

judge does not have the power to vacate an initial judge’s order. In A miker v. Dr ugs For Less,

Inc.

, 796 So. 2d 942 ( Miss. 2000), a case relied on by Frazier, we held that where the presiding

trial judge grants a new trial, not specifically and solely based on a particular legal error such

that we can say t

hat the judge’s view of the credibility of the witnesses played no part in the

decision, a successor judge is in no position to review and change that order. I d

. at 947. We

focused on the position of the successor judge and stated:6 The full citation to Mauck is Mauck v. Columbus Hotel Co. , 741 So.2d 259 (Miss. 1999).

20 In Mauck

, in upholding the successor chancello r's authority to vacate the initial

chancellor's pretrial order denying motions to dismiss or, alternatively, for

summary judgment, we stated that "[a]s a general rule, a successor judge is

precluded from co rrecting errors of law made by his predecessor or changing

the latter's judg

ment or order on the merits, b ut this rule does not apply where

the order or judgment is not of a final character. " Mauck , 741 So.2d at 268

(quoting 48A C.J.S. J

udges § 68, at 654 (1981)) (emphasis added). We went on

to state that Chancellor Colom not only had the authority to vacate Chancellor's

Brand ruling but was also "duty bound to apply the law to the record then before

the court, regardless of any prior ruling...." Mauck , 741 So.2d at 268-69.[ 6 ]

Amiker

, 796 So.2d at 946. Focusing on a presiding judge’s advantage in the consideration of

evidence, as he is the one who heard the witnesses live and observed their demeanor, we

refused to allow a successor judge to c hange a decision granting a new trial. I d. at 947-48

(citing Gavin v. State , 473 So.2d 952, 955 (Miss. 1985)).

¶36. Today’s case is easily distinguishabl e from Amiker . We do not have a final and

conclusive judgment, and we have a successor chancellor who has had the opportun ity to fully

participate in the cr

ucial part of these proceedings by entertaining the exact same witnesses

and considering the exact same, if not m ore, evidence as considered by any preceding

chancell or sitting on this case. It follows that Chancellor Roberts, under the A miker logic,

was fully equipped and wholly empowered to render judgment in this ongoing litigation.

¶37. In reviewing the perpetuation o f this litigation it becomes clear that this case has never

been concluded inasmuch as Frazier has never fulfilled her duties as an executrix. Moreover,

not only did she fail to distribute the assets of the estate to the devisees and legatees and

addi tionally consume three years before finally completing a simple $5,500 distribution21

pursuant to Chancellor Grist’s Order of March 22, 1996, she failed to provide evidence of

these disbursements and, in the process, concealed the cle a r intent of the will she was charged

with executing. Moreover, she misrepresented the intentions of the decedent and attempted

to slight the various charities she was charged with funding. Finally, Frazier violated her

fiduciary duty to disclose since, except for the information which resulted in the chancellor

allowing her credit thereby reducing the amo unt of the initial judgment, she never properly

accounted for or substantiated any of her alleged expenditures.

¶38. The chancellor unquestionably had the power and authority to examine this estate matter

due to the fact that Frazier, in her fi duciary capacity as executor of the estate, never completely

fulfilled her duties as prescribed by the chancery court, Mississippi law and Carter ’ s will. This

case was never concluded, and the estate was never closed, a fact evidenced by the very

necessity of a motion filed by a devisee requesting the chancery court to order distribution

consistent with the provisions of Carter’s will. Moreover, estate funds were never distributed

in accordance with Chancellor Grist’s order, and Frazier, as executrix, was never r elieved of

the fiduciary duties imposed upon her by the provisions of Carter’s will and by statute. It

follows that until the administration of Carter’s estate was completed as instructed b y the

specific terms of Carter’s will and the orders of the chancery court, the estate was s till open,

and the chancery court, blessed with great remedial powers in equity, was availed of an

opportunity to discover fraud and properly administer the estate. C ompare In Re

Conservatorship of Bardwell , 849 So.2d 1240, 1248 (Miss. 2003).22

¶39. For these reasons, we find that Chancellor Roberts’s d ecision to hold Frazier

accountable for her duty to properly distribute the assets of Ca rter’s estate, as originally

ordered by Chan

cellor Grist, and Frazier’s duty to disclose and account for the whereabouts

of depleted assets, as ordered by the chancellors , was issued to enforce (and not to preclude

or override) the prior decisions of the chancellors In entering his final order, Chancellor

Roberts was merely reenforcing the c hancery court’s prior orders directing Frazier to account

for her mass expenditure of estate money and to finally discharge the duties she owed as an

officer of the court. Thus, there is no merit in this assignment of error.

CONCLUSION

¶40. We are reminded of our recent admon ishment to conservators, which certainly is

applicable to all persons entrusted with fiduciary duties, including execut ors such as Mary

Helen Robbins Frazier:

The activity in this conservatorship as revealed by the record certainly is not

indicative of how a conservator should handle the affairs of a ward. In fact the

original conservator’s actions in this case are indicative of what a conservator

should not do in properly representing a ward . Conservators and guardians who

might be of an inclination similar to that of the original conservator in this case

should not expect mercy from our chancellors or the appellate courts.

Bardwell , 849 So.2d at 1251.

¶41. By

our unequivocal affirmance of the quite appropriate remedial action taken by the

chancellor in today’s cas e, we reaffirm B ardwell and our fervent commitment to protect estate

assets of the deceased and those under disability.23

¶42. Accordingly, for the reasons herein stated, we affirm the judgment of the Chancery

Court of Tippah County.

¶43. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P .JJ., EASLEY AND RANDOLPH, JJ.,

CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ AND DICKINSON, JJ.,

NOT PARTICIPATING.