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IN THE COURT OF APPEALS 7/15/97 OF THE STATE OF MISSISSIPPI

NO. 95-CA-01289 COA

IN THE MATTER OF THE ESTATE OF BESSIE L. LUSK, DECEASED: ILANETTE BYRD, EXECUTRIX APPELLANTS v. ROBERT L. EILAND, NANCY UTZ, JUAWEICE DEVINE, YVONNE WOODRUFF, GARY GIBSON, STEVE LAMASTUS AND ED LAMASTUS APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. HARVEY T. ROSS COURT FROM WHICH APPEALED: BOLIVAR COUNTY CHANCERY COURT SECOND JUDICIAL DISTRICT

ATTORNEY FOR APPELLANTS: CHARLES E. WEBSTER ATTORNEY FOR APPELLEE: P. J. TOWNSEND, JR. NATURE OF THE CASE: WILLS & ESTATES - COMPENSATION OF EXECUTRIX TRIAL COURT DISPOSITION: CHANCELLOR AWARDED AN EXECUTRIX FEE OF .4 OF 1 % OF THE VALUE OF THE ESTATE. MANDATE ISSUED: 8/5/97

BEFORE McMILLIN, P.J., HERRING, HINKEBEIN, AND KING, JJ. HINKEBEIN, J., FOR THE COURT: This is an appeal from a decision of the Bolivar County Chancery Court awarding Byrd an executrix fee of $3,500 which is approximately four tenths of one percent of the value of the estate. Byrd was also allowed compensation for her expenses associated with administering the estate. Being aggrieved by the chancellor's award, Byrd presents but one issue to the court for consideration in this case: Did the court abuse its discretion by awarding Byrd an executrix fee which was less than one percent of the total value of the estate? Proceedings Below Bessie Lusk died September 7, 1992 and her will was admitted to probate on September 24, 1992. The estate consisted of the following assets: Farmland: $199,333.33 Stocks: $ 32,028.39 Certificates of Deposit: $555,478.14 Miscellaneous: $ 2,636.00 Total: $789,475.86 On September 21, 1995, Byrd filed a petition requesting that the court award her an executrix fee. The petition was heard on September 25, 1995 and the chancellor made his ruling awarding Byrd a fee in the amount of $3,500. A notice of appeal was filed on November 3, 1995.

FACTS It is uncontested that Byrd administered her duties to the estate responsibly. In addition to the usual obligations of an executrix, Byrd sought and received two partial distributions of the estate for the benefit of the heirs. Byrd was also required to work with an attorney for the estate regarding a suit which had been filed against the estate. As noted above, the estate mostly consisted of liquid assets and Lusk left very few debts at the time of her death. Byrd conducted most of the estate business by telephone; however, she did travel occasionally. All of Byrd's expenses incident to the administration of the estate were paid in addition to her fee. Attorneys performed all of the legal work for the estate and a CPA firm did all of the accounting and tax work for the estate. Furthermore, an appraiser did all of the appraisal work for the estate. There was no business in operation at the time of Lusk's death, and the real property was rented out. There was no work necessary in winding up a business of any sort. Byrd kept a journal of her hours worked and expenses incurred in dealing with the estate. Her total time amounted to 168.75 hours. This amounts to a fee payment of roughly $20.74 per hour. Byrd requested that the court grant her a commission of approximately 4% of the estate which is about $28,000. Byrd testified that her yearly income as a jewelry salesperson was based on a commission and was about $24,000 per year. Byrd stated that she could not determine what her time was worth on an hourly basis and said that she would leave that to the determination of the chancellor. The court found that Byrd had spent approximately 165 hours in her work as executrix and that all of the professional work for the estate had been performed by attorneys and accountants. The court found that the work performed by Byrd was not professional in nature and that it would be arbitrary to say that 4% of the estate is fair compensation. The chancellor held that the litigation was not really a substantial factor in the complexity of administering the estate and awarded Byrd $3,500 which was $1,000 more than the estimate of her fees listed on the estate's tax return. ANALYSIS Section 91-7-299 of the Mississippi Code controls this issue. The relevant provision of the Code effective as of July 1989 reads as follows: Allowance to an executor or administrator. The court shall allow to an executor or administrator, as compensation for his trouble, either in partial or final settlements, such sum as the court deems proper considering the value and worth of the estate and considering the extent or degree of difficulty of the duties discharged by the executor or administrator; in addition to which the court may allow him his necessary expenses, including reasonable attorney's fee, to be assessed out of the estate, in an amount to be determined by the court. Miss. Code Ann.

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