                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2002-CA-01705-SCT


IN THE MATTER OF THE ESTATE OF GARLAND
LADNER, DECEASED:
FRED LADNER AND JACK PARSONS

v.

LUTHER LADNER

DATE OF JUDGMENT:                           10/1/2002
TRIAL JUDGE:                                HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED:                  PEARL RIVER COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                   TADD PARSONS
                                            JACK PARSONS
ATTORNEY FOR APPELLEE:                      RICHARD C. FITZPATRICK
NATURE OF THE CASE:                         CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                                AFFIRMED - 11/10/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


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

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    This appeal involves an apparent deep-seated family feud between two brothers, Fred

and Luther Ladner. When a third brother, Garland, died, a dispute between Fred and Luther

arose regarding the ownership of certain livestock. Threats of violence were made, and Fred,

as executor of Garland's estate, obtained an order from the chancery court permitting him to

retrieve the livestock from Luther's property and directing the sheriff to accompany him. Guns

were brandished, and Luther was arrested.     After the dust settled, the chancellor found that

Garland had made inter vivos gifts of part of the livestock and that Fred and his attorney, Jack
Parsons, violated M.R.C.P. 11 and the Litigation Accountability Act because they failed to

inform the court of Luther's claims of ownership when they obtained the order for seizing the

livestock.   As a result of this violation, the chancellor awarded Luther attorney's fees and

expenses in the amount of $2500 to be paid by Fred and Parsons. We find that the chancellor

was correct and affirm.

                                                 FACTS

¶2.     Fred Ladner filed a petition to probate the Last Will and Testament of Prentiss Garland

Ladner. Fred, one of Garland's brothers, was named executor in the will. The estate consisted

of, among other things, certain livestock1 which were located on real property owned by a third

brother, Luther Ladner.      Fred requested permission from the chancery court to remove the

livestock from Luther's property and take the cattle to a stockyard for processing.    He also

alleged that, after Garland's death, Luther went onto Garland's property and removed five

horses, a cattle trailer, saddles, bridles, blankets, a big screen television and a VCR.   Fred

requested the chancery court to order Luther to return the horses and the other items to him

so he could distribute the same according to the will.

¶3.     The chancery court issued letters testamentary to Fred and ordered the Sheriff to assist

Fred in retrieving the livestock and personal property from Luther. While Fred was retrieving

the livestock, firearms were brandished, and Luther was arrested.

¶4.     After the livestock were removed from Luther's property, Luther sent notices to two

stockyards contesting the ownership of the cattle and ordering the stockyards not to sell them.

Fred, as executor, filed suit in the chancery court against Luther, Heber Ladner and Camille


        1
         Eighteen cows, 14 calves and 4 horses.

                                                    2
Martin, for an order directing the three defendants to release certain property (cattle, a

television, a VCR, and horses) belonging to the estate. Thereafter, the court ordered Fred not

to dispose of any estate property, including the livestock.    Luther filed a response to the

complaint and a counterclaim, alleging that Fred should be removed as executor and that he

violated the Litigation Accountability Act, Miss. Code Ann. §§ 11-55-1 to -15 (Rev. 2002),

and demanding damages, attorney's fees and costs.

¶5.    After a hearing, the chancellor entered findings of fact and conclusions of law in which

he found as follows:

       1.      Garland's will bequeathed his estate to his siblings, for them to share
               equally.

       2.      The complaint filed by Fred did not inform the court of Luther's alleged
               ownership of the livestock.

       3.      The evidence overwhelmingly showed that Garland owned the cattle at
               the time of his death and that Luther was merely allowing them to graze
               on his property.

       4.      The evidence showed that Luther removed the personal property from
               Garland's house after Garland's death; therefore there was no inter vivos
               gift.

       5.      Garland did make an inter vivos gift of the horses to Luther and Camille
               Martin.     Supporting this finding are documents signed at Garland's
               direction and the fact that Luther cared for Garland towards the end of
               his life.

       6.      Fred and his attorney Jack Parsons knew or had reason to know of others'
               claim of possession and ownership of the livestock.

       7.      The fact that Luther did not actually own the cattle did not shield Fred
               and Parsons from liability.

       8.      Luther's arrest and the "strong arm" divestment of the livestock were
               performed without any legal authority.


                                                    3
9.     The actions of Fred and Parsons violated the Litigation Accountability
       Act2 and M.R.C.P. 11.3




2
 Miss. Code Ann. § 11-55-5 (Rev. 2002) provides in pertinent part:

(1)    [T]he court shall award . . . reasonable attorney's fees and costs against
       any party or attorney if the court . . . finds that an attorney or party
       brought an action, or asserted any claim or defense, that is without
       substantial justification, or that the action, or any claim or defense
       asserted, was interposed for delay or harassment . . . .

                                      ***
(3)    When a court determines reasonable attorney's fees or costs should be
       assessed, it shall assess the payment against the offending attorneys or
       parties, or both . . . .

(4)    [Attorney's fees may be assessed against parties or] an attorney licensed
       to practice law in this state . . . [if they] clearly knew or reasonably
       should have known that such party's action, claim or defense or any part
       of it was without substantial justification. Miss. Code § 11-55-3(a)
       (Rev. 2002) provides: "'Without substantial justification' . . . means that
       it is frivolous, groundless in fact or in law, or vexatious, as determined
       by the court."
3
 M.R.C.P. 11(b) provides in part:

If any party files a motion or pleading which, in the opinion of the court, is
frivolous or is filed for the purpose of harassment or delay, the court may order
such a party, or his attorney, or both, to pay to the opposing party or parties the
reasonable expenses incurred by such other parties and by their attorneys,
including reasonable attorneys' fees.

                                         4
                                    STANDARD OF REVIEW

¶6.       We cannot interfere with or disturb a chancellor's findings of fact unless those findings

are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. G. B.

"Boots" Smith Corp. v. Cobb, 860 So. 2d 774, 776-77 (Miss. 2003); Pilgrim Rest

Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So. 2d 67, 71 (Miss.

2003).      The standard of review for questions of law is de novo. Parkerson v. Smith, 817

So. 2d 529, 532 (Miss. 2002).

                                           DISCUSSION

                 I.     WHETHER THE CHANCELLOR ERRED WHEN HE
                        REMOVED FRED AS EXECUTOR.

¶7.       Fred and Parsons argue that executors may not be removed unless a conflict of interest

arises between the executor and the estate or when the executor fails to perform properly his

duties.     In re Chambers, 458 So. 2d 691 (Miss. 1984).         Fred alleges that he was merely

attempting to garner the assets of the estate and that his actions were not in conflict with the

estate's interests. He points out that he had reason to request the Sheriff's assistance because

Luther had stated that things would become violent if Fred attempted to seize the subject

property.

¶8.       Miss. Code Ann. § 91-7-85, removal or resignation of fiduciary, provides that executors

may be removed "if he become disqualified, or for improper conduct in office. . . ."           The

chancellor found that Fred "employed the strong arm of this Court to wrest control of cattle

and horses off the land of Luther Ladner, which also precipitated Luther Ladner's arrest by law

enforcement." We find that Fred's misrepresentation of the true facts (i.e., Luther's claims of


                                                  5
ownership) to the court amounted to "improper conduct" under the statute, and we affirm the

chancellor's removal of Fred as executor of Garland's estate.

                II.      WHETHER THE CHANCELLOR ERRED IN
                         DETERMINING THAT INTER VIVOS GIFTS OF
                         THE HORSES HAD BEEN MADE.

¶9.      A party attempting to prove that an inter vivos gift was made must show the following

by clear and convincing evidence: (1) that the donor was competent to make a gift; (2) that the

donation was a voluntary act and the donor had donative intent; (3) that the gift must be

complete and not conditional; (4) that delivery was made; and (5) that the gift was irrevocable.

In re Estate of Holloway, 515 So. 2d 1217, 1223 (Miss. 1987) (superceded on other

grounds by statute).

¶10.    Fred contends that neither title to nor possession of horses was delivered to Luther.

He alleges that the horses were still in Garland's possession at the time of his death. However,

there was undisputed testimony that Garland directed Camille Martin to fill out a form

transferring the horses to Luther and to Martin's daughter. He also directed Martin to sign his

name on the form.       Others heard Garland say that he wanted Luther and Martin's daughter to

have the horses.       Martin testified that she handled all paperwork related to the horses for

Garland prior to his death and that it was common practice for Garland, who was paralyzed, to

instruct others to sign paperwork in his name.

¶11.    There was conflicting testimony, however, about whether the horses were on Garland's

property or Luther's property at the time of Garland's death.         The chancellor found that the

horses were on Luther's property, and this finding is supported by evidence.




                                                   6
¶12.      However, on appeal, Fred claims that the horses were on Garland's property; therefore

there was no delivery of the inter vivos gift.        Delivery and relinquishment of control are

requisites of an inter vivos gift.    "A delivery either actual, constructive, or symbolical is an

element essential to the validity of a[n inter vivos gift]." Thomas v. Eubanks' Estate, 358 So.

2d 709, 713 (Miss. 1978) (citing Johnson v. Grice, 140 Miss. 562, 106 So. 271 (1925); Pace

v. Pace, 107 Miss. 292, 65 So. 273 (1914)). One of the essentials of a valid inter vivos gift

that the property must be delivered in such manner that the donor retains no control or

dominion over it. Thomas, 358 So. 2d at 713.

¶13.      We find that it does not matter whether the horses were found on Luther's property or

Garland's property, because a valid inter vivos gift was made. Garland instructed that papers

be drawn up to transfer ownership and directed Martin to sign the papers for him. Even if the

horses were on his property, the evidence shows that he was paralyzed and Garland clearly

could not exercise any right of ownership to the horses.       The testimony unequivocally shows

that Luther took care of the horses and that he and Martin and Martin's daughter rode the

horses.

¶14.      We find no error in the chancellor's finding that Garland made a valid inter vivos of his

horses to Luther and to Martin's daughter.


                 III.   WHETHER THE CHANCELLOR ERRED WHEN HE
                        FOUND     THAT   THE   LITIGATION
                        ACCOUNTABILITY ACT AND M.R.C.P. 11 HAD
                        BEEN VIOLATED.

¶15.      The chancellor, in finding that the Litigation Accountability Act and M.R.C.P. 11 had

been violated, awarded $2500 in attorneys fees and expenses to Luther, to be paid by Fred and

                                                  7
Parsons.    The imposition of sanctions raises a question of law, the standard of review of which

is de novo. Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 945-46 (Miss. 2001). Fred and

Parsons contend that Fred "rightfully called the police to keep the peace and prevent injury"

because Luther had "brandished weapons and threatened" Fred.                  However, testimony was

introduced at trial that Luther and Fred had at least two confrontations about the ownership of

the livestock prior to the will being probated.       The record shows that the complaint made no

mention of the fact that Luther claimed ownership of the livestock. Furthermore, Parsons sent

a certified letter to Luther in which Luther's threats against Fred were mentioned.           Therefore,

Parsons knew or reasonably should have known that Luther alleged ownership of the livestock,

and he made no effort to bring this fact to the chancellor’s attention.

¶16.    Neither Fred nor Parsons introduced any evidence that they did not know of Luther's

claimed ownership.      We find that Fred and Parsons had no substantial justification for their

actions and that their procuring the order to seize the livestock was frivolous under the

circumstances.     Both Fred and Parsons knew that Luther had claims to ownership of the

livestock and failed to inform the chancellor of this vital act.          The chancellor states that the

order was entered on the basis of the misrepresentations of Fred and Parsons.

¶17.    Because they misrepresented pertinent facts which were within their knowledge to the

chancellor, who entered an order based on the misrepresentations, Fred and Parsons violated

the Litigation Accountability Act and M.R.C.P. 11.

¶18.    The separate opinion posits that the chancellor, in finding that Fred and Parsons had

violated the Litigation Accountability and M.R.C.P. 11, attempted "to shift the entire blame to

Fred and his attorney," and was in error to have signed the order permitting Fred to enter


                                                      8
Luther's land to gain possession of the cattle. This issue is not raised by either party in this

appeal.     The only issues raised by Fred and Parsons concerning the chancellor's order pertain

exclusively to the claims that the chancellor abused his discretion because Fred and his

attorney had legal authority to do what they did.

¶19.      The separate opinion states that the chancellor did not support his findings with facts.

The order appointing Fred as executor, which was prepared by Parsons, states:

                          The Court finds further that FRED LADNER by and is
                  hereby authorized to dispose of the cattle and horses that were
                  left by the decedent since the decedent had only a few acres of
                  land and was using the property of his brother, LUTHER
                  LADNER, at the time of his death to run his cattle on and that
                  there is no person that is in a position to care for the
                  animals.

(Emphasis added.) Fred was in a position to know that Luther and his family had been taking

care of the cattle; however this information was not given to the chancellor, and in fact, the

allegation that no one was taking care of the cattle implied that there were no claims of

ownership of the cattle except for that of the Estate.

¶20.      In the order entered after the hearing, the chancellor specifically stated:

                           The true nature of the dispute between Fred Ladner,
                  Executor and Luther Ladner is borne out in a letter dated April
                  16, 2002, from Jack Parsons, attorney on behalf of Fred Ladner,
                  Executor, to Luther Ladner. This letter was sent certified and it
                  enclosed the Judgment of the Court. It was copied only to Fred
                  Ladner and David Earl Johnson, Chancery Clerk of Pearl River
                  County. It was not copied to the Court. Significantly, the
                  letter stated that Luther Ladner had said he would shoot anyone
                  going on his property to get horses and cattle. The letter warned
                  Luther Ladner of the consequences of resisting the Court's
                  Judgment. The Court was first made aware of the letter and
                  its contents on June 19, 2002, when it was introduced at
                  trial as Exhibit "3."


                                                       9
(Emphasis added.)

¶21.    These excerpts from the record make clear that, in failing to give the chancellor all

relevant information about the cattle, misrepresentations were made. Neither Fred nor Parsons

challenge the chancellor's statement that he was not aware of all of the circumstances

surrounding the ownership of the property.          It is not this Court's place to second-guess a

chancellor's findings when the parties have not.

                                            CONCLUSION

¶22.    Finding no error in the chancellor's findings of fact and conclusions of law, we affirm

the chancellor's judgment.

¶23.    AFFIRMED.

     SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES AND RANDOLPH, JJ.,
CONCUR. DICKINSON, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




        DICKINSON, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶24.    The majority is quite correct, I believe, in holding that the chancellor did not err in

finding Garland made a valid inter vivos gift of his horses. Therefore, I concur to that extent.

However, it seems to me the chancellor erred in holding than Fred and his attorney violated the

Litigation Accountability Act and M.R.C.P. 11, and in removing Fred as executor.        Therefore,

I respectfully dissent to that extent.

¶25.    On April 16, 2002, Fred filed a Complaint to Probate the Last Will and Testament of

his late brother, Garland. The Complaint stated in part:




                                                   10
       Your Plaintiff shows further that the decedent, GARLAND LADNER, died
       possessed of certain real and personal property, some of which had been taken
       by other parties and at the present time is left 18 cows, 14 calves and a bull and
       4 horses. The cows, calves and bull should be taken to the stockyard for
       disposal immediately. The cattle are presently located on LUTHER LADNER’S
       land, a brother of the decedent, and the court should direct that Luther Ladner
       release the animals to the Executor so they could be sold at a public sale at the
       Hattiesburg Stockyard or at the Lucedale Stockyard, whichever is more
       convenient and where the holding of the cattle can be arranged on the date of the
       sale. Your Executor should be given permission to secure the serves of a person
       or persons to load the cattle, haul them to the stockyard and sell them and be
       authorized to pay the fee for doing so. In fact, the court order should permit the
       stockyard to withhold the funds to pay for hauling of the cattle. The stockyard
       will send a truck and trailer to pick up the cattle and deliver them to the yard to
       be present at the sale and would withhold the transportation and loading costs
       out of the proceeds of the sale. Your Plaintiff shows the quarter horses that are
       left are very nice animals and, in fact, all but one (1) was registered and the
       papers have been taken by another party, thought to be Luther Ladner. Luther
       Ladner went on the property of the decedent, GARLAND LADNER, after his
       death and picked up five (5) horses, one (1) of which was delivered to CAMILLE
       MARTIN. Luther Ladner should be required to return the horses. Luther Ladner
       took the cattle trailer and all the saddles, bridles, blankets, etc. that belonged
       with the horses. All this property belonged to the decedent, GARLAND
       LADNER. In addition to this, Luther Ladner took the big screen television and
       the VCR and these items should be returned to your Plaintiff so that he can make
       disposition of same in accordance with this Court’s order.

                                                ***

       . . . The Court should enter an order directing the Sheriff of Pearl River County
       or one of his deputies or a constable to marshal these assets so they can be
       disposed of as directed by the Court.

¶26.   On the same day, the trial court entered a Judgment Appointing Executor which

appointed Fred as the Executor and provided in pertinent part:

                The Court finds further that the Complaint stated that certain parties had
       taken personal property that belong to the estate and that FRED LADNER is
       authorized to request that the personal property be returned to him as Executor
       to be disposed of in accordance with the order of this Court. The Court finds
       that the parties failing to do so, then, FRED LADNER is authorized to file



                                                  11
        appropriate pleadings in this Court to request the Court to hear and determine
        who is the true and legal owner of the personal property.

               The Executor is further authorized to bring any and all action necessary
        to secure possession and try ownership of any and all property belonging to the
        decedent’s estate.

                 The Court finds further that FRED LADNER be and is hereby authorized
        to dispose of the cattle and horses that were left by the decedent since the
        decedent had only a few acres of land and was using the property of his brother,
        LUTHER LADNER, at the time of his death to run his cattle on and that there
        is no person that is in a position to care for the animals. The Court finds that the
        Executor should take the cows to either Hattiesburg Stockyard or Lucedale
        Stockyard for sale and is authorized to retain the services of the stockyard to
        have people come pick up the cattle, haul them to the yard and the yard will
        deduct the charges incurred for their services from the sale price of the cattle
        and the remaining funds should be paid to FRED LADNER as Executor of the
        estate of his deceased brother, GARLAND LADNER. The Court finds the
        Executor may sell said horses at the public auction either at either of the
        stockyards or at the horse sale in Mize, MS or any other public horse sale
        wherein the prices of the animals will be value of the animals at public sale. The
        Court finds that out of the proceeds, the Executor or the yard will withhold the
        commissions for performing these services and the remainder will be placed
        into the estate to be divided upon conclusion of the estate.
                                                 ***

                IT IS FURTHER ORDERED that the Sheriff assist the Executor or his
        designees in securing the cattle and/or horses off the land of Luther Ladner,
        if needed, so the cattle and horses may be penned, picked up and sold as
        hereinabove set out. The Sheriff or Deputy or Deputies shall render
        assistance in keeping the peace while the cattle and horses are gathered and
        penned even though the animals are on the land of Luther Ladner or anyone else.
        The Sheriff and his officers are directed to keep the peace.

(emphasis added).

¶27.    On April 21, 2002, accompanied by law enforcement, Fred went to Luther’s property

to take possession of the livestock.    Luther did not consent.     This resulted in an altercation

which led to Luther’s arrest.




                                                12
¶28.    The next day, Luther’s attorney wrote letters to the stockyards, informing them of the

dispute, and warning them not to dispose of the livestock. A copy of the letters were sent to

the chancellor, the court clerk and Fred’s attorney.

¶29.    That same day, the chancellor held a hearing on the matter, and ordered Fred not to

dispose of the livestock until further order of the Court. The matter was set for trial on June

19, 2002.4

¶30.    Following the trial, the chancellor rendered his Findings of Fact and Conclusions of

                                 5
Law, wherein he purported            to address the “issue of whether the Judgment of the Court

exceeded its legal authority in granting Fred Ladner the power to take possession and dispose

of the cattle and horses in a way that is inconsistent and inimical to the law.”

¶31.    The trial court concluded that Luther had valid title to the horses, but not the cattle or

other items claimed by Luther. The trial court then addressed whether Fred and his attorney,

Jack Parsons violated the Litigation Accountability Act and Rule 11:


        4
        Subsequent to Fred taking possession of the livestock and the hearing on April 22,
2002, he filed another complaint on April 26, 2002 which paragraph IV stated:

        Your Plaintiff shows that on or about April 16, 2002, LUTHER LADNER, told
        the attorney for the estate, JACK PARSONS, that he would shoot anyone that
        went upon the property to get the cows and horses that belonged to GARLAND
        LADNER and that the animals are on his property under lock and key. Your
        Plaintiff firmly believes that LUTHER LADNER is so deranged and so
        possesses with ownership of the animals that was left by his late brother,
        GARLAND LADNER, that he would, in fact, shoot anyone that would attempt
        to go onto the property to secure the animals.

         The complaint prayed that the matter be set for a hearing to determine the ownership
of the animals.
        5
         Although the chancellor specifically stated the issue he intended to address, he never
made a finding of whether the court exceeded its authority.

                                                     13
        The fact that Luther Ladner did not own the cattle does not shield Fred Ladner,
        Executor, and his attorney, Jack Parsons, from the consequences of their
        actions. The fact remains that Fred Ladner, Executor, and his attorney, Jack
        Parsons, employed the strong arm of this Court to wrest control of cattle and
        horses off the land of Luther Ladner, which also precipitated Luther Ladner’s
        arrest by law enforcement. This was all done without a legal foundation and in
        violation of the Litigation Accountability Act and Rule 11.

                                              ***

        Fred Ladner, Executor, and his attorney, Jack Parsons, had less drastic measures
        available. They could have gotten an emergency temporary restraining order
        preventing Luther Ladner from disposing of the cattle and horses, and set a
        hearing before the court on the issue of ownership. But not only did their
        actions give no notice to Luther Ladner, they confiscated Luther Ladner’s
        property, prevented Luther Ladner from having his day in court and precipitated
        his arrest. Further, the process was even more abusive because the initial
        complaint did not support the Court’s Judgment of April 16, 2002. For these
        reasons, court proceedings were wrongly used by Fred Ladner, Executor, and his
        attorney, Jack Parsons, to deny Luther Ladner his legal rights and the
        confiscation of his property.

¶32.    The trial court was correct, I believe, in that the initial complaint did not support the

Court’s Judgment of April 16, 2002. However, it is harsh and unfair to shift the entire blame

to Fred and his attorney. This is especially so, I think, since we are given no explanation of why

the chancellor entered the order to begin with. The only misrepresentation we are told about

is that Fred and his attorney “knew or had reason to know of Luther Ladner’s claim of

possession and ownership.” The chancellor further states that Fred and his attorney had “less

drastic measures” available to them.

¶33.    The record before us indicates nothing beyond the contents of the Complaint was

presented to the chancellor when he signed the order allowing Fred, accompanied by the

“Sheriff or Deputy or Deputies” to enter Luther’s property and take the livestock. That being

the case, it seems to me we should be asking why the chancellor signed the order, not why Fred


                                               14
and his attorney asked for it.       The Complaint clearly falls far short of compliance with the

requirements for a temporary restraining order, or order of seizure, without notice to Luther.

Again, I am persuaded that we should be asking why the order was signed, rather than why it was

requested.

¶34.    If the chancellor is claiming he has a reasonable basis to assert that Fred and his

attorney intentionally and willfully lied to the court, I find nothing in the record to substantiate

such a claim.

¶35.    The charge against Fred and his attorney I find most tenuous, is the chancellor’s

statement that “the process was even more abusive because the initial complaint did not support

the Court’s Judgment of April 16, 2002.”           If the chancellor signed an order which was not

justified by the complaint, it seems we should be looking to the one who signed the

unsupported order.

¶36.    Furthermore, rebutting the chancellor’s assertion that the court was not informed of the

dispute, or Luther’s claim of ownership, I find the following in the complaint:

        1.      “. . . the court should direct that Luther Ladner release the animals to the
                Executor. . . .”

        2.      “Luther Ladner went on the property of the decedent, Garland Ladner,
                after his death, and picked up five (5) horses. . . .”

        3.      “Luther Ladner should be required to return the horses.”

        4.      Plaintiff prays “. . . this Court . . . direct that he proceed to . . . require
                people that are in custody of this property summoned to appear at a date
                certain for a hearing on said ownership of said property.”

Additionally, the following is found in the chancellor’s order:




                                                     15
           1.       “The Court finds further that the Complaint stated that certain parties had
                    taken personal property that belong to the estate . . . .”

           2.       “The plaintiff has attached to the Complaint a list of personal property
                    that was thought to be owned6 by the decedent and is authorized to take
                    whatever actions necessary to secure said property . . . .” (emphasis
                    added).

           3.       “The Sheriff or Deputy or Deputies shall render assistance in keeping the
                    peace7 while the cattle and horses are gathered and penned, even though
                    the animals are on the land of Luther Ladner or anyone else. The Sheriff
                    and his officers are directed to keep the peace.”

¶37.       In light of these statements, I see little to justify sanctions against Fred or his attorney,

or to justify his removal as executor, based upon misconduct.             Conversely, I see much to

indicate that the chancellor should not have signed the order without notice to Luther, and a

hearing.        Therefore, on the issues of violation of the Litigation Accountability Act, Rule 11

sanctions, and I would reverse and render the chancellor's judgment. Accordingly, I respectfully

concur in part and dissent in part.




           6
         For reasons unexplained, the chancellor’s Judgment then proceeded to grant Fred the
authority to take possession of, and dispose of, this personal property “thought to be owned
by” the decedent.
           7
          Why would the Sheriff need to “keep the peace” if there were not conflicting (and
hostile) claims to the property?

                                                    16
