IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01798-COA
IN THE MATTER OF THE CONSERVATORSHIP OF MARGARETTE SMITH: CONSTANCE FITZ MAURICE APPELLANT

v. CHARLES VANDEVORT, CONSERVATOR APPELLEE DATE OF JUDGMENT: 10/29/2014 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: HARRIS H. BARNES III JAMES W ILLIAMS JANOUSH ATTORNEY FOR APPELLEE: SAM M. BRAND JR. NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES DISPOSITION: REVERSED AND REMANDED – 08/08/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
C ONSOLIDATED WITH
NO. 2016-CA-00504-COA
IN THE MATTER OF THE LAST WILL AND TESTAMENT OF MARGARETTE SMITH, DECEASED: CONSTANCE FITZ MAURICE APPELLANT

v. CHARLES VANDEVORT, EX ECUTOR APPELLEE DATE OF JUDGMENT: 10/29/2015 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: HARRIS H. BARNES III JAMES W ILLIAMS JANOUSHATTORNEY FOR APPELLEE: SAM M. BRAND JR.

NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES DISPOSITION: APPEAL DISMISSED – 08/08/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. Constance Fitzm aurice f iled separate contem

pt petitions against Charles Vandevort

stem m ing f

rom his conduct as Margarette Sm ith’s c o nservator and the executor of Sm ith’s

estate. The H i n d s C o unty Chancery Court, S econd Judicial District, dism issed the f orm er and stay ed the latter. Fitzm aurice’s appeals were consolidated bef ore they were assigned to this Court. W e a gree that t he chancellor erred w hen he dism issed the contem p t petition that Fitzm a urice f iled in S m i th’s conservatorship m atter. A c c o r d ingly , we reverse the chancellor’s judgm ent and rem and that case f or f urther proceedings. 1 Howe v e r , w e lack juri s d i c t i on to hear the appeal f rom Sm ith’s e state, because t he chancellor’s order stay ing Fitzm a urice’s contem

pt petition was not a f

inal judgm ent. As such, we dism iss that appeal. 2
FACTS AND PROCEEDINGS BELOW ¶2. Sm ith’s only daugh t e r , I s a b e l l a Robinson, predeceased her. Robinson’s daughter, Fitzm a urice, is Sm ith’s s ole d escendant. The record contains a l m ost n o inf orm ation regarding Vandevort’s connection to Sm i th. Our source is a report p repare d b y the
M i s sissippi Departm ent of Hum an S ervices ( MDHS) in response to an allegati o n t h a t

1 T h is ru lin g ap p l ies to case n u m b er 2 0 1 5 -C A -0 1 7 9 8 -C O A

. 2 T h is ru lin g ap p l ies to case n u m b er 2 0 1 6 -C A -0 0 5 0 4 -C O A

. 2Vandevort had b een phy sically neglecting Sm ith a nd p lanning to acquire h er assets. T h e

report, which was f

iled in support of F itzm aurice’s contem pt petitions, states t hat when Robinson died i n October 2 009, she and Vandevort had been dating and coh a b i t i ng f or approxim a tely a decad e. Thus, Vandevort’s c onnection to Sm i th was through Sm ith’s daughter, Robinson, who was Fitzm aurice’s m other. ¶3. In Novem

b er 2009, V andevort f

iled a conservatorship petition alleging t h a t S mi th “suf f er[ e d] f rom d em entia and other m e dical conditions.” The petition only said t hat he was Sm ith’s unrelat e d caregiver. Vandevort’s petition f urther said that Sm ith’s only living relative was an u nnam e d granddaughter, but “[ n]either the deceased m other or f ather have heard f rom her” f

or f if teen y ears, and Vandevort did not know where she lived. Vandevort did not f ile supporting a f

f idavits f r om two phy sicians w ith the petition. Instead, h e said that af ter h e was appointed as S m ith’s conservator, he would provide the court with an af f idavit
f rom Sm ith’s phy sician. The chancellor ente red an order granting Vandevort’s conservatorship p etition on t he sam e day t h at it was f iled. The order said that Sm ith was eighty -six y ears old and that she suf f ered f rom d em entia. The o rder a lso directed Vandevort

to f i le a statem ent f

rom Sm ith’s treating phy sician regarding her phy sical a n d m ental health. There is a subsequent d ocket entry labeled “Af f idavit of Phy sician,” but the af f idavit is not included in the appellate record. ¶4. O n J a n u a r y 1 3 , 2010, Vandevort and Sm ith went to a BancorpSouth b r a n c h a n d opened a joint checking account with rights of survivorship without f irst obt a i n i n g t h e chancellor’s perm ission. T he bank em ploy ee who assisted th e m selected a box listed as

3“cash” regarding the source of the initial $30,000 deposi t

. T h e n e x t day , the chancellor

appointed a guardian ad litem ( G AL) to accept s e rvice of process, prepare an inventory of
Sm ith’s estate, and produce an accounting. ¶5. On January 19, 2010, Vandevort f iled an am e n ded conserv a t o r s h i p p e t i t i o n . 3 C ontrary
to Vandevort’s f

irst petition, his am ended conservatorship petition said that Sm ith had “no descendant.” The am ended petition did n ot disclose the exis t e n c e o f the joint checking

account t hat Vandevort had opened less than a w eek earl i e r . T h e clerk’s d ocket entries indicate that the chancellor subsequently conducted a hearing during February 2010, but the record does not contain a transcript of the hearing. ¶6. The next docket entry is the GAL’s March 5, 2010 m otion to approve his inventory and a ccounting, all of which are om itted f rom the record. The chancellor g ranted the GAL’s

m otion on the sam e day that i t was f iled. The c h ancellor noted that Sm ith h ad approxim ately $87,000 in “cash o n hand,” and Sm ith’s incom e was nearly $1,500 per m o nth. Stating that
Sm ith’s acc o u n t s w ith B ank of A m erica were “exceedingly hard f or [ Vandevort] to deal with,” the chancellor ordered Vandevort “to have th e a c c o unts consolidated at” BancorpSouth. There is no indication that the chancellor was aware t h a t V andevort and
Sm ith had opened the joint account with rights of survivorship. In a handwritten notation, the chancellor directed Vandevort to post a $100,000 bond. ¶7. Sm ith had a checking account and a savings account at Bank of Am erica, where she

3 A lo n g w ith th e G A L ’s ap p o in tm en t to accep t s e rv ice o f p ro cess, th e am en d ed p etitio n an d th e h earin g th at f o l lo w ed w e re in ten d ed to cu re th e d ef i cie n c i e s s u rro u n d i n g V a n d ev o r t’s in itial a

p p o i n tm en t as S m ith ’s co n s erv ato r . S e e M iss. C o d e A n n . § § 9 3 -1 3 -2 5 3 & -2 5 5 (R ev . 2 0 1 3 ). 4had been banking since 1972. Her and Robinson’s nam e s were on both accounts. T he record

contains one “Com

bined Account Statem en t ” related to Sm ith’s accounts at Bank of
Am erica. As of April 15, 2010, Sm ith had a pproxim a tely $43,000 i n her checking account, and $19,000 in her savings a ccount. 4 On April 27, 2 010, Vandevort t ransf erred $30,000 f

rom Sm ith’s accounts. He transf erred another $31,000 on June 4, 2010. ¶8. On June 21, 2010, Sm ith exec u t e d a w i l l

. P r e p a r e d b y the sam e lawy er who represented Vandevort throughout the conservatorship proceedings, the w ill nam ed Vandevort as the s ole b enef iciary of Sm ith’s estate. The w ill also nom inated Vandevort as the executor of

Sm i th’s estate. Sm ith died on Novem ber 29, 2010. ¶9. In Decem

ber 2010, V a n d e v o r t f

i l e d a p e t i tion to probate S m ith’s will. He also subm itted an af

f idavit stating that he ha d d i l i g e n t ly tried to f ind any one who m ight have a claim a gainst Sm ith’s e state. On January 6, 2 011, Chancellor Deway ne Thom as e ntered an order adm itting the will to probate, appointing Vandevort as the executor of S m ith’s estate, and granting Vandevort’s request f or perm ission to have Sm ith crem ated. ¶10. On January 18, 2 011, Vandevort withdrew $90,000 f rom the joint checking account
at BancorpSouth. According t o counsel f or Fitzm aurice, on February 11, 2011, Vandevort used the m oney

to buy a house in Tacom a, W ashington. ¶11. Although not borne o u t by the record or the chancery clerk’s d ocket entries, the parties and the chancellor all represent that on July 14, 2011, Fitzm aurice f iled a com

plaint to set

4 U n t il M ay 2 0 1 0 , S m ith ’ s m o n th l y in co m e th ro u g h S o c i al S e c u rity b e n ef i ts an d h er d eceased h u sb an d ’s p en sio n h ad b e en d ep o s i t e d i n h er ch eck i n g a cco u n t at B an k o f A m erica. A f

ter th at tim e, it w as d ep o sited in th e j o in t acco u n t at B a n co rp S o u th

. 5aside Sm ith’s will. The record is silent regarding how or when Fitzm aurice becam e aware

of the estate or conservatorship proceedings. Five d ay s later, Vandevort f iled a petition to
approve his f

inal conservatorship accounting a n d r e lease him f rom any f

urther

r e s p o n sibilities a s Sm ith’s conservator. Vandevort’s f inal accounting d id n ot include any f inancial statem ents b ey ond Novem ber 2010. Thus, the f

inal accou n t i ng represented that
Sm ith h ad n e a r ly $ 100,000 i n t he BancorpSouth account, and i t om itted the f act that Vandevort had withdrawn $90,000 on his own initiative during January 2011. ¶12. Again, the c hancellor granted Vandevort’s petition on the sam e day that it was f iled. 5
The chancellor’s o rder was prepared by V andevort’s attorney

. It a p proved Vandevort’s f

inal accounting and discharged Vandevort f rom any f urther duties as S m ith’s conservator. The order f urther said that all of the conservatorship’s a s sets “are hereby transf erred” to Sm ith’s

estate. Notwithstanding his representa t i o n that there was nearly $100,000 in Sm ith’s checking account, Vandevort did not transf e r that f i gure to Sm ith’s estate. ¶13. On October 13, 2013, Fitzm aurice f iled a c o n t e m

p t p e t i t i o n i n S m i t

h ’ s c o n s e rvatorship proceeding. She also f

iled a separate but i den t i c al contem pt petition in Sm ith’s estate proceeding. F itzm a u r i ce alleged that Vandevort s h ould be held i n civil contem pt f or breaching his f

iduciary duties t o Sm ith, and he f ailed to com

p ly w ith t he chancellor’s orders.
Am ong other exhibits, Fitzm aurice attached a copy of the MDHS report m entioned above. ¶14. T h e r e p o r t w a s p rom pted by Vandevort’s ex-wif e , Joy ce, who contacted MD H S

5 V a n d e v o rt’s f

i n al acco u n tin g sh o u ld h av e rem ain ed o n f ile f o r th irty d ay s s o a n y in terested p arty co u ld h av e a n o p p o rtu n ity to in s p ect it an d co n test it. S e e M i ss. C o d e A n n . § 9 1 -7 -2 9 5 (R ev . 2 0 1 3 ). 6shortly af

ter s h e v i sited Sm ith and Vandevort during January 2 010. Joy ce alleged that Vandevort was phy s ically neglecting Sm ith, scream i ng at h er, and giving her Prozac that had been prescribed f

or Robinson. Joy ce also reported that Vandevort wanted a l l o f S mith’s

mo n e y through inheritance or o t herwise, and that Vandevort had shown her $80,00 0 o f Robinson’s m oney that he had “st a s hed” i n Sm ith’s house. Finally , Joy ce claim ed that Vandevort knew that Fitzm a urice lived in Calif

ornia, but he intentionally said otherwise. 6 ¶15. The report also indicates that approxim ately a m onth bef ore Sm i th executed the will

nam ing Vandevort as the s ole benef i ciary of her estate, a n MDHS investigator visited with
Sm ith a nd attem

pted to interview her. Accord i n g t o the report, Sm ith “did not have the mental capacity to answer [ the] allegations when asked

. . . .” The MDHS investi g a t o r f urther r e p o r ted that Sm ith “could not answer questions on t he Mini Mental Stat[ e]
Exam i nation” and that she “was not oriented to day , date, season, etc.” ¶16. Vandevort subsequently m oved t o dism iss both of Fitzm aurice’s c ontem pt petitions. According to Vandevort, the c ontem pt petition that Fitzm aurice f iled in t he conservatorship proceeding was untim ely per the two-y ear s tatute of lim itations set f orth in Mississippi Code Annotated section 9 1-7-309 ( Rev. 2013). Fitzm aurice responded that she was not attem pting

to reopen Vandevort’s accounting, so the two-y ear statute of lim itations did not apply

. The chancellor ultim ately a g r e e d with Vandevort. C onsequently , the chancellor dism issed the

contem pt petition that F itzm aurice f i led in the conservatorship proceeding. However, the

6 In h er co n tem

p t p etitio n s, F itzm au rice ’ s listed m ailin g a d d ress w as a p o st-o f f ice b o x in F aw n s k in , C alif

o rn ia. Wh e n co n f

ro n ted b y M D H S , V an d e v o rt d en ied th at h e k n ew w h ere F itzm au rice liv e d

. 7chancellor stay ed Fitzm a urice’s other contem

pt petition u ntil he ruled on h er com plaint to
set aside Sm ith’s will. Fitz ma u r i ce appeals both the denial of the contem pt m otion in the conservatorship m atter and t he stay of the contem pt m otion f

i led in the will c ontest. Bef ore assigning the appeals to this C ourt, the Missis sippi Suprem e Court granted Fitzm aurice’s

m otion to consolidate her two appeals.
DISCUSSION
I. The chancellor erred by dism issin g the contem pt petition t hat Fitzm aurice filed in the conservatorship proceeding. ¶17. The chancellor dism is s e d F i tzm aurice’s contem p t petition af

ter f inding that it was untim e ly under the two-y ear statute of lim itations. Alternatively , the c h a ncellor held that

even if Fitzm a

urice’s claim s were n o t untim ely , “ dism issal would still be appropriate” because even if Vandevort h a d v i olated the c hancellor’s orders, “the sam e resulted in no harm to [ Sm ith] and no f

rustration to the [ chancery court’s] purposes . . . .” W e construe this

to m e an that the chancellor would have dism issed F itzm aurice’s claim s under Rule 12(b)(6) of the Mississippi Rules of

Civil Procedure. ¶18. S t a t u t e-of

-lim itations issues are questions of law t hat an a ppellate court review s d e

novo. In r e Guardianship of McClinton , 157 So. 3d 862, 872 (¶28) ( Miss. Ct. A pp. 2015). Dism issal under Rule 12(b)(6) is also a quest i o n of law requiring a de novo review. Covington Cty. Bank v. Magee , 177 So. 3d 826, 828 (¶5) (Miss. 2015). “[ T]he allegations
in the com

plaint m ust be taken as true, and the m otion should not b e granted u nless it appears bey ond doubt that the plaintif f will be unable to prove a ny set of f acts i n suppo rt of his claim .” Id

. A m otion t o d i s miss under Rule 12(b)(6) challenges the suf f i ciency of the

8com

plaint, so Rule 12(b)(6) m otions are decided solely on the f ace of the pleadings. Id . at 830 (¶15). ¶19. M i s s i s s ippi Code Annotated section 91-7-309 (Rev. 2013) provides that “[a ] n y p e r s o n interested m ay , at any tim e within two y ears af ter f inal settlem ent, by

bill or petition, open the account of any executor, adm i nistrator, or g uardian and s urcharge and f a lsif y the sam e, and not af

ter

. . . .” Fitzm aurice c l a i me d t h a t Vandevort was in civil contem p t b ecause he breached the f

iduciary duties that he owed Sm ith, 7 disregarded t he chancellor’s order to post

a bond, and ignored the chancellor’ s o r d e r t o transf er t he f igure r epresented in the f inal accounting to Sm ith’s estate. 8 None of those claim s were prem ised o n r e o p e n i n g or f alsif y ing Vandevort’s f

inal accounting. Fitzm aurice’s claim that S m ith’s estate w as entitled to the f igure represented in t he f inal accounting is not a claim to reopen or f alsif y the f inal accounting. In his answer, Vandevort recognized that Fitzm aurice had not attacked the f inal accounting. Vandevort’s attorney m ade a sim ilar stateme n t during the hearing on Vandevort’s m otion to dism iss. 9 Based on t he f oregoing , w e conclude that the chancellor

7 M o r e sp ecif

i cally , F i tzm au rice alleg ed th at V an d ev o rt b r each ed h i s f id u ciary d u ties to S m ith w h en h e (1 ) o p e n ed t h e j o in t acco u n t th at g a v e h im rig h ts o f su rv iv o r sh ip ; (2 ) d id n o t resig n as S m ith ’s co n s e rv ato r w h en h e created th e co n f lict o f in terest stem m in g f ro m th e j o in t acco u n t; (3 ) d id n o t resig n w h en S m ith ex ecu ted th e w ill n am in g h i m a s th e so le b en ef iciary o f h er estate; an d (4 ) w ith d rew $ 9 0 ,0 0 0 f ro m S m ith ’s acco u n t.

8 F i tzm au rice d i d n o t seek relief in th e f o rm o f a co n stru ctiv e tru st, w h ich w o u l d b e g o v ern e d b y a ten -y ear statu te o f lim itatio n s . S ee M i ss. C o d e A n n . § 1 5 -1 -3 9 (R ev . 2 0 1 2 ); Win ters v. A m S

o u th B a n k , 9 6 4 S o . 2 d 5 9 5 , 5 9 9 (¶1 7 ) (M iss. C t. A p p . 2 0 0 7 ).

9 It w as V an d ev o rt, n o t F itzm au rice, w h o relied o n a p o s itio n th at w o u ld req u ire reo p en i n g th e co n serv ato rsh ip acco u n tin g . Van d ev o rt arg u ed th at h e d i d n o t h av e to tran s f er th e m o n ey to S m ith ’s e s t a t e , b ecau se d e sp ite w h at h e h ad rep resen ted to th e ch an cello r in th e Ju n e 2 0 1 1 p etitio n , S mith d id n o t h av e ap p ro x im ately $ 1 0 0 ,0 0 0 in h er acco u n t af ter 9erred when he held that Fitz ma u r i c e ’ s claim s were governed b y the two-y ear statute of

lim itations set f

orth in section 91-7-309. ¶20. Fitzm aurice argues that she had seven y ears to f ile h e r c ontem

pt petition because it

was f ounded on a judgm ent or decree. See Miss. Code Ann. § 15-1-43 ( Rev. 2012). Fitzm a urice is correct that section 15-1-43 g overns her claim that Vandevort should be held
in contem pt f or disregarding the order to transf er the balance of S m ith’s account to Sm ith’s

estate. That order w as essentially a judgm e nt or decree contem plated by s ection 15-1-43.
But Fitzm aurice’s other claim s t hat Vandevort was in contem pt because h e disregarded the order t o post a $ 1 00,000 bond and that he breached h is f iduciary duties to S m ith are not governed by section 15-1-43. See In re Guardianship of Duckett , 991 So. 2d 1165, 1174-75 (¶19) (Miss. 2008). In Duckett , 9 91 S o . 2d a t 1168-69 (¶3), a chancellor issued a decree prohibiting the distribution of guardianship f unds without court approval. The wards later sued the bank that had allowed the guard i a n t o w ithdraw f rom t he guardianship account without the court’s p e rm ission. Id

. at 1171 (¶10). T he Mississippi Suprem e Court held that the wards’ l a wsuit was governed by the three-y ear “catch-all” statute of lim itations, rather than the seven-y ear s tatute of lim itations applicable to actions f ound e d o n a j u d gm ent or decree. Id . at 1174-75 (¶¶19-20). ¶21. Fitzm aurice clearly cannot rely on the current e xecutor of S m ith’s estate to pursue the

m oney that the chancellor told Sm ith’s f orm er conservator to transf er. B ut an interested party

can request that a chancellor f i nd a f iduciary in c ontem

pt f or neglecting “the perf

orm ance of

Jan u ary 2 0 1 1 , an d th e b alan ce o f h er acco u n t h ad tran sf

erred to h im

. 1 0any duty required of him

. . . .” Miss. Code Ann. § 91-7-285 (Rev. 2013). W h ether som eone

qualif ies as an “interested party ” depends “on the t y pe of f iduciary t hat has been appointed.”
In re C onservatorship of Davis , 954 So. 2d 521, 523 (¶9) (Miss. Ct. App. 2 007). An interested party “ has a legitim ate [ present or prospective] interest

. . . in [ an] estate

. . . .” Id

. at 5 25 (¶14). “ Prospective” m eans “ant i c i p a t ed or expected; likely to com e about.” Id

. F i t z m a u r i c e h as a legitim ate prospective interest in Sm ith’s estate; e specially conside r i n g t h a t she is Sm i th’s sole legal heir and she had f i led a com

plaint to set aside Sm ith’s will. 10 ¶22. Even if section 15-1-43 d i d not govern Fitzm aurice’s cl a i m t hat Vandevort was in

contem pt f or f ailing to t ransf

er Sm ith’s assets to her estate, like Fitzm au r i c e’s rem aining claim s, it w ould f

a ll under the three-y ear “catch-all” statute o f lim i tations. See Miss. Code
Ann. § 1 5-1-49(1) (Rev. 2012). On Jul y 1 9 , 2011, the chancellor ordered Vandevort to transf er Sm ith’s assets to her e state. Fitzm aurice f i led h er contem

p t petition on October 13,
2 013, which was w ell within the seven-y ear o r three-y e ar statutes o f lim itations. Fitzm a urice’s c laim that Vandevort breached his f i duciary duty to Sm ith when he withdrew

10 It is tru e th at “an ag e n t is n o t liab le to th i rd p arties f o r b reach es o f th e d u ties th at h e o w es to h is p rin cip al.” In re E sta te o f H em p h ill , 1 8 6 S o . 3 d 9 2 0 , 9 3 3 ( ¶ 4 9 ) ( M i s s. C t. A p p . 2 0 1 6 ). S im ilarly , S m ith ’s estate h as stan d in g to ch allen g e V an d e v o rt’s co n d u ct w h ile actin g as h er co n serv ato r. S ee id

. a t 9 3 4 (¶5 4 ). T h a t d o es n o t n ecessarily m ean t h at F itzm au rice lack ed stan d in g to raise h er co n tem p t c laim s in t h e co n serv ato rsh ip

. S ee In re A l len , 9 6 2 S o . 2 d 7 3 7 , 7 4 4 -4 6 (¶¶2 7 -3 7 ) (M iss. C t. A p p . 2 0 0 7 ); M iss. C o d e A n n . § 9 1 -7

- 2 8 5 ; U C C R 6 .0 2

. “P arties m ay su e o r in terv en e w h ere t h e y assert a co lo rab le in terest in th e su b j ect m atter o f t h e litig atio n o r ex p e rien ce a n ad v erse ef f ect f ro m t h e c o n d u ct o f th e d ef en d a n t .” C ity o

f B elm o n t v. M

iss. S ta te T

a x C o m m ’n , 8 6 0 S o . 2 d 2 8 9 , 2 9 6 (¶1 3 ) (M iss. 2 0 0 3 )

. S mi t h ’ s co n serv ato r w as o rd ered to p ay m o n ey to S m ith ’s estate. F o r o b v io u s co n f l ictin g self

-serv in g reaso n s, S m ith ’s ex ecu to r h as n o t m arsh alled th at m o n ey . U n d er th e p ecu liar circu m s tan ces o f th ese cases, w e f in d th at F itzm au rice’s s tan d in g in th e co n serv a to rsh ip an d th e estate i s n o t mu t u a l l y e x clu siv e t o th e ex ten t th at sh e c o u ld o n ly raise h er claim s in th e estate p ro ceed in g . 1 1$ 9 0 , 0 00 f

rom the joint a ccount o n January 18, 2011, was also w ell within the three-y e a r
statute of lim itations. Fitzm aurice’s other claim s w ere related to opening the joint account

on January 13, 2010, t he March 5, 2010 order to post a $100,000 bond, and t he e xecution of
Sm ith’s June 21, 2010 will. W hether those claim s were tim ely depends on when Fitzm aurice knew o r should have known about t h e m. S e e Miss. C ode Ann. § 15-1-49(2). Neither the chancel lor n or either o f the parties discussed the application of the t hree-y ear “catch-all”

statute of lim i tations or the tim e that Fitzm aurice kne w o r s h o u l d have known about her

rem aining claim s. Accordingly , it was im proper to f

ind that they

were untim ely

. ¶23. T h at does not end the a naly sis. As m entioned above, the c hancellor als o h e l d t h a t Fitzm a urice’s contem

pt p etition s hould be dism issed because even if Vandevort had f

ailed

to com ply with the court’s o rders, “the sam e resulted in no harm to [ S m ith] and no f rustration

to the [ chancery court’s] purposes . . . .” W e construe this to be the c hancellor’s conclusion that Fitzm aurice f

ailed to state a claim u

pon which relief can be granted. And we disagree with such a conclusion. ¶24. On the f

ace of her contem

pt petition, F itzm aurice raised v iable claim s that Vandevort breached his f

iduciary d uty of loy a lty to Sm ith. She also r aised viable claim s that Vandevort disregarded the chancellor’s orders to post a bond 11 and transf e r the balance r epresented in his accounting t o Sm ith’s estate. “No person b ound to act f or another can act f

or him self

.”

11 A co n s erv a t o r m

u s t g en erally p o st a b o n d p ay ab le to th e state b ef o re o b tain i n g au th o rity t o act o n a w ard ’s b e h alf

. R a ven stein v. R a v e n s tein , 1 6 7 S o . 3 d 2 1 0 , 2 2 2 (¶2 5 ) (M iss. 2 0 1 4 ) (citin g M iss. C o d e A n n . § 9 3

- 1 3 -1 7 ( R ev . 2 0 1 3 )). T h e b o n d w o u ld h av e a l l o w e d F i t z m au rice to p u rsu e a law su it ag ain st th e su rety in th e e v e n t th at V an d ev o rt is f o u n d liab l e f

o r m isap p ro p riatin g m o n ey f r o m S m ith d u rin g th e co u rse o f t h e co n serv a to rsh ip

. S

e e B rya n v. H

o lzer , 5 8 9 S o . 2 d 6 4 8 , 6 6 0 (M iss. 1 9 9 1 ).

1 2George D

. W arner Jr., W arner’s Griffith Mississippi Chancery Practice § 4 7 (1991).
W i thout ques tion, “[ a] conservator stands in the position as a trustee and owes a f iduciary duty of loy alty to t he w ard.” Ravenstein , 167 So. 3d at 222 (¶25) (citing Bryan , 589 So. 2d

at 657). A conservator h as the “sam e duties, powers and responsibilities as a guardian of a

m inor, and all laws relative to the g uardianship o f a m inor s h a l l b e a p plicable to a conservator.” Miss. Code A nn. § 93-13-259 ( Rev. 2013). “A guardian h as [ a] duty to keep

a w ard’s m oney . . . separate f rom his

. . . own.” 39 A m . Jur. 2d Guardian and W ard § 132 (2008). ¶25. Any tim e a conservator places his ward’s m oney in a jointly held a c count with rights of survivorship tha t d i d n o t e x i st bef ore the conservatorship, this should be a r ed f lag f or problem atic behavior; particularly when, as here, t he conservatorship w as established based on the ward’s dim inished m ental capacity

. Joint accounts c reated w h en a ward i s m entally incom petent are v oid. Conservatorship of Kendrick v. Hancock Bank , 537 So. 2 d 888, 891 (Miss. 1989). It is undisputed t hat while he was acting as Sm ith’s conservator, Vandevort opened a joint account i n his and Sm ith’s nam es without f i rst obtaining the chancellor’s
perm ission. Vandevort also deposited Sm ith’s m oney into t hat account, in ef f ect using his authority as Sm ith’s conservato r t o bequeath her m oney to h im self

. 12 Fiduciaries acting

12 It w as n o t im

p ro p er f o r F itzm au rice to a t tack th is tran sactio n in th e co n tex t o f th e co n se r v a t o rsh ip , rath er th a n S m ith ’s estate. V an d ev o rt ef f ectu ated th e tran sactio n w h ile actin g a s S m ith ’s co n serv ato r. A d d itio n ally , “su rv iv o rsh ip p ro p erty b eco m es th e p ro p erty o f th e su r

v iv o r, an d th e j o in t ten an t’s estate h as n o in terest in th ese f u n d s .” Will o

f M cC a ffrey v. F

o rten b erry , 5 9 2 S o . 2 d 5 2 , 6 4 (M iss. 1 9 9 1 ). H o w ev er, t h at d o es n o t n ecessarily m ean th at F itzm au rice co u ld n o t h av e so u g h t to set asid e V an d ev o r t’s creatio n o f th e j o in t acco u n t t h ro u g h th e co m p lain t th at sh e f

iled in S m ith ’s estate. It sim p ly m ean s th at o n e case c en ters o n V a n d ev o rt’s o b lig atio n t o stew ard S m ith ’s m o n ey an d p ay it to h er 1 3under a chancery court’s authority are proh i b i t e d f r om directly or indirectly b orrowing or using estate m o n ey f

or their own benef

it. Miss. Code A nn. § 91-7-253 (Rev. 2013). More than a century ago, o ur Suprem e Court e xam ined a case in which a g uardian had o btained the title to his wards’ real property during the course o f t he guardianship. B randau v. Greer , 95 Miss. 1 00, 102-03, 48 So. 519, 5 2 0 ( 1 9 0 9 )

. The Suprem e Court unequivocally held that “[ n]o transaction of this sort can or ought t o be allowed to stand. It contravenes every rule of law apply ing to a person in a f iduciary character.” Id

. “A trustee can be allowed under the law to have no inducem ent to neglect the interest of his ward.” Id

. B y opening the joint

account with rights of survivorship, Vandevort created an inducem ent to ref r a i n f rom spending m oney on Sm ith’s care. For our present purposes, the issue is the e xistence of the inducem ent – not whether V andevort actually neglected Sm ith’s n eeds. “[ A] person with a conf lict of interest cannot serve as conservator of the estate.” In re Conservatorship of Cole , 958 So. 2d 276, 280 (¶12) (Miss. Ct. App. 2007). “[ I]f a conf lict exists, the f

i duciary has a duty to ref

use the trust, resign, o r rem ove the conf licting personal interest.” J a c k s on v. Jackson , 732 So. 2d 9 16, 921 (¶7) (Miss 1999). It is true that “ownership of a joint tenancy is not necessarily

inconsistent with trusteeship.” Estate of Bodman v. Bodman , 674 So. 2d 1245, 1 250 (Miss. 1996). But B odman involved a joint tenancy that the ward had created bef ore his daughter successf

ully requested t o be appointed as his conservator. Id

. a t 1246-47.

estate, an d th e o th er case f o c u ses o n h is o b lig atio n to co llect it. “[ W] h en in d icia o f f rau d u len t activ ity a re p r e sen t, th ere is n o leg al b arrier p rev en tin g a ch an cello r, clo th ed w ith th e p o w e rs o f eq u ity , f

ro m reo p en in g a clo sed estate an d d e m an d in g a f id u ciary to p ro d u ce ev id e n c e in a n ef

f o rt to d isp ro v e m alad m in istratio n . ” In re E sta t e o f C a r ter , 9 1 2 S o . 2 d 1 3 8 , 1 4 7 (¶2 9 ) (M iss. 2 0 0 5 )

. 1 4Here, Vandevort created the joint t enancy after being appointed as Sm ith’s conservator, and

he did so without obtaining the chancellor’s advance perm ission. ¶26. Vandevort also t akes the position that he was not required to transf e r the represented balance of Sm ith’s checking a ccount to her estate b ecause t he entire balance had already “vested in him im m ediately .” This position relies on the incorrect p rem ises t h a t h e c ould
open an unapproved joint account with rights of survivorship, n eglect his obligation to report his clear conf

lic t o f interest, withdraw Sm i th’s m oney f rom her account without the chancellor’s leave, f

ile a m isleading f

inal accounting of S m ith’s assets that was i naccurate

on the date that it was presented to th e c h ancellor, 13 and neglect t he clear language in the chancellor’s order. “The closing of an estate

. . . is not a license f or a [ f iduciary ] to rob the cof f e rs of the dead.” Carter , 912 So. 2d at 147 (¶29). ¶27. M o r e s i g n i f

icantly , the chancellor unequivocally o rdered Vandev o r t t o t r a n s f e r Sm ith’s assets to her estate. “[ T]he chancellor

. . . has the power and the duty , both inherent and by statute, to coerce obedience to [ h i s ] o r d e r s [

. ]” D ewitt v
. De Baun , 172 Miss. 113, 117, 159 So. 552, 553 (1935). In Dewitt , a chancellor ordered the adm i nistrator of an estate
to p ay m oney to settle a cla i m a g a i n s t t h e estate. Id

. at 115, 159 S o. at 552. “ [ I]t was [ the adm inistrator’s] duty either to obey [ the order] or . . . petition to set it aside

. . . . But instead of doing this , the adm inistrator sim ply ignored [ it].” Id

. at 117-18, 1 59 So. a t 553. Our Suprem e Court held:

13 U n til d isch arg ed b y th e c o u rt, a g u ard ian h as a co n tin u in g d u t y to acco u n t f o r th e w a rd ’s assets. U

.S

. F id

. & G u a r. C o
. v. C o n serva t o r sh i p o f M elso n , 8 0 9 S o . 2 d 6 4 7 , 6 5 4 (¶3 1 ) (M iss. 2 0 0 2 ). 1 5[ W ]hen a party to a ny chancery cause . . . has been required t o p a y m o n e y

under an o r d e r o f t he

. . . chancellor,

. . . and the p arty has legal or equitable reasons [ that]

. . . would e xcuse com pliance with the order,

. . . these f acts and reasons should with reasonable prom ptitude be m ade known to the court by the party so ordered, and not wait u ntil he has been cited f or contem pt. And if he does not take the reasonable course f irst m entioned, he will be requ i r ed to m ake a particularly

clear case in def

ense of [ a contem

pt] petition . . . . Id

. ¶28. Vandevort also prem aturely concludes that his status as the s o l e b e n e f i c i ary of Sm ith’s

estate is a given. Fitzm a urice’s will contest is s t ill pending. “Mere a nticipation does not guarantee that [ Vandevort] will be able to m aintain [ his] interest.” Davis , 954 So. 2d at 525 (¶17). T he orderly progression o f Sm ith’s assets f rom her conservatorship through her estate is not an em

p ty ritual; nor can it be circum vented by her conservator’s unapproved f inancial

ma neuvering. Taken as true, Fitzm aurice’s allegations a re viable causes of act i o n . T h e chancellor erred when h e dism issed Fitzm aurice’s contem pt p etition as untim e ly and on the basis that she f

a iled to state a claim upon which relie f c a n b e granted. Consequently , we reverse the chancellor’s judgm ent and rem and the case to the chancery court.
II. The o rder stay i n g the contem pt petition that Fitzm aurice filed in Sm ith’s estate is not a final judgm ent. ¶29. Fitzm aurice argues that the chancellor should not have stay ed t his contem pt petition until af ter resolving her claim t hat Sm ith’s will w as invalid. “As a general rule, only f inal judgm ents are appealable.” In re Estate of Lewis , 135 S o. 3d 202, 205 (¶14) ( Miss. Ct. App. 2014). “A f

inal, appealable ju dgm ent is one that a d judicates the m erits o f the controversy and settles all issues as t o all the parties and r equires no f urther action by the trial c ourt.” Id

. “W hen all the issues in a case or claim s a gainst all the parties are not resolved in a j udgm ent,

1 6n o a p peal of right can be t aken.” Id

. The c h ancellor did not certif y the judgm ent as f

inal, and Fitzm au r i c e did not obtain the Suprem e C ourt’s perm ission to f ile a n interlocutory appeal. See M. R

. C

. P

. 5 4 ( b ) ; M.R.A.P. 5. As a r esult, we m ust dism iss this portion of the consolidated appeal f

or lack of jurisdiction. Lewis , 135 So. 3d at 206 (¶16). Theref ore we do not com m ent on Sm ith’s ability to execute a will while possibly suf f ering f rom dem entia, or the allegation that Vandevort, the sole benef iciary of the will draf

ted by the attorney

f or the conservatorship and the estate, possibly overreached in violation of the f iduciary duties that he owed Sm ith as her conservator.
CONCLUSION ¶30. The chancellor e rred when he f ound that the contem

pt petition t hat Fitzm a

urice f iled
in Sm ith’s conservatorship was barred by the s tatute of lim i tations applicable to actions to
reopen an accounting. The chancellor also erred when he granted Vandevort’ s m otion to dism iss that contem

pt petition on t he basis that Fitzm aurice f ailed to state a claim upon which relief m ay be granted when it was undisputed that Van d e v o r t d isregarded the chancellor’s order to transf

er all of S m i th’s a ssets no m atter how they were t itled, including the balance of Sm ith’s checking account as represented in the f inal c onservator s h ip accounting, to Sm ith’s estate. W e reverse the chancellor’s judgm e n t in case num ber 2015-CA-01798-COA and rem and that case f

or f u rther proceedings. However, the chancellor’s order stay ing the

contem pt petition that Fitzm aurice f iled in Sm i th’s estate in c ase num b er 2 016-CA-00504-
COA is not a f

i n a l j u d g me n t

. As a result, we m ust dism iss that appeal f or lack of jurisdiction.

1 7¶31. REVERSED AND REMANDED IN PART; APPEAL DISMISSED IN PART.

LEE, C.J., IRVING, P.J., ISHEE, C ARLTON AND WESTBR O O K S, JJ., CONCUR. B ARNES, J . , C ONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. W ILSON, J., C ONCURS IN PART AND DISSENTS I N P A R T WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND FAIR, J. WILSON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶32. I concur in Part II of the m ajori t y o p i n i o n , w h i c h holds that we l ack jurisdiction of
Constance Fitzm aurice’s appeal f rom a non-f

inal order in the estate c ase. H owever, I dissent

as to Part I of the m ajority opinion, as I would a f f irm the chancellor’ s ruling that Fitzm a urice’s petition f

or contem

pt in the conservatorship case was barre d by Mississippi Code Annotated section 91-7-309. ¶33. T h e e s s e n t i al f

acts relevant to this appeal are not especially c om plicated. Charle s Vandevort was appointed as Margarette Sm i th’s conservator. Sm i th died in Novem ber 2010, and in July 2011 the chancery court entered an o rde r a p proving Vandevort’s f

inal accounting, discharging Vandevort as conservator, and closing the conservatorship. The order directed that Sm i th’s rem aining assets be transf erred to her estate. ¶34. V a n devort is a lso the sole benef iciary and executor u nder Sm ith’s will. In Janu a r y 2011 , S mi th’s w ill was adm itted to probate, and letters testam entary w ere i ssued to Vandevort. In July 2011, Fitzm aurice f iled a com p laint to set aside the will, a lthough, as the

m ajority notes, the com

p laint is not included in the record. 14

14 T h e c o m

p l ain t is n o t in th e reco rd b e c au se F itzm a u rice’s d esig n atio n o f th e reco rd o n ap p eal ex clu d ed an y p lead in g s, tran scrip ts, o r o th er p a p ers f iled p rio r to h e r O cto b er 2 0 1 3 co n tem p t p etitio n s. I n ad d itio n , th e c h a n c e ry clerk d id n o t in c lu d e d o ck e t en t ries in th e estate case th a t p red ate th e ch an cery co u rt’s co n v ersio n to electro n ic f ilin g in 2 0 1 3

. 1 8¶35. In October 2013, Fitzm aurice f iled a “P e t i t i o n f

o r C i t a t ion of Contem

pt” in the conservatorship case. She al l e g e d t h a t Vandevort violated h is f iduciary duty to Sm ith by , inter alia, placing Sm ith’s f unds in a joint account t hat he co-owned w ith survivorship rights and then by withdrawing and k eeping the f unds f or him self af

ter S m ith d ied. T he r ecord on appeal does not indicate why Fitzm aurice f iled a com

plaint to s et aside Sm ith’s will in 2011 but waited another two-plus y ears to f ile her contem

pt petition. ¶36. The chancellor d ism issed Fi t z ma u r i c e ’ s c o n t e mp t p e t i t i o n a s u n t im ely

. The chancellor’s ruling was correct and s h o u l d be af f irm e d because a petition to reopen a

conserv a t o r s h i p to “surcharge a nd f alsif y ” the conservator’s f

inal account m

ust be f iled within two y ears of f

inal settlem e nt of the con s e r v a t o r s h ip. Miss. Code A n n. § 91-7-309. Fitzm a urice’s petition was f

iled af ter this two-y ear period had expired. ¶37. Fitzm aurice’s a rgum ent a s to why the two-y ear lim i tation period o f section 91-7-309 does not apply

to her petition has two general them es: ( 1) her contem p t p etition is actually

a claim “f ounded on a judgm ent,” which is subject to a seven-y ear statute of lim itations, see Miss. Code Ann. § 1 5-1-43; and (2) she has “never challenged an account or accounting” and “is n ot a ttem

p ting t o reopen any . . . conservatorship o r any accounting thereof

. Neither contention has m erit. ¶38. W i th respect t o the f irst point, Fitzm a

u rice contends that her petition is really a suit on a “judgm ent”—nam ely , the order closing the c o nservatorship and directing the transf er of i ts assets to the estate. In her opening brief on appeal, Fitzm aurice repeatedly a sserts that

“ as the current executor/administrator [ of Smith’s estate] , ” she “is a judgm ent c reditor” and,

1 9as s uch, is “owed” f unds that s hould have b een transf erred to the estate. A ppellant’s Br. 12 (em phasis added); see also id. at 18 & 24 (repeating the sam e argum ent). ¶39. However, a t least according to the record on appeal, this argum ent is sim ply wrong

on the f acts. Fitzm aurice i s not t he “current executor/adm i nistrator” of Sm ith’s estate. The chancery court issued letters testam entary to Vandev o r t , and there is nothing in o ur record

to indicate that he has ever been rem oved a s executor. Fitzm aurice is n ot a benef iciary under
S m ith’s w ill, and at present her only connection to Sm ith’s estate is that she i s c o n t e s t i n g Sm ith’s will. As such, Fitzm aurice clearly is not a “judgm ent creditor” with respect to the
f inal order closing the conservatorship and directing a transf er of assets to the estate. ¶40. I n h e r r eply brief

, Fitzm aurice seem s to recognize her error a nd s h if ts h er f oc u s t o Mississippi Code Annotated section 9 1-7-285, which provides that if a conservator f ails to perf orm any duty required by law or court order, t he c ourt m ay , “on the application of any interested party , ” punish the conservator f or contem

pt, rem ove t h e conservator, or both. Fitzm a urice contends that she is an “interested party ” b ecause she is Sm ith’s heir at law. ¶41. However, assum ing that Fitzm aurice is an “interested party ,” 15 that d oes not m ean that

15 O u r S u p rem e C o u rt h as h e l d t h a t an “in terested p a r ty ” i s “a p erso n w h o h as a leg itim ate i n terest p resen t o r p ro sp ectiv e in th at esta t e , o r w h o h as so m e p erso n al resp o n s ib ility

as reg ard s th e estate.” In r e C o n serva to rsh ip o f D a vis , 9 5 4 S o . 2 d 5 2 1 , 5 2 5 (¶1 4 ) (M iss. C t. A p p . 2 0 0 7 ) (q u o tin g In re C o n serva t o r sh ip o f H a rris v. K in g , 4 8 0 S o . 2 d 1 1 3 1 , 1 1 3 2 (M iss. 1 9 8 5 ) ; B a rn ey v. B a rn e y , 2 0 3 M iss. 2 2 8 , 2 3 0 , 3 3 S o . 2 d 8 2 3 , 8 2 4 ( 1 9 4 8 )). In D a vis , th i s C o u rt reaso n ed th at a “ p ro sp ectiv e” in terest is an in teres t t h a t i s “an ticip ated o r e x p ected ” o r “lik ely to co m e ab o u t.” D a v is , 9 5 4 S o . 2 d at 5 2 5 (¶1 4 ) (q u o tin g B l a ck’s L a w D ictio n a ry 1 2 3 8 (7 th ed

. 1 9 9 9 ) ). T h is C o u rt t h e n h eld th a t th e p etitio n er w as “in terested ” in th e co n serv ato rsh ip b ecau se h i s m in o r d a u g h ters w e re t h e so le b en ef iciaries in th e w ard ’s w ill an d th u s h ad an “an ticip a t e d o r e x p e c t ed i n t erest” i n th e estate. Id

. at (¶¶1 5 -1 6 ). H ere, in c o n trast, th e w ard is alread y d e ceased , a n d F i tzm au rice is n o t a b en ef iciary u n d er h e r w ill a n d h a s n o in terest i n th e estate u n less sh e f irst p rev ails in h er w ill 2 0her contem pt petition was tim ely

. Section 91-7-285 authorizes an interested party to f ile a

contem pt petition, but it does not override section 91-7-309 and perm it the f iling of such a petition m ore than t w o y e a r s af ter the f

inal accounting and term ination of the conservatorship. S tated d if f erently , section 91-7-285 does not give any one a perpetual right

to f ile contem

pt petitions. Rather, “[ a]ny person interested m ay ” f i le such a petition “within two y ears af

ter f inal settlem ent.” Miss. Code Ann. § 91-7-309. ¶42. At its core, Fitzm aurice’s argum ent is that her contem pt p etition is like a cham eleon, and (1) we m

ust accept it as a contem

pt petition so that she c an claim standing under section 91-7-285, but then (2) we m ust pivot and treat it a s an i ndependent “action[ ] f ounded on a judgm ent” so that she m ay benef it f rom the seven-y ear statute o f lim i tations f o und in section
15-1-43. H owever, because Fitzm aurice is n ot t he e xecutor of the e state, she lacks standing

to bring an action f

ounde d o n a judgm ent in f avor of the estate. Theref ore, h er contem

pt petition is just that—a contem pt petition. And it is untim ely under section 91-7-309. 16 ¶43. A s n o t e d a b o v e, a second them e of Fitzm aurice’s argum ent i s t h a t s h e “ n e v e r

co n test. T h eref

o r e , at th is stag e o f th e p ro ceed in g s, it is s p ecu l ativ e to say th at F itzm au rice’s in terest in th e estate is “an ticip ated o r ex p ected ” o r “lik ely to co m e ab o u t.” N o n eth eless, I assu m e f o r p u rp o ses o f th is o p in io n th at F itzm au rice is as an in terested p a r t y u n d e r th e statu te.

16 T h e ma

j o r ity also co n c lu d es t h at F itzm au rice’s claim m ay b e treated lik e an in d ep en d e n t claim f

o r b reach o f f

i d u c iary d u ty , w h ich is su b j ect to th e t h r ee-y ear statu te o f lim itatio n s. S

ee a n te at (¶2 2 ). T h e m a

j o rity r aises th is issu e, alth o u g h it n o tes th a t “[ n ] eith er th e ch an cello r n o r eith er o f th e p arties d iscu ssed th e ap p licatio n o f th e th ree-y e ar ‘ catch -all’ statu te o f lim itatio n s.” Id

. T h e th ree-y ear statu t e o f lim itatio n s is in ap p licab le f o r essen tially th e sam e reaso n s th at sectio n 1 5 -1 -4 3 d o es n o t ap p ly : F itzm au rice l ack s stan d in g to b rin g an in d ep en d en t b reach o f f id u ciary d u ty claim o n b eh alf o f th e estate. T h eref o re, h er claim can o n ly b e treated as a co n tem p t p etitio n , n o t an in d ep en d en t to rt c l aim

. A n d h e r co n tem p t p etitio n is u n tim ely

u n d er sectio n 9 1 -7 -3 0 9

.

2 1challenged any account o r accounting” and “is not a ttem p ting t o reopen any . . . conservatorship or any accounting thereof .” Appellant’s Br. 7, 9, 16, 50. Her a rgum ent

seem s to be that s ection 91-7-309 does not apply at all unless a party ’s c l aim is s pecif ically and narrowly lim ited to allegations of accounti ng errors. Fitzm a urice contends that her petition only

seeks com

pliance with court orders and alleges that the conservator breached his f id u c i a r y d u ties, so section 9 1-7-309 “is wholly inapplicable.” Appellant’s Br. 14, 50. This argum ent both ignores the substance of F itzm aurice’s petition and interprets section 91- 7-309 f ar too narrowly

. ¶44. As to the substance of Fitzm aurice’s claim , in her m otion f or reconsideration in the chancery court, she clearly argued that Van d e vort “ procured an order” closing the conservatorship by presenting a “f inal accounting” that knowingly “[ m is]represented [ that] converted f

unds were sti l l i n the conservatorship.” This is exactly the sort of claim that section 91-7-309 describes: “Any person interested m ay , at any tim e within two y ears af ter f inal settlem ent, by b ill or p etition, op e n the account o f any e x ecutor, adm i nistrator, or
g u a r d i a n and surcharge and f alsif y the sam e , and not af

ter

. . . .” The b asic pr e mi s e o f Fitzm a urice’s claim is that Vandevort’s f inal accounting was f

a lse bec a u se he had already wrongf ully converted f

unds that he continued to show as assets of the conservatorship. ¶45. Moreover, the plain language of section 91-7-309 is n ot lim ited to n arrow allegations of accounting errors or i naccuracies. T h e m ost relevant def inition of “surcharge” is “to
im p ose a f ine on a f iduciary f o r breach of a f

iduciary duty .” Black’s Law Dictionary 1579 (9th ed. 2009). This is the gravam en of Fitzm aurice’s contem pt petition

— t h a t V andevort

2 2should be f ound in contem

pt based on alleged breaches of his f iduciary duties to Sm ith. ¶46. Finally , although Fitzm aurice claim s that she i s “ n o t a t t e mp t i ng to reopen any . . . conservatorship” ( Appellant’s Br. 16), she f ails to explain how she can obtain relief in a case that rem ains closed. She f iled her contem

pt petition in a conservatorship proceeding that had been closed f

or m ore than two y ears. As a logical ma t t e r , t h e c o urt cannot grant relief on Fitzm a urice’s petition without f irst reopening the conservatorship. Section 91-7-309 provides a m echanism f

or reopening a conservatorship, but it is unavailable m ore than two
y ears af ter the conservatorship was term inated. ¶47. In sum m ary , Fitzm a urice does not have s tanding to sue o n behalf of the estate. She is not the executor of t he estate, and at present her only c o n n ection t o the estate is as a

c o n t e s t ant to the d eceased’s will. Theref o re, she clearly lacks standing to bring an actio n “f ounded on a judgm e nt” in f a vor of the estate. The petition f or contem pt that she f

iled in the c onservatorship proceeding was just t hat—a petition f or contem pt. And it w as untim ely because i t was f

iled m ore t han two y ears a f t e r the f i nal a ccounting and term ination of the conservatorship. Miss. C ode A nn. § 91-7-3 0 9

. T h e chancellor correctly dism issed the petition f or this reason, and his ruling should be af f irm ed. 17 GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION.

17 T o th e ex te n t t h a t it is a cau se f o r co n cern , af

f irm an ce o f th e ch an cello r’s o rd er d ism issin g F itzm au rice’s c o n tem p t p etitio n w o u ld n o t p r ev e n t reco u r se ag ain st V an d ev o rt f o r an y p ro v ab le w ro n g d o i n g . A lth o u g h t h e reco rd o n ap p eal is lim ited , F itzm au rice ap p ears to b e S m ith ’s so le h eir at law

. T h u s, if F itzm au rice p rev ails o n h er p en d in g co m p lain t to set asid e S m ith ’s w i l l, sh e p resu m ab ly w o u ld b e ap p o in ted a s th e ad m in istrato r o f S m ith ’s estate, at w h ich p o in t sh e w o u ld b e a p ro p er p arty to p u rsu e w h atev er claim s th e estate m ay h av e ag ain st V an d ev o rt. S e e M iss. C o d e A n n . § § 9 1 -7

- 6 3 & -2 3 3 (R ev . 2 0 1 3 ).

2 3