IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00876-COA IN RE: ESTATE OF RANDI ALLISON FULLER, DECEASED, A MINOR: JOE FULLER APPELLANT

v. DOROTHY B. KELLY APPELLEE DATE OF JUDGMENT: 05/01/2015 TRIAL JUDGE: HON. JOHNNY LEE W ILLIAMS COURT FROM W HICH APPEALED: LAMAR COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ALEXANDER IGNATIEV ATTORNEYS FOR APPELLEE: CHRISTINA HOPSON HOLCOMB JOSEPH H. MONTGOMERY NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES TRIAL COURT DISPOSITION: RATIFIED ACCOUNTING, DECLARED ESTATE INSOLVENT, AND CLOSED ESTATE DISPOSITION: AFFIRMED - 11/15/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., JAMES AND WILSON, JJ. JAMES, J., FOR THE COURT: ¶1. Joe Fuller appeals the judgm ent of t he Chancery Court o f Lam ar County , Mississippi, ratif y ing an accounting of t he Mary B. Roper Educational Trust No. One ( t h e “Trust”). Finding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Randi F uller, a benef i ciary of the Trust, passed away on Septem ber 2, 2008, at the age of s eventeen. According to her death c ertif icate, Randi passed away f r om “[ c]om

p lications due t o Cy stic Fibrosis.” Randi was survived by her natural parents, Joe F uller a nd MaryRachel Kelly (previously k nown as Mary Rachel Fuller). D orothy Kelly , Randi’s m aternal grandm other, was the trustee of the Trust. ¶3. The Trust was f

u nded to encourage the benef iciaries to o btain higher education. T he
Trust e stablished a separate sub-trust f or each b e n e f

iciary

. In an em ergency situation, the
Trust em powered Dorothy , in her sole discretion, to use Trust f u nds “on a tem

porary basis”

to “ m e et[ ] m aintenance, support , h e a l th and g eneral welf are needs of t he benef

iciaries.” Further, the Trust granted D orothy authority to “distribute incom e and p rincipal

. . . f or any
purpose prom oti n g t h e w elf a re, happiness, and convenience of the [ m inor] benef iciaries.” Per the term s of the Trust, Dorothy would n ot “ b e required t o account to any court.” Also,
if a benef iciary w ere to die bef

o re reaching the age of m ajority , the benef iciary ’s sub-trust would be paid to the m inor’s estate. ¶4. On February 12, 2012, Joe f i led a petition to appoint h im self as adm i n i s t r a t o r of Randi’s estate. Bef

ore the c hancery court addressed this petition, Joe petitioned the chancery

court to a p point Troy A

. McFarland as the adm inistrator o f R a n d i ’ s estate. The chancery court appointed McFarland on May 2, 2012. ¶5. On May 1 6, 2012, McFarland f iled a m otion f

or assets. Noting the l anguage of the
T r u s t t hat required a m inor benef iciary ’s sub-trust to be paid to the estate of the donee , McFarland requested t he court to have Dorothy pay Randi’s e state t h e proceeds f rom the
Trust. ¶6. Dorothy answered t h e mo t i o n , noting that her h ealth issues and disability m ade her

u nable t o assist her counsel in the m atter. Through her counsel, Dorothy cited separat e

2litigation f

i led by Joe on March 8, 2010, in the Chancery Court of Forrest County that
f actually m irrored the c urrent action. 1 Also, Dorothy argued that the Trust was private and, by its term s, not required to account to any court. ¶7. At the hearing on the m otion f or assets, the parties conf

erred w ith t he chancellor and entered an agreed order. The a greed order provided that “Dorothy B. Kelly shall i dentif y and
f ile a l isting of the e xpenditures m ade f rom the trust involving Randi Allison Fuller f or the
y ear 2008.” ¶8. Dorothy provided t h e l isting of expenditures f rom the Trust on Decem

ber 5, 2012. McFarland f

iled a m otion f

or a supplem ental a c counting o n October 30, 2013. Dorothy ’s answer to this m otion was nearly identical to her answer to the m otion f or assets. ¶9. On M ay 1, 2015, the chancery court ent e r e d a n o r d e r ( 1 ) r a t i f y i n g D orothy ’s accounting, (2) declaring t h e e s t ate insolvent, and (3) closing the e state. T he chancery
court’s o rder recognized that “the docum ents produced

. . . by Dorothy B. K e l l y are an adequate and s uf

f icient accounting, and the C ourt[ ,] t heref ore, r atif ies, a f f irm s and approves said accounting.” ¶10. Joe raises a num

ber o f i s s u e s on appeal, but all of the issues are predicated on the chancellor’s ratif

ication of the accounting. O ur disposition o f this issue a ddresses all of Joe’s claim s. STANDARD OF REVIEW ¶11. This Court em

ploy s a lim ited s tandard of review t o appeals f rom chancery court. I

n

1 T h is litig atio n d o es n o t d ep riv e th is C o u rt o f su b j ect-m atter j u risd ictio n , as it w as d ism issed o n M arch 7 , 2 0 1 3 , b y th e C h an cery

C o u rt o f F o rrest C o u n ty

. 3re Estate of Carter , 912 So. 2d 1 38, 143 ( ¶18) (Miss. 2005). W e will af f irm a chancellor’s
f inding of f

acts unless the c hancellor abused his discretion, was m anif e stly wrong or clearly erroneous, or applied the wrong legal standard. I d

. DISCUSSION ¶12. T h e c h a n c e l l o r d i d not abuse his discretion in ratif y ing Doroth y ’ s a c c o u n t i n g . Mississippi Code Annotated section 9 1-7-103 (Rev. 2013) provides t hat parties to a m otion
f or assets

m a y be compelled by attachm ent f or contem

pt to discover under oath b y answer f iled or testim ony g iven, either or both at such t i me a n d place as the court or chancellor m ay direct, all the f acts known to them concerning the assets of the estate and of

all adverse claim s thereto, if any . (Em phasis added). Joe argues that this statute r equires a l l accountings to be under oath, and Dorothy responds by say ing that the perm issive “m a y ” allows the court to determ ine whether

or not a n accounting is m ade u n der oath. W e disagree with b oth interpretations of the statute. ¶13. Here, D orothy was n o t c o mp e l l e d t o ma ke an accounting. She subm itted to the

accou n t i n g o n h e r own a ccord. T he term s of the Trust clearly provide that the Trust was private and would not “be required to account to any c o urt.” This provision is enf orceable under Mississippi law. Miss. Code Ann. § 91-8-105(a) (Supp. 2016). ¶14. S e c t i o n 91-8-105(a) p rovides that a trust “ m ay expand, restrict, elim i n a t e , o r o t h e r w i s e

v a r y the duties and powers o f a trustee, a n y such other f i duciary , relations am ong an y o f them , and the rights a nd i nterests of a benef iciary

. ” In light of this s tatute, Dorothy did not have to agree to t he accounting, and the cour t could not com pel it unless there was som e

e v i d e n c e of m ism anagem e nt or f raud. In re Estate o

f Baumgardner , 82 So. 3d 592, 6 0 5

4(¶46) (Miss. 2012) (f inding, in a trust g overned b y a will, that “evidence of m i sm anagem ent

or f raud i n t h e r e c o r d could warrant a n accounting even in the presence of an explicit waiver”). Neither McFarland’s m otion f or a ssets no r h i s m otion f or a supplem ental accounting a lleged f

raud or m ism anagem ent by Dorothy

. B e c a u se s he was not com pelled to account to the court, it did not m atter that Dorothy ’s accounting was not under oath. ¶15. Despite he r r i g h t to ref use an accounting, Dorothy agreed to p rovide the court with
“a listing o f the e xpenditures m ade f rom the trust involving Randi Allison Fuller f o r the y ear 2008.” 2 Dorothy did provide the accounting to the court. Her f orty -three-page accounting included num erous receipts, b illing statem ents, and checks. The accounting a ctually exceeds the scope o f the agreed order by providing som e record of the Trust’s expenses f or 2006 and 2007, not just 2008. The accounting details the expenses t hat the Trust i ncurred caring f or Randi in the last y ear of h er lif e. T here were records of f u neral expenses, doctor visits, and various purchases m ade f or R andi. All of the purchases appear to be w ithin the term s of the Trust, especially

considering the s econdary purposes of the Trust. W hile the accounting is

n o t a s t h o r o ugh as it could be, it i s suf f icient to show that the chancellor did not abuse hi s discretion in ratif

y ing it. Theref

ore, we af f irm the chancellor’s judgm ent. ¶16. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED. A LL COSTS OF THIS AP P E AL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, I SHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.

2 We f in d t h at Jo e d id n o t p reserv e th e i ssu e o f D o ro th y ’s co m p e ten ce f o r ap p eal b y m ak in g an o b

j ectio n in th e reco rd

. S

ee H yu n d a i M o to r A m
. v. A

p p lew h ite , 5 3 S o . 3 d 7 4 9 , 7 5 5 (¶1 7 ) (M iss. 2 0 1 1 )

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