# FILED

December 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN RE: ) ) CARLTON AGIB BLESSING, ) Appeal No. Deceased, ) 01-A-01-9712-CH-00691 ) LAURA EMILY ) Wilson Chancery BLESSING WARD, ) No. 10079 ) Petitioner/Appell

ant, ) v. ) ) JOHN O. BLESSING, ET UX, ) AND SARAH L. JONES, ) ) Respondents/Appelle

es. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE WI LSON COUNTY CHANCE RY COURT AT LEBANON, TENNESSEE

THE HONORABLE C. K. SMITH, CHANCELLOR

THOMAS E. WATTS,

JR. 201 4th Avenue North,

Suite 1260 P. O. Box 198494 Nashville, Tennessee 37219 ATTORNEY FOR APPELLANT

VESTER NEAL AGEE, SR. Agee & Agee 104 1⁄2 Public Square P. O. Box 649 Lebanon, Tennes see 37088-0649 ATTORNEY FOR APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

## O P I N I O N

This case involves a fam ily dispu te ov er conservatorship for an elderly gentleman, now

deceased.

The record befo re the court is conf used, disorganized a

nd inadequate to facilitate complete appellate review. These proceedings began w

hen, on May 9, 1995, Laura Emily Blessing Ward ("Mrs. Ward"), a r esident of Raleigh, North Carolina and the only child of

Carlton Agib Bless

ing ("Carlton

Blessing"), filed

apetition in the Chance

ry Court of W

ilson County, Te

nn essee , asking to be appointed conservator of her aging father, then 92 years of age. In her petition she alleged that her fa

ther, because of menta

l a nd physical impairment, was unable to adequately

care for his person and his prope rty and that she w

as the properperson to be appointed conservator. Mrs . Ward was a t the time and continues to be represented by Honorable T homas E. W

atts, Jr. of the

Nashville Bar.

On July 13, 1995, the propose d conservatee, the

n 93 year old Car

lton Blessing, actin g thro ugh h is att orney H onor able T homa s C. B inkley of the Nashville Bar, responded de

nying his need for

a conservator and po

inting out that his daughter was a resident of North Carolina and could not serve as conservator

of his estate becau s e of the restrictions of

Tennessee Code Annotated section 35-50-107. W hile no order app e ars in the file appoi nting a guardian ad litem, Honorable Shawn J. McBrien ("Mr. McBrien" ) of the Wilson County Bar, on July 31, 1995, filed an interim report generally asserting that Carlton Blessing, while aged, hearing impaired and confused, preferred to live in his own home unde

r the care of his

stepson, John Orville Blessing and John's wife Brenda Ble ssing.

On September 7,

1995, John Orville B lessing ("Jo hn Ble ssing"), acting throughhis attorney, Honorable Vester Neal Agee, Sr. of the W ilson County Bar, filed a motion to intervene in the conservatorship proceeding. In his proposed intervening

petition, John Blessi

ng denied any

n eed for a conserva

tor, but asserted that in the event the court determined a c onservator to

be necessary f

or-3-

Carlton Blessing, that he,

John Blessing, should be named as such conservator. By order of Septem

ber 27, 1995, the chancellor allowed the intervening petit ion of John Blessing. On January 10, 1996, John Blessing fil ed a motion to be appointed temporary

conservator of Car

lton Blessing pending final dispositio n of the conservatorship

case, alleging medical

necessity as a basis for temporary

c onse rvatorship. A hearing on this tem porary petition was held on January 10 and an order was ente

red January 23,

1996, appointing John

Blessing temporary conservator

to authorize me

dical treatme

nt and setting the

case for final he

aring on March 7, 1996.

On February 5, 1996, Mrs. Ward filed a motion to am

end her petition to suggest that Honorable Jam

es H. Rock of Cof

fee County , Tenne ssee, be appointed as co-conservator wit h her of the person and estate

of Carlton Blessing. Following this, on March 7, 1996, Mr. McBrien filed what is termed his "final" report as guardian ad litem, reco mmending tha

t Carlton Blessing be allowed to remain in his

home for as long

as possible, and

that John Blessing be appointed his conservator under proper bond and

instructed to prepare a prope rty management plan. This final report of the guardian ad litem was accompanied by letters from

Sandra Phillips, P .H.D., Clin ical Director

of Cumberland Mental Health Services, Inc., and f

rom Joseph E. Hurt, M.D. w ho opined that due to dementia and vascular diseas e, Car lton Blessing was inc ompetent to m

ake personal decisions or ma

nage his own affair

s. On March 26, 1996, an order was entered allowing the am

endment to the or

iginal petition allegi

ng thatJohn Rock should be appointed co-c onservator with Mr

s. Ward.
Followingahearing, an order was entered by

the court on April 15,

1996, which provided in its opening paragraph: "This m atter having com

e before the courton the petition to appoint a co nservator on March 7, 1996 and up

on hearing the proof of the partie s, witnesses, ex hibits and the reports

o f th e guardian ad litem, Dr. Sandra Phi

llips and Dr. Hur

t and the statem

ents of counsel finds that the ward is i n need of

a conservator over hi s the person and hi s the property." The court thereupon appointed John Blessing and his wife Br endaas coconservators of

the person and proper

ty of Carlton Blessing. The record conta ins neithera verbatim

transcript nor a Tennessee Rules of Appellate Procedure 24(c)-4-

statement of the evidence heard by

the chancellor at t

his March 7, 1996 hea

ring.

On April22, 1996, Mrs. Ward filed an extensive m

otion to reconsider th

e March 7, 1996 ruling s

upported by affi

davits from

both herself and Dr. Joseph E

. Hurt with extensiv

e factual allegat

ions therein. On Ma

y 3, 1996, th e conservators filed an inventory and property m

anagement

plan alo ng with a response to the April 22 m

otion of Mrs. Wa

rd, this response being accompanied b y an affidavit of John Blessing, assertin g certain facts.On May 15, 199 6, a n order was entered appr

oving the inventory

and managem

ent plan of the c oconservators and setting bond at $30, 000.00. On May 2 1, 1996, an order was

en ter ed acknowledging pending petitions but taking litt

le action. On May

31, 1996, the co-conservators filed an answer to the motion of

Mrs. Ward. O

n June 7, 1996, the guardian ad litem filed an answer t o the motio n of Mrs. Ward, recommending that same be dismissed.
By order of October 21,1996, the case was set for trial on No

vember 14, 1996. On November 14, 1996, the guardian ad litem filed his "second final report" which is extensive i n its allegation of fact

s and which concludes

withthe guardian ad litem's opinion that it was best for the conservatee to maintain the existing status. On Dece

mber 6, 1996, the guardian ad litem filed a petition for emergenc y, temporary

custody, again a

sserting facts and r

ecommendi

ng that the authority of the co-conservators be suspended until a

hearing could be hel d. On that same date , December 6, 1996, an order w

as entered providing in part: THIS MATTER having co m e before the Court on the Petition of the Guardian ad

Litem and base

d on the allegations and information

received the

Court finds that it is in the best interest of the ward, Carlton

Blessing, that tem

porary custody

be given to the Department

of Human

Services for the purpose of placing the Ward into the proper med

ical facility ; That it isin the best interest o f the ward that the authority

of the Co-conserva

tors be suspended until ahearing can be held on this matter; Tha t the Co-conservato

rs, their agen ts, friends and or fam ily shall not in any

way use, sell , o r dispose of any of

the assets of the ward; that until further order

of the Court the Guardia

n ad litem shall ha

ve authority to a

ct on the best interest of the wa

rd in regards to his

medical care

and financial affairs. That a hearing in t h is matt er shall be set for December 23rd , 1996 at 9:0 0 am.-5- IT I S THEREFORE ORDERED, ADJUDGED AND DECREED that all previous orde rs entered in t his matter are s u spended; that the Departm ent of Human S ervices shall have temporary

custody of the ward; thatthe powers and autho rity of the Co-conservators shall be suspende d until f urther orders of th

e court; that the Co-conservators are restrained f rom transfer

ring, using, or in any way dis

posing of the assets of

the Ward until further orders of the Court; that the G uardi an Ad Litem s hall have full author

ity to handle the medical and financial affairs of the ward until further orders of the court; That this matter shall be set for

a hearing on the 23rd day of December.

On December 1 0, 1996 , acting throug h her at torneys Thomas E. Watts, Jr. and William E. Farmer of the Lebanon Bar, Mrs. War d filed a motion seeking, amongother things, to be m ade temporar

y emergen

cy conservator

of Carlto n Blessing. On December 16 , 1996, an order w as entered continuing

the hearing of the case until May 9, 1997. On December 23, 1996, counsel for John Blessing filed amotion contesting the temporary conservatorship and a

sking that the case be s et for trial. A

lso, on Decem

ber 23, 1996, the gua

rdian ad litem f

iled his "third report" asserting factually that Carlton Bles sing sho uld be placed in a nursing home because Jo hn and Brenda Blessi

ng, though willing to contin ue,
were no longer able to care for the conservatee and further recommending that his house be sold and the money be used for his care.

On December 31 , 1996, coun sel for Mrs. Ward fil

ed a motion for reimbursem

ent of attorney fe

es an d expenses pursuant to T ennessee Code Annotated section 34-11-114, su pported by the af

fidavits of Thom

as E. Watts, Jr

. and William

E. Farmer

. On January 3 , 1997, the guardia n ad litem filed a motion seeking the sale of t

he real and persona

l property of Ca

rlton Blessing and seeking a determination of attorney fees.

On January 17, 1997,

the trial court ente

red a "findings

of fact" relative

to the physical conditio

n of Carlton Blessing

and the continued use of arti f icial nutrition to him by nasa

l-gastric tubes. After reciting t

he positions of all par

ties, the court ruled that no

further medical intervention by nasal-gastr

ic tube should be done. On Januar

y 21, 1997, the f

ollowing order was

entered: This matter having c

om e befor e the Court on Dece mber 6,-6- 1996, upon Petition for Em ergency Custody

filed by the Guardian Ad Litem in behal

f of the Department o

f Human Serv

ices, at which time the Court entered an Order granting temporary custody of the ward, Carlton Agib Blessi ng, to the Departme

nt of Human Services for the p u rpose of placing wa rd into a proper m

edical facility

and setthe case for hear

ing on Decembe

r 23, 1996, with th

e duties of the Co-Conservators to be suspended pen di ng final disposition of this cause. Therea

fter, on Decem

ber 23, 1996, this ca

use came on to be heard and attorney for Conservator f

iled a Motion fo r continuance and moved the Cou rt to conti n ue said case upon the grounds set out in said Motion. Thereupon the Cour t asked th e otherparties involved if t

here were any

reason why the continuance should not be granted and after some discussion the Court did not actupon the motion for

continuance and wit

hout a hearing on

any of the facts involved in the Petition for T emporary Custody to the Department

of Human Services, the Court thereupon appointed Shawn McBrien, the Gu

ardian Ad Litem

, as temporar

y conservator of the ward and set his

bond at $5,000.00 pendi ng the f inal disposition of all the issues in this case. The ward will rem

ain in the nursing h

ome an d the do not resuscitate

Order which had b

een in place in th

is ma tter at the nursing home, is to re

main i n force as agreed by al l parties. The war d shall continue to receive artificial feedings as deemed necessary by the

treating physic

ian and that the trea

ting physician will be instructed to attempt to take the ward off Haldal and reduce the sedation of the ward and not to place any type of PEG i

nto the Plaintiff at this time. In the event the ward must be heavily sedated in order to receive a

rtificial nutrition , the Tempor ary Conservato

r will contact the partie s in regard to this action and

if the parties are unable to agree on the prop e r course of action,

the Court will be notified i n order to make such a decision. The parties agree i f dee medn ecessary by the treating physician or health care professionals, re straints may be used in order to co

nfine the ward. Thereupon, the Department of Human Service s m oved the C ourt that they be permitted to withdraw as a party to this ca us e which Motion was grante d and they are r

elieved as custodian for the ward. This cause

will be heard on Ma

y 9, 1997 at 9:00 a. m. for one (1) full

day as provided in

the Order render

ed on November

14, 1996, on all issues as t

o the permanent

conservatorship. The saidJohn & Brenda Blessing w ill file an accounti

ng and settlement

of the ward's property

and turn the assets

over to Shawn McBride, as temporary

cons erv ator, pending final disposition of this cause. Entered this the 21 day of January, 1997.
Before the guardian ad litem had qualified to succ

eed John and

Brenda Blessing as conservator, C arlton Blessing died o n January 20, 1997

.

Itis well to note again, the def

iciency of the r

ecord in this cause.From the-7-

time of the filing of the

original conservatorship petition by Mrs. Ward on May 9, 1995, until after th

e death of Carlton B lessing on January 20, 1997, no

e vidence underlying the ac tions of the trial cou

rt is preserved for

appellate review. There is no transcript of tes timony and

no Rule 24(c) statement of fact preserved by anyone, appellant or appellee.

Prior to the death of Carlton Blessing, all counsel representing all parties had applied to the court for attorney fees and expenses to be charg ed to the conservatorship. All petitions by all parties, except the guardian ad litem, were strenuously

objected to by the oppos ing parties. No adjudication by the court as to any fees or expenses and no adjudication as to the petition of the guardian ad litem to sell personal and real property had occurred prior

to the death of Carl

ton Blessing on January

20, 1997.

Tennessee Code Annotated sec tion 34-13-108(e)(1996) provides in part:

When the disabled person di es . . . the conse

rvatorship shall terminate. Within one hundred twenty (120) days after the

date the conservatorship

terminates,

the conservator sha

ll filea preliminary final accounting with the c ourt which sh all acc ount for all assets, receipts and disbursemen ts from the date

of the last accounti

ng until the date the

conservatorship ter

minates, and s

hall detail the amount of the final distribu

tion to close the conse

rvatorship.
Tennessee Code Annotated sec tion 34-11-113(e)(S upp. 1998) provides in part: Notwithstanding any provis ions of

law to the contrar

y, the duty of the fiduciary appointed under the provisions of this title shall not cease at the death of the disabl ed person, but shall continuefor the sole purpose of makin g reas onable and proper f uneral arrangement

s for the disposition of

the remains of

th e disabled person, at death.Upon the death of the disable d pers on, the fiduciary shall be allowed cre dits in the accounting for all reasonable expense s of the disabled pers on's funeral.
The ward having died on January 20, 1997, the form er co-conservator

s filed their final accounting on M arch 27, 1997 and this was a pproved by the Cle

rk & Master on Apr il 10 , 1997 . On Apr il 16 , 1997 , Mr. Mc Brien as gua rdian ad lit em/ conservator, filed his final accounting indicating that as of March 27, 1997, there-8-

remained $11,451.00 in the conserva torship account.

On April 18, 1997, Mr s. Ward filed an obj ection to the final se ttlement which states in par

t: 3. The so-called Fin

al Settlement

and distribution

which was submittedwith the

Motion does not address the attorney's fees that are still outstanding pursuan t to the last hearing of the Chancery Court. Petitioner respectfully submits that no Final Settlement f

or the Conservatorship can be undertaken and acc omplished until the attorneys' fees questions

are resolved. The Chancery court ordered acomplete hear

ing on this matt

er for Novem

ber 17 and 18, 1997. Petitionerbelieves the Court cannot approve the Fi nal Settlemen t of the subject Co-Co

nservators until aft

er that hearing, o

r in the alte r[n]at ive, the Court can take a nd receive an inter

im settlem

ent from these Co-Conserva

tors, whose power and duties for the funds and property of Carlton Blessing ended on December 6, 1996. Under that scenario, the Final Set tlement would be held open by Mr. Shawn McBrien pending resolution of the attorneys' fees questions. Furthermore, under that proposed scenario, it would be properfor the Chancery

Court to Order all

fun ds and property of Carlton Blessing to be held under the control of the Chancery Court until this pending issue is resolved. Based upon the above styl ed objections, the

Petit ioner res pectfully

requests the Court deny the approval of the Final Settlement

which has been subm

itted and requests the Courtrequire an interim settle

ment of the

Co -Conservators whi

ch shows the amount of monies and pr

operty which c ame into the control of Mr. Shawn McBrien on December 6, 1996, pursuan t to the previous Order of the Cour

t. In addition, Petitioner moves the Court to issue an Order to the Probate Court of Wilson County, Tennessee, which in essence will consolidate the pen d ing probate matt ers into the present Chancery Court action before this Court and will place a hold on all assets of Carlton Blessing, s ubject to the final

action of the Chancery Court concerning the ques ti ons of costs and attorn eys' fees scheduled for hear

ing on November

17 and18 , 1997. In the alter[n ]ativ e, Petitioner mov es the Court to issue a

Restraining Order to the Co-Executor

s for the Estate of

Carlton B less ing, preventin g them from

disposing of, disbursin g, transferring o

r conveying

any property

and assets of the

Estate of Carlto

n Blessing. This action is requested and required to prom ote and allow uniform justice conce r ning the paym ent of the debts and obl

igations of Carlton Blessing and

should beallowed under t he rule s of equ ity.

Thus begins the jurisdictional battle between the chancery court involving the conservatorship and the probate court involving the estate o f Car lton-9-

Blessing. The record shows that letters testamentary were issued by the Probate Courtof Wilson

County to John Blessing and Sarah Jones as co-executors of the will of Carlton Blessing.

Itis worthy of note that

the record shows an excerpt from proceedings held

on January 28, 1997 eight days after the death of

Carlton Blessing. At this hearing, the chancellor construed the conservatorship statutes to allow him to set fees which he did at $100 .0 0 per hour for all attorneys involved. The record further discloses th

e following ruling of

the chancellor of M

ay 6, 1997: THE COURT: The only issue is re asonable ness. I read your

briefs a gr

eat deal. All of you wrote a great brief. I particularly

liked yours, Mr. McBrien, and I felt like y ou were right on point, so I want you to prepare this order.

MR. McBRIEN: Okay. Now , onc e The Cour t determines on the 28th w hether or not these fees are reasonable, The Court will set an amount for all parties --

THE COURT: That's right. MR. McBRIEN: -- and at that point it will

become ajudgment of

this Court, in whic

h time those peopl

e can take

that judgment to file a claim with the estate.

THE COURT: File a claim with th e estate. Now , I think you have six months to file a claim. That's why we don't need this thing to c ontinue on and off. I don't know when the appointment

for executors and adm

inistrators for tha

t came about, but it was after the 1st of the year, so you've got plenty of tim e. I'm not get ting in to that. All I'm going to do is set the fe

es. You all collectthem the

best way you can. I don't think there is, app arentl y, any money in the

estate to pay the

m, and I don't think

thatyou have

-- MR. McBRIEN: Your Honor , I had tha t conservatorship

for about a month or maybe a month and a half. I think we pai d abo ut three bills on it. The case assets we had actua lly came in after he died, I believe, and they put that at a

bout $10,00 0 or $11 ,000 ca sh money.

THE COURT: I think you just pay all that

over to the pro bate court and all of y ou file your cla

ims. Now, yours I maybe could do differently w

ith. Are you suggesting I handle yours differe ntly? MR. McBRIEN: Yo ur Hono r, I don't think

yo u can. I think I'm goin

g to hav e to file a claim

just like every

body else. THE COURT: I kind of feel lik e if it was enough money, I'd probably have to p rorate this anyway be

tween all of y

ou at$11,000 if I did this, so I thi nk the simplest thi ng to do is everybody

just file a claim

to probate court. It's g oing to be dissolving the estate. The y're going t o sell the property and pay-10- everybody,

but that's what I'

m going to do. As far as the amounts, I 'll have those decided after

. All I want to look at now on the 28th day of this m onth is the amounts requested and any object

ions that you all

have to anybody 's request for a fee. The re

asonableness is the onl

y issue that will be brought before me on tha t day. Despite the findings of May

6, 1997, and the

u ltimate setting

of fees by the chancery cour

t on May 28, 1997,

and despite the fact that all assets had passed into the hands of the co-e xecutors unde

r orders o f the probate court, these conservatorship

proceedings continued until the chan cellor entered his final order of September 3, 1997, fro m which Mrs. Ward appealed.

The battle continued in the court of appeals. This court, by Apr

il 23, 1998 order, allowed an affida

vit of the deputy c

lerk of the Probate

Court of Wilson County and a certified copy of the order entered by the Probate C

ourt of Wilson County on Mar ch 25 , 1998 , to be consi dered as pos t-jud gme nt facts in accordance with T ennessee Rule of A ppellate Procedur

e 14. This affida

vit provides, in releva

nt part: (2) The Will of

Carlton Agib Bless

ing was probated in th

e Probate courton February 20, 1997, and Notice to Creditors being published in the Lebanon Dem ocrat with the

Fir st Notice of Creditors being publ ishe d on February 27, 1997. That the six ( 6) month period for filing of claims i n the Probate Court expired on August 27, 1997. I furthe

r state that I have

che c ked the record in this file and that although the said Laura Emily Blessing Ward filed aClaim in this Court based on a judgmen t for attorney fees rendered on May 28, 1997, in the Chancery Court o f Wilso n County, Tennessee, sty

led Laura Emil

y Blessing Wa

rd v. Carlton Agib Blessing , No.: 10079. No certified copy or other copy of the Order of Substitution

of Parties render

ed in the Chancery

Court of Wilson County in the ca se styled Laura Emil y Blessing Wa

rd v. Carlton Agib Blessi

ng , No: 10079, has been file d of record in this Court. The stateme

nts contained in this Affidavit are made of my own personal knowledge.
The pertinent portion of

the March 25, 1998 order of the Probate Judge reads as follows: That

the case of Laura

Emily Blessing Ward v. Ca rlton Agib Blessing , was pending in the Chancer y Cour t of Wils on Coun ty, Tennessee, being Docket No.: 1007 9, at the time the said Carlton Agib Blessing died onJanuary 20, 1997. That the Will of

Carlton Ag ib Bles sing was duly prob ated in the Probate Court of Wilson-11- County, Tennessee, on February 27, 1997. The jud gment upon which this claim was based was rendered in the Cha ncery Court of Wilson County, Tenne ssee, in the cause styl ed Laura Em

ily Blessing Ward vs. Carl

ton Agib Blessing being Dock et No.: 10079, on May 28, 1997. That a Su ggestion of Death was filed in the Cha ncery Court in said case on June 5, 1997 and an Order o f Substitution

of Parties was gr

anted in the Chancer

y Court on J uly 2, 1997, substituting the

Co-Executors, Jo

hn O. Blessing and Sarah L. Jones, as Party Defendan t inst ead of Carlton Agi b Blessing, deceased. The claim of

Laura Emil

y Blessing

Ward was filed

in the ProbateCo urt on the 16th day of July, 1997. The Court further finds that the said Laura

Emily Blessing Ward did not f ile a copy or certified copy of the Order reviving said case in the Probate Court of Wilson County,

Tennessee, as r

equired by T. C.A. 30-2-320. The C our tfurther finds that t he six (6) month pe

riod for the filing of claims expired on August 27, 1997 and that no Order or certified copyof the Order of Subst

itution of the Parties was e

ver filed in the Probate Court of Wilson Co

un ty as re quired by T.C .A. 30-2-320 reviving the cause in the Pr obate Court and therefore the Court finds that the claim

of Laura Em

ily Blessing W

ard bas ed on the judgment rendere d in the Chance ry C ou rt of Wil son Cou nty, Tennessee, in the case styled Laura Emil y Blessing Ward v.Carlton Agib Blessing , Docket No.: 10 079, is hereby abated and forever barred. The Motion for Sum mary Judgm

ent is hereby sustaine

d and claim is hereby disallowed and dismissed at the cost of Laura Emily Blessing Ward.

With this extended recit ation of the record, we now turn to the issues raised on appeal. Appella nt, Laura Em

ily Blessing W

ard, asserts nine

issues for appellate review , five of which ar e as follows: I. The trial courterred in awardin g the conservators a

ny fee for their a ttorne y. II. The trial court erred in not award ing Petitioner the full amount of the fee s she spent trying to protect her fath er and his estate.
III. The trial court erred in deny ing Petitioner's m

otion to alter or amend its awa

rd of fees.
IV. The trial court erred in not considering all available evidence, specifically

including the depositions of Drs. Edward L . King and Renata E. Blu hm, in determining t he award of

attorney's fe

es to coconservators and t o Petitioner.

. . . VIII. The trial court erre d in not appointing Laur

a Emily B lessing-12- Ward, together with a loc al resident to act a s co-conse

rvat ors for her father after he was removed from the custod

y of John ("Bud") Blessing and Brenda Blessing.
This court cannot addres s these five issues but must conclusi

v ely presum

e the factual findings of the trial court to be correct. In a similar context this court has held: Our

ability to deal w

ith this issue ish ampered by the absence of either a transcript of the

proceedings in

the trial court or a

statement of the evidence prepa

red inaccordance with Tenn.R.App.P. 24(c). When a trial court deci

des a case without

a jury, its findings of fact are presumed to be correct unless the evidence in the record preponderates against them. Tenn.R. App.P . 13(d). This court ca nnot rev iew the facts de novo without an appellate record containing the facts, and therefore, we must assume that the record, had it been preserved,

would have contained

sufficient

evidence to support th e trial court's factual findi ngs. McDonald v. Onoh , 772 S.W.2d 913, 914 (Tenn.Ct .App.1989); Irvin v. City of Clarksville , 767 S .W.2d 649, 653 (

Tenn.Ct.App. 1987); Gotten v. Gotten , 748 S.W.2d 430, 432 (Tenn.Ct.App.1988). Sherrod v. Wix , 849 S.W.2d 780, 783 (Tenn. App. 1992).

Issue number

nine asserted by Appellant states: "The Action of the Trial Courtin Ordering the W

ithholding of Artific

ial Feeding From

Respondent

was Completely

Without Legal Basis and Void." This is not a tort ac tion and Carlton Agib Blessing is now d

eceased. The is sue is moot.
Appellant's issue number sev en asserts: "The T

rial C our t Erred in Substitutingthe Co-Executors of Carlton Blessing' s Estate for Carlton Blessi

ng in the Conservatorship

Proceeding After

His Death." By

the express provisions of Tennessee Code A

nnotated section 34-13- 108 ( e), the conservat orship terminates upon the death of the conservatee. It matters little who is thereafter made party to the conservato rship proceedings

. The only duty remaining to the fiduciary after the death of the conservatee involves funeral an d burial for the conservatee under Tennessee C ode Annota ted section 34-11-113(b). Postjudgment facts considered un

der Tennessee Rul

e of Appellate Procedure 14 indicates that John Blessing, qua lified as co-exec

utor of the

estate of Carlton Blessing in the Probate Court o f Wilson County, there

by assuming r

esponsibility for death and funer

al expenses. The

issue is without m

erit.-13- We turn next to Appellan t's isues num

bered five

and six which are of substance. V. The trial court erre d in not orde ring the sale of Car lton Blessing's house and directing tha t a ll of the expenses of the conservatorship be pa

id before the conser

vatorship was close

d.
VI. The trial court erre d in ordering the conse

rvato rship a ssets transferredto Mr. Blessing's p robate estate

before all

of the claims against the conserva

torship estate had be

en paid.

In conjunction with A

ppellants' issues fi

ve and six, the courtwill consider issue number two presented by A

ppellees, John Bles sing and Sarah Jones. Appellees' issue number two states: "Whethe r or not this court and

the trial court (chancery court) have subject m

atter jurisdicti

on of this cau se since the cause was never revived by either Appe

llant or Appellee in the P

robate Court of

Wilson C ounty, Tennessee, which is aseparate court being Part II of the General Sessions Court of Wilson County,

Tennesse e." Resolution of these issues depends on which courthas post-death jur

isdiction of the estat

e of Carlton Blessi

ng. Is it the Chancery Court of Wilson County, wherein the conservators hip pr oceedings occurred or, is it the Proba te Court of Wilson

County, wherein the estat e of the testate decedent i s being administe red?

The split of authority

in sisterjurisdictions is so sensitive to the particular state statute that court de cisions from othe

r jurisdi ctions are of only marginal value. The Court

of Chancery of

Delaware m

ade the following obse

rvation: The text writers and a

lmost but n ot all o f the Courts which have considered our problem have concludedthat after the dea th of the mentall y ill per son th e trust ee, abse nt stat utory au thorit y, has no power to pay existing obl

igati ons. The creditor

s must file their claims in the estate procee dings. . . .
While various reasons have

be en advanced fo r the conclusion that a trustee may

not pay outstanding o

bligations once the m

entally ill person has died, I be

lieve the basic

r eason for the rule is that absent s tatutory power

the trustee's powe

r arises from

and is dependent

upon the existence of

the mentally i

ll person. Once that persondies the st atutory scheme applicable to decedents' estates comes into play. This , of course, is what happens in the ordinary deathcase. It is only the fact of a trus teeship that causes t he problem here. But

as indicated, in the absence of statutory power,-14- the trustee cannot pay outsta nding obligations after

the death of

the mentally il

l person.
While a few cases suppor

t th e po wer of the trustee to pay bills after the death of

the mentally

ill person they a

ppear to be based on the

broad view that the

trustee in winding

up can pay all outstanding obligations because they were incurred by the trustee as an agent of the Co

urt. In Re Bohnstedt

, 125 A.2d 580, 582 (Del. Ch. 1956)(citations omitted).

Followingthe same rea

soning the Washington

Court o f Appeals held as follows: The executor of [the w ard's] estate challenges the trial court's order on the ground that the

trial court lacked jurisdiction to order payment of acla im made a

gainst the guardianshi

p estate after the ward's death. W

e find thatthe trial court did l

ack jurisdiction a

nd reverse. A limited guardia

nship au tomatically

terminates upo

n the deathof the ward. RC

W 11.88.140(1)(

c). After the d

eath of t he ward, the guardian's powe rs a re limited to rendering a final accou nting and distributing the pr operty under his c

ontrol to th e properperson. . . . The guardian (unless t

he guardian is administering

the estate

of an intestate deceased ward under RCW 11.88.150), has no power to pay debts or obligat ions owed by the ward's estate. . . . Those creditors whose claims were not paid by the guardian before the

death of the ward must submit their claims to the decedent's personal representative.

. . . As the Washington Supreme Court stated . . . : The death of the

w ard having term

inated the guardianship, i t follows t hat all unsettled claims, either legal or equitable, cre

ated against

the estate under

the guardianship

must be settled o

u t of the estate in the han d s of the administr ator in due course of administration. Guardianship of Heath v. Seattle-First Nat'l Bank , 632 P.2d 908, 910 (Wash. Ct. App. 1981)(citations omitted).

On the other hand the

District Court of

Appeals of Florida

, in construing Florida court rules a nd statutes, took a differing view:

In Tingle v. Cate , 142 Ga.App. 467, 236 S.E.2d 127 (1977 ) after the death of the wa

rd, the attorneys representing the guardian sought payment of attorney's fees from the guardianship asse

ts. The-15- personal representative of the ward's personal estate argued (as the persona l representatives do here) that the gross assets of t h e guardianship, as opposed to the net guardianship a ssets, should be distributed to the personal repre sentative for the purpose of pa

ying claims against the

decedent's estate in accordance with the priority established under the probate co de. In a ffirmin g the trial court's rejection of that

position, the Georg

ia Court stated: We therefore agree

with the appellees

that debts i ncurred in the course of the guardianship should be taken into account in the fi nal re turn of the guardian rather than being carried over into t he general adm

inistrati on of the estatewhere quite possibly the legal consequences might be quite different from

those apparently

inhering at the tim

e of their occurrence. Id. 236 S.E.2d at 129.
In that case, the G

eorgia Cou

rt of Appeals cited wit

h approval State v. Greenhaw , 50 Ariz. 436, 72 P.2d 950 (1937), a case in which the Arizona court

c o ncluded that administration expenses incurred during the guardianship are payable from guardianship assets after the ward's death and prior to distributi on of the remaining

assets to the ward's personal representative. In the Greenhaw case the court set f

orth the issue as foll

ows: When a person is

under a guardianship

both of the e state and person and subsequently dies, what portionof his estate is subj ect to disposal under t he law fixing pri

orities fo r the esta tes of dec edents? Is it the gro ss asset s in the hands of the gua rdian at the time of de ath, or is it the net property left after the guardianship has been

properly close

d? Id. at 951. In answer

ing those questions, the

court then concluded: We are of the opinion

that the logical answer

is that the estate o f t he decedent consists of whatever assets remain after the le gal cl aims arising by virtue of the guardianship hav e been properly satisfied

. If this were not true, there w ould be endless confusi on created by contests between gu ardians on the one hand and executors or adm

inistrators on the othe

r. The guardian might h ave created an indebtedness which accordingto the law, was a proper and pri or cla im against the estate of the inco mp etent, and yet by the sudden deathof his ward might be u tterly defeat

ed by proceedings in the es

tate of the decede

nt. Id. Midland Nat'l Bank and Trust v. Co mercia Trust Co ., 616 So.2d 1081, 1085 (Fla. Dist. Ct. App. 1993).-16- The Midland

National Bank court from Florida cites America National Bank v. Bradford

, 28 Tenn. App. 239, 188 S.W.2d 971 (1945), in support of a statement that "courts of the States of Minnesota, Tennessee and New York have likewise held, in substance, that guardianship debts an d expen ses or costs of ad ministration

are properly paid from guard ianship assets with on

ly the net o r residue distributable to the w

ard or the ward' s personal represe ntatives, although in some instances t hose decisions were based upon statutory requi rements." Midland Nat'l Bank , 616 So.2d at 1085-8 6. American Nation al Bank was a
case involving not

the death of the wa

rd but a recovery

of sanity. Mr

s. Bradford

was declared insane by

proper Davidson Coun

ty court procee

dings in 1938 and committed

to Central State H

ospit al as a

private pay patient. American Nat'l Bank , 188 S.W.2d at 974. American National Bank was properly appointed as her guardian. She had little personal property but owned 148 acres of farm land. The guar dia n undertook its duties an d incurred attorney

fees and costs necessitating a peti

tion to sell the land of

Mrs. Bradford in order

to pay for her continued support at Central St ate Hospital. H er h usband intervened as n ext friend and filed apetition attacking the lunacy proceed

ing and the appointm

ent of the guardian. Id. at975. A circuit court j ury adjudged he r to be sane and she

was released sui juris . She thereupon attacked the entire gu ardianship proceeding

with the end result of the c ase being that the guardian had acted properly under the de cree of in sanity and was entitled to recover attorney fees and various other co sts from the now sui juris former ward. Id. at 980-81.

In the case at bar, the chancery c ourt had preauthoriz

ed no expenditure for attorney fees or anythin

g else. While th

e guardian ad lite

m had su ggested the sale of the real proper

ty of the conser

vatee prior to the de

ath of the conservatee, the court had taken no action to effect such a sale. Only aft er the January 20, 1997 death of Carlton Blessing did the fight over attorney fees and the limited personal estate of the deceased con servatee begin in ea rnest. As was the

case withthe pre-death proc

eedings, we are

favored with

no transcript of

the evidence

nor Rule 24(c) s tat ement nor anything else by which t his court may review de

novo the evidence under w hich t he chancellor susta ined all applications

for attorn ey fees by all par

ties and reduced the

m to judgme

nt. We must

again conclusively

presu me that the evidence, not preserved for our review, supported-17-

the action of the chan cellor.

U nless s ubject matte

r jurisdiction aba

ted upon the death of th e conservatee, we have no choic e but to affirm

the chancellor in a

ll respects in view of the extensive pow ers as to the waiver

of specific requir

ements vested i

n the chancellor by v

irtue of Tennessee Code Annotated section 34-11-121(1996). Under Tennessee's 1992 statutory re vision of previous guar dianship and conservatorship

statutes as is eviden

ced in Tennessee C

ode Annotated Title

34, chp. 11-13, the

conservatorship ter

minates upon dea

th of the conservate

e. Tenn. Code Ann. § 34-13-108(e)(1996). The conservator m ust, however, m

ake a final settlement

within 120 days an

d the conservatorship court retains jurisdiction for this winding up of the conser vators hip. It is obvious from the May 6, 1997 findings of the chancellor, his judgment of

June 19, 1997 awardi

ng fees to all parties, and his order of September 3, 1997 overruling

all objections thereto, that he believed himself lacking in author ity to effect a

post-death

sale of the

home of Carlton Blessing o

r do anything

else other than to,

in effect, am

end the final settlement

of the co-conservators by awarding fees for the conservatorship case. He specifically a

dvised all parties a

nd all attorneys

that the ir remedy

for collectingany judgments that he ordered in the co

nservatorship

proceeding was to file proper clai

ms therefor in

the probate court.

In view of the broad di scretion given the ch ancellor by the

conservatorship statutes, we cannot say that his method of winding up the conse rvatorship proceedings exceeded subject matter jur

isdictio n. Th e correctness or incorrectness

of the actions of

the Probate Court of Wilson County as reflected by the Rule 14 post-judg

ment facts re

cognized in

this court, must await an appeal from the jud gment of the probate court and is not a proper subject of

present appellate adjudication. The judgment of the chancellor is in all respects affirmed and costs are assess ed against the appel lants.

_________________________________ WILLIAM B. CAIN, JUDGE-18-

CONCUR:

__________________________________ __ BEN H. CANTRELL, P

RES. JUDGE, M.S.

__________________________________ __ HENRY F. TODD, JUDGE