Case Notes

Child.

The General Assembly did not intend for a grandchild to be defined as a child under subdivision (a)(1) of this section. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

Because there is no comma separating “illegitimate child” and the modifier “except such as would inherit under the law of descent and distribution” in subdivision (a)(1) of this section, the General Assembly intended for “except such as would inherit…” to modify only “illegitimate children.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The phrase “except such as would inherit under the law of descent and distribution” in subdivision (a)(1) of this section does not modify the word “grandchild.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The minor grandchildren of a decedent who would inherit from the decedent under the laws of descent and distribution do not have homestead rights under § 28-39-201, because they do not fall within the definition of “child” in subdivision (a)(1) of this section. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of § 28-39-407(b), subdivision (a)(1) of this section, and the six requirements of § 28-9-209(d), but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Claims.

Definition of word “claims” used in Probate Code to include estate taxes applies to “claims” only as it is used in Probate Code and has nothing to do with the apportionment of estate taxes. Williamson v. Williamson, 224 Ark. 141, 272 S.W.2d 72 (Ark. 1954).

Where a lawsuit pending in a circuit court was not a claim against the estate, but was a suit against the executor individually, the court did not err in closing the estate since there was no pending claim against the estate as defined by subdivision (2) of this section. Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984).

Distributees.

Both the widow and heirs at law are distributees of a solvent intestate estate under this section and § 28-53-113 and therefore secured debts are to be discharged out of the general estate, unpledged personal property, where the creditor does not pursue the security which gives the widow a dower right in the entire security free from the debt. Wilcox v. Brewer, 224 Ark. 546, 274 S.W.2d 777 (1955).

Interested Persons.

Where administrator is removed for failure to qualify and physical incapacity, it is unnecessary for the court to determine whether person bringing matter to court's attention was an interested party. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Since, under § 28-25-102, an attesting witness to be “interested” must receive a beneficial interest by way of devise, an attorney signing will as attesting witness was not “interested,” although the firm with which he was associated was named to represent the estate. Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857 (1961).

One claiming damages for the alleged negligence of the decedent is not an interested person within the definition of this section. Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970).

Where plaintiffs filed an action against the administrator prior to his resignation as administrator, plaintiffs were “interested parties” within the meaning of this section and “aggrieved parties” within the meaning of § 28-1-116 for purposes of appealing from probate orders that affected those proceedings. However, as such a resignation is ordinarily a matter of discretion for the probate judge and in this case had no effect on venue and § 28-48-107 gives plaintiffs a remedy for the appointment of another administrator, there was no abuse of discretion in allowing the resignation to stand. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

Once a trial judge rejects the report on the public sale of estate land, the status of the parties who had bid for the land can no longer be described as interested parties; at best, their position is that of potential bidders at any future sale, and hence they have no standing to contest a petition on behalf of the heirs of an estate. Estate of Hodges v. Wilkie, 14 Ark. App. 297, 688 S.W.2d 307 (1985).

Where the decedent died testate and left them nothing under the will, the decedent's surviving children were not heirs and were not creditors, and were thus not “interested persons” as that term is used in subdivision (a)(11) of this section, § 28-48-105(a)(2), or § 28-48-107(a). Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

On petition to probate court to set aside order authorizing sale of decedent's land, where petitioners were not heirs or creditors, where their petition did not assert any claim against the estate or declare any interest in the estate's property, and where they did not indicate any entitlement to proceeds which might be distributed by the estate, but in fact were persons against whom the estate had sought relief, the petitioners were not interested persons as defined by subdivision (a)(11) and had no standing to question the issuance of the court's order. White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996).

Appellant was an “interested person” as defined in subdivision (a)(11) where appellant was specifically named in the will as a beneficiary of a trust; the fact that appellant was a beneficiary of the trust meant that appellant had “an interest in the estate.” Spicer v. Estate of Spicer, 55 Ark. App. 267, 935 S.W.2d 576 (1996).

Appellants were interested persons entitled to seek removal of an estate's personal representative where they were potential heirs of the intestate estate. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).

Although appellant argued that there was no evidence that anyone received notice of the hearing set on the final accounting, which appellant claimed violated § 28-1-112, the argument was without merit, given the notices that the trial court sent out after excluding appellant from distribution of the estate, and appellant conceded to having received actual notice in any event and possibly not having been entitled to notice in the first place; because appellant had been excluded, she was not an interested person under subdivision (11) of this section and so there was no legal requirement that she be served notice, and she lacked standing to complain about the failure to send notice to others who had not appealed. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Appellee was not an “interested person” as defined in subdivision (a)(11) of this section with standing to petition the probate court. Appellee failed to offer any testimony that there was a service contract between the decedent and herself, and there was no evidence that the services she provided for the decedent were of any extraordinary character. Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).

Because appellant, an heir of the decedent and devisee under the will, was made a party to the probate action when the circuit court granted his motion to intervene under Ark. R. Civ. P. 24, the circuit court erred by determining that he was not entitled to notice of a hearing on a motion to remove the estate executrix. The Court of Appeals of Arkansas held that appellant was an “interested person” as defined in subdivision (11) of this section. Maxwell v. Estate of Maxwell, 2012 Ark. App. 174 (2012).

Person.

Probate court erred in finding that the limited liability company lacked standing to bring a petition for the determination of heirship, because the limited liability company alleged in the petition that it was a legal entity, so it was a person and could bring the petition; “person” was defined under subdivision (18) of this section to include a corporation, partnership, or other legal entity. McVesting, LLC v. Heirs of Macie McGoon, 2012 Ark. App. 541 (2012).

Personal Representative.

The term “personal representative” includes both general and special administrators. Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953).

Tests.

While a prosecuting attorney clearly has a duty to disclose all pertinent test on tangible items pursuant to ARCrP 17.1, the prosecutor is not required to make certain scientific tests on all materials seized. State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994).

Cited: Holt v. Moody, 234 Ark. 245, 352 S.W.2d 87 (1961); Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970); Sutton v. Milburn, 289 Ark. 421, 711 S.W.2d 808 (1986); Sanders v. Ryles, 318 Ark. 418, 885 S.W.2d 888 (1994); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997); Tatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (Ark. 1997); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998).

Case Notes

Exceptions.

The probate of a will which, together with necessary proof of its execution, had been filed with the probate clerk in 1947, but which the clerk had failed to enter an order admitting to probate came within the exceptions of this section, and § 28-40-103 limiting the time for probate did not apply. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964).

Rights Arising Prior to Code.

Proceeding in 1950 to probate will of person who died in 1935 was not barred by five-year limitation period contained in 1949 Code, since Probate Code is not retroactive. Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951).

This section is not retroactive, and therefore a probate court was not authorized to hear a petition to set aside prior order of probate court disposing of estate in 1943 on grounds that petitioner was actual heir since only the circuit or chancery courts could determine questions of heirship at that time. Adams v. Hart, 228 Ark. 687, 309 S.W.2d 719 (1958).

Cited: Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695 (1950).

Research References

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 22.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Conflict of Laws: Arkansas 1969-72, 27 Ark. L. Rev. 27.

Case Notes

Adoption.

The probate court is vested with both inherent and statutory authority to close adoption records; a writ of prohibition will not lie to prevent a probate court from sealing adoption records. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

For purposes of § 9-9-212, appellants claimed that the failure to file a home study for the adoption of the child was jurisdictional and required reversal; however, under subdivision (5) of this section, the trial court had jurisdiction to determine the child's adoption and any error in relying on appellees’ home study had to be raised in the trial court to be preserved for review. Wilson v. Golen, 2013 Ark. App. 267, 427 S.W.3d 723 (2013).

Authority of Court.

A probate court has authority, on a proper showing, to set aside any order that it makes at the same term of court. Knight v. Worthen Bank & Trust Co., 233 Ark. 465, 345 S.W.2d 361 (1961).

In order to establish lost will, probate court must follow dictates of this section. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Chancery Courts.

Chancery courts could interfere in guardians' settlements to correct fraud, or relieve against accident, or upon some other acknowledged ground of equity jurisdiction. Nelson v. Cowling, 77 Ark. 351, 91 S.W. 773 (1906) (decision under prior law).

A chancery court has no jurisdiction to probate wills or settle and distribute a decedent's estate even though a will has not been probated nor letters of administration issued. Gaylor v. Gaylor, 224 Ark. 644, 275 S.W.2d 644 (1955).

The distribution of assets contained in a deceased husband's testamentary marital trust need not pass through the wife's estate; the probate court acted properly by deferring the trust and distribution issues to the chancery court. Clement v. Larkey, 314 Ark. 488A, 314 Ark. 498, 863 S.W.2d 578 (1993).

Claims Against Estate.

It was not error for the probate court to grant the petition of administrator to grant a lien upon decedent's real estate and to revive a judgment allowing claims, as § 28-50-105 specifically permits an order allowing claims against an estate the effect of a judgment, and this section gives the probate court the same powers to carry out its judgments as exist in courts of general equity. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Closing of Estate.

While a probate court is not the proper forum to enforce contractual rights, where a contract provided for completion after close of administration and no action was being taken to close estate, it was proper to bring proceedings in the probate court to obtain a closing of the estate. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Collateral Attack.

In collateral proceeding attacking judgment of a probate court, every fact necessary to give the court jurisdiction will be conclusively presumed in favor of jurisdiction where the record is silent. Redditt v. Hale, 199 F.2d 386 (8th Cir. 1952), cert. denied, 345 U.S. 908, 73 S. Ct. 647 (1953).

The judgment of a probate court approving accounts of resident guardian of nonresident incompetents could not be attacked in collateral proceeding in federal district court where no fraud was charged, but only that resident guardian had not realized as much as should have been realized. Redditt v. Hale, 199 F.2d 386 (8th Cir. 1952), cert. denied, 345 U.S. 908, 73 S. Ct. 647 (1953).

When a probate court has acted within its jurisdiction, its judgments are not open to collateral attack. When a probate court acts without its jurisdiction, however, its judgments are void and subject to collateral attack. Filk v. Beatty, 298 Ark. 40, 764 S.W.2d 454 (1989).

A judgment cannot be collaterally attacked unless it is void on the face of the record or the probate court is shown to have lacked subject-matter jurisdiction. Rowland v. Farm Credit Bank, 41 Ark. App. 79, 848 S.W.2d 433 (1993).

Dower.

A probate court had jurisdiction in matters of dower. Carter v. Younger, 112 Ark. 483, 166 S.W. 547 (1914) (decision under prior law).

Enforcing Compromise Claim.

A probate court had no jurisdiction to enforce a compromise of a ward's claim against an insurance company, such jurisdiction being in the circuit court. Union Cent. Life Ins. Co. v. Boggs, 188 Ark. 604, 66 S.W.2d 1077 (1934) (decision under prior law).

Equitable Relief and Doctrines.

Probate courts were held to be without jurisdiction to confer equitable relief; however in probate matters properly brought before them they could apply equitable doctrines. Jones v. Graham, 36 Ark. 383 (1880) (decision under prior law).

Exhumation.

Although not specifically enumerated in this section, an appellate court had jurisdiction over a request to exhume a body because the decedent's personal representative petitioned the probate division of the circuit court, during administration of the decedent's estate, to enforce a provision in the decedent's will by ordering exhumation and reburial and probate orders were appealable pursuant to § 28-1-116(a) and Ark. R. App. P. Civ. 2(a)(12). Long v. Alford, 2010 Ark. App. 233, 374 S.W.3d 219 (2010).

Fees of Attorneys and Guardians.

A probate court had no jurisdiction of a claim by an attorney for services in prosecution of claim in behalf of an estate. Pike v. Thomas, 62 Ark. 223, 35 S.W. 212 (1896); Parker & Parker v. Mayo, 72 Ark. 513, 83 S.W. 324 (1904) (decision under prior law).

A probate court had no jurisdiction to audit claim against administrator for heirs' attorney's fee. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900) (decision under prior law).

Probate courts could authorize the employment of counsel by the administrator and could allow fees for such services rendered as necessary expenses of administration. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900) (decision under prior law).

Where the term at which fees of an attorney and a guardian had been ordered was allowed to lapse, the executor could not have an order allowing the fees set aside except by filing a petition which complied with the requirements of former Arkansas Statutes Annotated §§ 29-506 and 29-508. Hobbs v. Dowds, 233 Ark. 501, 345 S.W.2d 925 (1961).

Gift Inter Vivos.

A probate court was without jurisdiction to decide the ownership of jewelry claimed as a gift inter vivos from the testator. Huff v. Hot Springs Savs., Trust & Guar. Co., 185 Ark. 20, 45 S.W.2d 508 (1932) (decision under prior law).

Homestead.

A probate court had jurisdiction to order sale of decedent's homestead. Huffstedler v. Kibler, 67 Ark. 239, 54 S.W. 210 (1899) (decision under prior law).

A probate court had no jurisdiction of an action by a widow against the heirs of her deceased husband to recover a homestead of which they were in adverse possession. James v. James, 72 Ark. 329, 80 S.W. 148 (1904) (decision under prior law).

Jurisdiction and Powers Generally.

A probate court had only such jurisdiction as was conferred by statute and the Arkansas Constitution. Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373 (1903) (decision under prior law).

The jurisdiction of probate courts was limited in its general scope as to the subject matter to the undisputed property of decedents and of wards, and, as to persons, to those interested in such property as equitably or legally entitled to some distributive share therein, or in the residue, and as to creditors who voluntarily, upon general notice and without special citation, present their claims. Huff v. Hot Springs Savs., Trust & Guar. Co., 185 Ark. 20, 45 S.W.2d 508 (1932) (decision under prior law).

The probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Lost or destroyed wills are generally established by an action in chancery, but probate court has additional jurisdiction in matters of heirship, adoption, and, concurrent with jurisdiction of other courts, jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Neither the Arkansas Constitution nor this section confers on probate courts jurisdiction to administer a trust created by a will. Clement v. Larkey, 314 Ark. 488A, 314 Ark. 498, 863 S.W.2d 578 (1993).

The construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity; neither the Arkansas Constitution nor this section confers on probate courts jurisdiction to administer a trust created by a will. Long Trust v. Holk, 315 Ark. 112, 864 S.W.2d 869 (1993).

The probate court had subject matter jurisdiction to determine title to the real property where the appellant was a beneficiary of the testator's will, even though appellant was not acting in that capacity by asserting her claim to this property. Williams ex rel. Tucker v. Titterington, 46 Ark. App. 322, 881 S.W.2d 226 (1994).

Generally speaking, lost or destroyed wills are established by an action in chancery under § 28-40-301; however, subdivision (a)(6) of this section grants probate court jurisdiction (concurrent with the jurisdiction other courts) over the restoration of lost wills and for the construction of wills when incident to the administration of an estate. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Trial court erred in awarding a law firm an attorney's fee of $11,902.47 as the claim was barred by res judicata as: (1) in a first suit, the firm was denied relief for breach of contract and quantum meruit; (2) Ark. Const. Amend. 80 granted the trial court jurisdiction to rule on all claims of relief, legal and equitable; (3) jurisdiction was proper in the first suit under this section, and the first suit fully and finally settled all issues between the firm and the clients; and (4) both suits involved the same parties, and the same claims. Hooten v. Mobley Law Firm, P.A., 2011 Ark. App. 778, 387 S.W.3d 298 (2011).

Jurisdiction over Administrators.

A probate court could render summary judgment on an administrator's bond for the payment of assets found to be in his hands and which it had ordered to be paid over. Planters' Mut. Ins. Ass'n v. Harris, 96 Ark. 222, 131 S.W. 949 (1910) (decision under prior law).

A probate court had jurisdiction to set aside administrator's sale and to remove administrator. Hall v. Cox, 104 Ark. 303, 149 S.W. 80 (1912) (decision under prior law).

Jurisdiction Over Assets.

The jurisdiction of the probate court over the estates of deceased persons was held to be confined to the administration of assets which came under its control and, incidentally, to compel the discovery of assets. Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140 (1914) (decision under prior law).

A probate court had jurisdiction to require an executor to disclose assets of the estate, including what, if anything, he owed the estate on notes or otherwise and to require him to charge himself with any amount he may have wrongfully paid to himself or to others without presenting the claim to the court for allowance. Gocio v. Seamster, 203 Ark. 937, 160 S.W.2d 194 (1942) (decision under prior law).

Probate court did not have jurisdiction over suit by administrator of the estate to collect a debt alleged to be due to the estate by the defendant, where defendant was not an heir, distributee, or beneficiary, and was a third person or stranger to the estate. Estate of Puddy v. Gillam, 785 S.W.2d 254 (1990).

Laches of Creditor.

A probate court had jurisdiction to determine whether or not creditors had, by laches, lost the right to subject the real estate of the decedent to the payment of their debts. Brogan v. Brogan, 63 Ark. 405, 39 S.W. 58 (1897) (decision under prior law).

Lost Will.

A probate court had no jurisdiction to establish a lost will. Waggener v. Lyles, 29 Ark. 47 (1874) (decision under prior law).

Jurisdiction was proper in probate court where the proceedings were to restore a lost will incident to the administration of an estate. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Partnership Accounts.

A probate court had no jurisdiction to adjust the partnership accounts between deceased and surviving partners. However, where the accounts had been settled and a balance struck against a deceased partner, the probate court could render judgment for this balance against the estate. Culley & Son v. Edwards, 44 Ark. 423 (1884). See also Morris v. Stroude, 123 Ark. 313, 185 S.W. 451 (1916) (decision under prior law).

Paternity.

Where sole purpose of action is to establish paternity, the probate court is without jurisdiction to hear the matter. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

Power to Give Accounting.

Where a probate judge dismissed a petition for an accounting filed by an executor and a third party complaint filed by the widow and the dismissals were without prejudice to have the matters heard in the chancery court, the dismissals were not clearly erroneous, since the chancery court had the power to give an accounting even though it could have been had in the probate court where the matter was pending. Stokes v. Stokes, 275 Ark. 110, 628 S.W.2d 6 (1982).

Proper Venue.

In action by devisee for possession of motel devised to her for life against executors of will, the probate court of the county was court of competent jurisdiction to hear and determine the question of possession where the property was located in the county and ancillary administration of deceased's estate was being conducted there under the supervision of the probate court. Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960).

Property Rights.

The enactment of the Probate Code did not enlarge the jurisdiction of probate courts to hear contests over property rights between the personal representative and third persons. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976).

The probate courts have no jurisdiction to resolve disputes as to property rights between a personal representative and third persons claiming adversely to the estate; persons who are neither heirs, devisees, distributees, nor beneficiaries of the estate are third persons and “strangers” within the meaning of this rule. Williams ex rel. Tucker v. Titterington, 46 Ark. App. 322, 881 S.W.2d 226 (1994).

Real Property.

Under § 28-49-101 real property is an asset in the hands of the administrator only when the probate court finds that it should be sold, mortgaged, leased, or exchanged for purposes stated in § 28-51-103. Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

Rents.

Probate court had no jurisdiction to adjudicate a claim by a widow against the administrator of her husband's estate for rents due her which were collected by the administrator. Mobley v. Andrews, 55 Ark. 222, 17 S.W. 805 (1891) (decision under prior law).

Sale of Realty.

Probate courts had jurisdiction to order the sale of real estate to pay the debts of an estate in accordance with the jurisdiction conferred by this section. Sullivan v. Times Publishing Co., 181 Ark. 27, 24 S.W.2d 865 (1930) (decision under prior law).

Title to Realty.

A probate court had no jurisdiction to try title to real property. Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166 (1913); Fowler v. Frazier, 116 Ark. 350, 172 S.W. 875 (1915); Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825 (1931) (decision under prior law).

Unborn Children.

Since nothing is said about unborn children in Ark. Const., Art. 7, § 34, concerning probate courts or in this section, which is the statutory jurisdictional provision, any attempt to extend the Probate Code to unborn children would be without specific authority and would be void. Accordingly, a probate court is correct in refusing to grant letters of administration to a deceased fetus. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Vacating Judgment.

A probate court was without jurisdiction to vacate its judgment probating a will, such judgment being final. Dunn v. Bradley, 175 Ark. 182, 299 S.W. 370 (1927) (decision under prior law).

Cited: Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); McDermott v. McAdams, 273 Ark. 20, 616 S.W.2d 476 (1981); Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989); Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990); In re D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997); Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003).

Research References

Ark. L. Rev.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Case Notes

Special Action.

This section does not prohibit the judge in a special action from receiving documents in open court, without the intervention of the clerk of court and with the receipt of the documents constituting their “filing.” Orlando v. Wizel, 443 F. Supp. 744 (W.D. Ark. 1978).

Case Notes

Application to Court.

An application to the court within the meaning of § 28-40-103 was made when proponents of a will filed a verified petition for probate within three days after death of testator, and a personal appearance before the probate court was not necessary. Minchew v. Tullis, 236 Ark. 818, 368 S.W.2d 282 (1963).

Case Notes

Response.

Where there is no order or rule, a court does not err in permitting appellees to dictate a response into the record, for this section requires objections to a petition to be filed in writing only when the court so requires by a special order or general rule. Coogler v. Dorn, 231 Ark. 188, 328 S.W.2d 506 (1959).

Rules of Procedure.

Where a petition for determination of heirship under § 28-53-101 was filed in July 1980, and the executor filed his response in September 1980, beyond the 20-day period provided for in ARCP 12, but before the hearing, it was proper for the probate judge to deny petitioner's motion to strike the response, since objections by the defendant are not governed by ARCP 12, in probate proceedings and may be made at any time, up to and including the day of the hearing, unless a special order or general rule of the court under this section requires a written objection as a prerequisite to the arguments being heard by the court. King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981).

Case Notes

Accounting Against Guardian.

Where a person for whom a guardian was appointed as being insane was subsequently adjudged to be sane, a suit for an accounting against the guardian was not within the exclusive jurisdiction of the probate court, but could be maintained in the chancery court. Smith v. Walker, 187 Ark. 161, 58 S.W.2d 946 (1933) (decision under prior law).

Convicted Felon.

Probate court had no jurisdiction of a proceeding to determine the issue of a convicted felon's sanity where he was in custody of the law for execution. Ferguson v. Martineau, 115 Ark. 317, 171 S.W. 472 (1914) (decision under prior law).

Determination of Mental Status.

In suit to redeem property sold for delinquent taxes, a chancery court had authority to determine plaintiff's mental status, irrespective of any previous adjudication by the probate court, which would be prima facie evidence. Schuman v. Westbrook, 207 Ark. 495, 181 S.W.2d 470 (1944) (decision under prior law).

Unable to Challenge Appointment.

Because an attorney-ad-litem had performed the services requested by a circuit court and the circuit court had already rendered a ruling in the case, an attorney's argument on appeal that the circuit court lacked authority to appoint an attorney-ad-litem in a case involving a petition for ante-mortem probate was moot. Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008).

Cited: Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); McDermott v. McAdams, 273 Ark. 20, 616 S.W.2d 476 (1981).

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Not Entitled to Notice.

Although appellant argued that there was no evidence that anyone received notice of the hearing set on the final accounting, which appellant claimed violated this section, the argument was without merit, given the notices that the trial court sent out after excluding appellant from distribution of the estate, and appellant conceded to having received actual notice in any event and possibly not having been entitled to notice in the first place; because appellant had been excluded, she was not an interested person under § 28-1-102(11) and so there was no legal requirement that she be served notice, and she lacked standing to complain about the failure to send notice to others who had not appealed. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Substantial Compliance.

Substantial compliance with the requirements of law for the presentation of claims is sufficient. Merritt v. Rollins, 231 Ark. 384, 329 S.W.2d 544 (1959).

There was substantial compliance with this section where, though county clerk did not notify executor of claim against estate by registered mail as provided by § 28-50-104, her attorney received a copy of the claim within the statutory period for notice. Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963).

On the question of whether service on a court-appointed attorney for an absent military mother was sufficient service of process in a case of continuing jurisdiction on the issues of custody and guardianship, it was undisputed that service was made on the mother's attorney of record, and thus, the service of notice was in compliance with subsection (e) of this section. Finney v. Cook, 351 Ark. 367, 94 S.W.3d 333 (2002).

Unable to Challenge Appointment.

Issue raised by an attorney regarding violation of his due-process rights allegedly resulting from a circuit court's appointment of an attorney-ad-litem without notice, without a hearing, and without adequate time to respond would have had no practical effect on the controversy, would have been purely advisory, and was moot because the attorney-ad-litem had performed the services requested by the circuit court and the circuit court had already rendered a ruling in the case. Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008).

Voluntary Submission to Jurisdiction.

A party contesting a will voluntarily submitted to the jurisdiction of the probate court by requesting in writing that notice by ordinary mail of any petition, motion, or other filing of any kind be sent to his attorney. Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979).

Cited: Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Personal Waiver.

Personal waiver of successor guardian who was not a party to the action, in her own behalf, did not bar the guardian from challenging the order on behalf of ward where her personal waiver was executed prior to her appointment as successor guardian. Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988).

Circuit court did not clearly err when it found that appellant's waiver of notice as written applied to “all proceedings” and that appellant did not intend it to be limited to only proceedings that involved the appointment of his parents as guardians to his children, as opposed to other persons; although appellant could have limited under the statute his waiver to waive notice only of specific hearings, he failed to do so. Paschall v. Paschall, 2018 Ark. App. 514, 563 S.W.3d 592 (2018).

Voluntary Submission to Jurisdiction.

A party contesting a will voluntarily submitted to the jurisdiction of the probate court by requesting in writing that notice by ordinary mail of any petition, motion, or other filing of any kind be sent to his attorney. Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979).

Research References

Ark. L. Rev.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds the Appointment of a Special Personal Representative to an Estate Is Voidable, but Not Void, upon the Discovery of a Disqualifying Characteristic, 66 Ark. L. Rev. 1145 (2013).

Case Notes

Purpose.

This section was designed to afford a probate court greater flexibility with regard to the finality of its orders in the process of administration of an estate. White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992).

Probate court did not err in reopening a decedent's estate in order to reform the probate file and a deed to show that real property was conveyed to purchasers with a reservation of one-half the mineral rights on each tract of land because the president of the bank that administered the estate testified that one-half of the mineral rights were not to be sold to purchasers, and his testimony was supported by the evidence; this section was inapplicable and did not limit § 28-53-119 because this section did not speak to reopening the estate, which was authorized by § 28-53-119. Moore v. First Presbyterian Church of Searcy, Ark., Inc., 2010 Ark. App. 269 (2010).

Dismissal with Prejudice.

The probate court's dismissal of will contest was necessarily with prejudice; any reconsideration of the dismissal must therefore relate to the dismissal itself and not to the merits of the will contest. Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991).

Good Cause.

Good cause to vacate previous order of court to sell property to pay claim exists where claim is barred by lapse of time under § 28-50-101. Brooks v. Baker, 242 Ark. 128, 412 S.W.2d 271 (1967).

Where a contest of will had already been filed at time will was admitted to probate, there was no time period in which contest had to be filed, and court could vacate or modify its order admitting will to probate, for good cause, at any time within period allowed for appeal after final termination of administration of estate. Even if court had felt admitting will to probate was res judicata on validity of will, it could have vacated its order because probate case was still open. Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987).

The record was void of any evidence for appellate review of whether good cause existed to vacate dismissal of will contest pursuant to subsection (a) where appellant offered no explanation of why “newly discovered” evidence was not offered prior to dismissal. Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991).

Probate judge did not err in failing to find good cause to vacate order, which had found woman to be natural daughter of decedent, on basis of newly discovered evidence that woman was not natural daughter of decedent where there was no satisfactory explanation offered to show why this evidence could not have been obtained prior to entry of the order. Cobb v. Estate of Keown, 53 Ark. App. 171, 920 S.W.2d 501 (1996).

Jurisdiction.

Probate court had jurisdiction to set aside its previous order determining heirship, because there was an extended period during which courts had jurisdiction to modify or vacate orders in probate proceedings, there had not been a final termination of the proceedings, and it was not entirely clear that the order determining heirship would have ended the proceedings. McVesting, LLC v. Heirs of Macie McGoon, 2012 Ark. App. 541 (2012).

Circuit court had the authority to set aside the order granting a petition for approval to make final distribution and determine heirship because the vacated order did not terminate the estate, and thereby, did not fulfill the requirements of this statute. Grant v. Williams, 2013 Ark. App. 663, 430 S.W.3d 786 (2013).

Right of Appeal.

The fact that appellant did not appeal from an order under the commissioner's report as to the value of homestead under the provisions of § 28-39-203, prior to the probate court's final order, even though they might have done so, did not constitute a bar to a later appeal. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Time.

Notwithstanding the provisions of ARCP 60, subsection (a) allows a probate court to vacate or modify its orders at any time before the time for appeal has elapsed after the final termination of the estate. White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992).

A probate order may be vacated or modified at any time before a final order is entered, notwithstanding the dictates of Ark. R. Civ. P. Rule 60(b). Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).

In accordance with Ark. R. Civ. P. 81, it is precisely because the probate code and the Arkansas Rules of Civil Procedure set forth different time limits on the court's authority to modify or vacate prior orders that this section applies in probate proceedings; thus, an appeal under § 28-1-116 was timely since Ark. R. Civ. P. 52 was not implicated in an appeal from a denial of reconsideration arising from a denial of intervention in a probate case. Helena Reg'l Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005).

Unqualified Personal Representative's Prior Acts.

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) subsection (b) of this section states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) § 28-48-102(d)(2) also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Cited: Alexander v. First Nat'l Bank, 278 Ark. 406, 646 S.W.2d 684 (1983).

Research References

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 22.

Case Notes

Applicability.

This section provides for appeals from probate causes involving wills, estates, and fiduciary relationships; it was enacted in 1949 and was in effect at the time ARAP 2 was adopted and, therefore, determines whether there is a right of appeal in a case involving orders of the probate court. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Law and rules applicable to appeals from equity courts apply equally to appeals from probate court, except as otherwise provided in the probate code. In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Right to review by the Supreme Court lies from all probate court orders other than an order removing a fiduciary for failure to give a new bond or render an accounting required by the court, or an order appointing a special administrator. In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Because a right to review lies from all probate orders other than an order removing a fiduciary for failure to give bond or to render a required accounting or an order appointing a special administrator under subsections (a) and (b) of this section, claimant's appeal from the order denying the motion to enter an order was properly before the court. Smith v. Estate of Howell, 372 Ark. 186, 272 S.W.3d 106 (2008).

Decedent’s son’s appeal was dismissed because prior to a hearing on the admission of the will to probate, he executed a waiver and entry of appearance and a disclaimer of his interest in the decedent’s estate, did not file a notice of appeal of an order staying the matter until a final distribution was made, and despite the denial of his motion to supplement the record, he included in his addendum materials found only in the supplemental volume and did not include certain necessary documents. Stratton v. Stratton, 2014 Ark. App. 292 (2014).

Adoption Proceedings.

In adoption proceedings, appellate court reviews the record de novo, but will not reverse the probate judge's decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983).

Aggrieved Person.

Where the plaintiffs filed an action against the administrator prior to his resignation as administrator, plaintiffs were interested parties within the meaning of subdivision (11) of § 28-1-102 and aggrieved parties within the meaning of this section for purposes of appealing from probate orders that affected those proceedings, but as such a resignation was ordinarily a matter of discretion for the probate judge and, as such resignation had no effect on venue and § 28-48-107 gave plaintiffs a remedy for the appointment of another administrator, there was no abuse of discretion in allowing the resignation to stand. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

Authority.

Circuit court did not err in appointing a sister as guardian over her sibling, an incapacitated adult, because the circuit court acted with its authority when it continued to enter orders while a brother's appeal was pending; the circuit court faced changed circumstances that called for immediate action because it was grappling with a situation in which the terms of its orders had not been fulfilled, and subdivision (e)(1) of this section did not preclude the circuit court from exercising that kind of judicial authority. Kuelbs v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 284 (Ark. June 2, 2011).

Because a guardianship case, like a child-custody or child-support case, involves ongoing events in the life of a person who is dependent on the court for protection, the court must continually exercise its powers, where changed conditions warrant, to safeguard those persons whose needs cannot wait a year or more while an appeal makes its way through the courts. Kuelbs v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 284 (Ark. June 2, 2011).

Evidence.

Since an appellate review is de novo under the provisions of subsection (g) of this section, improperly excluded evidence will be considered. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Exhumation.

Although not specifically enumerated in § 28-1-104, an appellate court had jurisdiction over a request to exhume a body because the decedent's personal representative petitioned the probate division of the circuit court, during administration of the decedent's estate, to enforce a provision in the decedent's will by ordering exhumation and reburial and probate orders were appealable pursuant to subsection (a) of this section and Ark. R. App. P.-Civ. 2(a)(12). Long v. Alford, 2010 Ark. App. 233, 374 S.W.3d 219 (2010).

Incompetency Determination.

Once a person's incompetency is established, that incompetency is presumed to continue until a change has been established by proof. In reviewing the probate court's finding on whether a change has been established, an appellate court affirms unless the court's decision is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. In re Estate of Lemley, 9 Ark. App. 140, 653 S.W.2d 141 (1983).

Jurisdiction.

Probate court had jurisdiction to set aside its previous order determining heirship, because there was an extended period during which courts had jurisdiction to modify or vacate orders in probate proceedings, there had not been a final termination of the proceedings, and it was not entirely clear that the order determining heirship would have ended the proceedings. McVesting, LLC v. Heirs of Macie McGoon, 2012 Ark. App. 541 (2012).

In an appeal from an order appointing a permanent guardian of the person and estate of appellant's husband, the circuit court was without jurisdiction to appoint special administrators to act on appellant's behalf following her death after the record was lodged on appeal. Because the appeal did not have an appellant to prosecute the appeal, it was dismissed. Guenther v. Guenther, 2018 Ark. App. 538, 566 S.W.3d 132 (2018) (petition for special administrators was filed before the January 1, 2018 effective date of Ark. R. App. P. Civil 12).

Order of Court Binding.

An order of the probate court upon subject matter and between parties over which it has jurisdiction remains binding upon all parties interested therein until it is set aside under proper procedure. Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960).

Order of Final Distribution.

Appeal from a motion to increase distribution was not an appeal from the final order of distribution, and had nothing to do with the manner of administration; rather, it was an attempt to appeal for the second time an earlier order denying probate of the codicil and denying that the church disclaimed its interest, and was barred by subsection (d) of this section and the doctrine of res judicata. Simmons v. Estate of Wilkinson, 318 Ark. 371, 885 S.W.2d 673 (1994).

Removal of Executor.

Under this section, any order of a probate court is generally appealable, but under § 28-48-103(f), there can be no appeal from an order appointing or refusing to appoint a special administrator; however, the denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Ripeness.

Because a circuit court had not yet ruled on the merits of a daughter's petition for guardianship over the person and estate of her mother, and because additional evidence was expected when a hearing resumed, evidentiary challenges were not yet ripe for review on the mother's appeal of the circuit court's order requiring an independent medical evaluation. Howard v. Jenkins, 2019 Ark. App. 15, 568 S.W.3d 771 (2019).

Scope of Review.

When an appeal is taken from the order of final distribution, all prior appealable judgments and orders to which the appellant has filed an objection within sixty days after the order of judgment was rendered, with certain exceptions, may be reviewed on appeal. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Special Administrator.

Where heirs at law attacked probate of will and filed petitions asking for removal of executor on the ground that he failed to include certain assets in the inventory and, while matters were pending, the probate court granted a petition for appointment of a special administrator for purpose of filing proceedings against executors and others, the appointment of a special administrator was proper since probate court had original and exclusive jurisdiction to appoint a special administrator. Breshears v. Williams, 223 Ark. 368, 265 S.W.2d 956 (1954).

No appeal is allowed from an order refusing to appoint a special administrator. In re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991).

There can be no appeal from an order refusing to appoint a special administrator. Harwood v. Monroe, 65 Ark. App. 57, 984 S.W.2d 93 (1999).

Stay.

Pursuant to subsection (e), court's failure to make a finding of lack of prejudice and issue an order permitting additional proceedings prohibited the court from proceeding further where action was stayed by appeal. National Union Fire Ins. Co. v. Standridge, 299 Ark. 91, 771 S.W.2d 22 (1989).

By declining to determine the appellants' heirship claims, the probate court did not impliedly stay any appeal of its order until final distribution; the court's order gave no indication of any intent to curtail the appellants' right to appeal, but only to clarify and restrict the scope of the order and, additionally, the order appealed from was largely concerned with the appointment of a personal representative and thus was not encompassed by subsection (c) of this section. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).

In response to a jurisdictional argument under subdivision (e)(1) of this section, an appellate court considered a recusal argument in a probate matter out of an abundance of caution, even though there were no specific findings of no prejudice or a specific order permitting further proceedings in the order of a companion case. Ashley v. Ashley, 2012 Ark. App. 230 (2012).

Time for Appeal.

Appeal could not be taken four months after collateral heirs were notified of hearing on final accounting and final accounting was approved and published. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

In accordance with Ark. R. Civ. P. 81, it is precisely because the probate code and the Arkansas Rules of Civil Procedure set forth different time limits on the court's authority to modify or vacate prior orders that § 28-1-115 applies in probate proceedings; thus, an appeal under this section was timely since Ark. R. Civ. P. 52 was not implicated in an appeal from a denial of reconsideration arising from a denial of intervention in a probate case. Helena Reg'l Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005).

Appeals from a circuit court's order construing a decedent's will in the widow's favor were timely, under subsections (a) and (g) of this section, because (1) any attempt to appeal from the partial summary judgment would have been a nullity because the partial summary judgment lacked finality because it was obviously partial and other issues remained, and the partial summary judgment did not contain an Ark. R. Civ. P. 54(b) certification allowing for an immediate appeal; (2) the partial summary judgment became final on July 31, 2006, when judgment was entered disposing of the remaining claims; (3) motions for new trial were filed and, under Ark. R. App. P. Civ. 4(b), such motions extended the time for all parties to file their notice of appeal; and (4) the older children filed their notice of appeal on September 18, 2006. Taylor v. Woods, 102 Ark. App. 92, 282 S.W.3d 285 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 625 (Aug. 20, 2008).

Because the notice of appeal by the trustee of the residuary beneficiary was timely filed within 30 days from entry of the circuit court's interlocutory order on Oct. 19, 2017, the appellate court had jurisdiction over the appeal and could review the circuit court's failure to enforce a family-settlement agreement. However, the appellate court did not have jurisdiction to hear a cross-appeal advancing a challenge to the family-settlement agreement because the contingent beneficiary did not file a notice of appeal within 30 days from the entry of the court's June 2, 2017, interlocutory order approving the family-settlement agreement. Trask v. Trask, 2018 Ark. App. 400, 559 S.W.3d 277 (2018).

Untimely Appeal.

Where an order of the probate court on May 18, 1978, assigned dower and homestead rights to the widow and directed that certain other payments be made to her, the order was final as to dower and homestead rights and was an appealable order, so that, whether the 30-day (§ 16-67-310 [superseded]) or 60-day (§ 28-1-116) time limit for appeals was applicable, the executor's appeal was not timely when he appealed from an order of May 15, 1979, wherein the court directed compliance with its former order of May 18, 1978. Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980).

Appealability of court order held not preserved. Morris v. Garmon, 291 Ark. 67, 722 S.W.2d 571 (1987), cert. denied, 484 U.S. 816, 108 S. Ct. 69 (1987).

Court lacked jurisdiction to address the claimant's argument that the circuit court erred in approving the settlement, where the claimant neither filed an objection pursuant to subsection (d) of this section to preserve the issue as part of the appeal from the order of final distribution, nor did he file a timely notice of appeal to appeal the order separately. Smith v. Estate of Howell, 372 Ark. 186, 272 S.W.3d 106 (2008).

Former attorney's appeal from a probate court's order striking the former attorney's response to a motion for modification and declaratory judgment and discovery requests was dismissed with prejudice because (1) the order striking the response was the only issue raised on appeal, (2) the order striking the response was an appealable order, under Ark. R. App. P. Civ. 2(a)(4), (3) the order striking the response was not reviewable under subsection (d) of this section as being an appealable order entered prior to a final order of distribution, as no final order of distribution meeting the requirements of § 28-53-104 was entered, (4) even if the contested order were viewed as an order of a probate court, rather than an order striking a response, the appeal was still untimely, as the order was appealable at the interlocutory stage, under Ark. R. App. P. Civ. 2(a)(12) and this section, and (5) the appeal was not timely filed under Ark. R. App. P. Civ. 4(a). Brown v. Wilson (In re Estate of Stinnett), 2011 Ark. 278, 383 S.W.3d 357 (2011).

Written Objection.

Contestant's failure to file written objections to orders concerning unpaid rent and executor and attorney fees precluded appellate review. Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997), cert. denied, 522 U.S. 820, 118 S. Ct. 73 (1997).

Cited: Black v. Morton, 233 Ark. 197, 343 S.W.2d 437 (1961); Brooks v. Baker, 242 Ark. 128, 412 S.W.2d 271 (1967); Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252, 78 A.L.R.3d 761 (1976); Hanna v. Hanna, 273 Ark. 399, 619 S.W.2d 655 (1981); Monroe v. Dallas, 6 Ark. App. 10, 636 S.W.2d 881 (1982); Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987); Arkansas Dep't of Human Servs. v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997); Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998); West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003); Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425 (2009); Grant v. Williams, 2013 Ark. App. 663, 430 S.W.3d 786 (2013).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Probate Law, 24 U. Ark. Little Rock L. Rev. 631.

Case Notes

Person.

District court concluded that the Arkansas Supreme Court would extend its decision in Aka, which held that wrongful death suits could be brought on behalf of unborn, viable fetuses, to allow a negligence suit to be filed on a child's behalf, seeking to recover for alleged negligently-inflicted injuries that the child sustained in utero, before she was born. The district court noted that the state supreme court had found persuasive the state legislature's decision to expand the definition of “person” in the homicide and probate laws, § 5-1-102(13)(B)(i)(b) and subsection (a) of this section, to include viable fetuses, thereby giving statutory protection to unborn children, and that it would be absurd to think that less protection would be provided under Arkansas law to children who suffered in utero injury, but nevertheless managed to be born. Crussell v. Electrolux Home Prods., 499 F. Supp. 2d 1137 (W.D Ark. 2007).

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Disclaimer by Heirs.

Where the four children of the intestate who were alive at his death and the five children of the decedent's son who had predeceased him had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under § 28-9-214 the estate would have passed to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Federal Tax Liens.

The inheritance property taxpayer held under state law rendered the inheritance “property” or “rights to property” belonging to him within the meaning of 26 U.S.C. 6321 and subject to federal tax liens, despite the taxpayer's exercise of his state-law right to disclaim the interest retroactively. Drye v. United States, 528 U.S. 49, 120 S. Ct. 474, 145 L. Ed. 2d 466 (1999).

Case Notes

Creditor's Rights.

A third party may execute against a spouse's interest in a tenancy by the entirety, subject to the other spouse's continued rights of possession and survivorship, and interest in one-half of the rents and profits. Morris v. Solesbee, 48 Ark. App. 123, 892 S.W.2d 281 (1995).

Chapters 3-7 [Reserved.]

[Reserved]

Research References

Ark. L. Rev.

Gift and Estate Tax Consequences of Arkansas Cotenancies, 7 Ark. L. Rev. 237.

Joint Tenancy — Right of Survivorship — “Four Unities,” 23 Ark. L. Rev. 136.

Case Notes

Choses in Action.

This section did not abolish survivorship in choses in action. Sessions v. Peay, 19 Ark. 267 (1857).

Estate by Entirety.

The right of survivorship, where real property is held by the entirety, has not been abolished by this section, nor is the character of such estate changed by a divorce of the parties. Ward v. Ward, 186 Ark. 196, 53 S.W.2d 8 (1932).

Personal property acquired with the proceeds of land held by the entirety also constituted an estate by the entirety, and it was, therefore, appropriate for the farm equipment and livestock to pass to the surviving spouse by operation of law. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

Joint Tenancy.

Where joint tenancy was created in a loan association certificate, this section did not apply, as joint tenancies are authorized by statute, and survivorship is one of the essentials of a joint tenancy. Ferrell v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943).

Research References

Ark. L. Rev.

Domestic Relations — Adoption of Adults, 12 Ark. L. Rev. 199.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Case Notes

Applicability.

The applicability of this section is not limited to situations where a person desires to make an illegitimate child his heir but applies to anyone that a person may desire to make his heir. Reed v. Billingslea, 226 Ark. 589, 291 S.W.2d 497 (1956).

Acknowledgment in Writing.

A mere acknowledgment in writing by one person that another person is his illegitimate son or daughter is not sufficient to make the illegitimate person an heir of a father recognizing him as a son or daughter. Reed v. Billingslea, 226 Ark. 589, 291 S.W.2d 497 (1956).

Filing of Document.

A document which designates a named individual as the declarant's sole heir at law does not have to be filed before the declarant's death for it to be of any effect. Ricketts v. Ferrell, 283 Ark. 143, 671 S.W.2d 753 (1984).

Procurement of Birth Certificate.

Where father merely procured birth certificate for his illegitimate daughter at her request and signed it before a notary public but in no way indicated that he wished to make the daughter his heir, this was not sufficient to constitute a declaration in writing that he wished to make the daughter his heir. Reed v. Billingslea, 226 Ark. 589, 291 S.W.2d 497 (1956).

Will Contest.

Sufficient showing adverse to a will to permit person claiming under this section to join in its contest. First Nat'l Bank v. Ary, 180 Ark. 1084, 24 S.W.2d 336 (1930).

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979).

Research References

ALR.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Adopted children as subject to protection of statute regarding right of children pretermitted by will, or statute preventing disinheritance of child. 43 A.L.R.4th 947.

Rights of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Ark. L. Rev.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Notes, Estate of Sargent v. Benton State Bank: Judicial Limitations on a Slayer's Right to Inherit from the Decedent, 38 Ark. L. Rev. 653.

Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Willis: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Case Notes

Disclaimer by Descendants.

Where the four children of the intestate who were alive at his death and the five children of the decedent's son who predeceased him had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under § 28-9-214 the estate would pass to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Smith v. Wright, 300 Ark. 416, 779 S.W.2d 177 (1989).

Research References

Ark. L. Rev.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

Case Notes

Disclaimer by Heirs.

Where the heirs of the intestate, who were the four children of the intestate who were alive at his death and the five children of a son who predeceased him, had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under § 28-9-214 the estate would pass to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Pretermitted Children.

If an owner of real property dies leaving a will which devises the property to his widow, but does not make mention of his children, the children are considered pretermitted heirs, and decedent is deemed to have died intestate as to them, so that the title to the property vests immediately in his heirs subject to appropriate provisions for administration under the Probate Code and subject to the widow's dower and homestead rights, if any. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970) (decision under prior law).

Putative Father.

Evidence that the child had lived in the home of the putative father for several months and that the putative father had listed the child as a dependent child on his income tax returns for three years, without other acknowledgment of paternity, without testimony of the child's mother, and without marriage of the mother and the putative father was insufficient to establish the child as an heir of the putative father. Bell v. Bell, 249 Ark. 959, 462 S.W.2d 837 (1971).

Widow.

A widow is not an heir within the meaning of the statute of descent and distribution. Johnson v. Supreme Lodge, 53 Ark. 255, 13 S.W. 794 (1890) (decision under prior law).

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985); Sutton v. Milburn, 289 Ark. 421, 711 S.W.2d 808 (1986); Hartford Ins. Co. v. Brewer, 54 Ark. App. 1, 922 S.W.2d 360 (1996).

Case Notes

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).

Case Notes

Life Insurance.

Where a benefit certificate of a life insurance company is payable at a mother's death to her children, the issue of a child who died before the mother succeeds to the parent's share. Johnson v. Hall, 55 Ark. 210, 17 S.W. 874 (1891) (decision under prior law).

Nephews and Nieces.

After setting aside the widow's share, there being no nearer kindred than nephews and nieces, an intestate's ancestral estate shall be divided into as many shares as there are living nephews and nieces or, being deceased, then having descendants alive. The nephews and nieces take per capita while descendants of those deceased take per stirpes. Daniels v. Johnson, 216 Ark. 374, 226 S.W.2d 571, 15 A.L.R.2d 1401 (1950) (decision under prior law).

Per Capita Distribution Proper.

In a probate dispute regarding the estate of the decedent, because the decedent's aunts, uncles, and grandparents had predeceased her, the per capita distribution of the estate at the first-cousin level under subdivision (a)(2) of this section was proper as it was the first level at which the intestate had surviving heirs, regardless of what level was used to determine the inheriting class under § 28-9-214. Stokan v. Estate of Cann, 100 Ark. App. 216, 266 S.W.3d 210 (2007).

Cited: Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).

Case Notes

Dower.

Where a husband died seized of estate in land for life of another, his widow was entitled to receive as dower one-third thereof, absolutely, as in case of personalty. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895) (decision under prior law).

Incomplete Devise.

Under a devise of a life estate to the only child of the devisor, with no designation of a remainderman, the child takes the fee under the statute of descent. Wyatt v. Henry, 121 Ark. 479, 181 S.W. 297 (1915) (decision under prior law).

Inheritable Interests.

A personal right to use land is not inheritable. Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908) (decision under prior law).

The interest of a purchaser under a bond for title is inheritable. Hill v. Heard, 104 Ark. 23, 148 S.W. 254 (1912) (decision under prior law).

Life Estate.

A conveyance of land by a grantor to a named son “and unto his bodily, or his brothers and sisters heirs and assigns forever” amounted in substance to a conveyance to the son for life, with a remainder to (a) the son's bodily heirs, or, if the son should leave no bodily heirs, then to (b) the heirs of his brothers and sisters; such conveyance was not brought within the rule in Shelley's case by means of clause (b). Robertson v. Sloan, 222 Ark. 671, 262 S.W.2d 148 (1953) (decision under prior law).

Murder of Decedent.

Title to all lands of a father and mother who were murdered by their son vested in their only other heir, another son, and the issue of the son who had been convicted of the murders was not entitled to any interest in the lands of his deceased grandparents. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970) (decision under prior law).

Personal Estate.

Personalty converted into realty by surviving partner descends as realty. Coolidge v. Burke, 69 Ark. 237, 62 S.W. 583 (1901) (decision under prior law).

The owner of personal property may dispose of it at will during his life. Wooton v. Keaton, 168 Ark. 981, 272 S.W. 869 (1925) (decision under prior law).

Real Estate.

Immediately upon an intestate's death, the title to real estate descends to the heirs at law. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950) (decision under prior law).

Rights of Widow and Children.

Where a widow, pursuant to a family agreement, conveys her homestead and dower interests in certain lands of her husband to one of his heirs, she will be held to have abandoned her rights therein. Felton v. Brown, 102 Ark. 658, 145 S.W. 552 (1912) (decision under prior law).

Where an only child dies before the husband, the surviving wife does not, as the child's heir, inherit the whole of the husband's land on his death, as there is no title to pass through the child. Smith v. Goldby, 172 Ark. 549, 289 S.W. 780 (1927) (decision under prior law).

Where property had been devised to the widow of the decedent under a will which made no mention of his children, the children became pretermitted heirs in the land of the deceased parent, and a judgment creditor of one of the surviving children and heir-at-law could levy execution on the interest of such heir in the land in question. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970) (decision under prior law).

Tenants in Common.

Lands held by tenants in common by descent are distributed in equal shares. Cottonwood Lumber Co. v. Walker, 106 Ark. 102, 152 S.W. 1005 (1912) (decision under prior law).

Title.

As a general rule, the legal, as distinguished from equitable, title determines the course of descent. Howard v. Grant, 107 Ark. 594, 156 S.W. 433 (1913) (decision under prior law).

War Risk Insurance.

All war risk instalments of insurance become assets of the estate of the insured to be distributed to his heirs in accordance with the intestacy laws as of the date of his death, and upon the subsequent death of one of the beneficiaries, his share goes to his heirs. Jones v. Jones, 186 Ark. 359, 53 S.W.2d 586 (1932) (decision under prior law).

Where beneficiary under war risk policy was intestate veteran's only heir as of date of his death, balance due on beneficiary's death was payable as provided in his will and not to veteran's heirs as of date of beneficiary's death. Wade v. Wade, 192 Ark. 7, 90 S.W.2d 214 (1936), cert. denied, 299 U.S. 548, 57 S. Ct. 11, 81 L. Ed. 404 (1936) (decision under prior law).

Cited: Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976).

Research References

Ark. L. Rev.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Fuqua, Comments: Bastardy Law in Arkansas — The Need for Revision, 33 Ark. L. Rev. 178.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds Presumed-Legitimate Children Seeking to Inherit from Out-of-Wedlock Fathers Must Meet the Same Statutory Requirements as Illegitimate Children to Make a Claim Against an Estate, and Paternity Must Be Established Within 180 Days of the Decedent's Death, 67 Ark. L. Rev. 509 (2014).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Constitutional Law, 1 U. Ark. Little Rock L.J. 140.

Survey of Arkansas Law, Decedents' Estates, 1 U. Ark. Little Rock L.J. 185.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Survey — Property, 11 U. Ark. Little Rock L.J. 243.

Case Notes

Constitutionality.

This section does not unconstitutionally discriminate against blacks. Brown v. Danley, 263 Ark. 480, 566 S.W.2d 385, cert. denied, 439 U.S. 983, 99 S. Ct. 572, 58 L. Ed. 2d 654 (1978).

Former provision of subsection (d) limiting the right of an illegitimate child to inherit from its father bore no rational relationship to any legitimate state purpose. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979) (decision under prior law).

This section does not violate the equal protection clause of U.S. Const. Amend. 14. Statutory differentiation based solely on illegitimacy can be justified by a state's interests in preventing spurious claims against intestate estates, and in the maintenance of a prompt and accurate method of distributing an intestate's property. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional due process rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional equal protection rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Applicability.

Former statute was not applicable where question involved was whether child born after divorce was issue of the marriage. George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969) (decision under prior law).

This section and § 28-40-103 are not applicable in a paternity case; paternity action must be commenced in chancery court because it is not a determination of heirship. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

This section is irrelevant in the context of the distribution of the proceeds of a wrongful-death settlement. Rager v. Turley, 68 Ark. App. 187, 6 S.W.3d 113 (1999).

Subsection (d) does not apply to claims to share in a wrongful-death settlement. Rager v. Turley, 342 Ark. 223, 27 S.W.3d 729 (2000).

Where the alleged heir had never been determined a legitimate heir of the decedent, his petition for appointment as administrator of the estate could not constitute an action or claim against the estate under subsection (d) of this section because the alleged heir did not comply with the 180-day requirement. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005).

Annulment of Marriage.

Annulment decree against mother on the ground that she was pregnant by other man, which was offered into evidence to determine heirship of son to intestate's estate, was not res judicata as to question of legitimacy of son. Earp v. Earp, 250 Ark. 107, 464 S.W.2d 70 (1971) (decision under prior law).

Bigamous Marriage.

Children of bigamous marriage were legitimate and entitled to inherit from their father. Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914); Cooper v. McCoy, 116 Ark. 501, 173 S.W. 412 (1915); Morrison v. Nicks, 211 Ark. 261, 200 S.W.2d 100 (1947) (decision under prior law).

Marriage between plaintiff and defendant while defendant was legally married to another was void, but divorce proceeding would be remanded for the purpose of entering order legitimatizing children born of union. Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953) (decision under prior law).

The fact that a mother may not have been divorced from former husband would not be material insofar as the legitimacy of a child is concerned. Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535 (1953) (decision under prior law).

Inheritance by Illegitimate Child.

Where a serviceman's life insurance policy named no beneficiary but stated that proceeds were to go first to a widow, second to a child, and third to his parents, the proceeds would go to his illegitimate child whose paternity he had acknowledged by affidavit filed in court. Cantrell v. Prudential Ins. Co. of Am., 252 Ark. 70, 477 S.W.2d 484 (1972).

This section giving an illegitimate child 180 days to file a claim creates a new right, and the right is created for only 180 days. State interests may justify the imposition of special requirements upon an illegitimate child who asserts a right to inherit from her father, and, of course, it justifies the enforcement of generally applicable limitations on the time and the manner in which claims may be asserted. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Because there is no comma separating “illegitimate child” and the modifier “except such as would inherit under the law of descent and distribution” in the definition of child in § 28-1-102(a)(1), the General Assembly intended for “except such as would inherit…” to modify only “illegitimate children.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The heirs of the decedent were not estopped from invoking the requirement of subsection (d) of this section that the illegitimate son of the decedent commence an action against the decedent's estate within 180 days of the decedent's death, notwithstanding that the illegitimate son had been acknowledged by the decedent, that he was named as the decedent's son in his obituary, and that he was described as an heir in a deed. Rasberry v. Ivory, 67 Ark. App. 227, 998 S.W.2d 431 (1999).

Illegitimate child was awarded a share of his father's estate as a pretermitted heir under § 28-39-407(b) where the wife waived an issue regarding competent jurisdiction by failing to object to a failure to join the estate in a paternity action; moreover, collateral estoppel applied because the wife appeared at the paternity proceeding, it was fully litigated, the necessary party issue was not raised, and no appeal was filed. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Time limitations in the nonclaim statute, § 28-50-101(a), do not apply to claims by illegitimate children under subsection (d) of this section; therefore, the trial court did not err by finding that an illegitimate son was a pretermitted heir. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Circuit court did not err in finding that one of the six conditions set out in subdivisions (d)(1)-(6) was required to be satisfied within 180 days from the death of the decedent; the alleged heir failed to commence an action or assert a claim pursuant to the statute. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of §§ 28-39-407(b), 28-1-102(a)(1), and the six requirements of subsection (d) of this section, but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Under a plain reading of the language in this section, one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period. Therefore, where a paternity case was not completed within the time period, a purported beneficiary failed to state a claim to recover from an estate as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Circuit court did not err in recognizing a son born out of wedlock as the decedent's sole heir because the son satisfied the written-acknowledgment condition in subsection (d) of this section; a beneficiary-designation form depicted that the decedent clearly wrote “son” and provided the son's proper name, Social Security number, date of birth, address, phone number, and gender on the form, and the 180-day limit was satisfied because the form was completed before decedent's death. Noble v. Neal, 2019 Ark. App. 86, 572 S.W.3d 40 (2019).

Court's establishment of paternity is the particular statutory condition that must be met within 180 days following decedent's death; a decedent's acknowledgment must have been accomplished before the decedent's death, allowing a child born out of wedlock 180 days following a putative father's death to make a claim based on the decedent's written acknowledgment. Noble v. Neal, 2019 Ark. App. 86, 572 S.W.3d 40 (2019).

Presumption of Legitimacy.

A parent's testimony is incompetent when it is employed to bastardize a child, which is presumed legitimate by one of the strongest presumptions found in the law. Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981).

There is a statutory presumption that a child born during a marriage is the legitimate child of both spouses. The longstanding common law rule is that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage. Lakey v. Lakey, 18 Ark. App. 182, 712 S.W.2d 663 (1986).

Presumption of legitimacy of a child conceived, but not born, during marriage, is rebuttable. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

A child is considered legitimate if the parents were married at the time of its conception and before its birth, even though they were not married to each other at the time the child was born. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

It is not against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born, during marriage. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Proof of Paternity.

Evidence established recognition of child by father. Rogers v. Morgan, 213 Ark. 229, 210 S.W.2d 129 (1948); Parker v. Hadley, 227 Ark. 161, 296 S.W.2d 391 (1956); Tuttle v. Phillips, 249 Ark. 617, 460 S.W.2d 328 (1970) (decision under prior law).

Evidence insufficient to establish paternity. Martin v. Martin, 212 Ark. 204, 205 S.W.2d 189 (1947); Edgar v. Dickens, 230 Ark. 7, 320 S.W.2d 761 (1959); Johnson v. Sanford, 239 Ark. 362, 389 S.W.2d 421 (1965) (decision under prior law); Eldridge v. Sullivan, 980 F.2d 499 (8th Cir. 1992).

In a suit to determine the distribution of proceeds of an insurance policy, it was not error to introduce an affidavit made by the deceased in a bastardy suit after being advised by an attorney, acknowledging that he was the father of the illegitimate child. Cantrell v. Prudential Ins. Co. of Am., 252 Ark. 70, 477 S.W.2d 484 (1972).

Where the proof as a whole indicated that the decedent, upon a number of occasions, had acknowledged the petitioner as being his son, the trial court's finding to the contrary was reversible error. Christman v. Jones, 254 Ark. 936, 497 S.W.2d 14 (1973).

Where in an action partitioning a decedent's estate, some putative heirs of the decedent sought a share of the proceeds when the land was partitioned, the evidence presented did not support their claim through their mother who allegedly was a daughter of the decedent, since the putative heirs did not prove that the decedent even knew their mother's mother some 26 years before he married her or that he fathered her child, the putative heirs' mother, when he was 15 and she was only 13 years of age. Ford v. King, 268 Ark. 128, 594 S.W.2d 227 (1980).

In probate proceeding which occurred after subsection (d) of this section was declared unconstitutional, but prior to 1979 amendment of the subsection, determination that woman was illegitimate daughter of decedent was properly made from clear, cogent, and convincing proof rather than written acknowledgment of the putative father or a judicial determination during the lifetime of the parties. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981).

Testimony as to general reputation in the community on the issue of paternity and woman's birth certificate were admissible in order to determine if the woman was the illegitimate daughter of decedent. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981) (decision under prior law).

Evidence supported the finding that the claimants were the legitimate children of their father and were entitled to inherit from their great-uncle through their father. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983).

Paternity must be proven by clear and convincing evidence, i.e., that which instantly tilts the scales in the affirmative when weighed against evidence in opposition, and clearly convinces the factfinder that the evidence is true. Eldridge v. Sullivan, 980 F.2d 499 (8th Cir. 1992).

Retroactive Effect.

There is no language from which a legislative intention that the 1979 amendment to this section should have retroactive effect can be implied. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979).

To prevent chaotic conditions arising from the lack of title to real property, Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), under which former subsection (d) of this section was constitutionally invalid should not be applied retroactively. Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979), cert. denied, 444 U.S. 942, 100 S. Ct. 297, 62 L. Ed. 2d 309 (1979).

Cited: Walker v. Yarbrough, 257 Ark. 300, 516 S.W.2d 390 (1974); Compton v. White, 266 Ark. 648, 587 S.W.2d 829 (1979); Stewart v. Smith, 269 Ark. 363, 601 S.W.2d 837 (1980); Fulton v. Harris, 658 F.2d 641 (8th Cir. 1981); Henry v. Johnson, 292 Ark. 446, 730 S.W.2d 495 (1987); Finley v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008); Finley v. Farm Cat, Inc., 103 Ark. App. 292, 288 S.W.3d 685 (2008).

Research References

ALR.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Case Notes

In Vitro Fertilization.

Child who was created as an embryo through in vitro fertilization during his parents' marriage, but implanted into his mother's womb after his father's death, could not inherit from the father under Arkansas intestacy law as a surviving child under this section; in order to inherit, the child had to have been conceived before the father's death. Finley v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008).

Case Notes

Advancement of Class.

When the persons composing the nearest class of kin of an intestate die before his death, the next class in order will be advanced, and the persons composing it will inherit equally if equal in degree, and per stirpes if not in equal degree. Garrett v. Bean, 51 Ark. 52, 9 S.W. 435 (1888); McFarlane v. Grober, 70 Ark. 371, 69 S.W. 56 (1902) (decision under prior law).

Common Ancestor.

Degrees of relationship are counted by the number of degrees removed from the common ancestor. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).

Second Degree.

First cousins are related in the second degree of consanguinity. Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 (1987).

Case Notes

Class of Heirs.

Where one group of claimants of heirship were related to the decedent as descendants of the decedent's maternal grandfather and another group was descendant only from one of her maternal great-grandfathers, the descendants of the grandfather inherited to the exclusion of the descendants of the great-grandfather. Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968) (decision under prior law).

Proof of Marriage.

In proceeding to determine heirship, half brother was entitled to share estate with nephew even though no certificate of marriage was introduced showing a second marriage of father of deceased where there was substantial evidence showing a second marriage actually existed and proof of birth of half brother as result of second marriage by a birth certificate filed prior to death of deceased. Butler v. Alldredge, 219 Ark. 197, 242 S.W.2d 136 (1951) (decision under prior law).

Research References

Ark. L. Rev.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

U. Ark. Little Rock L.J.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Case Notes

Abandonment of Marriage.

In a suit to contest a will, where no evidence was shown and no contention was made that the divorce and remarriage intervened between the time of marriage and the death of husband, the court was right in refusing to hear that the widow had abandoned her marriage with the decedent and thus was not “continuously married.” Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Conflict of Laws.

Inheritance is governed by the lex rei sitae. Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912); Wilson v. Storthz, 117 Ark. 418, 175 S.W. 45 (1915) (decision under prior law).

Devolution of Intestate's Property.

The distinction between ancestral estates and new acquisitions in the devolution of property by intestacy was abolished in Arkansas by Acts 1969, No. 303 and has not been reinstated. Accordingly, where a decedent died intestate and without descendants in 1982, the decedent's property, which consisted principally of lands that were formerly owned by her late father, all went to her surviving husband, to whom she had been married for 53 years. Heath v. Clear, 280 Ark. 482, 659 S.W.2d 504 (1983).

Disclaimer by Heirs.

Where the four children of the intestate who were alive at his death and the five children of a son who predeceased him had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under this section the estate would pass to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Escheat.

Escheat occurs immediately upon the death of the intestate, not when the probate court enters its order finding the estate must escheat. Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Intestate Succession.

In a case seeking to determine heirship, a surviving spouse was properly awarded a one-sixth interest in property, even though she had waived her right to dower in a conveyance, because she received her interest after the death of her husband, pursuant to subdivision (2) of this section. Scroggin v. Scroggin, 103 Ark. App. 144, 286 S.W.3d 758 (2008).

Per Capita Distribution Proper.

In a probate dispute regarding the estate of the decedent, because the decedent's aunts, uncles, and grandparents had predeceased her, the per capita distribution of the estate at the first-cousin level under § 28-9-205(a)(2) was proper as it was the first level at which the intestate had surviving heirs, regardless of what level was used to determine the inheriting class under this section. Stokan v. Estate of Cann, 100 Ark. App. 216, 266 S.W.3d 210 (2007).

Cited: McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973); Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979); Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982); Smith v. Wright, 300 Ark. 416, 779 S.W.2d 177 (1989); Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993); Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998); Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004); Dotson v. Dotson, 2009 Ark. App. 819, 372 S.W.3d 398 (2009).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Probate, 8 U. Ark. Little Rock L.J. 597.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Case Notes

Burden of Proof.

The proof need not show to a certainty that the deceased left no other heirs and the testimony of a widow alone raises a prima facie case in her own favor, throwing the burden of proof upon a stranger to show that there were other heirs. Carrier v. Comstock, 108 Ark. 515, 159 S.W. 1097 (1913) (decision under prior law).

Escheat.

Escheat occurs immediately upon the death of the intestate, not when the probate court enters its order finding the estate must escheat. Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Cited: Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).

Case Notes

Definition.

An “advancement” is a gift by a parent to a child in anticipation of what it is supposed the child will be entitled to on the death of the parent. Holland v. Bonner, 142 Ark. 214, 218 S.W. 665, 26 A.L.R. 1101 (1920) (decision under prior law).

Intention.

Whether a conveyance or transfer of money or property by a parent to a child is an advancement or a gift depends on the intention of the parties, and if it appears that a gift is intended, it will not be treated as an advancement. Holland v. Bonner, 142 Ark. 214, 218 S.W. 665, 26 A.L.R. 1101 (1920) (decision under prior law).

Nominal Consideration.

Proof that a parent conveyed land worth from $6,000 to $8,000 for $500 was held a prima facie case of advancement to the extent at least of the difference between the consideration expressed and the real value of the land conveyed. Holland v. Bonner, 142 Ark. 214, 218 S.W. 665, 26 A.L.R. 1101 (1920) (decision under prior law).

Where consideration was nominal and deed was not recorded until grantor's death more than a year after execution, court was justified in holding that presumption of law as to advancements had not been overcome. Neal v. Neal, 194 Ark. 226, 106 S.W.2d 595 (1937) (decision under prior law).

Presumption.

In the absence of clear evidence to the contrary, a gift of a horse and of an insurance policy from a father to his daughter was presumed to be an advancement. Culberhouse v. Culberhouse, 68 Ark. 405, 59 S.W. 38 (1900) (decision under prior law).

A voluntary conveyance of land by a father to his son will, in the absence of evidence to the contrary, be presumed to be an advancement. Goodwin v. Parnell, 69 Ark. 629, 65 S.W. 427 (1901) (decision under prior law).

The presumption is that conveyances from a father to his daughters are intended as advancements. Jackson v. Richardson, 182 Ark. 997, 33 S.W.2d 1095 (1930) (decision under prior law).

Where a parent makes a voluntary conveyance or gift to his child, the law presumes that it is an advancement and that the parent intends that all his children shall equally share not only in what remains at his death, but in all that came from him. Neal v. Neal, 194 Ark. 226, 106 S.W.2d 595 (1937) (decision under prior law).

Testate Estates.

The doctrine of advancements does not apply to testate estates. Blanks v. Clark, 68 Ark. 98, 56 S.W. 1063 (1900) (decision under prior law).

Value of Insurance Policy.

The value of an advancement of a policy of life insurance payable to a daughter at her father's death was to be estimated as of the time when her right of beneficial enjoyment accrued, which was at the death of the insured. Culberhouse v. Culberhouse, 68 Ark. 405, 59 S.W. 38 (1900) (decision under prior law).

Case Notes

Debts.

The interest of an heir in his ancestor's real estate descends to him free from his general debts to his intestate. Wheeler & Motter Mercantile Co. v. Knox, 136 Ark. 95, 206 S.W. 46 (1918) (decision under prior law).

Children inherit property subject to debts and dower. Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996, 65 A.L.R. 466 (1929) (decision under prior law).

Case Notes

Devolution of Intestate's Property.

The distinction between ancestral estates and new acquisitions in the devolution of property by intestacy was abolished in Arkansas by Acts 1969, No. 303 and has not been reinstated. Accordingly, where a decedent died intestate and without descendants in 1982, the decedent's property, which consisted principally of lands that were formerly owned by her late father, all went to her surviving husband. Heath v. Clear, 280 Ark. 482, 659 S.W.2d 504 (1983).

Case Notes

Predeceased Heir.

Since the provisions of this section do not take effect until the death of the testator, where the residuary clause of the will of testator left all property to a brother who survived testator and to a sister who predeceased testator, the sister could not have been an heir of the testator at the time of his death for she had already died. Eckert Heirs v. Harlow, 251 Ark. 1018, 476 S.W.2d 244 (1972).

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Probate Law, 28 U. Ark. Little Rock L. Rev. 399.

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Cited: United States v. 339.77 Acres of Land, 240 F. Supp. 545 (W.D. Ark. 1965); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under §§ 28-11-301, 28-11-307, and this section which gave the wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed) which allowed the wife to defeat curtesy by conveyance provided for dissimilar treatment for men and women similarly situated, and since there was no justification for the discrimination, § 28-11-307 and this section were held unconstitutional. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

This section was a gender based statute which did not serve an important governmental function; thus it was held unconstitutional, since it violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Right of Dower.

A spouse has the right to make a will which excludes the surviving spouse or provides for a bequest or devise in lieu of dower; that a surviving spouse may take against a will prevents any injustice that might result from the spouse's exercise of that right. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

The making of a will which excludes the surviving spouse is not an “act” which impermissibly defeats the right of dower under this section. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

Since the wife's inchoate right of dower was not a vested right, it was not protected from legislative impairment by guaranties for protection of property or rights of citizens. Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S.W.2d 314 (1930) (decision under prior law).

In General.

Where husband, pursuant to contract, sold land to which he held legal title and wife refused to release her inchoate right of dower, decree protecting dower rights of wife would be conditioned upon husband predeceasing her within seven years from date of decree. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951).

Contract to Convey Land.

A mere contract to convey some land, signed only by the husband, does not cause this section to become operative. Smith v. Smith, 268 Ark. 993, 597 S.W.2d 848 (Ct. App. 1980).

Mortgage Foreclosures.

This section applies to actions to recover land and does not govern suits to foreclose mortgages. White v. White, 198 Ark. 740, 131 S.W.2d 4 (1939).

Sale Under Execution.

Sale of husband's land during his life-time under execution against him did not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Research References

Ark. L. Rev.

Wills — Descent and Distribution — Right of Felonious Killer to Participate in Estate of Person Killed, 7 Ark. L. Rev. 416.

Decedent's Estates: Share of Murderer and His Heirs in Victim's Estate, 24 Ark. L. Rev. 348.

Notes, Estate of Sargent v. Benton State Bank: Judicial Limitations on a Slayer's Right to Inherit from the Decedent, 38 Ark. L. Rev. 653.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Applicability.

This section was intended to apply only to dower and curtesy and does not apply to a widow's claim for statutory allowance where she is convicted of the murder of her husband. However, apart from this section, the principle that one who wrongfully kills another will not be permitted to share in the other's estate or otherwise profit from the crime will apply to such a situation. Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956), overruled, Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (Ark. 1999).

This section was not applicable where the insured and his beneficiary wife were found together dead of gunshot wounds without evidence as to who died first or that the insured had killed his wife and then committed suicide. Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964).

Evidence.

Where the husband was living with his wife at the time of her death and there is no evidence either that he had anything to do with the death of his wife or that he had abandoned her, a court commits error in holding that the husband forfeited his right of curtesy in his wife's estate. Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971).

Necessity for Conviction.

Where a wife committed suicide shortly after killing her husband and consequently was not tried or convicted, this section did not exclude her heirs from asserting dower in her husband's property. Barnes v. Cooper, 204 Ark. 118, 161 S.W.2d 8 (1942).

Rule on Profiting from Crime.

One who wrongfully kills another is not permitted to profit by the crime; the purpose underlying this general rule is to deter such conduct. However, the rule is inapplicable where the wrongdoer stands to gain nothing by his actions, as where he kills himself too. Luecke v. Mercantile Bank, 286 Ark. 304, 691 S.W.2d 843 (1985).

Cited: Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964); Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970).

Research References

U. Ark. Little Rock L.J.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under subsection (b) of this section, § 28-11-201, and § 28-11-307 which gave the wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed) which allowed the wife to defeat curtesy by conveyance provided for dissimilar treatment for men and women similarly situated and there was no justification for the discrimination. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

Subsection (a) of this section which was gender based and did not serve an important governmental function was held unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983); Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Subsection (b) of this section, which gave a wife a dower interest in property which her husband may have disposed of during the marriage without her consent, but did not give the husband equal rights to her property, was a gender based statute which did not serve an important governmental function and thus was unconstitutional since it violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Where decedent died intestate, widow's claim of dower to a part of his real property under subsection (a) of this section was the exact equivalent of the rights of curtesy under former § 61-228 (repealed), which he could have enjoyed had he survived his wife; hence, there was no impingement of the equal protection clause, as there was no discrimination in favor of either sex where the deceased spouse died intestate. Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

The statement, in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), that subsection (a) of this section was unconstitutional was too broad and extended beyond the holding reached in Stokes, supra, which was that where a husband died testate the wife could not take dower against the will, there being no concomitant benefit given to husbands under the law the statement should have been qualified by the provisional wording that the statute was unconstitutional “as applied in this case.” Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Dower and curtesy statutes, as they existed prior to 1981 amendments, were valid in cases of intestacy because there was no difference between the dower of a surviving wife and the curtesy of a surviving husband. Dent v. Rose, 281 Ark. 42, 661 S.W.2d 361 (1983) (decision prior to 1981 amendment).

Alienation of Inchoate Right.

A widow may make an equitable transfer of her unassigned dower. Griffin v. Dunn, 79 Ark. 408, 96 S.W. 190 (1906); Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75 (1909).

Unassigned dower is not alienable at law. Flowers v. Flowers, 84 Ark. 557, 106 S.W. 949 (1907).

Bigamous Marriage.

In the absence of divorce, a married woman is entitled to dower, although she has contracted a second and bigamous marriage. Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903).

Conflict of Laws.

The right to dower is governed by the law of the place where the lands are situated. Apperson v. Bolton, 29 Ark. 418 (1874).

Conveyance by Husband.

Dower is not barred by a conveyance by the husband. Smith v. Lamb, 87 Ark. 344, 112 S.W. 884 (1908).

Inchoate dower interest held by defendant's wife in non-homestead property did not preclude a finding that defendant could have obtained enough funds from sale of the property to pay legal fees in a criminal case; defendant was therefore required to reimburse the government for legal services provided under the Criminal Justice Act, 18 U.S.C.S. § 3006A. United States v. Fincher, 593 F.3d 702 (8th Cir. 2010).

Divorce.

A divorce from the bond of matrimony bars the wife's right of dower. Wood v. Wood, 59 Ark. 441, 27 S.W. 641 (1894); Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915); Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922); Moore v. Warren, 160 Ark. 629, 255 S.W. 306 (1923).

Dower Interest.

Ruling in favor of a corporation that the decedent's wife did not hold title to the land or mineral rights at issue was proper because she possessed only a dower interest at the time of the 1986 deed under subsection (a) of this section and the after-acquired title doctrine barred her from asserting a claim to the property. At most, she had only a dower interest in the oil, gas, and mineral rights reserved by her husband in the 1986 deed and even if the deed had specifically limited her conveyance to her actual interest at the time, that interest was inchoate when the deed was executed. Evans v. SEECO, Inc., 2011 Ark. App. 739 (2011).

Federal Estate Tax.

Widow's dower in real estate is not to be reduced by federal estate tax. Thompson v. Union & Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324 (1924), superseded by statute as stated in, Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947).

Improvements.

A widow is not entitled to dower in improvements made by a purchaser from her husband. Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

A widow is not entitled to the value of improvements made upon lands sold without her consent. Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

Judicial Sale.

A widow's dower is not cut off by a probate sale for the payment of debts. Livingston v. Cochran, 33 Ark. 294 (1878).

The probate court cannot order a sale of any part of the lands free of dower. Webb v. Smith, 40 Ark. 17 (1882).

The forfeiture of land for taxes and the sale by the state after the time for redemption expires extinguishes the widow's right to dower. McWhirter v. Roberts, 40 Ark. 283 (1883).

Dower is not barred by a judicial sale, though the widow is a party to the suit, unless her dower was put in issue. Fourche River Lumber Co. v. Walker, 96 Ark. 540, 132 S.W. 451 (1910).

Lands Subject to Dower.

There is no dower in lands held in joint tenancy. Cockrill v. Armstrong, 31 Ark. 580 (1876).

If a trustee has an interest in the trust estate, the wife is entitled to dower if it can be assigned without prejudice to the trust estate. Cockrill v. Armstrong, 31 Ark. 580 (1876).

Where the value of a widow's dower in all of her husband's lots is set apart to her in part of them, she has no claim to dower out of the remainder. Rockafellow v. Peay, 40 Ark. 69 (1882).

A widow is entitled to dower in estate pur autre vie as personalty. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895).

A widow is not entitled to dower in lands held in trust merely. McKneely v. Terry, 61 Ark. 527, 33 S.W. 953 (1896).

An estate in entirety is not subject to dower. Roulston v. Hall, 66 Ark. 305, 50 S.W. 690 (1899).

Land under lease and in tenant's possession at time of landlord's death is subject to widow's dower interest under rules relating to real property and not those relating to personalty. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Mortgaged Lands.

The widow of a deceased mortgagor is not barred of dower in the mortgaged lands by a decree of foreclosure, though she was a party to the suit, unless her right to dower was put in issue. McWhirter v. Roberts, 40 Ark. 283 (1883).

Where a wife joins her husband in a mortgage on land relinquishing her dower therein, after his death she only has dower interest subject to the mortgage, and has no right to compel the administrator to pay off the mortgage with the personal estate. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891).

A mortgage upon a homestead accepted as security for an antecedent debt of the husband in consideration of which the time is extended for a definite period is valid to convey the wife's dower although the wife was induced to execute it by the misrepresentations of the officer who took her acknowledgment that mortgage did not cover the homestead where the mortgagee had no notice thereof. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Dower is not barred by a mortgage in which wife did not join. Lowe v. Walker, 77 Ark. 103, 91 S.W. 22 (1905).

A widow's rights in land are subject to a mortgage existing at the time of her marriage, but an increase of indebtedness secured by the mortgage made after the marriage and in which she does not join would be void as against her. Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563 (1937).

Nature of Dower.

A widow has dower for life of one-third of the real estate owned by her husband at any time during coverture, whether unsold at his death or sold or alienated by him without her consent in legal form, and one-third of all personal estate owned by him at his death, including money or cash on hand and choses in action, absolutely, unless he leaves no children, in which case her interest is one-half of each part instead of one-third. And this dower in each part she takes by way of a lien, created by and at the time of marriage, and paramount to creditors and purchasers, and without any regard to his debts. Her dower in each part is carved out of the specific estate of which he was possessed; and, if she has been deprived of it, she can follow it wherever it may be found, and subject it to her lien, unless by her own laches, she has abandoned or waived the right. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844).

While dower remains unascertained, and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law. Pennington v. Yell, 11 Ark. 212 (1850).

A widow takes dower under law existing at husband's death. Hatcher v. Buford, 60 Ark. 169, 29 S.W. 641 (1895); Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Dower must be carved out of specific property. Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909).

A widow does not hold as heir of her husband her dower interest in his lands. Barton v. Wilson, 116 Ark. 400, 172 S.W. 1032 (Ark. 1915).

The legislature may change or abolish the inchoate right of dower, it being not a vested right. Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S.W.2d 314 (1930).

Until her husband's death a wife's right of dower is inchoate, that is, it is contingent upon his death during her lifetime. It is not an interest in her husband's property as may be conveyed by her and may only be relinquished by her to her husband's grantee in the manner and form as provided by statute. Le Croy v. Cook, 211 Ark. 966, 204 S.W.2d 173 (1947).

A widow's dower is not an estate in itself but, when assigned, it becomes a life estate in the lands assigned, prior to which it has attached to nothing, although it is a right vested in the widow. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Oil and Gas Interests.

Where a wife fails to join in deed conveying an interest in oil and gas under certain land, one-third of the proceeds of the oil drawn therefrom is properly impounded to protect her inchoate right of dower. B.H. & M. Oil Co. v. Graves, 182 Ark. 659, 32 S.W.2d 630 (1930).

Partnership Property.

A widow is not entitled to dower in partnership property. Drewry v. Montgomery, 28 Ark. 256 (1873); Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

A widow takes dower in the surplus of partnership real estate, after the payment of partnership debts, as in real estate, for life only, and not absolutely as in personalty, unless there is an agreement between the partners for a conversion and sale of the real estate after the partnership affairs are closed, in which event she takes as in personalty. Lenow v. Fones, 48 Ark. 557, 4 S.W. 56 (1887).

Priority Over Creditors.

When dower is once fixed, it is paramount to the right of creditors and purchasers, and no act of the husband, without his wife's consent, can divest her of it. Tate v. Jay, 31 Ark. 576 (1876).

Trial court's decision reducing a surviving spouses dower interest, received pursuant to the terms of this section and § 28-11-305, for certain claims against the estate under § 28-53-111 was reversed because the claim for a commission was not a debt that the spouse owed to the estate and the claim based on a note was a contingent claim still subject to unasserted defenses available to the spouse. Stevens v. Heritage Bank, 104 Ark. App. 56, 289 S.W.3d 147 (2008).

Proceeds of Land Sold.

A widow is not entitled to dower in the proceeds of land sold by an administrator, but in the specific lands. Tiner v. Christian, 27 Ark. 306 (1871).

Where testator's property at death consists of household goods and land, his will directs the land to be sold and converted into cash, and widow elects to take against the will and consents to the sale of the land, her dower in the realty is limited to a life interest in the proceeds from the sale of the land. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Redemption of Lands.

Where lands redeemed with money of insolvent estate are assigned as dower, a widow must pay her part of sum paid to redeem. Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900).

Relinquishment.

A woman cannot relinquish dower in favor of her husband. Countz v. Markling, 30 Ark. 17 (1875); Pillow v. Wade, 31 Ark. 678 (1877).

An infant married woman cannot release dower. Watson v. Billings, 38 Ark. 278 (1881).

A wife's relinquishment of dower is inoperative when the husband's deed was ineffectual. Smith v. Howell, 53 Ark. 279, 13 S.W. 929 (1890).

A mortgage upon a homestead accepted as security for an antecedent debt of the husband in consideration of which the time was extended for a definite period was valid to convey the wife's dower although the wife was induced to execute it by misrepresentations of the officer who took her acknowledgment that the mortgage did not cover the homestead where the mortgagee had no notice thereof. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Statutory mode of relinquishing is exclusive. Bowers v. Hutchinson, 67 Ark. 15, 53 S.W. 399 (1899).

Where a widow, in pursuance of a family agreement, conveys her homestead and dower interests in certain lands of her husband to one of his heirs, she will be held to have abandoned her rights therein. Felton v. Brown, 102 Ark. 658, 145 S.W. 552 (1912).

Sale Under Execution.

Sale of husband's land during his life-time, under execution against him, does not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Seizen.

Seizen need not be a legal title as an equitable estate is sufficient. Kirby v. Vantrece, 26 Ark. 368 (1870); Tate v. Jay, 31 Ark. 576 (1876); Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891); Spalding v. Haley, 101 Ark. 296, 142 S.W. 172 (1911).

Where a husband died intestate and dower was assigned to his widow in certain lands and subsequently upon her remarriage her second husband purchased the reversion in the dower lands and died before the wife, such reversionary interest was not sufficient to give the second husband “seizen” in the land so as to support, after the death of the second husband, the widow's claim to dower in such reversionary interest. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

The husband must have been seized in possession during coverture. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

A tenant's widow cannot claim any dower interest in the land for the reason her husband had no title and was not seized of an estate of inheritance in the land. Kilpatrick v. Kilpatrick, 204 Ark. 452, 162 S.W.2d 897 (1942).

The requirements of seizen are the same under this section as under § 28-11-307. Pfaff v. Heizman, 218 Ark. 201, 235 S.W.2d 551, 23 A.L.R.2d 957 (1951).

Cited: United States v. 339.77 Acres of Land, 240 F. Supp. 545 (W.D. Ark. 1965); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

This section, which gave a widow a dower interest in property which was mortgaged by her husband before the mortgage, but did not give this right to the husband, was gender based and served no important governmental function; thus, it was held unconstitutional since it violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Increase of Indebtedness.

A widow's rights in land are subject to mortgage existing at the time of her marriage, but an increase of indebtedness secured by the mortgage made after her marriage and in which she did not join would be void as against her. Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563 (1937).

Waiver of Rights.

Where a surviving husband waited until real estate was sold and debts paid before asserting his curtesy right therein, he waived his curtesy rights in the real estate, but was still entitled to curtesy in the net proceeds of the sale. Quick v. Davidson, 261 Ark. 38, 545 S.W.2d 917 (1977).

Cited: Birnie v. Main, 29 Ark. 591 (1874); Bothe v. Gleason, 126 Ark. 313, 190 S.W. 562 (1916); Corcorren v. Sharum, 141 Ark. 572, 217 S.W. 803 (1920); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

Research References

U. Ark. Little Rock L.J.

Wright, The Arkansas Law of Oil and Gas, 9 U. Ark. Little Rock L.J. 223.

Research References

Ark. L. Rev.

Federal Estate Tax: Surviving Spouse Support Allowances and the Marital Deduction, 21 Ark. L. Rev. 131.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

This section, which allowed a widow to take dower in bonds, bills, notes, books, accounts, and evidence of debt which her husband owned at the time of his death, but did not contain a similar provision for the husband, was a gender based statute which had no important governmental function and thus violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment). But see Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983).

The statement, in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), that § 28-11-301 was unconstitutional was too broad and extended beyond the holding reached in Stokes, supra, which was that where a husband died testate the wife could not take dower against the will, there being no concomitant benefit given to husbands under the law; the statement should have been qualified by the provisional wording that the statute was unconstitutional “as applied in this case.” Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Choses in Action.

Prior to enactment of § 28-11-306, it was held that a widow was not entitled to dower in the choses in action of her deceased husband. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844); Mulhollan v. Thompson, 13 Ark. 232 (1853).

Rejection of the husband's claim that he had a curtesy interest in a settlement award involving his deceased wife was appropriate because the wife never possessed a chose in action since there was no cause of action for wrongful death created in any individual beneficiary under the wrongful-death statute. The circuit court found that she was possessed of a chose in action, which was incorrect as a matter of law; nevertheless, the circuit court reached the right result in denying the husband's claim under the dower and curtesy statute. Bridges v. Shields, 2011 Ark. 448, 385 S.W.3d 176 (2011).

Conflict of Laws.

A widow entitled to dower in the equity of redemption of pledged chattels and dower in chattels is governed by the law of the husband's domicile, irrespective of the situs of the chattel. Gibson v. Dowell, 42 Ark. 164 (1883).

Disposal Free of Dower.

A husband can dispose of personalty free of the wife's dower by sale or mortgage. Street v. Saunders, 27 Ark. 554 (1872); McClure v. Owens, 32 Ark. 443 (1877).

Execution Against Property.

The placing of an execution in the hands of the sheriff in the lifetime of a husband does not cut off the widow's right of dower in his goods, unless the officer proceeds to make a levy before his death. James v. Marcus, 18 Ark. 421 (1857).

Gift Causa Mortis.

A widow is entitled to dower in a gift causa mortis. Hatcher v. Buford, 60 Ark. 169, 29 S.W. 641 (1895).

Inchoate Right of Dower.

A widow's right of dower remains only an inchoate right and is not an estate until the husband's death, the right of dower being only a contingent expectancy during the lifetime of the husband. Mickle v. Mickle, 253 Ark. 663, 488 S.W.2d 45 (1972).

Bankruptcy debtor husband had no curtesy interest to exempt in stock owned by the co-debtor wife on the bankruptcy petition date since the wife, as the sole legal owner, was still living, and the husband's curtesy right had not yet accrued and did not become property of the husband's estate on the filing of the bankruptcy petition. In re Tankersley, 575 B.R. 848 (Bankr. E.D. Ark. 2017).

Bankruptcy debtor wife had no dower interest to exempt in the co-debtor husband's life insurance policy on the filing of the bankruptcy petition since the wife was neither an insured nor a beneficiary under the policy, and thus no interest in the policy became part of the wife's bankruptcy estate. In re Tankersley, 575 B.R. 848 (Bankr. E.D. Ark. 2017).

Land Under Lease.

Where land under lease is in tenant's possession at time of landlord's death, such possession is the possession of the landlord and the interest of the widow of the landlord is governed by the rules of dower in real property and not those relating to personalty. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Law Governing.

The legislature may increase or diminish dower in personal property. Wooton v. Keaton, 168 Ark. 981, 272 S.W. 869 (1925).

The law governing the widow's right of dower is the one existing at the time of the death of the husband and not that existing at the time of the marriage. Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Prior Liens.

Dower in personalty is reduced by liens created prior to a husband's death. Thompson v. Union & Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324 (1924), superseded by statute as stated in, Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947).

Right to Dower.

A widow is entitled to one-third out of each kind or class of personal property of which her husband dies possessed. Ex parte Grooms, 102 Ark. 322, 143 S.W. 1063 (1912); Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917); Beal-Burrow Dry Goods Co. v. Kessinger, 132 Ark. 132, 200 S.W. 1002 (1918).

Under this section, a widow is entitled, absolutely and in her own right, to one-third of the personal property of all kinds which her husband owned at his death, without deduction for any debts or claims or expense of administration. Dolton v. Allen, 205 Ark. 189, 167 S.W.2d 893 (1943).

Both the widow and heirs at law are distributees of a solvent intestate estate under §§ 28-1-102 and 28-53-113, and therefore secured debts are to be discharged out of the general estate, unpledged personal property, where the creditor does not pursue the security, which gives the widow a dower right in the entire security free from the debt. Wilcox v. Brewer, 224 Ark. 546, 274 S.W.2d 777 (1955).

Where a widow elects to take a dower interest against the will and consents to the conversion of the realty owned by testator at death into cash, as provided by the will, she may not, as the result of the conversion, thereby maintain a claim to an absolute one-third of the gross estate. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Where decedent left surviving children, the estate possessed no general assets, and the property was security for a debt incurred prior to decedent's death, the probate judge did not err in awarding the wife dower limited to the net value of the account that constituted the estate. Balfanz v. Estate of Balfanz, 31 Ark. App. 71, 787 S.W.2d 699 (1990).

Trial court's decision reducing a surviving spouses dower interest, received pursuant to the terms of § 28-11-301 and this section, for certain claims against the estate under § 28-53-111 was reversed because the claim for a commission was not a debt that the spouse owed to the estate and the claim based on a note was a contingent claim still subject to unasserted defenses available to the spouse. Stevens v. Heritage Bank, 104 Ark. App. 56, 289 S.W.3d 147 (2008).

Sale of Administrator.

A widow is entitled to one-third of the personal estate absolutely, and an administrator holds it as a trustee for her; if he sells it, she is entitled to the proceeds of one-third of the sale. Menifee's Adm'rs v. Menifee, 8 Ark. (3 English) 9 (1847).

When an administrator applies the personal property to pay off debts of the estate, which property the widow had her right of dower in, she may be subrogated to the remedies of the creditors of the real estate. Crouch v. Edwards, 52 Ark. 499, 12 S.W. 1070 (1889).

Where a widow sits by and tacitly lets her one-third interest in her husband's personal property be liquidated into cash by administrator, she is liable for one-third of the reasonable and fair cost of doing this work. Dolton v. Allen, 205 Ark. 189, 167 S.W.2d 893 (1943).

War Risk Insurance.

Where a husband died leaving a policy of war risk insurance, one-fourth of which was payable to his mother in instalments as long as she lived and at her death the balance, if any, was to go to his estate, it was held that, on the mother's death, the value of the unpaid instalment which would have been paid to her if she had lived and which reverted to his estate was such an estate as entitled the widow of the insured to a dower interest therein. Childers v. Pollock, 178 Ark. 1031, 13 S.W.2d 8 (1929).

Cited: United States v. Norman, 184 F. Supp. 309 (W.D. Ark. 1960); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

This section, which allowed a widow to take dower in bonds, bills, notes, books, accounts, and evidence of debt which her husband owned at the time of his death, but did not contain a similar provision for the husband, was a gender based statute which had no important governmental function and thus violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision under prior law).

Priority of Dower.

This section, as amended in 1867, makes the right of dower in deceased husband's choses in action superior to the claims of creditors. Crowley v. Mellon, 52 Ark. 1, 11 S.W. 876 (1889).

United States Bonds.

A widow who renounced the will had no dower rights in United States “H” bonds purchased by her deceased husband, payable on death to his son and daughter, as the bonds belonged to the named payees and did not become a part of the estate of the deceased. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).

Cited: United States v. Norman, 184 F. Supp. 309 (W.D. Ark. 1960); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

Research References

Ark. L. Rev.

Domestic Relations — Adoption of Adults, 12 Ark. L. Rev. 199.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under this section, § 28-11-201, and § 28-11-301 which gave a wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed), which allow a wife to defeat curtesy by conveyance, provided for dissimilar treatment for men and women similarly situated, and since there was no justification for the discrimination, this section and § 28-11-201 were held unconstitutional. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision under prior law).

Construction.

This section means that if a husband dies leaving a widow and no direct descendants, the widow will be endowed as provided. Britton v. Oldham, 80 Ark. 252, 96 S.W. 1066 (1906).

The word “children” as used in this section includes all direct descendants. Starrett v. McKim, 90 Ark. 520, 119 S.W. 824 (1909).

Dower in real estate “of which such husband died seized” includes lands sold in lifetime of the husband without wife's consent. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951) (decision prior to 1981 amendment).

Adopted Children.

A widow is not entitled to dower under this section where there are surviving adopted children. Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Descent to Heirs.

Where a widow has, under this section, become entitled to one-half of the realty of which her husband died seized, and dies herself, her heirs and his heirs become tenants in common and hold the land as such. Avera v. Banks, 168 Ark. 718, 271 S.W. 970 (1925).

Effect of Amendment.

The act of 1891 amending this section did not amend, repeal, or in any manner impair § 28-11-201 or 28-11-301. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Effect of Debts.

A widow is entitled to one-half the estate as against collateral heirs even though all the remainder of the estate is needed to pay debts, and if more than half the estate is needed to pay debts, the widow, as against the collateral heirs, is entitled to the remainder. Whitener v. Whitener, 227 Ark. 1038, 304 S.W.2d 260 (1957).

Equitable Title.

A wife does not have dower interest in land to which her husband has equitable title if he transfers the land prior to his death. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951).

Where husband entered into a contract to sell land to which he held the equitable title, and thereafter pursuant to the agreement the parties holding the legal title transferred the land to husband, wife did not hold dower in the land, since the husband acquired no beneficial interest in the land as it was subject to a contract to convey. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951).

Bankruptcy debtor husband properly claimed an exemption in his curtesy interest in the co-debtor wife's real properties that the wife inherited from a parent; the husband's inchoate interest in the ancestral properties, which was in the nature of a life estate rather than a fee simple estate, was property of the husband's bankruptcy estate. In re Tankersley, 575 B.R. 848 (Bankr. E.D. Ark. 2017).

Inheritance Tax.

Endowment is not subject to the inheritance tax law. McDaniel v. Byrkett, 120 Ark. 295, 179 S.W. 491 (1915).

Interest of Other Heirs.

The widow of one who died childless holding part of the fee simple title to land by inheritance and part by deed from one of his co-heirs held the land partly as unassigned dower and partly as tenant in common with the other heirs, and her holding possession of the land and paying the taxes on it could not be adverse to the interests of the other heirs or their grantees. Head v. Farnum, 244 Ark. 367, 425 S.W.2d 303 (1968).

Judicial Sale.

The sale of a husband's land during his lifetime under execution against him does not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Where husband's land was sold under execution against him and there were no children or creditors, the widow was entitled to be endowed in fee simple of one-half of the realty sold at the execution sale. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Leases.

The interest of a widow in leases on her husband's real estate is an estate in land and not a chattel interest. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Mistake in Assignment.

Equity will decree a reformation for mistake in settlement between parties who were ignorant of provisions of this section. Terry v. Logue, 75 Ark. 240, 87 S.W. 119 (1905).

Where a probate court, acting on the theory that there are no debts, assigns one-half of the homestead of a decedent to his widow in fee and the other half as dower, and subsequently creditors appear, she will, in the absence of a showing in the record to the contrary, be held not to have waived her homestead rights. Robertson v. Adams, 163 Ark. 290, 260 S.W. 37 (1924).

Where commissioners had recommended, without explanation, that ancestral estates be assigned to the wife in fee, the confirmation by the court could be set aside at instance of collateral heirs. Browning v. Berg, 196 Ark. 595, 118 S.W.2d 1017 (1938).

New Acquisition.

Where a father, in consideration of the assumption by his son of a portion of a mortgage, conveyed certain lands to his son, the grant became, in the son, a new acquisition, and there being no children, his widow's dower was in fee. Beard v. Beard, 148 Ark. 29, 228 S.W. 734 (1921).

The widow of a deceased husband takes one-half of his lands which are new acquisitions in fee simple. Wilson v. Biles, 171 Ark. 912, 287 S.W. 373 (1926).

Where a husband dies childless, his widow's dower in a new acquisition is one-half thereof which passes to her, while the other one-half passes to his collateral heirs subject to her right of homestead. Smith v. Goldby, 172 Ark. 549, 289 S.W. 780 (1927).

Where a married son dies leaving lands as a new acquisition and no children or creditors, his father and his widow each takes a half interest therein in fee. Tandy v. Smith, 173 Ark. 828, 293 S.W. 735 (1927).

Pending Divorce Suit.

A testator's widow not divorced, though a suit for that purpose was pending, is entitled to one-half of his personal estate, there being no children, and a specific legacy of money in a bank is to be included in arriving at her share. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925).

Priority of Dower.

Although a bankruptcy debtor's recognizable, inchoate dower interest in her husband's real property was property of the debtor's bankruptcy estate, the property was not subject to turnover under 11 U.S.C.S. § 542 due to the debtor's legal inability to transfer the interest to anyone other than the husband's grantee. In re Flippin, 334 B.R. 434 (Bankr. W.D. Ark. 2005), modified, Clark v. Flippin, — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 71739 (W.D. Ark. Sept. 29, 2006).

Bankruptcy court correctly held that, although a debtor's dower interest was property of the bankruptcy estate, it could not be conveyed and, because the interest was not one which was transferable, it was not subject to turnover under 11 U.S.C.S. § 542(a). Clark v. Flippin, — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 71739 (W.D. Ark. Sept. 29, 2006).

Seizen.

There must have been actual corporeal seizen in the husband during coverture; therefore, dower will not attach to realty in which he had only a remainder or reversion. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

A widow has an interest in real estate of which her husband died seized, which, so far as the wife's dower is concerned, includes lands sold in the lifetime of the husband without her consent in legal form against all creditors of the estate. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Possession by tenant of leased land is possession of landlord. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

If father dies leaving a widow, a married son, and three other children, and children do not live on the land after the death of the father, and married son dies before his mother, leaving a widow, the widow of married son is not entitled to dower, as her husband did not die seized of an estate of inheritance. Maloney v. McCullough, 215 Ark. 570, 221 S.W.2d 770 (1949).

Separation Agreement.

Where a husband dies leaving lands, not ancestral, and there are neither debts nor children, his widow is entitled to one-half thereof in fee simple, though there was a separation agreement between them which, however, had been annulled by their subsequently living together as husband and wife. Sherman v. Sherman, 159 Ark. 364, 252 S.W. 27 (1923).

Vesting of Interest.

The widow's interest vests in her immediately on the husband's death and will descend to her heirs. Barton v. Wilson, 116 Ark. 400, 172 S.W. 1032 (Ark. 1915).

No adjudication of a court is necessary. Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915).

The estate becomes vested immediately upon a husband's death, but it does not vest in severalty until it is assigned to the widow. Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917).

Dower interest of a widow vests immediately upon death of her husband, but dower interest does not vest if husband does not die seized of property. Maloney v. McCullough, 215 Ark. 570, 221 S.W.2d 770 (1949).

Where a father died intestate and his son was appointed administrator but died intestate and without surviving issue before expiration of time for filing claims against father's estate and without ever having taken charge of the real estate of the father's estate, and the debts of the father's estate were all paid from the personalty, the widow of the son was entitled to dower in her husband's interest in the lands of his father, under provisions of this section, since her husband died seized of the lands. Pfaff v. Heizman, 218 Ark. 201, 235 S.W.2d 551, 23 A.L.R.2d 957 (1951).

Cited: Thomas v. Langley, 200 Ark. 220, 138 S.W.2d 380 (1940); Howze v. Hutchens, 213 Ark. 52, 209 S.W.2d 286 (1948); Daniels v. Johnson, 216 Ark. 374, 226 S.W.2d 571, 15 A.L.R.2d 1401 (1950); Harbour v. Sheffield, 269 Ark. 932, 601 S.W.2d 595 (Ct. App. 1980); Heath v. Clear, 280 Ark. 482, 659 S.W.2d 504 (1983).

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Equitable Jointure.

An antenuptial agreement between husband and wife that the wife shall take a child's part in her husband's estate, except as to the homestead, being intended in lieu of dower, though not a technical jointure, will be deemed an equitable jointure. Comstock v. Comstock, 146 Ark. 266, 225 S.W. 621 (1920).

Right to Possession.

Jointure bars dower, and the right to possession of a jointure accrues upon the husband's death. Bryan v. Bryan, 62 Ark. 79, 34 S.W. 260 (1896).

Separation Agreement.

A wife cannot claim dower in her deceased husband's lands where she agreed to a separation from him and accepted a deed to certain lands in lieu of dower. McGaugh v. Mathis, 131 Ark. 221, 198 S.W. 1147 (1917).

Research References

Ark. L. Rev.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, IV. A Major Defect Marked for Correction, 23 Ark. L. Rev. 313.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Construction of Will.

A will providing for maintenance of the testator's widow from the income of the estate and directing the trustee to hold the entire real estate intact until the widow's death, unless its use was necessary for her care and maintenance, was held to make provision in lieu of dower, requiring an election on her part. United States Fid. & Guar. Co. v. Edmondson, 187 Ark. 257, 59 S.W.2d 488 (1933).

Election.

Acceptance of bequest in lieu of dower will be presumed to be an election to take under the will. Goodrum v. Goodrum, 56 Ark. 532, 20 S.W. 353 (1892).

Where a widow made no election to disregard the will, she is presumed to take under the will, though she would have profited by renouncing the will. Kirk v. Mason, 188 Ark. 1000, 68 S.W.2d 1012 (1934).

In an administrator's suit to enforce payment of a note executed by a widow for the purchase of the deceased husband's partnership interests, where she had joined in a petition by the administrator to the probate court to approve the sale of the deceased husband's partnership interest to her and expressly waived her right to dower in her husband's estate with full knowledge of her rights, she will be held to have made a binding election to take under the deceased husband's will and hence not be entitled to claim dower in his estate. McEachin v. People's Nat'l Bank, 191 Ark. 544, 87 S.W.2d 12 (1935).

If the owner of real property dies intestate, the title to his property vests immediately in his heirs subject to appropriate provisions for administration under the Probate Code and subject to widow's dower and homestead rights, if any. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970).

Land Taking the Form of Personalty.

Where testator's property at death consists of household goods and land, his will directs the land to be sold and converted into cash, and the widow elects to take against the will and consents to the sale of the land, her dower in the realty is limited to a life interest in the proceeds from the sale of the land. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Personalty.

This section does not apply to a devise of personalty. Kollar v. Noble, 184 Ark. 297, 42 S.W.2d 408 (1931).

Statutory Allowances.

The widow was not required to elect between taking under the will and taking the statutory allowances; as allowances are no part of dower and may be claimed without disavowing the will, unless clearly against the provisions of the will. Costen v. Fricke, 169 Ark. 572, 276 S.W. 579 (1925).

Cited: Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970).

Case Notes

Personalty.

This section does not apply to a devise of personalty. Kollar v. Noble, 184 Ark. 297, 42 S.W.2d 408 (1931).

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Cited: Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994).

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Case Notes

Cited: State ex rel. Going v. Southwestern Land & Timber Co., 93 Ark. 621, 126 S.W. 73 (1910); King v. Harris, 134 Ark. 337, 203 S.W. 847 (1918); State v. Phillips Petroleum Co., 212 Ark. 530, 206 S.W.2d 771 (1947); Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Probate Law, 24 U. Ark. Little Rock L. Rev. 631.

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Cited: Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Case Notes

Cited: Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Case Notes

Jurisdiction.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the circuit court erroneously ruled that the probate court had exclusive jurisdiction and that the circuit court lacked jurisdiction; under Ark. Const. Amend. 80, § 6, and the fact that, under the Uniform Transfer on Death Security Registration Act, § 28-14-101 et seq., the money transferred from the TOD account did not become part of the estate, the circuit court clearly had jurisdiction. Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).

Separate Property.

Administratrix, wife of the decedent, who sought to divorce the decedent but reconciled shortly before the decedent's death, convinced the trial court the monies in a transfer-on-death account (TOD account) naming children from the decedent's former marriage as the beneficiaries was a fraudulent transfer; if the TOD account was owned by both the decedent and the administratrix, the administratrix could claim dower rights in the property, but decedent's children presented compelling facts that the account was separate property owned by the decedent, and the trial court erred in granting summary judgment in favor of the administratrix. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003).

Where decedent and his surviving spouse were married for only four years, the trial court did not clearly err in finding that the transfer-on-death (TOD) account was the sole and separate property of decedent's three children by a prior marriage as the named beneficiaries of the TOD account; the funds used to purchase the account were gained as the result of the sale of decedent's business, which he acquired before his marriage to the surviving spouse and continued to hold as his separate property during the course of the marriage, and the surviving spouse admittedly had no ownership interest in the business, nor was their commingling of any funds between the surviving spouse and the decedent once they were married. Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Research References

Ark. L. Rev.

Isabelle V. Taylor, Comment: Creditor Rights and the Missing Link in the Arkansas Trust Code: Is Death Strong Enough “To Break the Chain?”, 65 Ark. L. Rev. 433 (2012).

Case Notes

Jurisdiction.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the circuit court erroneously ruled that the probate court had exclusive jurisdiction and that the circuit court lacked jurisdiction; under Ark. Const. Amend. 80, § 6, and the fact that, under the Uniform Transfer on Death Security Registration Act, § 28-14-101 et seq., the money transferred from the TOD account did not become part of the estate, the circuit court clearly had jurisdiction. Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).

Separate Property.

Where decedent and his surviving spouse were married for only four years, the trial court did not clearly err in finding that the transfer-on-death (TOD) account was the sole and separate property of decedent's three children by a prior marriage as the named beneficiaries of the TOD account; the funds used to purchase the account were gained as the result of the sale of decedent's business, which he acquired before his marriage to the surviving spouse and continued to hold as his separate property during the course of the marriage, and the surviving spouse admittedly had no ownership interest in the business, nor was their commingling of any funds between the surviving spouse and the decedent once they were married. Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Standing.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the transferee's argument failed that the personal representative of the estate and not the creditor had standing for such an action; while there are procedures within the probate code that would allow for the challenge of an alleged fraudulent conveyance, this section concerning TODs plainly allows creditors to pursue their claims against transferees under other Arkansas laws, and thus a creditor also may pursue its claim under the Fraudulent Transfers Act, § 4-59-201 et seq.Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019) (decided under pre-2017 version of § 4-59-201 et seq.).

Case Notes

Cited: Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Research References

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Case Notes

Applicability.

This section does not control a purported agreement to make a will made before 1981. Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997).

Breach of Contract Not to Revoke.

Section 23-32-1005 [23-32-207] does not preclude the establishment of a constructive trust when a contract not to revoke a will has been properly established and the money in a survivorship account has been transferred in violation of such a contract. Avance v. Richards, 331 Ark. 32, 959 S.W.2d 396 (1998).

Breach of Contract to Devise.

In suit for specific performance of oral contract to leave property to plaintiff, plaintiff's remedy is not against estate, but against devisees of the property, and a court of equity is the proper forum for a suit for specific performance. Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965).

Constructive Trust.

A constructive trust may be imposed despite the statute of frauds, because implied trusts, such as constructive trusts or resulting trusts, are specifically exempted from its application. Cole v. Rivers, 43 Ark. App. 123, 861 S.W.2d 551 (1993).

Creation of Revocable Will.

Wife had the power to amend her will and trust after the husband's death as the parties had not intended for the trust to be irrevocable, thereby negating the argument that reciprocal wills were created. Cason v. Lambert, 2015 Ark. App. 41, 454 S.W.3d 250 (2015).

Evidence.

Contract to make a will not shown where the 1976 wills permitted discretionary disposition of personal property, did not contain words like “agreement to make mutual wills” or “agreeing that the survivor leaves his property to the heirs listed,” and the other evidence presented was not clear, cogent, and convincing of the existence of such a contract. Avance v. Richards, 331 Ark. 32, 959 S.W.2d 396 (1998).

The chancellor's decision that there was no valid contract to make the appellant a beneficiary of the decedent's will was not clearly erroneous, notwithstanding testimony that after the decedent made the appellant the beneficiary of his will in October 1996, she agreed to keep house for him, cook his meals and take care of him, since neither that 1996 will nor the 1997 will at issue contained a statement of the material provisions of a contract between the decedent and the appellant and neither will contained an express reference to a contract between them. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).

Circuit court did not clearly err in finding that there was no contractual agreement between a husband and wife to make their trusts irrevocable where there was no writing to that effect, both husband and wife reserved the right to amend, modify, or revoke the trusts in whole or in part at any time, and the only evidence supporting the contention that the husband executed an irrevocable trust came from witnesses related to the wife. Holmes v. Potter, 2017 Ark. App. 378, 523 S.W.3d 397 (2017).

Writing Signed by Decedent.

The grant of a summary judgment against heirs was proper where settlement agreement was a valid, enforceable contract which the decedent's guardian had the authority to enter into on her behalf. Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993).

Cited: Morris v. Cullipher, 299 Ark. 204, 772 S.W.2d 313 (1989); Mabry v. McAfee, 301 Ark. 268, 783 S.W.2d 356 (1990).

Research References

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Research References

Ark. L. Rev.

Comment — A Survey of Testamentary Capacity — Proof, 11 Ark. L. Rev. 84.

Case Notes

Construction.

Although at the time of the execution of a will a statute provided that a woman under age 21 had no power to execute a will conveying real property, will executed by executor when she was only 18 years old was valid and properly probated where, prior to her death, the statute was changed to provide validity for wills of persons of 18 years of age who were in their right mind. Hardy v. Ross, 237 Ark. 76, 371 S.W.2d 522 (1963).

Burden of Proof.

Under the issue of devisavit vel non, where the inquiry is whether the testator was of sound and disposing mind and free from undue influence at the time of executing the will, the burden of proof is on the plaintiff. Jenkins v. Tobin, 31 Ark. 306 (1876) (decision under prior law).

In an action to contest a will, the burden of proof is on the contestant who asserts the mental incapacity of the testator. Shippen v. Shippen, 213 Ark. 517, 211 S.W.2d 433 (1948) (decision under prior law).

Delusions.

The test of testamentary capacity is the same in the case of an insane delusion as in the case of dementia. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908) (decision under prior law).

Exclusion of Will Contestants.

Since the testator may leave his property to anyone he chooses, he is at liberty to exclude from his bounty those beneficiaries who unsuccessfully seek to thwart his testamentary wishes. Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962).

Moral Insanity.

Moral insanity, manifested in jealousy, anger, hate, resentment, or other perversion of the sentiment or affections, however violent or unnatural, will not defeat a will unless it is the emanation of a delusion. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908) (decision under prior law).

Old Age.

A testator's old age, physical incapacity, and partial eclipse of the mind will not invalidate his will if he has sufficient capacity to remember the extent and condition of his property and who are his beneficiaries and to appreciate the desserts of his relatives. Griffin v. Union Trust Co., 166 Ark. 347, 266 S.W. 289 (1924) (decision under prior law).

That an aged testator's memory was failing or that his judgment was vacillating or that he was becoming eccentric or that his mind was not as active as formerly does not invalidate the will if it was fairly made and was free from undue influence. Pernot v. King, 194 Ark. 896, 110 S.W.2d 539 (1937) (decision under prior law).

Review.

Where the finding of mental incompetency of testator is not against the preponderance of the testimony, the decree will be affirmed. Boyland v. Boyland, 211 Ark. 925, 203 S.W.2d 192 (1947) (decision under prior law).

Tests of Capacity.

The capacity to make a will is of such a degree of reason and judgment as to enable the party to comprehend the subject. Kelly's Heirs v. McGuire, 15 Ark. 555 (1855); Abraham v. Wilkins, 17 Ark. 292 (1856) (decision under prior law).

The capacity to make a will is such as requires sufficient mind to contract, free from such undue influences as constrain the party to act against his will or subdue the will until it ceases to act for itself and acts under the dictates of the will of another. Tobin v. Jenkins, 29 Ark. 151 (1874) (decision under prior law).

The test of testamentary capacity is that the testator shall have the capacity to retain in memory, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and to appreciate the desserts and relation to him of others whom he excludes from participation in his estate. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908) (decision under prior law).

It was error, in a will contest, to instruct the jury that a testator in order to be capable of making a will must have “a full knowledge of the property he possesses”; rather, the true test with respect to his property was not whether he knew, but whether he was mentally capable of knowing, what property he possessed. Huffaker v. Beers, 95 Ark. 158, 128 S.W. 1040 (1910) (decision under prior law).

Case Notes

Age of Witness.

The requirement that an attesting witness must be 18 years of age or older is unequivocal and leaves no room for judicial interpretation or substantial compliance. Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999).

Attestation.

Where an attestation is dated one month earlier than a will, the will is still valid if there is no dispute that the will was signed by the testator and attested by the witnesses on the same date. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

Attorney.

Although the law firm with which he was associated was named to represent the estate, attorney signing will as one of two attesting witnesses was qualified, no beneficial interest having been devised to him. Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857 (1961).

Attorney who drafted will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Beneficiary Not a Witness.

A beneficiary who is not an attesting witness may testify. Strickland v. Smith, 131 Ark. 350, 198 S.W. 690 (1917) (decision under prior law).

Executor as Witness.

The executor of a will, as a rule, is competent as a subscribing witness to its execution, as his interest is derived from the statute and not from the will itself, the word “appointment” referring to some appointment coupled with a beneficial interest. Fontaine v. Fontaine, 169 Ark. 1077, 277 S.W. 867 (1925) (decision under prior law).

Husband and Wife.

Husband who is one of the subscribing witnesses to a will is not disqualified from testifying as to its due execution before the probate court because of the fact that his wife is a legatee, since statute rendering husband or wife incompetent from testifying for or against each other in civil actions does not apply to probate of wills. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).

Subscribing witness to will whose wife was beneficiary thereunder was competent witness in proceeding to contest the will where wife had previously disclaimed her testamentary bequest and was no longer a party to the suit. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).

Signed by Mark.

A will is valid as properly executed by substantial compliance with the statutes where the testator signs it with his mark and an unknown person writes the testator's name next to his mark and there are three attesting witnesses. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

Voluntary Release.

One of the necessary subscribing or attesting witnesses to a will who is a beneficiary therein may become competent by voluntarily releasing his bequest. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).

Cited: Parker v. Parker, 237 Ark. 942, 377 S.W.2d 160 (1964).

Research References

Ark. L. Rev.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

U. Ark. Little Rock L.J.

Note, Validity of Signature for Attested Wills, 4 U. Ark. Little Rock L.J. 139.

Case Notes

In General.

The purpose of the law relating to the execution of wills is to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963).

Construction.

The requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testatrix's wishes may not be thwarted by straightlaced construction of statutory language where there is no indication of fraud, deception, imposition, or undue influence. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Where there is no indication of fraud, deception, undue influence, or imposition, a court may avoid a strict technical construction of the statutory requirements in order to give effect to the testator's wishes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985).

This section is mandatory in order to validate a nonholographic will. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Acknowledgment by Testator.

Testator's statement to attesting witness that the instrument was his will raises presumption, in the absence of proof to the contrary, that testator's signature was on the will and it was an acknowledgment to testator's subscription to the will in compliance with statutory requirements. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

If, without referring to instrument as his will, testator produces it with his signature visible, and requests witness to sign it, this is a sufficient acknowledgment. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Testator may acknowledge his signature by his acts and gestures, without making any express acknowledgment of the signature in words. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

The fact of publication can be inferred from all of the circumstances attending the execution of the will; a testator may acknowledge his signature by acts and gestures without expressing it in words. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Once the signing of a will is proven by two attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991).

Trial court did not err in finding substantial compliance with the requirement of declaring one's will to the witnesses where, even had the decedent not declared to one of the witnesses that it was her last will and testament, nor had she specifically asked either witness to sign it, the witness was standing by as the handwritten document was read back to the decedent, and the witness understood the document to have been the decedent's last will and testament. Fischer v. Kinzalow, 88 Ark. App. 307, 198 S.W.3d 555 (2004).

Attestation by Witnesses.

Previously it was held that it was not necessary that witnesses to a will subscribe in the presence, actual or constructive, of the testator. Abraham v. Wilkins, 17 Ark. 292 (1856) (decision under prior law).

An attesting witness to a will may subscribe by mark, although the person who writes the name fails to sign his name as a witness in fact. Davis v. Semmes, 51 Ark. 48, 9 S.W. 434 (1888) (decision under prior law).

A will was duly executed where it was subscribed in the presence of one attesting witness and then taken by the testator to a justice of the peace to whom he pointed out his signature, declared the writing to be his will, and procured the justice to sign and certify the will in his official capacity. The certificate, though superfluous, did not vitiate the attestation by the justice. Payne v. Payne, 54 Ark. 415, 16 S.W. 1 (1891) (decision under prior law).

A will cannot be admitted to probate where the signature of the testator is attested by only one witness. Johnson v. Hinton, 130 Ark. 394, 197 S.W. 706 (1917) (decision under prior law).

A will signed by a mark in the presence of justice of peace who did not write his own name as witness and by two witnesses out of the presence of the testator and not at her request was held invalid. Graves v. Bowles, 193 Ark. 546, 101 S.W.2d 176 (1937) (decision under prior law).

A will signed by one witness who was a total stranger to testator and to other witness several days after it was executed by testator and signed by the other witness was rejected as not having been properly attested. Hendry v. Wilson, 202 Ark. 580, 151 S.W.2d 683 (1941) (decision under prior law).

Where an attestation is dated one month earlier than a will, the will is still valid if there is no dispute that the will was signed by the testator and attested by the witnesses on the same date. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

There has never been any requirement in Arkansas that the two witnesses to a will sign in the presence of each other, and this section has not changed the law in that respect. Coleman v. Walls, 241 Ark. 842, 410 S.W.2d 749 (1967); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Although the will probably qualified as a holographic will, since it was signed at the end by the testator, in the presence of two attesting witnesses as required by this section, the evidence was sufficient to establish the will as an attested will. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

Where the testator signs his will with an “X”, this section requires a minimum of three subscribing witnesses to make the will in question valid. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Statutory formalities specifically required the testatrix, who signed by a mark, to have a witness who signed the document attesting to her mark and two attesting witnesses to sign at end of the instrument to constitute a validly executed will; although three witnesses attested to the execution of the will, the will did not refer to any witness as being a special witness to the mark, and therefore, the will was invalid because the writing of the testatrix's name by the witness to the mark was not done in the presence of two attesting witnesses. Smith v. Wharton, 349 Ark. 351, 78 S.W.3d 79 (2002).

Witness was within the range of the testator's senses while in an adjacent room with the door open to the testatrix's bedroom; thus, he was in the presence of the testator at the time he subscribed his name to the testatrix's will. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004).

Attorney as Witness.

An attorney who drafted a will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Blind Persons.

Where a blind person held the pen and another guided her hand in signing her will, the signature was the act of the testator, and it was not necessary for the person guiding her hand to sign the will as an attesting witness to the signature. Coleman v. Walls, 241 Ark. 842, 410 S.W.2d 749 (1967).

A will signed by blind person by mark with assistance from the sole beneficiary and witnessed by two other people is valid. Patrick v. Rankin, 256 Ark. 310, 506 S.W.2d 853 (1974).

Burden of Proof.

Production of a written paper purporting to be the will of a deceased person which is rational on its face, and which is proved to have been executed and witnessed in accordance with statutory requirements makes a prima facie case and devolves upon the contestants the onus of showing the testator's incompetency. Gray v. Fulton, 205 Ark. 675, 170 S.W.2d 384 (1943) (decision under prior law).

When surviving son offered the will for probate, he had the burden of proving the genuineness of the signatures. Where he made such proof and the will was admitted to probate, the appellants who sought to contest the will within the six-month period had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Declaration of Testator.

The testator is not required to use any particular words in declaring an instrument to be his last will and testament. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

Evidence Generally.

Evidence supported finding of probate court that will offered for probate was executed in accordance with this section. Edwards v. Knowles, 225 Ark. 1024, 287 S.W.2d 449 (1956); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Parol evidence may not be introduced by the witness to a testator's mark to supply the deficiency of the required additional witness' signature. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

Evidence of Testamentary Intent.

Where a written instrument was executed as a will but only one witness signed it and the instrument, along with two letters written by the deceased to his wife, was offered for probate on the ground that purported typewritten will became part of a valid will when coupled with the letters written by the deceased in his own handwriting to his wife, court erred in overruling demurrer to petition to probate where there was no evidence whatever to the effect that he intended that either the letter should constitute a will or that it be used in connection with any other document or instrument so as to constitute a will. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

It is not necessary that deceased specifically request the witnesses to sign his will. Thus where a deceased's actions showed that he knew he was making a will, that he was asked if he wanted any of his property to go to a certain person and he explained why he did not, and that he signed the instrument in front of the witnesses and permitted them to sign as witnesses, the statutory provisions were substantially complied with. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963).

Where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent. Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991).

Failure to Comply.

Where a testator's name is signed to a will by his direction and he does nothing more thereby adopting such signature as his subscription, the person so signing for the testator must also write his own name as a witness and state that he signed the testator's name at his request. Statutory provisions did not apply, however, where the testator signed himself by making his mark. In re Will of Cornelius, 14 Ark. 675 (1854); Guthrie v. Price, 23 Ark. 396 (1861) (decision under prior law).

Where testator's name is signed by another at his request and the testator then signs by mark and the other person signing testator's name does not subscribe his own name as required, it is necessary that the genuineness of the signature by mark be established by other means. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518 (1917) (decision under prior law).

Holographic Will.

Where the decedent's unaltered, handwritten will, which was signed by him and witnessed by one witness was found to be a holographic will which was valid pursuant to § 28-25-104, it was not necessary to further test the will's validity as an attested will under this section since a holographic will can satisfy the requirements of both sections. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981).

Mandatory Nature.

The validity of a will depends on compliance with statutory requirements rather than on the good memory of one of the witnesses. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

Notary as Witness.

Where will was signed by decedent with an “X” and attested by two witnesses and a proof of will was acknowledged by a notary public, the notary public's signature on the proof of will form did not amount to a third signature. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Presumption of Due Execution.

Although no presumption of due execution of a will arises from the mere production of an instrument purporting to be a will, if it appears to have been duly executed and the attestation is established by the witnesses to its execution, although they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of law including those as to attestation in the presence of the testator and affixing the testator's signature prior to those of the witnesses. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Proof of Execution.

Execution of a will may be sufficiently proved where one witness testifies positively to the requisites of execution, though another does not recall some of the requisites, especially where testimony is given several years after execution of the will. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

No presumption of due execution arises from mere production of an instrument purporting to be a last will and testament, but where the instrument appears to have been duly executed as a will, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Publication.

The requirement that the testator declare the instrument to be a will is called publication; it is not required that a testator recite precisely the words “this is my will,” although that is the preferred practice; rather, publication can be inferred from actions and circumstances. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985).

Republication.

A codicil, duly executed, will operate as a republication of an earlier will although the earlier will was inoperative or imperfectly executed or attested. Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26 (1928) (decision under prior law).

Request of Testator.

It is not necessary that each witness should prove that both signed at the request of the testator. Rogers v. Diamond, 13 Ark. 474 (1853) (decision under prior law).

Each of the attesting witnesses must sign his name as a witness at the request of the testator; however, such a request may be inferred from the attendant circumstances, by signs, or by gestures, as well as words, as by the testator desiring the witness to be sent for to attest the execution of the will or from a request made to such witnesses by another person in the presence of the testator. Rogers v. Diamond, 13 Ark. 474 (1853) (decision under prior law).

Signature Generally.

Will was signed by testator and duly witnessed according to law where testimony by witnesses showed that testator requested witnesses for her will and duly signed the will in their presence and that witnesses then signed the will as witnesses in presence of testator. Meek v. Bledsoe, 221 Ark. 395, 253 S.W.2d 369 (1952).

Where the testator and both attesting witnesses were dead, all the contestants had to do was to prove that any one of the three signatures was a forgery in order to defeat probate since a valid will, other than a holographic one, must have two witnesses. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by law governing the particular will being made, and subscription by fewer renders the transaction a nullity. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960).

While substantial compliance with the procedure in subdivision (b)(5) of this section has been held sufficient in some situations, it has never been extended to allow a witness to attest a will before the testator signs it and who in fact never sees the testator sign. Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993).

Signature of Testator.

A testator may sign his will by an abbreviation of his full name or merely by initials. Cartwright v. Cartwright, 158 Ark. 278, 250 S.W. 11 (1923) (decision under prior law).

Where contestants, in a proceeding to probate a will, denied that deceased signed the will, it was competent for them to prove that she did not sign because she could not write. Watts v. Tidwell, 178 Ark. 951, 12 S.W.2d 896 (1929) (decision under prior law).

The purpose of the requirement that subscription be at end of a will is to prevent fraud. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951) (decision under prior law).

The signature of the testator at the end of a holographic will is not requisite to its validity. Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972).

Where the testator places his signature in the attestation clause because he believes that it belongs there and with the requisite testamentary intent, it constitutes a sufficient compliance with this section requiring the signature to be at the end. Scritchfield v. Loyd, 267 Ark. 24, 589 S.W.2d 557 (1979).

When a testator presents a will to a witness, the presumption is, in the absence of proof to the contrary, that the testator's signature is on the will; where there is clear evidence to the contrary, no presumption is permissible. Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993).

Signed by Mark.

A will is valid as properly executed by substantial compliance with the statutes where the testator signs it with his mark and an unknown person writes the testator's name next to his mark and there are three attesting witnesses. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

Where a will is signed by testator's mark, it is mandatory that a minimum of three signatures be attached, one to witness the testator's mark and two to attest the will. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

Where a will is signed by testator's mark, the mark must be witnessed by the signature of the party who wrote the testator's name and the signatures of two attending witnesses. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

One who witnesses the mark of a testator cannot also sign as a witness to the will. Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964).

Where testator made an “X” on his will and the drafting attorney then wrote testator's name next to the mark, after which two other witnesses signed the will as witnesses, the will was properly executed, since this section does not require that the person who writes the name of the testator near his mark must also sign as a witness to the signature or as a witness to the will itself. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981).

Statutory Policy.

The policy of statutory requirements is to guard against frauds in the execution of wills. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Subsequent Ex Parte Affidavit Inadmissible.

Where a testator signed a will by his mark and the party who signed his name failed to attest the signature by writing his own name as witness, an ex parte affidavit by the witness that he wrote the deceased's name for him and witnessed the making of his mark by the deceased is inadmissible; there then being no proof of the deceased's signature, the will is not entitled to probate. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518 (1917) (decision under prior law).

Validity of Execution.

Where neither of the alleged attesting witnesses signed in the presence of the testator, nor in the presence of each other, the will was not validly executed. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960).

Where the record shows that the witnesses understood the paper signed was the will of testator and that he expected and desired them to sign as witnesses, and testator signed will in their presence and they signed as witnesses in the presence of the testator, there was substantial compliance with this section, although the witnesses could not say positively that testator actually said it was his will or that he literally requested them to sign it as witnesses. Hollingsworth v. Hollingsworth, 240 Ark. 582, 401 S.W.2d 555 (1966).

Where both witnesses to the execution of a will were unable to definitely testify that they saw the testator sign the will, but one witness testified that he did not believe that he would have signed the attestation clause unless decedent had signed the will in his presence and the other witness testified that he was “pretty sure” that he had seen decedent sign his name, the will was validly executed under this section. Pennington v. Pennington, 1 Ark. App. 311, 615 S.W.2d 391 (1981).

Where testator went to attorney's office for the specific purpose of making a will and did so and no one questioned the genuineness of her signature and where attorney's secretary and a client witnessed the will, trial court's determination that will was validly executed was not clearly erroneous even though witnesses could not specifically recall seeing testator sign the will. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Will which disinherited a party was valid because all of the elements of proper execution were met under subsections (a), (b), and (c) of this section. Also, testamentary capacity was present because when the will was executed the testatrix comprehended the nature and extent of her property and to whom she was giving it. Foster v. Foster, 2010 Ark. App. 594, 377 S.W.3d 497 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 742 (Oct. 27, 2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 369 (Ark. Mar. 3, 2011).

Witness to Execution.

A witness signing testator's name may also attest will. Bocquin v. Theurer, 133 Ark. 448, 202 S.W. 845 (1918), superseded by statute as stated in, Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964) (decision under prior law).

Words Following Signature.

A will's validity is not affected by fact that superfluous or useless words follow a signature. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951) (decision under prior law).

Nontestamentary, nondispositive language appearing below the signature of the maker of a will, will not invalidate the instrument. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Language appearing after signature on will which instructed two persons to dispense with described personal property of testatrix was administrative in nature, and not dispositive, and therefore there was no violation of subsection (b)(5). Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Cited: Ballard v. Beard, 238 Ark. 459, 382 S.W.2d 593 (1964); Nowak v. Etchieson, 241 Ark. 328, 408 S.W.2d 476 (1966); Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985); Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999).

Research References

Ark. L. Rev.

Wills — Proof of Testamentary Intent in Holographic Codicils, 25 Ark. L. Rev. 376.

Wills — Validity of Signature for Holographic Wills, 28 Ark. L. Rev. 521.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

U. Ark. Little Rock L. Rev.

Note, Wills — Holographic Wills and Testamentary Intent — Extrinsic Evidence is Inadmissible to Prove Testamentary Intent for Holographic Wills Lacking Words of Disposition. Edmundson v. Estate of Fountain, 27 U. Ark. Little Rock L. Rev. 545.

Case Notes

Applicability.

This section is not retroactive. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951).

Animus Testandi.

It is imperative that a holographic instrument asserted as a will should clearly show animus testandi before the instrument is declared by the courts to be a will. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

When evidence supported finding that a holographic will was executed within a fairly short time prior to death of decedent who knew he had a serious coronary condition, it was sufficient to establish that will was testamentary in character and executed with testamentary intent. Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966).

An alleged holographic will consisting of a sketch on the back of a used envelope and setting forth no words of a dispositive nature was defective on its face because it lacked the required animus testandi, and thus extrinsic evidence was not admissible to prove the necessary intent. McDonald v. Petty, 262 Ark. 517, 559 S.W.2d 1 (1977).

Conflict of Laws.

Effect to be given to the probation of holographic will in another state in relation to property in this state must be decided in accordance with the laws of this state. McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944) (decision under prior law).

Effect of Codicils.

A typewritten instrument attested by only one witness, but subsequently referred to in a codicil in the handwriting of the testator, was given sufficient validity so that the two instruments were construed together. Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26 (1928) (decision under prior law).

Holographic will, even if executed as a codicil to a prior will, would be ineffective insofar as there is conflict between the two wills. McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944) (decision under prior law).

Form of Instruments.

A will written and signed by the testator in his own proper handwriting without attesting witnesses is valid. Ex parte Horner, 27 Ark. 443 (1872) (decision under prior law).

A letter written by the decedent just before he committed suicide, being wholly in his handwriting and signed by him, in which he directed the disposition of his goods is such a will as may be established by the unimpeachable testimony of three disinterested witnesses as to his handwriting and signature. Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906) (decision under prior law).

Instruments Constituting Holographic Wills.

Where disinterested and unimpeachable witnesses testified that will offered for probate was entirely in deceased's handwriting and the instrument stated on its face “this is my last will and testament,” and was of testamentary character, it was properly admitted to probate. Lunsford v. Hawkins, 203 Ark. 247, 156 S.W.2d 235 (1941) (decision under prior law).

Written and signed instrument addressed to specified church and containing language that “being of sound mind I give to this church for the purpose of educating youth to Christ all my possessions to be disposed or used as the Board of Stewards and the Minister sees fit” was testamentary in character and entitled to be admitted to probate as a holographic will. Barnard v. Methodist Church, 226 Ark. 144, 288 S.W.2d 595 (1956).

Probate court erred when it refused to admit a holographic will into probate; although the will did not contain specific testamentary language, the decedent's testamentary intent in the document was shown by the fact that it was captioned “Last Will,” the witnesses who signed the document believed it was a will, and the decedent had told her sister that she had a will. Edmondston v. Estate of Fountain, 84 Ark. App. 231, 137 S.W.3d 415 (2003), rev'd, Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004).

Judge's handwritten will, which was undated and contained blanks in the attestation clause, met the requirements of this section, which requires only that the entire body of the will be written in the testator's handwriting and signed; this section does not require a date or witnesses to attest execution. The four corners of the document demonstrated that the judge intended to make a testamentary disposition, as it was titled as a last will, it disposed of the judge's property, and was written entirely in the judge's own handwriting and signed at the bottom. Marcum v. Gibson (In re Estate of Bond), 2019 Ark. App. 241, 576 S.W.3d 38 (2019).

Instruments Not Constituting Wills.

A statement by a son in an unsigned postscript to a letter written to his father was not a valid holographic will. Borchers v. Borchers, 145 Ark. 426, 224 S.W. 729 (1920) (decision under prior law).

A probate court did not err in refusing to admit to probate a handwritten instrument as the holographic will of a decedent where the decedent had not signed the document at the end, where the document made no provision for decedent's wife, and where the document did not dispose of all of his property. Peevy v. Ritcheson, 261 Ark. 841, 552 S.W.2d 218 (1977).

Lost or Destroyed Instruments.

In a suit to establish a lost holographic will, the chancellor's finding that the letter offered as a will was not proved, was held not against the preponderance of the evidence. Sibley v. Patrick, 180 Ark. 131, 21 S.W.2d 170 (1929) (decision under prior law).

Where, after the testator's death, a holographic will was read to the heirs only and subsequently was wilfully destroyed by one of the heirs, the other heirs, though interested, were, under the circumstances, competent to prove the contents and signature. Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934) (decision under prior law).

Precedence Over Prior Wills.

A holographic will takes precedence over a prior typewritten will since the enactment of the 1949 Probate Code. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

Proof by Beneficiary.

A beneficiary in a holographic will may testify as to its execution. Sneed v. Reynolds, 166 Ark. 581, 266 S.W. 686 (1924) (decision under prior law).

Signature of Testator.

It is not provided, in Probate Code of 1949 that a holographic will has to be signed at end. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951).

Where testator's name is written in or upon some part of the will other than at the end thereof, in order to be a valid signature, it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will. Nelson v. Texarkana Historical Soc'y & Museum, 257 Ark. 394, 516 S.W.2d 882 (1974).

Where the evidence showed that an instrument was in the handwriting of the testator and that she considered it as her will, it would be sheer speculation to assume that she intended her name in the body of the will to be her signature to it. Nelson v. Texarkana Historical Soc'y & Museum, 257 Ark. 394, 516 S.W.2d 882 (1974).

Validity.

Where a decedent's unaltered, handwritten will, which was signed by him and witnessed by one witness, was found to be a holographic will which was valid pursuant to this section, it was not necessary to further test the will's validity as an attested will under § 28-25-103, since a holographic will can satisfy the requirements of both sections. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981).

Witnesses to Prove Will.

A witness to the handwriting and signature of an alleged testator is unimpeachable where there is no evidence reflecting on his character or testimony. Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906); Smith v. Boswell, 93 Ark. 66, 124 S.W. 264 (1909) (decision under prior law).

An unimpeachable witness is one whom the jury finds to have spoken truthfully and whose conclusion they find to be correct, though there is other evidence tending to contradict him. Murphy v. Murphy, 144 Ark. 429, 222 S.W. 721 (1920) (decision under prior law).

In a proceeding to establish a lost holographic will, it is immaterial that the witnesses to the contents and handwriting are interested if there is no question that the document and signature were written by the testator. Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934) (decision under prior law).

Where in a proceeding to probate a will, a number of witnesses testify that the instrument is in the handwriting of the deceased, and there is nothing in the record to the contrary, they will be regarded as unimpeachable witnesses. Lunsford v. Hawkins, 203 Ark. 247, 156 S.W.2d 235 (1941) (decision under prior law).

A credible witness to a holographic will is one who is competent and who is worthy of belief. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Trial court erred in denying probate of a holographic will on the ground that evidence presented did not meet requirements necessary to establish holographic will where four renters from deceased and two banking officials testified that will was in handwriting of the deceased. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Trial court did not err in finding that the requirements of this section had been satisfied because two witnesses, in addition to the grandson who was challenging the codicil, professed sufficient knowledge about decedent's printing and testified that the codicil was written in what appeared to be decedent's handwriting. Minton v. Minton, 2010 Ark. App. 310, 374 S.W.3d 818 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 441 (Sept. 23, 2010).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972).

Case Notes

Applicability.

Decedent's holographic will, executed during his residency in Alberta, Canada, was subject to the laws of Arkansas in the ancillary probate proceedings instituted there; hence, the will was subject to the Arkansas law regarding pretermitted children. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Proof of Execution.

The formality essential to the execution of a will will be tested either by the law of the place of its execution or of the place of the testator's domicile; proof of valid execution, however, is referable to Arkansas' statutes because the proponent seeks to have the will initially probated in this state, and on questions of the burden of proof, the law of the forum governs. Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985).

Research References

Ark. L. Rev.

Wills — Incorporation of Extrinsic Documents by Reference, 6 Ark. L. Rev. 496.

Note, Incorporation by Reference, Integration, and Holographic Wills in Gifford v. Estate of Gifford, 46 Ark. L. Rev. 1013.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Case Notes

Signed Memoranda.

Testator's signed memoranda, made after execution of his will, can be effective with certain restrictions under this section; whether any such memoranda were left by the testator is for the trial court to decide if the issue was disputed. Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986).

Memorandum in the handwriting of and signed by the testatrix was incorporated into her will by reference where it was physically attached and alluded to in the will. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991).

A signed handwritten note found in the decedent's jewelry box, which stated, “I want Vernita Ellison to have these items and [my dog],” was properly admitted as part of her will. Jones v. Ellison, 70 Ark. App. 162, 15 S.W.3d 710 (2000).

Case Notes

Failure to Fully Comply with Statute.

The failure of the clerk or the parties to comply with all the provisions of this section in handling the will will not necessarily destroy its integrity. Wargo v. Wargo, 226 Ark. 42, 287 S.W.2d 882 (1956).

There was sufficient evidence to establish the validity of a will notwithstanding the fact that all the provisions of this section were not complied with. Wargo v. Wargo, 226 Ark. 42, 287 S.W.2d 882 (1956).

Research References

Ark. L. Notes.

Lonnie Beard, Questioning the practice of executing duplicate original wills, 2013 Ark. L. Notes 1030.

Ark. L. Rev.

Wills — Dependent Relative Revocation, 8 Ark. L. Rev. 193.

Wills — Revocation Implied from Divorce of Testator, 9 Ark. L. Rev. 182.

Leflar, Liberty and Death: Advance Health Care Directives and the Law of Arkansas, 39 Ark. L. Rev. 375.

Recent Development: Arkansas Probate Law — Revocation of Holographic Wills, 60 Ark. L. Rev. 1023.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Note, Decedents' Estates — Wills — Doctrine of Dependent Relative Revocation — May Not Be Applicable in Arkansas, Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980), 4 U. Ark. Little Rock L.J. 353.

Survey — Property, 11 U. Ark. Little Rock L.J. 243.

Case Notes

In General.

In order to effect revocation of a will other than by execution of another, the revocation must be in a manner prescribed by statute. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946) (decision under prior law).

There is no such thing as an irrevocable will. Allen v. First Nat'l Bank, 230 Ark. 201, 321 S.W.2d 750 (1959).

Alterations Not Reexecuted.

A testator did not successfully alter her will by retyping all dispositive provisions in her will and destroying the original provisions, since the altered instrument was not reexecuted and reattested to. Tull v. Benton State Bank, 257 Ark. 386, 516 S.W.2d 583 (1974).

Where the testator changed the disposition of her property in her typewritten will by interlineation or obliteration of a devisee's name, her attempt to obliterate the name of the devisee was void since it was not attested, and the devisee's name had to be restored to the will as originally intended. Dodson v. Walton, 268 Ark. 431, 597 S.W.2d 814 (1980).

Burden of Proof.

The burden to prove revocation of a will rests on party asserting it. Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925) (decision under prior law).

Former statute held not to relieve will contestants from proving the contents of a subsequent will by clear, positive, and satisfactory testimony in order to annul or revoke a former will. Reed v. Johnson, 200 Ark. 1075, 143 S.W.2d 32 (1940) (decision under prior law).

Conclusiveness of Court's Finding.

The finding of the circuit court, sitting as a jury, as to which is the later of two wills would not be disturbed unless there was a total want of evidence to support it, the dates to the wills not being conclusive. Austin v. Fielder, 40 Ark. 144 (1882) (decision under prior law).

Effect of Divorce.

Prior to enactment of this section, the only methods of revoking a will were those provided by statute, and a divorce and property settlement to former wife were not facts sufficient to revoke a will. Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695 (1950) (decision under prior law).

The divorced wife of a testator who took her share of their marital property in the divorce proceeding was estopped from taking advantage of this implied revocation statute after the testator's death to obtain the bulk of her former husband's remaining property on the ground that the marriage was void. Rickner v. Estate of Rickner, 283 Ark. 42, 670 S.W.2d 450 (1984).

Will was not revoked by testator's marriage, but divorce did revoke will provisions made in spouse's favor. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Equitable Intervention.

Before a case can be made for equitable intervention, there must be proof that the testator undertook acts which would have resulted in legal revocation of the will had he not been prevented from the fulfillment of such acts by force or fraud. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946) (decision under prior law).

Former Spouses.

The clear meaning of the words used in this section is that any bequest to a former spouse is void but that the remainder of the will remains in effect. McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982).

This section does not provide that its provision revoking a former spouse's bequest or devise upon divorce is dependent upon testator having made his will during a marriage. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Revocation of a holographic will that provided that the decedent's estate would pass to his former wife was appropriate under subsection (b) of this section because the parties' divorce occurred after the execution of the decedent's holographic will and his bequest was revoked by operation of law. Langston v. Langston, 371 Ark. 404, 266 S.W.3d 716 (2007), rehearing denied, — Ark. —, — S.W.3d —, 2007 Ark. LEXIS 663 (Dec. 6, 2007).

Holographic Will.

An unattested holographic will held not to revoke a prior attested will. Parker v. Hill, 85 Ark. 363, 108 S.W. 208 (1908) (decision under prior law).

Where a holographic will, when found, had the word “void” written at the top of each page and cross marks through the provisions of each page and the testimony of witnesses disagreed as to whether the word “void” and the cross marks were in the testator's handwriting, finding of the probate court that the will had been intentionally and effectively revoked by the testator was not against the preponderance of the evidence. Starnes v. Andre, 243 Ark. 712, 421 S.W.2d 616 (1967).

Trial court clearly erred in finding that a note an executrix found was an effective change of a decedent's individual retirement account beneficiary because if the note was regarded as a holographic will, it was revoked by the express terms of the decedent's will and by operation of law pursuant to subdivision (a)(1) of this section. Nunnenman v. Estate of Grubbs, 2010 Ark. App. 75, 374 S.W.3d 75 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 248 (Mar. 10, 2010), review denied, Nunnenman v. Grubbs, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 390 (Aug. 6, 2010).

Ineffective Revocation.

Although this section permits revocation of all or part of a will by cancellation or obliteration by the testator with the intent and for the purpose of revoking the will, since the “strike outs” had the effect of increasing the estate, the attempted revocation was ineffective because it would have resulted in a new testamentary disposition without attestation. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

Instrument of Revocation.

An instrument to revoke a will must be executed in conformity to statutory requirements. Newboles v. Newboles, 169 Ark. 282, 273 S.W. 1026 (1925); McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944) (decision under prior law).

A will cannot be revoked by a trust instrument under this section. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Intentional Destruction.

Where the widow testified she observed the testator tear up his will and set fire to it about a week before his death and where a witness testified that the testator the day before his death stated that he tore up his old will, there was substantial evidence to support the probate court's finding that the testator intentionally destroyed his will. Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980).

Testator's will was not revoked pursuant to the terms of this section where the will was not destroyed in the testator's presence. In re Estate of O'Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991), overruled in part, Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004), overruled, Minton v. Minton, 2010 Ark. App. 310, 374 S.W.3d 818 (2010).

Decedent's acts of marking “void” over each paragraph of his will, writing “bastard” and “get nothing” on the will, applying Liquid Paper over the names of the beneficiaries, and then shredding the document in the presence of his insurance agents, were sufficient to revoke the will under subdivision (a)(2) of this section. The proponents of the will failed to show that the decedent suffered from insane delusions at the time of the revocation. Heirs of Goza v. Estate of Potts, 2010 Ark. App. 149, 374 S.W.3d 132 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 288 (Mar. 31, 2010).

Intestacy.

Where a 1973 will was effectively revoked by execution of a 1976 will, in accordance with this section, and the 1976 will was destroyed, the decedent died intestate. Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Marriage of Testator.

A testator's marriage after execution of a will did not operate to revoke his will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Obliteration of Will.

A will was not revoked by cross-throughs, interlineations, and mark-outs made by the testator where the changes made by the testator were of no legal significance and evidence did not show that she intended to revoke her will by obliteration. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001).

Oral Instructions.

Oral instructions by the testator that his will be destroyed were insufficient, even though the testator believed his instructions had been carried out. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946) (decision under prior law).

Rejection by Spouse.

Where will executed prior to marriage did not provide for widow, widow's right to take against the will was personal to her and did not survive when she died before making election to so take against will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Residual Legatees.

Where a husband executed a will giving all of his property to his wife with his stepchildren as the residual legatees and subsequently the parties were divorced, but the will was not changed, the bequest to his former spouse was thereby revoked in accordance with this section and the stepchildren were the proper parties to receive the property under the terms of the will. McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982).

Residuary bequest to the decedent's stepchildren in the decedent's last will and testament was voided because the decedent's spouse, who was removed from the will pursuant to an antenuptial agreement, did not predecease the decedent by 30 days so that the condition precedent in the will that would have allowed the stepchildren to inherit under the terms of the will was not met. Further, the circuit court's determination that the antenuptial agreement did not cancel the entirety of the decedent's will was not clearly erroneous. Craig v. Craig, 2018 Ark. App. 489, 563 S.W.3d 560 (2018).

Will Predating Marriage.

Under this section, any bequest to a former spouse is void, but the remainder of the will remains in effect; and unless the will is completely revoked because all of its substantive provisions favor the decedent's former spouse, the decedent will have died testate and § 28-39-401 will apply. This section does not require a holding that § 28-39-401 was not intended to be applied when the will predates a marriage. In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied, Epperson v. Estate of Epperson, 471 U.S. 1017, 105 S. Ct. 2022 (1985).

This section does not make a distinction concerning wills that predate a marriage and those made after a marriage. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Cited: Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695 (1950); Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003).

Case Notes

Dependent Relative Revocation.

This section would seem to preclude the application of the doctrine of dependent relative revocation in Arkansas. Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980).

Destruction of Later Will.

The appellant was incorrect that, if a later will was destroyed, then an earlier will, under which she took, would be revived; a will that has been revoked can only be revived by re-execution or the execution of another will in which the revoked will is incorporated by reference. Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000).

Cited: Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977); Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Case Notes

Children as Class.

Where a will bequeathed money to five grandchildren, children of his predeceased daughter, the six children of the daughter took as a class, as the testator expressed his intention to include all the children of his daughter and the number “five” was disregarded. Walker v. Case, 211 Ark. 1091, 204 S.W.2d 543, 173 A.L.R. 1009 (1947) (decision under prior law).

Joint Will.

There can be no such thing as a joint will to take effect upon the death of the survivor. Hershy v. Clark, 35 Ark. 17 (1879) (decision under prior law).

Jurisdiction of Probate Court.

Where a will provided for a trust under supervision of the chancery court which assumed administration of the trust, the probate court had jurisdiction to determine whether a bequest under the will was payable, since it was concerned with administration of the estate, but it did not have jurisdiction to determine whether a petitioner had the right to rents and possession of trust lands, since that involved administration of the trust under supervision of the chancery court. Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956 (1954).

Where a widow elected to take against the will, posing the question of whether such action accelerated the vesting of the estates of the remaindermen, the probate court had jurisdiction to construe the will. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).

Life Estate.

Where testator gave his wife a life interest in his real property with the remainder in his children, with the condition she could sell the property as necessary to be maintained and supported in the standard of living to which she was accustomed, she had the right to sell the real property to obtain sufficient funds to continue that standard, assuming she first gave the testator's children the option to purchase the property, as also required by the will. Green v. Ware, 305 Ark. 224, 807 S.W.2d 24 (1991).

Limitation Over After Granting of Fee Simple.

Where testator devised his residuary estate to his widow “in fee simple forever” and in the next sentence of his will attempted to provide for the distribution of any other property that the widow had not disposed of during her lifetime or by her will, the limitation over was void, being inconsistent with the fee simple devise to the widow, but even so the court was not called upon to determine the validity of the latter paragraph, for a decision of that issue was not essential to a distribution of the estate, the distribution order contemplating the conclusive settlement in adversary proceeding, and the only issue that could be determined upon the filing of the final account was a proper physical distribution; even if the latter paragraph had been valid, it could not have been known at that time what property would be left undisposed of or what persons would then prove to be heirs later on. Therefore, the widow correctly interpreted the law in stating that she was the sole beneficiary of the estate. Collie v. Tucker, 229 Ark. 606, 317 S.W.2d 137 (1958).

Person Interested in the Will.

A co-executor cannot request a construction of the will solely in his capacity as an executor because his status as a fiduciary is wholly dependent upon his position as co-executor, and, as such, he would not be an “interested person” as used in this section. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997).

Reversionary Interests.

Where statute provides that testator may devise realty and all his interest therein, he thus may also devise his possibility of reverter. Fletcher v. Ferrill, 216 Ark. 583, 227 S.W.2d 448, 16 A.L.R.2d 1240 (1950) (decision under prior law).

Where a deed reserved a life estate in grantor and contained reverter clause “to the heirs of the said” grantor, these words were words of limitation and not of purchase; therefore, upon lapse of condition after death of grantor, the real estate reverted to the estate of the grantor, to be distributed according to the will. Fletcher v. Ferrill, 216 Ark. 583, 227 S.W.2d 448, 16 A.L.R.2d 1240 (1950) (decision under prior law).

Third Persons.

A clause added by third person may be disregarded. Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068 (1922) (decision under prior law).

Cited: Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).

Research References

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Case Notes

Cited: Binns v. Vick, 260 Ark. 111, 538 S.W.2d 283 (1976).

Research References

Ark. L. Rev.

The Doctrine of Worthier Title in Arkansas, 21 Ark. L. Rev. 394.

Case Notes

Exclusionary Clause.

An exclusionary clause in a will lacking a residuary clause does not control intestate property held by the testatrix. Cook v. Estate of Seeman, 314 Ark. 1, 858 S.W.2d 114 (1993).

Because intestate property passes by law rather than by will, the statute and not the testator controls the distribution of intestate property; therefore, although the testator's intent to disinherit is clearly and unambiguously expressed in a will, such exclusionary language will not be given effect as against the distribution of intestate property. Cook v. Estate of Seeman, 314 Ark. 1, 858 S.W.2d 114 (1993).

Despite the fact that several beneficiaries were explicitly disinherited by the provisions of a will, the residue of the estate was distributed according to the rules of intestate succession because the residuary clause was ineffective; the presumption against partial intestacy was subordinate to the presumption against disherison. Harrison v. Harrison, 82 Ark. App. 521, 120 S.W.3d 144 (2003).

Properties Not Devised.

Where testator's will consisted of six separate sheets of holographic writings, five of which made specific devises to named relatives, while on the sixth sheet he devised to his nieces and nephews not otherwise named “all the rest of my property” and then without punctuation described thereon specific property and “rest of money after funeral expenses,” the sixth sheet did not constitute a devise of after-acquired properties and testator died intestate as to such after-acquired properties. Bradshaw v. Pennington, 225 Ark. 410, 283 S.W.2d 351 (1955).

Residuary bequest to the decedent's stepchildren in the decedent's last will and testament was voided because the decedent's spouse, who was removed from the will pursuant to an antenuptial agreement, did not predecease the decedent by 30 days so that the condition precedent in the will that would have allowed the stepchildren to inherit under the terms of the will was not met. Further, the circuit court's determination that the antenuptial agreement did not cancel the entirety of the decedent's will was not clearly erroneous. Craig v. Craig, 2018 Ark. App. 489, 563 S.W.3d 560 (2018).

Research References

Ark. L. Rev.

Descent in Absence of Kin — Escheat, 13 Ark. L. Rev. 350.

The Doctrine of Worthier Title in Arkansas, 21 Ark. L. Rev. 394.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Survey of Arkansas Law, Decedents' Estates, 5 U. Ark. Little Rock L.J. 135.

Case Notes

Adopted Children.

Adopted children of predeceased legatee were held to be within statutory provisions. Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938) (decision under prior law).

Death of Legatee or Devisee Prior to Testator.

A legacy or devise lapses when the legatee or devisee dies before the testator with the exception of where the legacy or devise is to the child or other descendant of the testator. Christy v. Smith, 226 Ark. 289, 289 S.W.2d 885 (1956).

Where the legatee or devisee dies before the testator, the legacy or devise lapses unless the beneficiary is a child or other descendant of the testator or where it is a gift to a class. Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969).

Where the residuary clause of the will of a testator left all property to a brother who survived testator and to a sister who predeceased testator, the bequest of one-half of the residuum to the sister lapsed and the bequest passed as intestate property to be distributed to the heirs-at-law of the testator. Eckert Heirs v. Harlow, 251 Ark. 1018, 476 S.W.2d 244 (1972).

Circuit court erred in ruling that the interests of beneficiaries who predeceased the surviving settlor of an inter vivos trust lapsed upon the death of the beneficiaries; rather, the beneficiaries' descendants were entitled to the beneficiaries' shares of the trust distribution upon the settlor's death. Tait v. Community First Trust Co., 2012 Ark. 455, 425 S.W.3d 684 (2012).

Distributive Gift.

A devise of land to three cousins of testator who were described by name and not by relationship was a distributive gift to individuals rather than a gift to a class, and the gift lapsed as to one of the cousins when his death preceded the death of the testator, notwithstanding a clause in the will providing that the devisees were not to sell or mortgage the property for 20 years after death of testator. Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969).

Lapsed Legacy.

A legacy or devise to one not a descendant of the testator lapses when the legatee or devisee dies before the testator and becomes part of the residuary estate passing under the clause of the will disposing of the residuum. Gibbons v. Ward, 115 Ark. 184, 171 S.W. 90 (1914) (decision under prior law).

Life Estate.

A devise to A for life, with remainder to B, does not lapse by the death of A in the lifetime of the testator, but vests immediately in B on the death of the testator. West v. Williams, 15 Ark. 682 (1855) (decision under prior law).

Cited: Welch v. Tarver, 256 Ark. 272, 507 S.W.2d 505 (1974); Jones v. Bransford, 270 Ark. 664, 606 S.W.2d 118 (Ct. App. 1980).

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

U. Ark. Little Rock L. Rev.

The Arkansas Trust Code: Good Law for Arkansas. 27 U. Ark. Little Rock L. Rev. 191.

Case Notes

Cited: Sutter v. Sutter, 345 Ark. 12, 43 S.W.3d 736 (2001).

Chapters 28-37 [Reserved.]

[Reserved]

Case Notes

In General.

This section contemplates the situation where an income tax return is filed while both husband and wife are still living and thereafter one of them dies, not the situation where one spouse has already died when the return is filed. Foster v. Schmiedeskamp, 260 Ark. 898, 545 S.W.2d 624 (1977).

Research References

ALR.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Rights of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Am. Jur. 23 Am. Jur. 2d, Desc. & D., § 109 et seq.

31 Am. Jur. 2d, Exec. & Ad., § 324 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Federal Estate Tax: Surviving Spouse Support Allowances and the Marital Deduction, 21 Ark. L. Rev. 131.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

C.J.S. 26B C.J.S., Desc. & D., § 23 et seq.

34 C.J.S., Exec. & Ad., § 344 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Note, Constitutional Law — Equal Protection — Arkansas' Gender-Based Statutes on Dower, Election, Statutory Allowances, and Homestead Are Unconstitutional, Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), 4 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Survey of Arkansas Law, Decedents' Estates, 5 U. Ark. Little Rock L.J. 135.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

Case Notes

Constitutionality.

The portion of this section which conferred dower rights upon a widow, but did not confer such rights upon a surviving husband was a gender based statute which did not serve an important governmental function and thus was unconstitutional, since it violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision under prior law).

Where widow of decedent elected to take against the will and petitioned for statutory allowances under this section, which provided allowances of $2,000.00 plus $500.00 sustenance to a widow, but not a widower, there was no way under the facts of the case and the statutory language to extend benefits to the disfavored class, and thus benefits had to be denied to both widowers and widows by declaring this section unconstitutional as applied. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision under prior law).

A devisee and beneficiary of a decedent's will who was not an heir and who stood to lose financially if the decedent's wife claimed against the will pursuant to § 28-39-401 and received statutory allowances provided for in this section, had standing to challenge the constitutionality of both statutes since the test was whether the party would lose financially unless the issue was raised. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981) (decision under prior law).

Purpose.

The legislature intended to make a statutory allowance for the joint use of the widow and minor children, regardless of the claims of creditors against the estate, and the statute of descent and distribution, therefore, does not apply to such an allowance. Moudy v. Bradley, 200 Ark. 630, 140 S.W.2d 113 (1940) (decision under prior law).

Applicability.

Act 714 of 1981, which created gender neutral awards of dower and curtesy under § 28-39-401 and allowances under this section, is substantive rather than procedural and therefore should not be applied retroactively. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), cert. denied, 456 U.S. 916, 102 S. Ct. 1770 (1982).

Alternative Money Judgment.

It is improper to enter an alternative money judgment against an administrator unless it is shown that the specific articles are not in the hands of the administrator at the time the judgment is rendered. Cash v. Cash, 67 Ark. 278, 54 S.W. 744 (1899) (decision under prior law).

Appraisement for Administrator.

The allowance to the widow of specific articles of her husband's estate, not exceeding $150 in value, based upon the appraisement made for the administrator, instead of upon an appraisement made at the instance of the widow, was an irregularity merely and not prejudicial to the administrator. Cash v. Cash, 67 Ark. 278, 54 S.W. 744 (1899) (decision under prior law).

Corporate Property.

In a probate case, a circuit court erred in awarding property that was titled solely in the corporate name to the spouse as part of her statutory allowances; this section is applicable to the personal estate of the decedent. Chandler v. Harris, 2016 Ark. App. 155, 485 S.W.3d 716 (2016).

Effect of Court Orders.

Although a court did not order an estate vested in a widow, in a proceeding to compel her to account, she could show the value and avail herself of statutory benefits. Hampton v. Physick, 24 Ark. (11 Barber) 561 (1867) (decision under prior law).

An order of the probate court allowing administrator to pay to herself, as widow of the decedent, statutory allowances and in addition one-third of all personal property and one-third of the cash in a bank did not assume the force of a judgment which was affected, in any way, by a nunc pro tunc order. Moudy v. Bradley, 200 Ark. 630, 140 S.W.2d 113 (1940) (decision under prior law).

Equity Interest.

Where there was evidence to indicate that the estate may have included equity in an automobile, since the decedent had purchased the property, the administrator should have proceeded to pay for it from the assets of the estate, sold it as provided in § 28-49-107, obtained authority to abandon it as permitted under § 28-49-106, or applied to the court for assignment of it to her as part of her statutory allowance under this section, as she was accountable for it, either by accounting under the Probate Code or for conversion under § 28-49-105. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Estate Taxes.

Estate taxes, under the provisions of § 26-59-115 [repealed], were to be deducted from the property belonging to the widow as dower and allowance and as surviving tenant of the estate by the entirety as well as from the other assets. Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947) (decision under prior law).

Estimating of Interest.

In estimating the amount of a widow's dower in personalty, the whole personal estate must be taken into consideration, including property taken under statutory provisions for special allowances. Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917) (decision under prior law).

Inventory of Property.

Although the administrator asserted that the only personal property of the estate was household furnishings, title to which vested in her under this section, without an inventory the court was in no position to determine whether all of the items claimed fell within the purview of allowances to the widow and minor children in order to make an appropriate assignment to them. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Jurisdiction.

The probate court did not have jurisdiction to order payment of a statutory allowance from a bank account held in the name of the decedent or her son, who died a few months after the death of the decedent, as the wife and son of the decedent's son, who claimed the bank account, were strangers to the estate. Smith v. Smith, 338 Ark. 526, 998 S.W.2d 745 (1999).

Late Claims.

A claim for widow's allowances filed more than 12 years after an administrator was appointed and nearly five months after the administrator's death, long after all personal estate had been used to pay debts and claims, was properly denied. Walls v. Phillips, 204 Ark. 365, 162 S.W.2d 59 (1942) (decision under prior law).

Where a husband disposed of all of his property by will without mention as to his widow's statutory allowances, the widow was entitled to these allowances, but where she did not ask for them while the executor had in his hands money to pay them and permitted him to expend the money in the payment of debts and expenses of administration, she was entitled only to such sum as the executor had on hand. Wofford v. James, 204 Ark. 700, 163 S.W.2d 710 (1942) (decision under prior law).

Marriage Settlement.

Although a marriage settlement was made in lieu of dower and homestead rights, it did not require a widow to waive her statutory rights, and she was entitled to both these allowances and their value. Masterson v. Masterson, 200 Ark. 193, 139 S.W.2d 30 (1940) (decision under prior law).

Minors' Interests.

Former statute did not require the appointment of a guardian for minor children to protect their interest in the allowance. Young v. Lowe, 148 Ark. 129, 229 S.W. 4 (1921) (decision under prior law).

Where there is a widow and a minor child and the widow does not have the care and custody of the child and is not its guardian, the widow and child are to share equally in the allowance and she cannot appropriate it to her own use to the exclusion of the minor. Moudy v. Bradley, 200 Ark. 630, 140 S.W.2d 113 (1940) (decision under prior law).

Nature of Allowances.

Allowances to a widow are in addition to dower. Ex parte Grooms, 102 Ark. 322, 143 S.W. 1063 (1912); Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917); Costen v. Fricke, 169 Ark. 572, 276 S.W. 579 (1925) (decision under prior law).

Statutory allowances held personal to the widow. Walls v. Phillips, 204 Ark. 365, 162 S.W.2d 59 (1942) (decision under prior law).

Statutory allowance of $1,000 (now $2,000) to surviving spouse held personal and for her benefit and therefore would not pass to her heirs, even though she was insane, from her husband's death until her own. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955) (decision under prior law).

Notice to Heirs.

The proceeding of a probate court to declare the estate in a widow is “in rem”, and notice to the heirs is not necessary. Harrison v. Lamar, 33 Ark. 824 (1878) (decision under prior law).

Partnership Property.

Former statute operated only on the personal property of a deceased, and so the widow of a member of the insolvent partnership was not entitled to statutory allowance out of the personal property of the partnership. McLerkin v. Schilling, 192 Ark. 1083, 96 S.W.2d 445 (1936) (decision under prior law).

Personalty Only Vested.

Value of personal estate only is to be considered in determining whether it may be vested in a widow or minor children. Wilson v. Massie, 70 Ark. 25, 65 S.W. 942 (1901) (decision under prior law).

An order of a probate court vesting land of a decedent, of value less than $300, in the widow was void. Calhoun v. Moore, 79 Ark. 109, 94 S.W. 931 (1906) (decision under prior law).

The allowance must be made out of the personal property and not from proceeds of real estate. Kitchens v. Jones, 87 Ark. 502, 113 S.W. 29 (1908) (decision under prior law).

Proceeds from Sale of Assets.

A widow was not barred from having the proceeds of a sale of husband's estate vested in her because of failure to have the estate appraised and make a claim for allowance before the sale. Henry v. Tillar, 70 Ark. 246, 67 S.W. 310 (1902) (decision under prior law).

Proceeds from Sale of Realty.

Where testator's property at death consisted of both personalty and realty, the will directed that the realty be sold and converted into cash, and the widow elected to take against the will and consented to the sale of the realty, the widow's allowance was limited to $1,000 (now $2,000), or the value of the personalty, whichever is the lesser. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963) (decision under prior law).

Renunciation of Will.

Where a widow elects to take under law, and not under will, she takes as though husband had died intestate, without will, and she is entitled to dower, homestead, and other allowances. Jameson v. Jameson, 117 Ark. 142, 173 S.W. 851 (1915); Cypert v. McEuen, 172 Ark. 437, 288 S.W. 923 (1926) (decision under prior law).

Where a testator left only homestead and less than $300 in personal property and widow timely renounced the will and elected to take under a former statute, unappealed order of the probate court, having the effect of setting aside the realty to her and infant child as their homestead, entitled the widow to possession of the homestead even after her remarriage, though the will provided that, in such event, the property should go to the children. Lauck v. Burnett, 192 Ark. 547, 93 S.W.2d 129 (1936) (decision under prior law).

Request for Appraisement.

A widow lost no right and was not barred from having proceeds of the sale of the husband's estate vested in her because of the failure to have appraisement made in 30 days or at all. Wilson v. Massie, 70 Ark. 25, 65 S.W. 942 (1901) (decision under prior law).

Right to Allowances.

A widow was entitled to the articles specified unconditionally and against the rights of heirs and creditors. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844) (decision under prior law).

A widow's right to statutory allowances is not dependent upon her possession of any property of the estate. Lambert v. Tucker, 83 Ark. 416, 104 S.W. 131 (1907) (decision under prior law).

A widow who has elected to take under her husband's will is nevertheless entitled to take statutory allowances. Cypert v. McEuen, 172 Ark. 437, 288 S.W. 923 (1926); McEachin v. People's Nat'l Bank, 191 Ark. 544, 87 S.W.2d 12 (1935) (decision under prior law).

A probate court properly allowed to a widow one-third of the intestate's personal estate as well as a $300 allowance. Miller v. Oil City Iron Works, 184 Ark. 900, 45 S.W.2d 36 (1931) (decision under prior law).

A receipt signed by a widow for $100 paid to her by the testator upon execution of deeds to children did not affect the widow's right to statutory allowances. Spears v. Spears, 213 Ark. 15, 209 S.W.2d 105 (1948) (decision under prior law).

A widow's allowances are not extinguished by a release of dower and homestead rights. Spears v. Spears, 213 Ark. 15, 209 S.W.2d 105 (1948) (decision under prior law).

A widow is entitled to allowances under subsection (b) of this section although she also receives allowances under subsections (a) and (c). Horn v. Horn, 228 Ark. 948, 311 S.W.2d 311 (1958).

A widow was entitled to support of $500 (now $1,000), statutory allowance of $1,000 (now $4,000) and household goods as against distributees although she would have only been entitled to statutory allowance of $500 (now $2,000) as against complaining creditor. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965) (decision under prior law).

Soil Conservation Subsidy.

A widow, either as such or as executor of her husband's estate, was not entitled to payment of subsidy under Soil Conservation Act that had been properly assigned by her husband. Oldham v. Wright, 202 Ark. 1049, 155 S.W.2d 50 (1941) (decision under prior law).

Timeliness.

In a probate case, because no final distribution had been made and possession of personal property was still vested with a personal representative, a spouse's request for her statutory allowances under this section was timely. Chandler v. Harris, 2016 Ark. App. 155, 485 S.W.3d 716 (2016).

Vesting of Estate.

The law vests an estate. Harrison v. Lamar, 33 Ark. 824 (1878) (decision under prior law).

When an estate was less than $300, it vested in the widow and minor children and was exempt from administration proceedings. Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935 (1909) (decision under prior law).

An estate which did not exceed $300 in value vested absolutely in a widow and children free from creditor's claims. Jerry v. Sturdivant, 136 Ark. 624, 203 S.W. 694 (1918) (decision under prior law).

Wrongful Death at Hands of Spouse.

Section 28-11-204, which provides that when one spouse kills the other and is convicted of murder the spouse convicted shall not be “endowed” in the estate of the decedent, is intended to apply only to dower and curtesy and does not apply to a claim for a widow's statutory allowance under such circumstances. However, apart from such statute, the principle that one who wrongfully kills another will not be permitted to share in the other's estate or otherwise profit from the crime will apply to such a situation. Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956), overruled, Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (Ark. 1999).

Cited: Robinson v. Shivley, 234 Ark. 222, 351 S.W.2d 449 (1961); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980).

Case Notes

In General.

A widow is entitled to continue in possession of the mansion-house until her dower is assigned, though she is the administrator and the heir is a minor. Trimble v. James, 40 Ark. 393 (1883).

Nature of Privilege.

A widow's right to hold the intestate's dwelling house and farm attached until assignment of dower is a personal privilege, not an estate in land, and cannot be transferred to another. Flowers v. Flowers, 84 Ark. 557, 106 S.W. 949 (1907).

Possession Through Tenants.

A widow may occupy the homestead of her deceased husband until dower is assigned to her, and she may hold this possession through tenants and receive the rents. Jarrett v. Jarrett, 113 Ark. 134, 167 S.W. 482 (1914); McDaniel v. Conlan, 134 Ark. 519, 204 S.W. 850 (1918).

Rental or Commercial Property.

Where an administrator contended that she was not accountable for rents collected on real estate because her dower had not been assigned and relied on this section, which permits a widow to retain possession of the dwelling house and farm attached until her dower is assigned to her, such an application should not be extended to urban property used for commercial purposes or as residential rental property, which cannot possibly be classified as a farm, even though this section should be liberally interpreted in favor of the widow. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Rights to Rents.

A widow is entitled to rents until dower is assigned, although she is the administrator. Mock v. Pleasants, 34 Ark. 63 (1879).

Where widow rented homestead which was subject to mortgage given by husband before marriage, she acquired no rights to rents, where before rents were due, the mortgagee brought suit to foreclose his lien and procured the appointment of a receiver to collect the rents. Wood v. Bigham, 170 Ark. 253, 279 S.W. 779 (1926).

Waiver.

Where a widow charged herself, as administrator, with the rents of her husband's mansion from the date of his death until dower was assigned, she was deemed to have waived her rights. Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900).

Case Notes

Personal Right.

This right is personal to the widow and does not survive to her administrator, unless she has prosecuted her claims for rent during her lifetime. Burrus v. Butt, 126 Ark. 584, 191 S.W. 223 (1917).

Share of Rents.

Under this section, a widow is given the same proportion of rents, under the statute, collected from the real property of deceased, whether rents be treated as personalty or as part of the realty. Mayo v. Arkansas Valley Trust Co., 132 Ark. 64, 200 S.W. 505 (1917).

Cited: Less v. Less, 147 Ark. 432, 227 S.W. 763 (1921); Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Case Notes

Discretion of Court.

An administrator stricti juris had no right to make expenditures out of the assets of an estate for the support of the children of the intestate; however, in a suit by the heirs against him for an account, the chancellor could exercise a discretion in allowing them if they were made in good faith. Martin v. Campbell, 35 Ark. 137 (1879) (decision under prior law).

Factors Determining Amount.

In an accounting by an administrator for expenditure for maintenance and education of a minor son of the intestate, credit should be allowed only for such expenditures as were in keeping with the son's station in life and the value of the estate. Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931) (decision under prior law).

Provisions of Will.

Where decedent's will provided that his daughter should be educated out of the assets of his estate and the executor and guardian executed a note to an individual for such expenses who presented the note to the probate court for allowance in the presence of the administrator in succession, the claim was properly allowed as against contention by the administrator that it was not a claim against the estate but was a debt against the guardian and as such was barred by the statute of limitations. Perry v. Field, 40 Ark. 175 (1882) (decision under prior law).

Research References

Am. Jur. 40 Am. Jur. 2d, Homestead, § 152 et seq.

C.J.S. 40 C.J.S., Homesteads, § 165 et seq.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Research References

Ark. L. Notes.

Laurence, Does Arkansas's Homestead Exemption Survive a Divorce? Should It?, 1988 Ark. L. Notes 15.

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Legislative Survey, Property, 4 U. Ark. Little Rock L.J. 607.

Case Notes

Grandchildren.

This section follows the language of Ark. Const., Art. 9, § 6; as in the Constitution, this section does not mention or provide for grandchildren. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The minor grandchildren of a decedent who would inherit from the decedent under the laws of descent and distribution do not have homestead rights under this section, because they do not fall within the definition of “child” in § 28-1-102(a)(1). McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

Spouse.

Trial court did not err in finding a wife was entitled to a homestead share of a testator's estate under subsection (a) of this section despite the fact that they had been separated for 17 years, a the evidence showed the wife did not intend to abandon the marital home but intended to return when the wife felt the testator was no longer abusive. Sexton v. Sexton (In re Sexton), 2011 Ark. App. 163, 382 S.W.3d 679 (2011).

Case Notes

Husband's Interest.

Husband's interest in wife's ancestral lands is fixed by former § 61-228 (repealed), and the law gives the husband no additional right of homestead in his deceased wife's land. Trice v. Miller, 217 Ark. 229, 229 S.W.2d 233 (1950).

Laches.

A widow is entitled to have dower and homestead allotted and admeasured in time in the land if it can be done without great prejudice to the parties; therefore, a widow was entitled to have the order of a probate court assigning her dower and homestead affirmed, and laches could not be urged by the son against his mother, the widow, inasmuch as he had entered into an agreement with his mother and brother as to farming the land, he also having agreed to the report of the commissioners allotting the dower and homestead lands. Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754 (1959).

Meaning of “Lot.”

Town or city lot was understood to be the piece of ground on which the head of a family had a house, with appurtenances, maintained as a home, without regard to whether it contained more or less than one lot according to the plat or survey of the city or town. Wassell v. Tunnah, 25 Ark. 101 (1867) (decision under prior law).

Selection of Homestead.

The domicile of the wife and minor children follows that of the husband, and their actual personal residence at the homestead place is not necessary to perfect the right in him, or to entitle them to the benefit of it after his death. Where the head of a family has, in good faith, selected a place of residence, owns the land, and has entered and resides upon it, the absence of the wife and children might require stronger proof of intention, but nothing more. Johnston v. Turner, 29 Ark. 280 (1874).

Vesting.

A clerk's reservation under this section does not vest the homestead in a widow, and such vesting does not occur until the commissioners appointed under § 28-39-203 have reported; even then vesting is subject to contest as provided in §§ 28-39-203 — 28-39-206. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Cited: Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Case Notes

Cited: Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Case Notes

Value Erroneous.

A court did not err in not ordering a sale under this section where the value as fixed by the commissioners was erroneous. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Case Notes

Cited: Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Case Notes

Rights of Purchaser Under Void Sale.

A purchaser at a sale of a homestead contrary to law, and by which sale the administrator was guilty of a violation of this section, was not an accomplice in the guilt (although he was an appraiser of the homestead) where he did not advise and encourage the sale; and, as such, the purchaser at the void sale was entitled to subrogation to the rights of the creditors whose claims were discharged by payment of the purchase money realized from the sale. Bond v. Montgomery, 56 Ark. 563, 20 S.W. 525 (1892); Harris v. Watson, 56 Ark. 574, 20 S.W. 529 (1892); Johnson v. Taylor, 140 Ark. 100, 215 S.W. 162 (1919).

Research References

Am. Jur. 25 Am. Jur. 2d, Dower, § 28 et seq.

Ark. L. Rev.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

C.J.S. 28 C.J.S., Dower, § 85 et seq.

U. Ark. Little Rock L.J.

Tyler, Survey of Business Law, 3 U. Ark. Little Rock L.J. 149.

Case Notes

Assignment.

Dower in lands is assigned by the heirs and in the personal property by the administrator. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844).

Commutation.

Dower under Arkansas law includes, by definition, the possibility of commutation to a sum certain. Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979).

Conveyance of Unassigned Dower.

A widow cannot dispose of her dower interest until it has been assigned. Jacks v. Dyer, 31 Ark. 334 (1876).

If a widow conveys her unassigned dower interest, the heir may recover possession of the land from the widow's vendee, for the conveyance gives him a right only to have her dower set aside and assigned to him, her right of occupancy being personal and not transferable. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895); Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521 (1914).

A conveyance by a widow of unassigned dower has been upheld in equity. Weaver v. Rush, 62 Ark. 51, 34 S.W. 256 (1896); Barnett v. Meacham, 62 Ark. 313, 35 S.W. 533 (1896).

Effect of Assignment.

Where a widow and her daughters agreed, by reference to actuarial tables, that the present cash value of the widow's commuted life interest in real estate left by the decedent was $17,991.36, this amount was paid to the widow in cash out of the estate, and it was not necessary to sell any of the realty; and where on payment to the widow of her commuted dower and homestead, the heirs at law became unconditionally entitled to the fee in their father's lands, this $17,991.36 qualified for the marital deduction under section 2056 of the Internal Revenue Code (26 U.S.C. § 2056). Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979).

Failure to Assign.

Occupancy of homestead was not adverse to heirs where they failed to assign dower. Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939 (1921).

Nature of Dower Interest.

Until it is assigned to her, a widow's dower is merely a right to compel the setting aside to her of her dower interest, and not an estate in itself, but, when assigned, it becomes a life estate in the lands assigned. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Possession by Administrator.

The inheritance is cast upon the heir, and it is his duty to assign the widow's dower; however, until the debts are paid the administrator is entitled to possession. Menifee's Adm'rs v. Menifee, 8 Ark. (3 English) 9 (1847), and Morrill v. Menifee, 5 Ark. (5 Pike) 629 (1844).

Release of Unassigned Dower.

A widow may, before assignment, release to the persons holding legal title. Reed v. Ash, 30 Ark. 775 (1875).

Right to Possession.

Though the heir is a minor, a widow is still entitled to remain in possession until dower is assigned. Trimble v. James, 40 Ark. 393 (1883); Wallace v. King, 205 Ark. 681, 170 S.W.2d 377 (1943).

Tardiness.

Since this section places the duty of allotting dower or curtesy upon the heir at law, the fact that the surviving husband was tardy in filing his petition for allotment of curtesy will not be considered a waiver against the remaining funds, particularly when such a waiver would work in favor of the heir at law who had the duty to allot curtesy. Quick v. Davidson, 261 Ark. 38, 545 S.W.2d 917 (1977).

Cited: Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981).

Research References

U. Ark. Little Rock L.J.

Wright, The Arkansas Law of Oil and Gas, 9 U. Ark. Little Rock L.J. 223.

Case Notes

Actions.

The executors of a deceased husband may not bring an action to have dower set aside to the widow. Jameson v. Davis, 124 Ark. 399, 187 S.W. 314 (1916).

Estoppel.

Where widow joined with deceased's son in petitioning that certain lands be awarded to him, she was thereafter estopped to assert a claim for dower against the purchaser from the son. Owen v. Cox, 122 Ark. 78, 182 S.W. 559 (1916).

Evidence.

There is no authority that would allow the probate court to receive evidence of the property's value and then place a value on the property accordingly. In re Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994).

Jurisdiction.

This statutory remedy does not oust the jurisdiction of equity. Johnson v. Johnson, 84 Ark. 307, 105 S.W. 869 (1907) (decision under prior law).

Where dower was not allotted to a widow by the probate court, although a petition was filed in the court and no final judgment rendered thereby, an action was not barred in chancery court for an allotment of dower. Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915) (decision under prior law).

Where a probate court assumes jurisdiction to allot dower in personalty, a chancery court should not interfere. Shields v. Shields, 183 Ark. 44, 34 S.W.2d 1068 (1931) (decision under prior law).

The power of a probate court to assign dower under this subchapter does not deprive a chancery court of its inherent jurisdiction; rather, the jurisdiction of these courts to assign dower is concurrent. Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968) (decision under prior law).

Laches.

A widow is entitled to have dower and homestead allotted and admeasured in time in the land if it can be done without great prejudice to the parties; therefore, a widow was entitled to have an order of a probate court assigning her dower and homestead affirmed, and laches could not be urged by the son against his mother, the widow, inasmuch as he had entered into an agreement with his mother and brother as to farming the land, he also having agreed to the report of the commissioners allotting the dower and homestead lands. Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754 (1959).

Limitations.

The statute of limitations runs in favor of a stranger from the date of the husband's death. Stidham v. Matthews, 29 Ark. 650 (1874).

A claim for dower is not barred by limitation so long as the heirs continue in possession. Livingston v. Cochran, 33 Ark. 294 (1878); McWhirter v. Roberts, 40 Ark. 283 (1883).

Notice.

Where record is silent it will be presumed that notice was given. Briggs v. Manning, 80 Ark. 303, 80 Ark. 304, 97 S.W. 289 (1906).

Notice may be given before the application is filed. Briggs v. Manning, 80 Ark. 303, 80 Ark. 304, 97 S.W. 289 (1906).

Failure to summon all interested persons invalidates an allotment. Cunningham v. Dellmon, 151 Ark. 409, 237 S.W. 450 (1922).

Section 28-49-104, relating to compromise of claims, was inapplicable to petition of widow, as administrator, alleging that estate was insufficient to satisfy dower and statutory rights of widow or to pay claims and expenses of administration in full and seeking full distribution of assets in exchange of her payment of claims and expenses, and order granting petition would be set aside where notice provided by this section was not given. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

Parties.

The heirs and devisees are necessary parties to a suit to have dower set aside to the wife. Jameson v. Davis, 124 Ark. 399, 187 S.W. 314 (1916).

Petition.

No dower can be assigned in lands not embraced in a petition. Falls v. Wright, 55 Ark. 562, 18 S.W. 1044 (1892).

A petition alleging that the plaintiff is the widow of the deceased, who was a citizen of the county, and who died possessed of certain property set out in a schedule attached to the petition, states facts sufficient to give a probate court jurisdiction to assign dower in the property. Carter v. Younger, 112 Ark. 483, 166 S.W. 547 (1914).

Service.

Where demand was made by surviving husband for the allotment of curtesy and the demand was addressed to the beneficiary under the will as executor, the court would refuse to quash service since beneficiary was actually served personally, even though it was in his capacity as executor. Anderson v. Parker, 229 Ark. 683, 317 S.W.2d 721 (1958).

Cited: Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Case Notes

Appeal.

The fact that appellants did not appeal from order approving commissioner's report prior to probate court's final order, even though they might have done so, did not constitute a bar to a later appeal. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Distinct Rights.

Dower and homestead are distinct rights, and widow is entitled to one-third of husband's realty, including homestead, and may have it laid off elsewhere than upon the homestead. Horton v. Hilliard, 58 Ark. 298, 24 S.W. 242 (1893); Jameson v. Jameson, 117 Ark. 142, 173 S.W. 851 (1915); Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917).

Homestead.

The commissioners must take notice of the homestead. Horton v. Hilliard, 58 Ark. 298, 24 S.W. 242 (1893).

Cited: Phillips v. First Nat'l Bank, 179 Ark. 605, 17 S.W.2d 298 (1929); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Case Notes

No Sale of Tenements.

Where a widow renounced the will and a building could not be divided in order to set apart a portion for dower, she was entitled only to one-third part of the rental proceeds from the realty in lieu of dower, but not to have the building sold to satisfy her dower interest. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).

Cited: Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998).

Case Notes

In General.

This section was not repealed by the Constitution of 1874. Johnson v. Johnson, 84 Ark. 307, 105 S.W. 869 (1907).

The right of a widow under this section is effective as of the date of death of the decedent. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Allotment.

If dower cannot be carved out of specific property, it should be allotted out of the proceeds thereof. Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909).

There is no authority that would allow the probate court to receive evidence of the property's value and then place a value on the property accordingly. In re Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994).

Commutation.

Dower under Arkansas law includes, by definition, the possibility of commutation to a sum certain. Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979).

Cited: Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754 (1959); Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979); Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998).

Research References

ALR.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator's death. 7 A.L.R.4th 989.

Statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will. 48 A.L.R.4th 972.

Am. Jur. 80 Am. Jur. 2d, Wills, § 1369 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Wills — Revocation Implied from Divorce of Testator, 9 Ark. L. Rev. 182.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Ante-Nuptial Agreements in Arkansas — A Drafter's Problem, 24 Ark. L. Rev. 275.

C.J.S. 97 C.J.S., Wills, § 1841 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

Research References

Ark. L. Rev.

Note, Estate of Shelfer v. Commissioner of Internal Revenue: Is the Tax Court's Position on QTIPs “Stub”born or Justified?, 48 Ark. L. Rev. 987.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

Maria Korzendorfer, Case Note: In re Estate of Thompson: The Shortcomings of the Arkansas Elective Share Statute, 68 Ark. L. Rev. 1089 (2016).

U. Ark. Little Rock L.J.

Note, Constitutional Law — Equal Protection — Arkansas' Gender-Based Statutes on Dower, Election, Statutory Allowances, and Homestead Are Unconstitutional, Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), 4 U. Ark. Little Rock L.J. 361.

Seventeenth Annual Survey of Arkansas Law — Property, 17 U. Ark. Little Rock L.J. 453.

U. Ark. Little Rock L. Rev.

Lucy L. Holifield, Note: Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 38 U. Ark. Little Rock L. Rev. 75 (2015).

Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).

Case Notes

Constitutionality.

This section, which allowed a widow, at her election, to take dower against the will of her husband under any condition, but allowed a husband to take curtesy against the will of his wife only if her will was executed before the marriage, was unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, since no valid compensatory purpose or justifiable governmental function could be found to sustain its gender-based discrimination. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

This section was an unconstitutional violation of the equal protection clause of the Fourteenth Amendment to the U. S. Constitution since it was gender-based and served no important governmental function. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

A devisee and beneficiary of a decedent's will who was not an heir and who stood to lose financially if the decedent's wife claimed against the will pursuant to this section and received statutory allowances provided for in § 28-39-101 had standing to challenge the constitutionality of both statutes since the test is whether the party would lose financially unless the issue was raised. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981) (decision prior to 1981 amendment).

This section, which classes differently those people who have been married less than one year from those who have been married more than one year, does not violate the equal protection clause of the 14th Amendment to the United States Constitution; this classification is not invidious because it bears a rational relationship to the permissible state objectives of preventing deathbed marriages and protecting the assets of a decedent in cases in which the assertion of a dower interest would often be contrary to the decedent's intent. In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied, Epperson v. Estate of Epperson, 471 U.S. 1017, 105 S. Ct. 2022 (1985).

Purpose.

This section is designed to prevent injustices when a marriage endures until the death of the husband or the wife. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994).

Applicability of 1981 Amendment.

Act 714 of 1981, which created gender-neutral awards of dower and curtesy under this section and allowances under § 28-39-101, is substantive rather than procedural and therefore should not be applied retroactively. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), cert. denied, 456 U.S. 916, 102 S. Ct. 1770 (1982).

Since this section as it existed prior to its amendment by Act 714 of 1981, under which a widow claimed her first election against the testator's will, was declared unconstitutional and since Act 714, which was not gender-based and allowed a widow to take the same as she could have taken under the old statute, could not be applied retroactively, a widow was not entitled to dower rights from the testator's estate where her claim arose prior to the enactment of Act 714. Stokes v. Stokes, 275 Ark. 110, 628 S.W.2d 6 (1982).

Act 714 of 1981, which cured the constitutional infirmity of this curtesy statute by substituting a neutral-based treatment in place of the gender-based treatment, created substantive rights, not merely procedural rights, and is not subject to a retroactive application in favor of a surviving husband who sought a curtesy interest in the estate of his deceased wife. Gent v. Goin, 275 Ark. 479, 631 S.W.2d 303 (1982).

Devise in Lieu of Dower.

Where a husband's will made an absolute gift of both real and personal property to his wife, a subsequent item stating that the provision was in lieu of dower did not limit the wife's share to what she would have received as dower, it having only the effect of requiring the widow to make her election. Gathright v. Gathright, 175 Ark. 1130, 1 S.W.2d 809 (1928) (decision under prior law).

Devise Not in Lieu of Dower.

Where a will devised a homestead and certain personal property to a wife, expressly stating that it was not in lieu of dower, but in addition thereto, and directed that the residue of the testator's property should be divided, one-half to the wife and one-half to the testator's collateral heirs, it was held that the specific devise was not in lieu of dower and that she took one-half of the residue freed from his debts. Chambless v. Gentry, 178 Ark. 558, 11 S.W.2d 460 (1928) (decision under prior law).

Dower.

Dower is to be carved from property possessed by decedent at death and not from property thereafter changed from realty to personalty. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Where a widow elects to take a dower interest against the will and consents to the conversion of the realty owned by testator at death into cash, as provided by the will, she may not, as the result of the conversion, thereby maintain a claim to one-third of the gross estate but, with respect to realty, is limited to a life interest in the proceeds from the sale of the realty. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Election.

Where a will leaves the surviving spouse nothing, he or she is put to an election. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Where the decedent had previously executed a reciprocal will and a separate contract not to revoke the wills with his first wife, and where the two wills of the couple created testamentary trusts giving the six children of their marriage the estate of the surviving spouse, the rights of the children as trust beneficiaries under the contract and reciprocal wills were paramount, and they prevailed over a second wife electing to take against the will. Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993).

The decedent's surviving spouse was not entitled to take against the decedent's will where their marriage lasted only 13 days before he died, notwithstanding that they had been previously married three separate times for a total of more than 15 years. Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999).

Surviving spouse alleging a decedent defrauded the spouse of the spouse's right to an elective share of the decedent's estate did not have to show common-law fraud because “fraud on marital rights” was not akin to common-law fraud. Thompson v. Thompson, 2014 Ark. 237, 434 S.W.3d 877 (2014).

When a decedent's inter vivos trust defeated a surviving spouse's share of the decedent's estate, it was no error to let the spouse take from trust assets because (1) the assets were included in the decedent's estate only to calculate the spouse's elective share, and (2) the trust was otherwise left intact. Thompson v. Thompson, 2014 Ark. 237, 434 S.W.3d 877 (2014).

It was no error to find a decedent intended to defraud a surviving spouse of the spouse's share of the decedent's estate because (1) evidence supported multiple findings that the decedent's $100,000 bequest intended to deprive the spouse of the spouse's share of the decedent's $6 million estate, and (2) the decedent's inter vivos gifts to the spouse were not considered as the gifts were not testamentary when made. Thompson v. Thompson, 2014 Ark. 237, 434 S.W.3d 877 (2014).

Insurance.

Provisions of a will designating the particular beneficiaries for certain insurance policies which had been issued payable to testator's estate had same effect of changing the beneficiaries named in the policies as though testator had written to the insurance companies and followed their required procedure for changing beneficiaries; thus the policies did not pass to the executors as assets of the estate and were not subject to the dower interest of the testator's wife. Clements v. Neblett, 237 Ark. 340, 372 S.W.2d 816 (1963).

Liens.

A widow who elected to take against a will could not enforce provision leaving real property and insurance policies to nieces and nephew with instructions that all debts and taxes be paid; therefore, the widow was charged with one-half of the indebtedness in the real property. Clements v. Neblett, 237 Ark. 340, 372 S.W.2d 816 (1963).

Nature of Right.

Where a will executed prior to marriage did not provide for the widow, the widow's right to take against the will was personal to her and did not survive where she died before making election to so take against will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Public Policy.

The public policy set forth in this section is disallowed only in limited circumstances such as in the case when the electing spouse was married to the decedent for less than a year. Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993).

Right to Exclude Spouse from Will.

A spouse has the right to make a will which excludes a surviving spouse or provides for a bequest or devise in lieu of dower; that a surviving spouse may take against a will prevents any injustice that might result from the spouse's exercise of that right. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Subsequent Marriage.

A will was not revoked by testator's marriage subsequent to its execution (but see now § 28-25-109) where no issue was born of the marriage, but the will did not exclude the widow from the interest she would have taken had her husband died intestate and devisees would take subject to the will as modified by the marriage. Fleming v. Blount, 202 Ark. 507, 151 S.W.2d 88 (1941) (decision under prior law).

Time for Exercising.

Where a spouse dies testate, the surviving spouse must exercise the option to take against the will in his or her lifetime; otherwise, the right is forfeited because it is personal and does not survive the surviving spouse. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Vesting of Interest.

The surviving spouse's elective interest in the decedent's estate vests immediately upon the spouse's death, but it can vest only in property which the deceased spouse owned at the time of death. Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993).

Will Predating Marriage.

Under § 28-25-109, any bequest to a former spouse is void, but the remainder of the will remains in effect; unless the will is completely revoked because all of its substantive provisions favor a decedent's former spouse, the decedent will have died testate, and this section will apply. Section 28-25-109 does not require a holding that this section is not intended to be applied when the will predates a marriage. In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied, Epperson v. Estate of Epperson, 471 U.S. 1017, 105 S. Ct. 2022 (1985).

This section does not make a distinction concerning wills that predate a marriage and those made after a marriage. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Cited: Anderson v. Parker, 230 Ark. 335, 323 S.W.2d 414 (1959); Faver v. Faver, 266 Ark. 262, 583 S.W.2d 44 (1979); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Bennett v. Estate of Bennett, 275 Ark. 262, 628 S.W.2d 565 (1982); McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982); In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984).

Case Notes

Failure to Notify.

The notice by a probate clerk to a surviving spouse to elect to take against a will is not jurisdictional, and therefore, a failure to notify will not give her heirs her personal right to take against the will. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Research References

Ark. L. Rev.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Case Notes

Failure to Notify.

The notice by a probate clerk to a surviving spouse to elect to take against a will is not jurisdictional, and therefore a failure to notify will not give her heirs her personal right to take against the will. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Nature of Right.

A spouse's right to elect against a will is personal and for her benefit; therefore, her heirs cannot exercise it after her death even though the spouse was insane from before testator's death until her death and although no guardian was appointed as the will suggested who could have exercised her rights. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Case Notes

Cited: Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970).

Case Notes

Disability of Spouse.

A spouse's right to elect against a will is personal and for her benefit; and therefore her heirs cannot exercise it after her death even though the spouse was insane from before testator's death until her death and although no guardian was appointed as the will suggested who could have exercised her rights. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Nature of Right.

The provision that the right of election of the surviving spouse is personal, is not transferable, and does not survive the surviving spouse does not make the interest secured by the exercise of such an election a terminable or contingent estate. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Time of Election.

Where a spouse dies testate, the surviving spouse must exercise the option to take against the will in his or her lifetime; otherwise, the right is forfeited because it is personal and does not survive the surviving spouse. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

An election to take against a will was not made in a timely manner where (1) the appellees filed the election, on behalf of the surviving spouse, to take against the will prior to the death of the surviving spouse, but (2) the appellees never sought or received the probate court's authorization prior to the time that they purported to make the election, and (3) the appellees did not seek such authorization until after the death of the surviving spouse. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000).

Will Executed Prior to Marriage.

Where a will executed prior to marriage did not provide for a widow, the widow's right to take against the will was personal to her and did not survive where she died before making an election to take against will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Will Leaving Nothing.

Where a husband's will left nothing to his wife and she died without electing to take against the will, her right to claim dower did not survive her and could not be exercised by her estate. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Case Notes

Election to Take Under Will.

An election to take under a will does not bar a widow from changing her mind and deciding to renounce the will if the renunciation is made within the period allowed for her decision and if no distribution has been made in reliance on her prior decision. Townson v. Townson, 221 Ark. 610, 254 S.W.2d 952 (1953).

Research References

Ark. L. Notes.

Atkinson, A Comparison of Ark. Code Ann. § 28-39-407 With Uniform Probate Code § 2-302, 1995 Ark. L. Notes 1.

Ark. L. Rev.

Decedent's Estates — Rights of a Judgment Lien Creditor Against a Pretermitted Heir, 25 Ark. L. Rev. 353.

U. Ark. Little Rock L.J.

Survey — Property, 12 U. Ark. Little Rock L.J. 225.

U. Ark. Little Rock L. Rev.

Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).

Case Notes

Constitutionality.

This section held constitutional. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

Construction.

Subsection (b) of this section applied only to wills and not to trusts created during the life of the settler, because the pretermitted-heir statute spoke only in terms of wills, and not of trusts; the pretermitted-heir statute, which spoke only in terms of the execution of a will, did not apply in instances in which there was no will. Kidwell v. Rhew, 371 Ark. 490, 268 S.W.3d 309 (2007).

Purpose.

The object of former similar statute was to prevent injustice to a child or descendant from occurring by reason of the forgetfulness of a testator who might, at the time of making his will, overlook the fact that he has a child or descendant. Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944) (decision under prior law).

The purpose of a former similar statute was not to require a testator to make some devise to each of his children, but to insure that there should be no unintentional disinheritance of a child by the testator. Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946) (decision under prior law).

The purpose of the pretermitted child statute is not to compel a testator to make a provision for his children, but to guard against testamentary thoughtlessness. Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986).

Holographic Will.

Holographic will held to be clear in its provision and to take precedence over any other will. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

Intent of Testator.

Extrinsic evidence is inadmissible to show that a testator was aware of a pretermitted child and intended to disinherit her. Hare v. First Sec. Bank, 261 Ark. 79, 546 S.W.2d 427 (1977).

Under this section, extrinsic evidence of the testator's intent is not admissible. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977); Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

This section operates in favor of a pretermitted child without regard to the real intention of the testator in regard to the omission. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

The fact that one paragraph of a will provided that the decedent's estate would, upon nonsurvival of all the named heirs, pass under the laws of descent and distribution of Missouri did not establish that the decedent intended to omit her sons by her first marriage from the will, even though they were not mentioned in the will. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

Where a decedent's holographic will, written during his residency in Canada, did not mention his children, under subsection (b) of this section that the omission operated in favor of the pretermitted children; hence, in the letter order issued by the trial court the children were properly awarded the decedent's real property in Arkansas. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Presumptions.

In a suit to recover the share of a child pretermitted by will, evidence that the plaintiff was born two months after her mother's marriage and that she resembled a man who had kept company with her mother was not sufficient to overcome the presumption that she was legitimate. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920) (decision under prior law).

The presumption against intestacy is subordinate to the statutory presumption against the disherison of a child or the issue of a deceased child because the presumption against intestacy actually is much more than a presumption. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

An omission in a will is presumed to be unintentional where the testator fails to mention his children or provide for them as a member of a class, if no contrary intent appears in the will itself. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

Pretermitted Children.

The great grandchild of a testator could not recover upon the ground that she was not mentioned in the will of her ancestress if she was not living at the time the will was made or if her mother was then living and was named by class as a grandchild. King v. Byrne, 92 Ark. 88, 122 S.W. 96 (1909) (decision under prior law).

Grandchildren held to be pretermitted. Gray v. Parks, 94 Ark. 39, 125 S.W. 1023 (1910) (decision under prior law); King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981).

Adopted children entitled to inherit as pretermitted children. James v. Helmich, 186 Ark. 1053, 57 S.W.2d 829 (1933) (decision under prior law); Graham v. Hill, 226 Ark. 258, 289 S.W.2d 186 (1956).

Where a daughter not mentioned in will was left something by a codicil and the codicil was invalid, she inherited as if there was no will. Noblit v. Noblit, 223 Ark. 220, 265 S.W.2d 520 (1954).

A pretermitted child is entitled to his remedy during the administration of an estate, and the provision for recovering from the devisee is only brought into being after the estate has been closed or after sufficient funds have been paid out of the estate to prevent the pretermitted child from acquiring his full statutory share. Parker v. Bowlan, 242 Ark. 192, 412 S.W.2d 597 (1967).

Where pretermitted children instituted a suit for a partition of the real estate in the estate within four months following wrongful distribution, their suit was timely and not barred by laches even though decedent had died some seven years before. Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970).

Children held to be pretermitted. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970); Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

Where the testator failed to name two of her children who were deceased at the time of the execution of her will and her will also included a provision “If any of my children should die before I do,” the phrase “my children” was referring to only the children living at the time the codicil was executed. Thus, the grandchildren of the deceased children were pretermitted heirs and entitled to share in the estate. Estate of Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986).

As a general rule, the testator's use of a word which describes a class of persons is considered to be sufficient identification of the claimant to preclude the application of the pretermitted heir statute. Estate of Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986).

Grandchildren were pretermitted where neither they nor their father, who died before the will was executed, were mentioned or provided for in the will. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

This section directs that children shall take as though decedent had died intestate only when testator fails to mention or provide for them, specifically or as a class, and does not permit children to take against will simply because testator failed to make provision for them in will; if testator mentioned children, specifically or as a class, this section does not apply and children are not pretermitted. Dykes v. Dykes, 294 Ark. 158, 741 S.W.2d 256 (1987).

If the word “heir” or “heirs” is used by the testator in a colloquial sense to refer to children, or descendants, as opposed to a technical, legal sense, then the requirements of subsection (b) are met. Leatherwood v. Meisch, 297 Ark. 91, 759 S.W.2d 559 (1988).

Insertion of a rule-against-perpetuities clause and other general references to undesignated persons in a testator's will did not show that testator had his grandson, as issue of the testator's predeceased child, so clearly in mind as to have met the requirements of the pretermitted child statute, subsection (b) of this section. Alexander v. Estate of Alexander, 351 Ark. 359, 93 S.W.3d 688 (2002).

Illegitimate child was awarded a share of his father's estate as a pretermitted heir where the wife waived an issue regarding competent jurisdiction by failing to object to a failure to join the estate in a paternity action; moreover, collateral estoppel applied because the wife appeared at the paternity proceeding, it was fully litigated, the necessary party issue was not raised, and no appeal was filed. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of subsection (b) of this section, § 28-1-102(a)(1), and the six requirements of § 28-9-209(d), but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Remedies.

An omitted child or grandchild was not remitted solely to the remedy in the probate court against the devisees or legatees but could sue to recover land descended to him from purchasers holding under the devisees or legatees or under a power contained in the will. Rowe v. Allison, 87 Ark. 206, 112 S.W. 395 (1908) (decision under prior law).

Subsequently Born or Adopted Children.

A child adopted three years after the adopting parents had made a will stood in the position of a natural child born subsequent to the execution of the will and inherited accordingly. Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 359 (1937) (decision under prior law).

Son's claim pursuant to the After-Born Child Statute, subsection (a) of this section, extinguished a nephew's rights as a named beneficiary of a joint will because the son's rights prevailed where there was a conflict between the rights of the couple to execute a joint will to dispose of their estates and the rights of an after-born child. Dotson v. Dotson, 2009 Ark. App. 819, 372 S.W.3d 398 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 74 (Jan. 20, 2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 331 (June 3, 2010).

Sufficiency of Designation.

A will in which the testator provides for all of his children as a class without expressly naming them is a sufficient mention of his children. Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908); Duensing v. Duensing, 112 Ark. 362, 165 S.W. 956 (1914) (decision under prior law).

A bequest to a son of the testator and to son's children sufficiently designated the children. LeFlore v. Handlin, 153 Ark. 421, 240 S.W. 712 (1922) (decision under prior law).

Former statute was complied with where the testator either mentioned each of his children by name or provided for them as a class without naming them separately. Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996, 65 A.L.R. 466 (1929) (decision under prior law).

Where testator actually wrote the name of his daughter in the body of his will along with a statement of the amount of insurance policy payable to her, he did not omit to mention the name of his daughter in his will and he did not die intestate as to her. Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944) (decision under prior law).

Where there was uncertainty or ambiguity in designated beneficiary of a will, extrinsic evidence was admissible for purpose of identifying intended beneficiary who was found not entitled to share in estate as a pretermitted heir under subsection (b). Tullis v. Minchew, 239 Ark. 222, 388 S.W.2d 393 (1965).

Whether the word “descendants” as a description of the beneficiaries of the trust sufficiently describes a class within the meaning of this section is to be determined by a consideration of the will as a whole. Petty v. Chaney, 281 Ark. 72, 661 S.W.2d 373 (1983).

Daughter who was not mentioned or provided for by name in her father's will was sufficiently mentioned or provided for in a paragraph of the will creating a trust for the testator's “descendants” and was not entitled to share in father's estate as a child whom testator failed to provide for. Petty v. Chaney, 281 Ark. 72, 661 S.W.2d 373 (1983).

Considering will as a whole, reference therein to “all of my heirs or other relatives” was sufficient to mention the testator's children as a class and to exclude them from inheritance. Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986).

This section does not require testator to provide for his heirs, only to mention them. Child does not have to be specifically named, but can be included as a member of the class. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

Testator in Loco Parentis.

This section is not broad enough to cover a child to whom the testator only stood in loco parentis, because birth or adoption, each, creates a permanent relationship whereas the relationship in loco parentis is temporary. Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965).

Validity of Will.

If the names of all, any, or either of testator's children or their legal representatives were omitted in his will, the will was not void, but he would be deemed as having died intestate as to those omitted. Branton v. Branton, 23 Ark. 569, 1861 Ark. LEXIS 161 (1861); Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939 (1921) (decision under prior law).

Omission of the name of a child from a will does not thereby make it void; but those omitted may recover of the devisees and legatees their distributive shares. Trotter v. Trotter, 31 Ark. 145 (1876); Bloom v. Strauss, 73 Ark. 56, 84 S.W. 511 (1904) (decision under prior law).

A will of a citizen of another state seeking to transmit lands situated in this state was without effect as to the lands where he omitted to name his only surviving child therein. Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912) (decision under prior law).

This section does not preclude persons other than the child from bringing a petition to contest a will. Parker v. Bowlan, 242 Ark. 192, 412 S.W.2d 597 (1967).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979); Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990).

Research References

ALR.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary. 23 A.L.R.4th 369.

Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will. 39 A.L.R.4th 633.

Am. Jur. 79 Am. Jur. 2d, Wills, § 723 et seq.

Ark. L. Rev.

Acts 1949 General Assembly—Act 140 The Probate Code, 3 Ark. L. Rev. 375.

C.J.S. 95 C.J.S., Wills, § 445 et seq.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

Case Notes

Correction of Errors.

If the probate court grants letters of administration instead of letters testamentary, the error should be corrected on appeal. The letters will not be void until reversed. Jackson v. Reeve, 44 Ark. 496 (1884) (decision under prior law).

Failure to Notify Spouse.

The notice by a probate clerk to a surviving spouse to elect to take against a will is not jurisdictional, and therefore the failure to notify will not give her heirs her personal right to take against the will. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Necessity for Administration.

The adjudication by the probate court of the necessity for administration is conclusive in a collateral issue. Stewart v. Smiley, 46 Ark. 373 (1885); Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917) (decisions under prior law).

The appointment by the probate court of an administrator is conclusive of the question of necessity for administration, but it is not conclusive of the question whether or not the lands of the estate are needed to pay debts. Turley v. Gorman, 133 Ark. 473, 202 S.W. 822 (1918) (decision under prior law).

Cited: Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990); Schieffler v. Pulaski Bank & Trust Co. (In re Molitor), 183 B.R. 547 (Bankr. E.D. Ark. 1995); Wilson v. Wilson, 327 Ark. 386, 939 S.W.2d 287 (1997); Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425 (2009).

Research References

Ark. L. Rev.

Recent Development: Arkansas Act 438 of 2007, 60 Ark. L. Rev. 1023.

Case Notes

In General.

Nothing in this section authorizes a personal representative to sue or be sued until such time as he has received letters of administration. Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967).

Action to Try Title.

Action against executor to try title to property in dispute in the probate court and to require settlement and contribution of the estate was a local and not a transitory action and properly brought in the county where the estate was being probated rather than in county where executor resided. Gocio v. Seamster, 203 Ark. 944, 160 S.W.2d 197 (1942) (decision under prior law).

Jurisdiction.

Letters should be granted in county in which testator or intestate dies; the probate court of another county has no jurisdiction. Shelton v. Shelton, 180 Ark. 959, 23 S.W.2d 629 (1930) (decision under prior law).

Mandatory Provision.

Provision requiring administration of estate to be in county where deceased is residing at time of death is mandatory. Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953).

Nonresidents.

The will of a nonresident of this state may have original probate in this state if the testator owned property in this state which might be the subject of administration in this state, or where there was a debt or demand due the testator which required administration to collect. However, unless a nonresident has land in this state or debt or demand owing him, the will of the nonresident is not subject to probate in this state. McPherson v. McKay, 205 Ark. 1135, 172 S.W.2d 911 (1943) (decision under prior law).

It was error for the trial court to determine that it had venue to probate decedent's will because decedent was not a resident of that county at the time of his death and the statute clearly required probate proceedings to go forward in the county where decedent resided before his death; even if decedent was arguably domiciled in the county, venue was still not proper. Lawrence v. Sullivan, 90 Ark. App. 206, 205 S.W.3d 168 (2005).

Partition Suits.

Where the estate of a deceased person has been closed, an action for partition of the land among the heirs should be brought in the county where the land or some part of it is situated and not in the county where the deceased's personal representatives qualified. Cowling v. Nelson, 76 Ark. 146, 88 S.W. 913 (1905) (decision under prior law).

Probate Outside State.

Purported will of testator, who was a resident of this state, probated in Texas under statutory provision similar to this statute was not subject to attack in the courts of this state. State ex rel. Attorney General v. Wright, 194 Ark. 652, 109 S.W.2d 123 (1937) (decision under prior law).

Sale of Land.

Jurisdiction for the sale of deceased's land is only in the probate court of the county in which the personal representative was qualified, not in another county in which the land may be located. Gordon v. Howell, 35 Ark. 381 (1880) (decision under prior law).

Void Administrator Appointment.

Where deceased did not live or die in the county where administrator was appointed, the appointment was void and a judgment obtained by the administrator against a corporation wrongfully causing the death of the deceased was properly set aside. Groschner v. Winton, 146 Ark. 520, 226 S.W. 162 (1920) (decision under prior law).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004).

Case Notes

In General.

This section not only limits to five years the time in which a will may be admitted to probate, but also limits to five years the time in which letters of administration may be granted. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).

Applicability.

Proponent of the will of a person who died before the effective date of this section did not have a vested right to probate the will more than five years after the effective date of this section. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).

The will of person who died more than five years before the effective date of this section could not be probated more than five years after the effective date of this section. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).

This section and § 28-9-209 are not applicable in a paternity case; paternity action must be commenced in chancery court because it is not a determination of heirship. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

Application to Court.

An application to the court within the meaning of this section was made when proponents of a will filed a verified petition for probate within three days after death of the testator, and a personal appearance before the probate court was not necessary. Minchew v. Tullis, 236 Ark. 818, 368 S.W.2d 282 (1963).

Estoppel.

Where the widow of a deceased invoked the aid of a court to permit her to serve as administrator, although her first request for appointment was after expiration of period for probating will, she could not later complain that the court was without the power to make such an appointment. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Interests in Property.

2012 Arkansas probate of the decedent's will was proper because that will had previously been admitted to probate in Florida; even then, however, if the real property involved were purchased after the death of the testator by a third party from a person who, but for the will, would have been the intestate heir of the decedent, interests in the property would not be affected by the probate of the will after the expiration of the five-year period if the instrument of transfer had been recorded in the county where the real property is located. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578 (2014).

But for the will, the decedent's son would have been the intestate heir of the decedent, and the son quitclaimed his interest in the property to a company by an instrument recorded on June 24, 2009, and the will had not been admitted to probate in Arkansas until October 23, 2012; the trial court erred in denying the devisees' motion to intervene, given that, as named devisees of the property in question in the decedent's will, the devisees clearly had a recognized interest in the mineral interests in the property that the company's petition sought to settle. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578 (2014).

Later Will as Counterclaim.

Where deceased had two wills, one being probated, and the later will was offered for probate more than five years after testator's death, the later will was barred by this section despite the contention it was offered as a counterclaim and therefore not subject to this section. Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975).

Nonresident's Will.

This section, which limits the period within which a will may be admitted to probate to five years from the testator's death, applies to a nonresident's will which has been admitted to probate in a foreign jurisdiction. Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145, 87 A.L.R.2d 718 (1961).

Oversight of Clerk.

Where a will, together with the necessary proof of its execution, was filed with the probate clerk in 1947, but the clerk failed to enter an order admitting the will to probate, the party had fully complied with the requirements of former provisions for the probate of the will, notwithstanding the oversight of the clerk, and it was not barred by the subsequently enacted statute of limitation contained in this section. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964) (decision under prior law).

The time limit of this section did not apply to prevent the probate of a will which, together with necessary proof of its execution, had been filed with the probate clerk in 1947 under repealed § 60-209, but where the clerk had failed to enter an order admitting it to probate. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964) (decision under prior law).

Probate Barred.

Former limitations period in effect prior to the 1963 amendment of this section barred probate of decedent's will because she died in 1962, and the five-year period from her death had passed. Delafield v. Lewis, 299 Ark. 50, 770 S.W.2d 659 (1989).

Probate division of the circuit court was statutorily time-barred from administering an estate under this section because the probate court had no authority to administer an estate past the five-year limit set forth in the statute. Furthermore, the passage of almost 100 years from the death of the title owners of the real property in the estate was not an exception to the statute. Edwards v. Hart, 2020 Ark. App. 182, 598 S.W.3d 543 (2020).

Provisions Not Retroactive.

Proceeding in 1950 to probate will of person who died in 1935 was not barred by five year limitation period contained in the 1949 Code, since the Probate Code is not retroactive. Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951).

“Purchase” Construed.

Where oil, gas, and mineral interests were deeded from grandchild to her aunt several weeks before will was offered to probate in Louisiana, but that will was not offered for probate in Arkansas until 10 years later, the fact that the granddaughter may have had notice of the existence of the will before her conveyance did not cause the conveyance not to be qualified as a “purchase” under subsection (c) of this section and thus foreclose the admission of the will to probate despite the expiration of the five-year period under this section, since the phrase “purchase” as used in subsection (c) of this section does not mean or imply a bona fide purchaser without notice. Cooper v. Tosco Corp., 272 Ark. 294, 613 S.W.2d 831 (1981).

Cited: Blair v. Bradley, 238 Ark. 191, 379 S.W.2d 5 (1964); Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Case Notes

Purpose.

The intent of subsections (b) and (c) was not to alter existing laws affecting the timely probate of wills in order to give effect to their provisions, but to evidence a claim of ownership by one who has been in possession of property consistent with the terms of an unrevoked will which was not probated. Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Applicability.

Actual possession, rather than constructive possession, is contemplated for subsection (b) to apply. Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Trial court did not err when it found that, under subdivision (b)(2) of this section, a niece was the owner of the content's of her deceased uncle's safety deposit box where, even though his will had not been probated, a copy of his unprobated will named her as sole beneficiary; the situation fit within the parameters of subsection (b)(2), which thus allowed evidence of the testator's intention and provided the evidence that supported the trial court's conclusion that niece was the owner of the box contents. Atkinson v. Knowles, 82 Ark. App. 224, 105 S.W.3d 818 (2003).

Delay in Closing Estate.

Where chancellor gave effect to the provisions of will which had been admitted to probate in 1936, since the will was filed and admitted to probate in a timely manner, and there were no inequities resulting from the unusual delay in closing the estate, there was no reason to disturb the chancellor's decision giving full effect to the will. Blundell v. Estate of Cox, 297 Ark. 320, 760 S.W.2d 872 (1988).

Evidence of Devise to Remainderman.

Where the testator's duly executed will, though never probated, remained unrevoked, where there had been no administration of the estate, and where the testator's devisee for life had possessed the property until his death, the will was properly admitted as evidence of the devise of the testator's property to the remainderman. Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982).

Possession of Property.

A decedent's unprobated, duly executed, and nonrevoked will was properly admitted as evidence of devise of farm property since devisees under the will met the requirement of actual possession, notwithstanding that they did not physically possess the property, where (1) the devisees made the tenant aware that they owned the land and that they intended to continue the arrangement the tenant had with the decedent, (2) they conferred with the tenant about what crops to grow and the operation of the farm, (3) they visited the farm two or three times a year, (4) they signed a power of attorney and completed government documents, (5) they received subsidies from the government, and one-third of the profits generated by the tenant as rent, (6) as the will provided, they split the costs and income of the property evenly, (7) they also split the costs of expenses, insurance, real estate taxes, and levee taxes, and (8) when a bridge on the property collapsed, they posted no trespassing notices and blocked access to the bridge. Songer v. Wiggens, 71 Ark. App. 152, 27 S.W.3d 755 (2000).

Small Estates.

Circuit court erred in granting the declaratory judgment in favor of the heirs and ordering the decedent's land to be sold and the proceeds divided accordingly, where the circuit court's ruling was based on an erroneous interpretation and application of this section; because the small-estate procedure was excepted from the requirements of this section and § 28-41-101, the issue of whether the beneficiary commenced a probate proceeding was irrelevant. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687 (2009).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Rachel v. Johnson, 230 Ark. 1003, 328 S.W.2d 87 (1959); Delafield v. Lewis, 299 Ark. 50, 770 S.W.2d 659 (1989).

Case Notes

Jurisdiction of Probate Court.

Where a will provided for a trust under the supervision of the chancery court, which assumed administration of the trust, the probate court had jurisdiction to determine whether bequest under the will was payable since it was concerned with administration of the estate, but it did not have jurisdiction to determine whether petitioner had right to rents and possession of trust lands since that involved administration of the trust under supervision of the chancery court. Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956 (1954).

Executor of decedent's will was not required to deliver the will to the proper court where he was the named executor of the will; further, under § 28-40-107, an illegitimate child who had never been declared legitimate did not qualify as an interested person within the Probate Code who was required to recieve notice. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Case Notes

Authority of Executor.

A will, though fully proven and established, confers no power on an executor other than for the burial of the deceased and the preservation of his estate; the authority of the executor to act as such is derived from the letters testamentary, and his appointment must be confirmed by a probate court. Diamond v. Shell, 15 Ark. (2 Barber) 26 (1854) (decision under prior law).

Executor De Son Tort.

In Arkansas, an executor de son tort, as at common law, is unknown. Rust v. Witherington, 17 Ark. (4 Barber) 129 (1856) (decision under prior law).

Intermeddling.

One who intermeddles without authority in the estate of a deceased person is responsible to the rightful executor and not to a creditor. Barasien v. Odum, 17 Ark. (4 Barber) 122 (1856) (decision under prior law).

Powers Before Qualification.

An executor's powers before qualification are limited to the burial of the deceased and the preservation of his estate; if before then he intermeddles with the estate, his subsequent qualification legalizes his tortious act, making him liable to those interested in the estate and protecting the party with whom he deals. McDearmon v. Maxfield, 38 Ark. 631 (1882) (decision under prior law).

Sue or Be Sued.

Nothing in this section authorizes a personal representative to sue or be sued until such time as he has received letters of administration. Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967).

Case Notes

Appointment of Executor.

The probate judge did not abuse her discretion in finding that the decedent's sister was unsuitable to serve in the position of executrix, in light of her simultaneous role as executrix of the decedent's late wife's estate. Burch v. Griffe, 342 Ark. 615, 29 S.W.3d 726 (2000).

Circuit court erred in appointing appellee as the administratrix of the decedent's estate because appellee was not an “interested person” under the relevant statutes with standing to petition the probate court. Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).

Compliance with Statutory Provisions.

The notation of the clerk on the reverse side of a will showing the filing, followed by a notation of the judge approving “the action of the clerk admitting the will to probate” was substantial compliance with former statute admitting the will to probate. Holliday v. Phillips Petroleum Co., 275 F. Supp. 686 (E.D. Ark. 1967) (decision under prior law).

Executor of decedent's will was not required to deliver the will to the proper court under § 28-40-105 because he was the named executor of the will; further, an illegitimate child who had never been declared legitimate did not qualify as an interested person within the Probate Code who was required to recieve notice. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Cited: Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Research References

Ark. L. Rev.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors, but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963).

Complaints by Heirs.

If the heirs feel aggrieved at any action taken or are of the view that some right has been denied them because no notice was given them, they have the prerogative (under certain circumstances) to complain. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963).

Cited: Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

Research References

Ark. L. Rev.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963).

Cited: Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

Research References

Ark. L. Rev.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Duty to Give Notice.

It was the duty of an executor or administrator, at his official peril, to give the notice to creditors required by former statute, but this duty was not a condition precedent to the exhibition of claims within the required period. Bennett v. Dawson, 15 Ark. (2 Barber) 412 (1855) (decision under prior law).

Notice Form.

Notice took the form recommended by one statute, and the essence of the notice was that one heir was opening the decedent's estate, but the actual probate proceeding she pursued was for the collection of a small estate, and the notice required for that is found in another statute, and appellants testified that they did not receive personal notice, and this testimony was not actually disputed; the trial court clearly erred when it found that the heir satisfied the statutory procedures for collection of a small estate. Bryant v. Osborn, 2014 Ark. 143 (2014).

Cited: Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963); Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Research References

Ark. L. Rev.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Panel on Experience under the Arkansas Probate Code, 12 Ark. L. Rev. 40.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Note, The Requirement of Notice in Probate Proceedings: Recent Changes in Arkansas Law, 43 Ark. L. Rev. 945.

U. Ark. Little Rock L.J.

Legislative Survey, Probate, 8 U. Ark. Little Rock L.J. 597.

Note, Probate — Satisfying the Due Process Requirement of Actual Notice to Estate Creditors, Tulsa Professional Collection Services v. Pope, 108 S. Ct. 1340, 485 U.S. 478, 99 L. Ed. 2d 565 (1988), 11 U. Ark. Little Rock L.J. 603.

Case Notes

Construction.

A creditor of an estate must be subject to identification during the three month (now six (6) months) statute of nonclaim, § 28-50-101(a); if this were not the case, then all matters of estate would be left open for two years under § 28-50-101(h) and subsection (a) of this section, which was certainly not the intent of the legislature. Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923 (1994).

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors, but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963) (decision under prior law).

Persons Entitled to Receive Notice.

There is no requirement of notice of estate proceedings to parties who have no direct interest in decedents' estates, and those parties do not have standing to enter to the estate proceeding or to raise the issue whether decedents' offspring, who had been convicted of manslaughter in their death, could inherit from their estate. Kimrey v. Booth, 285 Ark. 18, 685 S.W.2d 139 (1985).

Circuit court applied the correct legal standard in considering the creditor's claims against the estate as untimely and did not improperly determine that written service of notice was unnecessary; the circuit court's statements that the creditor knew of decedent's death merely provided background information. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Because the creditor failed to obtain a ruling on the issue of the personal representative's reasonable diligence in searching for creditors of the estate, the issue was summarily disposed of on appeal. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

In determining whether the creditor was entitled to notice, the circuit court merely provided background information that it deemed relevant to the issue of whether the creditor was either known or reasonably ascertainable, and it did not impose requirements on the creditor that were more stringent than the law provides. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Circuit court did not clearly err when it determined that the creditor was not a known or reasonably ascertainable creditor; ample evidence supported its conclusion. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Circuit court did not improperly consider the merits of the creditor's claims against the estate when deciding whether the creditor was a known or reasonably ascertainable creditor and thus entitled to notice. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Petition to Set Aside Will.

Where brothers of testator were not given notice of the admission of the will to probate in the manner required by this section, but were mentioned as heirs in the petition to probate, their petition to set aside the will filed six months and 13 days after the admission of the will to probate was filed in time under subsection (b)(2)(C) of § 28-40-113. Jones v. Jones, 234 Ark. 163, 350 S.W.2d 673 (1961) (decision under prior law).

Cited: Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969); Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988); In re Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993).

Research References

Ark. L. Rev.

Note, the Requirement of Notice in Probate Proceedings: Recent Changes in Arkansas Law, 43 Ark. L. Rev. 945.

Research References

Ark. L. Notes.

Sampson, Burden Shifting in Will Contest Cases: An Examination and a Proposal that the Arkansas Supreme Court Reconcile Arkansas Rules of Evidence Rule 301 with its Undue Influence Case Law, 1996 Ark. L. Notes 87.

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377. Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986).

Case Notes

Burden of Proof.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When other persons sought to contest the will, they had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Substantial evidence supported a probate court finding that testator's first wife, who claimed a dower interest in estate, had not carried the burden of proving invalidity of second marriage merely by showing validity of her marriage to deceased and the absence of any court record of divorce in any one of three counties of her state, as valid divorce could have been granted elsewhere. Miller v. Miller, 237 Ark. 66, 371 S.W.2d 511 (1963).

The party contesting the validity of the will has the burden of proving by the preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Consolidation of Contests.

Where five separate contests of a will were appealed from the probate court to the circuit court, they were properly consolidated for trial as a single case. First Nat'l Bank v. Ary, 180 Ark. 1084, 24 S.W.2d 336 (1930) (decision under prior law).

Construction and Interpretation.

If the instrument offered was a will, it was to be admitted to probate, and its construction and interpretation were to be left to other courts having jurisdiction of the matter. Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928) (decision under prior law).

Contest Barred by Limitations.

Where no attack was made on a will within six months after it was duly probated and notice thereof published, the plaintiff was barred by limitations from contesting it. Montgomery v. Blankenship, 217 Ark. 357, 230 S.W.2d 51, 21 A.L.R.2d 212 (1950) (decision under prior law).

Full Faith and Credit.

The will of a person who had a domicil in another state in which the will was probated, insofar as it related to the devolution of either real or personal property in this state, could be contested, provided that full faith and credit had to be given by each state to the public acts, records, and judicial proceedings of every other state. Schweitzer v. Bean, 154 Ark. 228, 242 S.W. 63 (1922) (decision under prior law).

Grounds for Contest.

A party interested in the probate of the will of a nonresident could contest the probate upon the grounds of incapacity or undue influence. Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A.L.R. 494 (1920) (decision under prior law).

Pursuant to subsection (b), if a will contest was on any ground other than that another will had been discovered, and if the will contestant had been given proper notice, the contestant's grounds for objection had to be filed at or prior to the time of the hearing on the petition for probate; this section does not allow a party to make an oral objection to a will such that, while all the beneficiaries may not have been properly served, they had constructive and actual notice of the probating of the will. West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Interested Persons.

While, in a will contest, it would have been better practice to determine, as a preliminary question, the interest of any contestant whose right to sue as heir was disputed, the court could, in its discretion, submit to the jury this question, together with the main issue. Flowers v. Flowers, 74 Ark. 212, 85 S.W. 242 (1905) (decision under prior law).

Brothers and sisters of testator, who left surviving him heir in person of adopted son, were not “interested” persons, entitled to sue to set aside testator's will. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951).

Just any collateral heir is not necessarily an “interested person” with a right to contest the probate of a will under this section. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Remote heirs, decedent's sister, nieces and nephew, were not “interested persons” entitled to contest a will under subsection (a) because they would not have taken by intestate succession at that time since decedent's two daughters were were still living. Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993).

A daughter of the decedent, who received an equal share under the will at issue, had standing to question the validity of the will, notwithstanding that her interest was not detrimentally affected by the will. Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998).

Jurisdiction.

Trial court had authority to consider a challenge to decedent's will subsequent to a hearing at which it orally announced its decision to admit a purported will to probate because no written order had been entered and filed of record from the prior hearing; subsection (b) of this section was not applicable because the trial court never lost subject-matter jurisdiction and was free to hear additional evidence and to alter its decision upon further consideration of the facts and circumstances surrounding the will. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003), overruled in part, West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Petition by Minors.

A petition by a minor to set aside the probate of a will filed after statutory period had expired was properly dismissed, since no exception in favor of minors is provided for by this section. Brown v. Hawkins, 219 Ark. 239, 240 S.W.2d 863 (1951).

Pretermitted Children.

The limitation contained in subsection (b)(2) of this section does not apply to an action by pretermitted children against the sole devisee of their father's will for partition of the real estate devised in the will. Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970).

Review of Circuit Court Decision.

In a will contest pursuant to this section, admission of a testator's will to probate was proper because preponderance of the evidence supported the circuit court's finding that both sons had confidential relationships with the testator, that the testator had testamentary capacity when he executed his will, and that the will was not the result of undue influence. Breckenridge v. Breckenridge, 2010 Ark. App. 277, 375 S.W.3d 651 (2010).

Review of Probate Court Decision.

A court of equity was not authorized to review the decision of the probate court upon the probate of a will where there had been no appeal to the circuit court. Mitchell v. Rogers, 40 Ark. 91 (1882) (decision under prior law).

After a probate court has probated a will, necessarily putting testamentary capacity in issue, equity has no jurisdiction to review this capacity, even though no jurisdictional objection is made, unless there is extrinsic fraud upon the probate court because the Arkansas Constitution places exclusive probate jurisdiction in the probate court. O'Dell v. Newton, 224 Ark. 541, 275 S.W.2d 453 (1955).

Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Review of Circuit Court Decision.

Trial court erred in finding that decedent's spouse and brother did not procure the will, and, as such, they were obligated to rebut the presumption of undue influence, however, nothing in the record suggested that their influence operated to override the decedent's discretion or destroy the decedent's free will, and a medical doctor and other disinterested witnesses testified that the decedent was of sound mind when decedent executed his will; thus, the trial court's error was harmless. In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003).

Setting Aside for Fraud.

A judgment admitting a will to probate could not be set aside for fraud on ground that judgment was based on copy instead of original will, since representation was not extrinsic. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside on ground of fraud based on fact that counsel for proponents of will persuaded court to appoint executors without bond, since this was an intrinsic matter. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside for fraud on ground that mental incapacity of deceased was concealed from the court, since concealment related to intrinsic matter and did not constitute extrinsic fraud. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside on the ground that counsel for proponents had concealed from the court the fact that a “living trust” was incorporated in will where reference to trust appeared on the face of the instrument, since fraud alleged was intrinsic. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

Timely Filing.

Where brothers of testator were not given notice of the admission of the will to probate in the manner required by § 28-40-111, but were mentioned as heirs in the petition to probate, their petition to set aside the will filed six months and 13 days after the admission of the will to probate was filed in time under subsection (b)(2)(C) of this section. Jones v. Jones, 234 Ark. 163, 350 S.W.2d 673 (1961) (decision prior to 1985 amendment).

Where petition to contest a will reached the county clerk and, though not filed separately, was placed in the case file of deceased's estate within the statutory period for filing, the petition was deemed timely filed under this section. Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963).

Legal malpractice suit based on an attorney's handling of an estate was not ripe for adjudication because a challenge could still be raised in the probate proceedings since the longer limitations period for challenges based on discovery of another will applied, even if the challenge was supported by a copy of the will. Kennedy v. Ferguson, 679 F.3d 998 (8th Cir. 2012).

Triggered No Contest Clause.

Trial court did not err in finding that appellant contested the will, and although appellant claimed that she never made a written objection to the will under subsection (a) of this section and thus she could not have challenged the will, the court disagreed; by submitting a second will for probate drafted a week after the first will, in appellant's handwriting and leaving the bulk of the estate to herself, appellant clearly challenged the validity of the first will and sufficient evidence supported the conclusion that appellant was not acting in good faith when she offered that will for probate, such that her actions triggered the no-contest clause in the will. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Cited: Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987); Spicer v. Estate of Spicer, 55 Ark. App. 267, 935 S.W.2d 576 (1996).

Case Notes

Burden of Sustaining Contest.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When other persons sought to contest the will, they had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Research References

Ark. L. Rev.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Case Notes

Jurisdiction.

Trial court had authority to consider a challenge to decedent's will subsequent to a hearing at which it orally announced its decision to admit a purported will to probate; subsection (a) of this section was not applicable because no written order was entered after the hearing and, thus, there was no order permitting a will to probate to set aside. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003), overruled in part, West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Cited: Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987).

Case Notes

Appeal.

Probate cases are tried de novo on appeal. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Cited: Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

Research References

Ark. L. Rev.

Proof of Wills, 9 Ark. L. Rev. 394.

Wills — Proof of Testamentary Intent in Holographic Codicils, 25 Ark. L. Rev. 376.

Wills — Validity of Signature for Holographic Wills, 28 Ark. L. Rev. 521.

Case Notes

Construction.

Subsections (a)-(c) of this section and subsection (d) of this section are not contradictory, but should be read together in determining admissible evidence in a suit to probate will. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719 (1953).

Acknowledgment by Testator.

Once the signing of a will is proven by two attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991).

Attorney as Attesting Witness.

An attorney who drafted a will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Burden of Proof.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When appellants sought to contest the will, they had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Evidence of Forgery.

Although testimony as to signature on a will was conflicting where enlarged photographs of the admitted signature of the decedent made it apparent that the signature on the will was a forgery, the court properly refused to admit the will to probate. Thomas v. Barnett, 228 Ark. 658, 310 S.W.2d 248 (1958).

Where 11 witnesses stated that they were familiar with the signature and handwriting of the deceased and expressed their opinion that a proffered will was written entirely in the handwriting of the deceased, but court-appointed expert declared the will a forgery, the court's holding that the will was forged was not against the preponderance of the evidence. Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).

Extrinsic Evidence.

Extrinsic evidence may be admitted when it is necessary to fortify the finding of existence of testamentary intent. Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966).

Holographic Wills.

A credible witness to a holographic will is one who is competent and who is worthy of belief. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

A trial court erred in denying probate of a holographic will on the ground that evidence presented did not meet requirements necessary to establish holographic will where four renters from deceased and two banking officials testified that will was in handwriting of the deceased. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Members of a church were competent witnesses to establish holographic will benefiting the church where no gain from the will would inure to the members individually under the will. Barnard v. Methodist Church, 226 Ark. 144, 288 S.W.2d 595 (1956).

Lost or Destroyed Wills.

Before a court will establish a will as being lost or destroyed, it must be shown that the will was duly executed. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948) (decision under prior law).

One Attesting Witness.

Where only one attesting witness to will can be produced, it is permissible to introduce testimony on the authenticity of the handwriting of other attesting witness. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719 (1953).

Where a witness to a will testified that she witnessed the will at the request of the testator and in the presence of the other attesting witness who was then deceased, but whose signature was identified by his son and his widow, this testimony met the requirement of this section for the testimony of “credible disinterested witnesses” and thus the will was sustained as an attested will. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

The trial court erred in admitting a will to probate because the proponent failed to prove the will by either two attesting witnesses or two credible disinterested witnesses, and there was no showing that any diligence was exercised in procuring the testimony of one of the attesting witnesses. Carter v. Meek, 70 Ark. App. 447, 20 S.W.3d 417 (2000).

Proof of Execution.

Proper execution of a will to be probated could be proven by all or any one of the subscribing witnesses, or by only one witness who testified positively to the request of its execution and another witness did not recollect or denied some of the requests. Leister v. Chitwood, 216 Ark. 418, 225 S.W.2d 936 (1950) (decision under prior law).

The requirements outlined in subsection (a)(1) for proving an attested will by the testimony of two attesting witnesses were satisfied where (1) the two attesting witnesses were credible disinterested witnesses, (2) each witness testified that his or her signature was on the will as an attesting witnesses, (3) one witness was able to provide testimony regarding the circumstances surrounding the decedent coming into his office and asking him to draft the will and later a codicil, and he also testified that he and his secretary routinely acted as witnesses to wills prepared for his clients and that they would not sign the document until the testator had signed the will and requested that they attest it, and (4) the other witness testified that she would not have acted as a witness to the will or codicil if they had not been properly executed. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001).

Proof of Signatures.

Where the testator and both attesting witnesses were dead, all the contestants had to do was to prove that any one of the three signatures was a forgery, in order to defeat probate, since a valid will, other than holographic, must have two witnesses. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Where only one attesting witness testified that the will contained the signature of the testator and the other witness, the widow of the second attesting witness, only identified her husband's signature as an attesting witness without offering testimony regarding the signature of the testator, the requirements of this section were not met, and the probate judge correctly refused to admit the will to probate. Children's Mercy Hosp. v. Chick, 262 Ark. 520, 559 S.W.2d 3 (1977).

Trial court did not clearly err in finding that a will was witnessed by the appropriate number of witnesses and with the required formalities under this section where the will and the proof of will were signed by three witnesses, even though only two were required, and where the two living witnesses testified, along with the will's notary. Although the testimony was conflicting, the appellate court left to the trial court the weight to be given to the testimony of the witnesses. Baxter v. Peters, 2009 Ark. App. 807, 373 S.W.3d 340 (2009).

Will Destroyed by Testator.

This section completely leaves out any procedure for establishing a will which has been effectively destroyed by the testator; it does provide for the method of proving a will which has been lost or destroyed by accident or design of some person other than the testator. The only logical reason for not making provisions for proof of a will destroyed intentionally by a testator, in accordance with § 28-25-109, is obvious; there is no will to prove — it has been legally and physically extinguished. Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Cited: Pennington v. Pennington, 1 Ark. App. 311, 615 S.W.2d 391 (1981); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988); Earney v. Sharp, 312 Ark. 9, 846 S.W.2d 649 (1993).

Case Notes

Cited: Baxter v. Peters, 2009 Ark. App. 807, 373 S.W.3d 340 (2009).

Case Notes

Admission to Probate Granted.

Trial court was not clearly erroneous in holding that will was valid or in finding that testatrix intended to bequeath her property by a will instrument which contained additions and interlineations she dictated to bank officer, and which was executed by the testatrix after those additions and interlineations were made. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Disposal of Probate Case.

Order which admitted will “conditionally,” reservation of issues involved in will contest, and conduct of parties belied assertion that order admitting will to probate disposed of probate case once and for all. Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987).

Case Notes

Change of Residence.

Where testator changed his residence and domicil after making his will, from Arkansas to Oklahoma, and at the time of his death was a resident of Oklahoma, the will could not be probated in the first instance in Arkansas, notwithstanding the assertion of Arkansas residence made in the will. McCraw v. Simpson, 203 Ark. 763, 158 S.W.2d 655 (1942) (decision under prior law).

Devise of Realty in Arkansas.

A will executed and admitted to probate outside the state of Arkansas is as valid to dispose of real estate situated in this state as if made and admitted to probate here. Apperson v. Bolton, 29 Ark. 418 (1874) (decision under prior law).

A will executed outside the state of Arkansas in conformity to the laws of the testator's domicil will not be a valid will of lands situated in this state unless made in accordance with the requirements of the laws of this state. Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912) (decision under prior law).

Fraud.

An order of a probate court of another state admitting a will to probate in that state may be attacked on ground it has been obtained by fraud. Dodd v. Holden, 205 Ark. 817, 171 S.W.2d 948 (1943) (decision under prior law).

Right to Contest.

Former Civil Code § 513(5) did not deprive a party interested in the will of a nonresident of the right to contest its probate on the ground of incapacity or undue influence. Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A.L.R. 494 (1920) (decision under prior law).

Time Limit.

Section 28-40-103 which limits the period within which a will may be admitted to probate applies to a nonresident's will which has been admitted to probate in a foreign jurisdiction. Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145, 87 A.L.R.2d 718 (1961).

Case Notes

In General.

A will determines the rights of the parties under it proprio vigora from the death of the testator. Its probate is necessary to fix the right of the executor to execute it, to point out the person authorized to act, and as a basis and prerequisite to letters testamentary, but is not essential to its validity. Rights under it are not lost by failure to probate, and to establish and protect them, the validity of a will may be shown in any court. Arrington v. McLemore, 33 Ark. 759 (1878) (decision under prior law).

Administrator Protected.

Where, relying upon the statutory presumption of the death of the owner of money, an administrator of his next of kin in good faith received it from a bailee, charged himself with it in his account as administrator, and expended part of it in discharging the debt of the estate before he learned that the owner was alive, the administrator will be protected to the extent of the amount so expended. Beam v. Copeland, 54 Ark. 70, 14 S.W. 1094 (1890) (decision under prior law).

Holographic Wills.

The probation of a holographic will cannot give it effect beyond that given to it by statute. Parker v. Hill, 85 Ark. 363, 108 S.W. 208 (1908) (decision under prior law).

Limitations or Laches.

A suit by an heir, presumed dead from absence, to recover money distributed by an administrator may be barred by limitations or laches. Hill v. Wade, 155 Ark. 490, 244 S.W. 743 (1922) (decision under prior law).

Unprobated Wills.

An unprobated will cannot be received in evidence as a muniment of title. Dodd v. Holden, 205 Ark. 817, 171 S.W.2d 948 (1943) (decision under prior law).

Cited: Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Case Notes

Proof of Forgery.

Where a will appeared on its face to have been executed in accordance with statutory requirements and was properly proved and probated, the burden was on the contestants claiming that the signatures of the testator and of the attesting witnesses were forgeries. Hamilton v. Hamilton, 178 Ark. 241, 10 S.W.2d 377 (1928) (decision under prior law).

Research References

ALR.

Limitation of actions submission of will for probate. 2 A.L.R.4th 1315.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Impossibility of performance of condition precedent: effect on testamentary gift. 40 A.L.R.4th 193.

Authority of probate court to depart from statutory schedule fixing fees. 40 A.L.R.4th 1189.

Adopted children as subject to protection of statute regarding right of children pretermitted by will, or statute preventing disinheritance of child. 43 A.L.R.4th 947.

Fraud as extending statutory limitations period for contesting will or its probate. 48 A.L.R.4th 1094.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Research References

Ark. L. Rev.

Leopold and Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131.

Research References

Ark. L. Rev.

Leopold and Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131.

Research References

Ark. L. Rev.

Leopold and Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131.

Research References

Am. Jur. 80 Am. Jur. 2d, Wills, § 934 et seq.

C.J.S. 95 C.J.S., Wills, § 510 et seq.

Case Notes

In General.

Chancery courts have jurisdiction to establish lost or destroyed wills. Dudgeon v. Dudgeon, 119 Ark. 128, 177 S.W. 402 (1915).

Concurrent Jurisdiction.

Lost or destroyed wills are generally established by an action in chancery, but probate court has additional jurisdiction in matters of heirship, adoption, and, concurrent with jurisdiction of other courts, jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Generally speaking, lost or destroyed wills are established by an action in chancery under this section; however, § 28-1-104(a)(6) grants probate court jurisdiction (concurrent with the jurisdiction other courts) over the restoration of lost wills and for the construction of wills when incident to the administration of an estate. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Cited: Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27 (1919); Lumpkin v. Askins, 187 Ark. 1009, 63 S.W.2d 984 (1933).

Research References

Ark. L. Notes.

Lonnie Beard, Questioning the practice of executing duplicate original wills, 2013 Ark. L. Notes 1030.

Case Notes

Authority of Court.

In order to establish lost will, probate court must follow dictates of this section. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Burden of Proof.

To establish lost or destroyed wills, it is not sufficient simply to establish the fact that there was a will; it is essential that the proof show its provisions. Dudgeon v. Dudgeon, 119 Ark. 128, 177 S.W. 402 (1915).

Where a will offered for probate was regular in form and met all the statutory requirements, including attestation of witnesses, the contestants had the burden to introduce testimony which clearly, positively, and satisfactorily established the contents of a subsequent will, and it was not sufficient to show that the will had been executed containing a revocation clause of former wills; they should have introduced testimony showing the entire contents of the will or all the material parts of it. Reed v. Johnson, 200 Ark. 1075, 143 S.W.2d 32 (1940).

The burden is not to overcome the presumption of revocation of a will by clear, satisfactory, and convincing evidence, since only a preponderance of the evidence is required. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958).

Proponent of lost will has the burden of proving execution of will and its contents. One seeking to establish lost will must prove its execution and contents by strong, cogent, and convincing evidence, though he is not required to produce evidence sufficient to remove all reasonable doubt. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Circuit court did not err in finding that subdivision (2)(A) of this section did not require a second will to have physically existed at the time of the father's death, given case law stating that subdivision (2)(A) meant legal existence, not physical existence. Cunningham v. Dillard (In re Estate of Cunningham), 2019 Ark. App. 177, 574 S.W.3d 214 (2019).

Competency of Testimony.

Where the effect of the testimony of a witness testifying to the execution of a lost will is to make him the sole or principal beneficiary, a will cannot be established by his testimony. Allnut v. Wood, 176 Ark. 537, 3 S.W.2d 298 (1928).

Fraudulent Destruction.

Loss or destruction, without the testator's consent or knowledge, of a will deposited in a bank for safekeeping during the testator's lifetime amounted to fraudulent destruction of the will within this section. Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924).

Lost Wills.

A lost will may be proved at a trial although it has never been reinstated as a lost record. Turley v. Evins, 109 Ark. 115, 158 S.W. 1080 (1913).

Until it is shown that a will has been duly executed, there can be no establishment of a lost will. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948).

It was not necessary for the trial judge to determine what became of decedent's will; it was enough that he found that it was not revoked or cancelled by her. Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990).

Evidence was insufficient to prove a lost will since the decedent's failure to revoke or destroy his will as testified to by the appellant did not constitute evidence that the will was in existence at the time of his death and there was no proof in the record that the will was fraudulently destroyed before the decedent died. Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000).

“Lost will” was improperly admitted to probate; the fact that the decedent retained a copy of the lost will was improperly considered by the trial court in determining whether the presumption of revocation was rebutted and the executor named in the lost will did not otherwise meet his burden of establishing the lost will. Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003).

Court properly denied a petition by testator's brother to probate an Israeli will as a lost will where the brother failed to prove by strong, cogent, and convincing evidence that the testator executed the Israeli will; further, the testator's widow and a business associate testified that the signature on the Israeli will was not the testator's. Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).

Circuit court found that the statutory requirements were met and the estate rebutted the presumption of revocation; the testimony overcame the presumption, as there was ample evidence that decedent was determined her son would not inherit anything, plus she believed her estate planning was complete, and the admission of a copy of the will to probate was not found to be error. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875 (2013).

Testimony supported a conclusion that the will was in existence at the time of the decedent's death, and it was not necessary for the circuit court to determine what happened to the decedent's original will; it was enough that the trial court found that the will was not revoked or cancelled by the decedent. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875 (2013).

In a lost will case, there was no strong, cogent, or convincing evidence about the circumstances under which the purported will was produced—it may have been typewritten, handwritten, or printed from a computer. In the absence of proof of one of the necessary elements to prove a lost will, it could not be said that the circuit court erred in finding that the executrix of the decedent's estate failed to prove both the execution and contents of the will. Griffith v. Griffith, 2018 Ark. App. 122, 545 S.W.3d 212 (2018).

Photocopied Copy of Will.

In a proceeding to admit photocopied copy of a decedent's executed will as final will of the decedent under theory that the original will was lost or accidently destroyed, the testimony of the drafting attorney that he had caused a copy of the executed will to be made and kept the copy in his possession and the testimony of the attorney and both witnesses to the will as to how, when, and where the will was executed properly proved the will despite the argument that it was possible to transpose a witness' signature by photocopying, since there was no evidence of such transposition. Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981).

Presumption of Destruction.

The presumption that the testator destroyed a will must be overcome before a lost will can be established. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948).

Presumption of Revocation.

Where there is no direct or positive testimony showing that a will was in existence at time of a decedent's death or that it was fraudulently destroyed before his death, where it is admitted that the will cannot be found, the law presumes the revocation of the will; however, presumption may be overcome by proof. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958).

Where in a will contest although the evidence was sufficient to prove that a will, a copy of which was introduced, was actually executed by the testator, the evidence was insufficient to rebut the presumption that a will in the possession of, or accessible to, the testator was revoked by the testator where the will could not be produced at his death, since there was no evidence offered to suggest that the will had been fraudulently destroyed, misplaced, or destroyed by accident. Wharton v. Moss, 267 Ark. 723, 594 S.W.2d 856 (Ct. App. 1979).

Cited: Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Case Notes

Cited: Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934).

Research References

U. Ark. Little Rock L.J.

Survey — Probate, 10 U. Ark. Little Rock L.J. 599.

Survey of Legislation, 2001 Arkansas General Assembly, Probate Law, 24 U. Ark. Little Rock L. Rev. 631.

Case Notes

Applicability.

Circuit court erred in granting the declaratory judgment in favor of the heirs and ordering the decedent's land to be sold and the proceeds divided accordingly, where the circuit court's ruling was based on an erroneous interpretation and application of § 28-40-104; because the small-estate procedure was excepted from the requirements of § 28-40-104 and this section, the issue of whether the beneficiary commenced a probate proceeding was irrelevant. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687 (2009).

Notice.

Heir's failure to act in substantial compliance with the Probate Code required the court to hold that her disposition of the property was void; she was never appointed as administrator, the decedent's will was never admitted or declared valid, and appellants never received notice of the collection of the small estate, and the administrator's deed was void. Bryant v. Osborn, 2014 Ark. 143 (2014).

Notice took the form recommended by one statute, and the essence of the notice was that one heir was opening the decedent's estate, but the actual probate proceeding she pursued was for the collection of a small estate, and the notice required for that is found in another statute, and appellants testified that they did not receive personal notice, and this testimony was not actually disputed; the trial court clearly erred when it found that the heir satisfied the statutory procedures for collection of a small estate. Bryant v. Osborn, 2014 Ark. 143 (2014).

Relief.

Alleged granddaughter of a decedent was not entitled to relief under Ark. R. Civ. P. 60 from the declaration at the request of the decedent's niece that, inter alia, the alleged granddaughter was not an heir to the estate, as the alleged granddaughter had merely reargued the merits of the case. Cotton v. Robinson, 2015 Ark. App. 451 (2015).

Cited: Woolsey v. Nationwide Ins. Co., 697 F. Supp. 1053 (W.D. Ark. 1988); Woolsey v. Nationwide Ins. Co., 884 F.2d 381 (8th Cir. 1989).

Case Notes

Cited: Woolsey v. Nationwide Ins. Co., 697 F. Supp. 1053 (W.D. Ark. 1988).

Case Notes

Applicability.

Under this section, a decedent's holographic will, executed during his residency in Alberta, Canada, was subject to the laws of Arkansas in the ancillary probate proceedings instituted there. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Where the Arkansas trial court made no finding regarding the solvency of the decedent's estate, it was improper for the trial court to grant summary judgment on the Tennessee creditors' claims against the estate. There was no evidence to indicate that the creditors properly presented their claims in the ancillary action pursuant to this section. Ellingsen v. King, 2009 Ark. App. 655 (2009).

Cited: Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007).

Research References

Ark. L. Rev.

Notices Under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Appointment Discretionary.

The refusal of a court to appoint a Texas domiciliary administrator as ancillary administrator was not an abuse of discretion where all of the assets of the estate, with the exception of an apparent small amount of personal property in Texas, were located in Arkansas, and that property would likely have to be sold for the payment of debts. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).

Evidence that the bulk of decedent's property was located in Perry County, Arkansas, which would probably have to be sold to pay decedent's debts, and that the creditors of decedent lived in Perry County was sufficient to sustain a finding by the probate court that it was not in the best interest of the estate to appoint a Texas administrator located two hundred miles away in Texarkana as ancillary administrator. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).

Case Notes

Failure to Obtain Bond.

Estate administrator's amended complaint for the wrongful conversion of timber, brought on behalf of the estate, was time-barred under § 16-56-105(4) and (6), the three-year statute of limitations for trespass and conversion, and § 16-56-108, the two-year statute of limitations applicable to penal statutes where the penalty goes to the person suing, which included claims brought pursuant to § 18-60-102. It was also barred because the administrator failed to meet the bond requirement of this section. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

Research References

Ark. L. Rev.

Notices Under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Illustrative Cases.

Where the Arkansas trial court made no finding regarding the solvency of the decedent's estate, it was improper for the trial court to grant summary judgment on the Tennessee creditors' claims against the estate. There was no evidence to indicate that the creditors properly presented their claims in the ancillary action in the manner required by Arkansas law and within the time permitted by this section. Ellingsen v. King, 2009 Ark. App. 655 (2009).

Case Notes

Solvency.

Where the Arkansas trial court made no finding regarding the solvency of the decedent's estate, it was improper for the trial court to grant summary judgment on the Tennessee creditors' claims against the estate. In accordance with this section, it was necessary to determine whether the estate was solvent before determining whether certain creditors' claims would be allowed. Ellingsen v. King, 2009 Ark. App. 655 (2009).

Research References

Ark. L. Rev.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Research References

Ark. L. Rev.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Research References

ALR.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal. 33 A.L.R.4th 708.

Am. Jur. 31 Am. Jur. 2d, Exec. & Ad., § 42 et seq.

C.J.S. 33 C.J.S., Exec. & Ad., § 17 et seq.

Research References

Ark. L. Rev.

Notices Under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Absence in Military Service.

A chancery court's refusal to remove testamentary trustee on ground of trustee's absence in the military service, where it appeared he was not neglecting the trust estate, was not an abuse of discretion. Blumenstiel v. Morris, 207 Ark. 244, 180 S.W.2d 107 (1944) (decision under prior law).

Discretion of Court.

This section does not make it compulsory on a court to make an appointment in the order of priority mentioned, and for sufficient cause and in unusual circumstances, as where the applicant of that class is not qualified or, in the court's opinion, will not best manage and improve the estate, the court may refuse an appointment though the applicant is otherwise qualified. Burnett v. United States Fid. & Guar. Co., 228 Ark. 857, 310 S.W.2d 806 (1958); Knight v. Worthen Bank & Trust Co., 233 Ark. 465, 345 S.W.2d 361 (1961).

Although a court is not bound to appoint from the highest priority nominees if it finds sufficient cause or unusual circumstances, in the absence of unusual circumstances or sufficient cause, it is the duty of the court to follow the statutes such as this section as set out by the General Assembly. McEntire v. McEntire, 265 Ark. 260, 577 S.W.2d 607 (1979).

Evidence of Refusal.

Where two or more persons are named as executors, the renunciation or refusal of one to join or take upon himself the execution of a will cannot be evidenced by acts in pais, but must be shown by matter of record. Newton v. Cocke, 10 Ark. (5 English) 169 (1849) (decision under prior law).

Personal representation discharged and released the estate from her right to seek appointment that she otherwise had pursuant to the probate code and the terms of the will. Green v. McAuley, 59 Ark. App. 114, 953 S.W.2d 66 (1997).

Father as Administrator.

Father of minor child killed in automobile accident though divorced was qualified to act as administrator of child where mother who had custody was permanently injured in same accident. Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953).

Grandmother as Administratrix.

Paternal grandmother of decedent was qualified to serve as administratrix even though she was not entitled to a distributive share, because she had been nominated by persons who were. Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993).

Law Applicable to Administrator.

An administrator cum testamento annexo is liable to the same provisions of the law as other administrators, except that he distributes the estate according to the will. Whitlow v. Patterson, 195 Ark. 173, 112 S.W.2d 35 (1937) (decision under prior law).

Minor Nominating Administrator.

A nineteen-year-old widow, although disqualified to serve as administrator of her deceased husband's estate, was not precluded from the right to nominate an administrator. Brod v. Brod, 227 Ark. 723, 301 S.W.2d 448, 64 A.L.R.2d 1147 (1957).

Preferential Right of Creditor.

Where a widow failed or refused to administer the estate of her deceased husband, a creditor had a preferential right to move for the appointment of an administrator. Lineback v. Howerton, 181 Ark. 433, 26 S.W.2d 74 (1930) (decision under prior law).

Priority.

Decedent's father and the decedent's uncle, who was the nominee of his mother, shared equal priority as nominees under (a)(3). In re Estate of Robinson, 36 Ark. App. 1, 816 S.W.2d 896 (1991).

Qualifications of Appointee.

Persons named as a preferred class are subject to the conditions that an administrator must be qualified and must, in the opinion of the court, be the person who can best manage and improve an estate. Woodruff v. Miller, 209 Ark. 759, 192 S.W.2d 527 (1946) (decision under prior law).

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) the court or parties did not know the personal representative was unqualified, so the court had jurisdiction to appoint the personal representative under §§ 28-48-101 to 28-48-103, and (2) another was appointed once the personal representative's disqualification was known. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) § 28-1-115(b) states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) § 28-48-102(d)(2) also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Votes for Administrator.

Trial court should not weigh votes of distributees for administrator of an estate in the order of descent, as prescribed in § 28-9-214, but even if it did so, if the trial court were to find a tie-vote for administrator of an estate at the first level of priority, it would be logical to proceed to the next level to break the tie. Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993).

Cited: Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960); Roberson v. Hamilton, 240 Ark. 898, 405 S.W.2d 253 (1966); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Research References

Ark. L. Rev.

Recent Development: Arkansas Act 438 of 2007, 60 Ark. L. Rev. 1023.

Case Notes

Construction.

Trial court erred in awarding summary judgment to defendants in a wrongful death and survival action brought by a patient's relatives where Acts 2007, chapter 438, amending this section, provided that letters of administration were not necessary to empower a person appointed to act for an estate. Chapter 438 was procedural and was meant to be applied retroactively. Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), rehearing denied, — Ark. —, — S.W.3d —, 2007 Ark. LEXIS 662 (Dec. 6, 2007).

Trial court erred in awarding summary judgment to a doctor in personal representative's medical malpractice and wrongful death action because under this section, it was an order of appointment, not letters of administration, that empowered the personal representative to act on behalf of the patient's estate. Estate of Banks v. Wilkin, 101 Ark. App. 156, 272 S.W.3d 137 (2008).

The 2007 amendment of this section is to be applied retroactively. Estate of Banks v. Wilkin, 101 Ark. App. 156, 272 S.W.3d 137 (2008).

Necessity for Letters.

The probate of a will authorizes the grant of letters testamentary, but, until letters are ordered issued, it gives no authority over the estate. Jackson v. Reeve, 44 Ark. 496 (1884) (decision under prior law).

Administratrix was not required to have executed letters of administration in order to file a complaint against the medical center on June 10, 2003, because the order appointing her administratrix was entered before the complaint was filed, was effective at the time the complaint was filed, and empowered her to act for the estate without the necessity of letters of administration. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Power to Bring Suit.

Son, a foreign administrator of his mother's estate, was subject to the requirements for domiciliary personal representatives pursuant to § 16-61-110, and therefore was required to have been appointed under this section. Because the son had not been appointed administrator of his mother's estate in any state at the time he filed his original complaint for trespass and conversion of timber, he did not have standing to sue; because the complaint was a nullity, a second complaint could not relate back under Ark. R. Civ. P. 15(c). Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

Release of Note.

A release by one of two joint administrators of a note payable to them in their representative capacity was ineffectual to bar recovery thereon. Clark v. Gramling, 54 Ark. 525, 16 S.W. 475 (1891) (decision under prior law).

Validity of Personal Representative's Acts Before Removal.

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) § 28-1-115(b) states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) subdivision (d)(2) of this section also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Case Notes

Appeal.

No appeal is allowed from an order refusing to appoint a special administrator. In re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991).

Under § 28-1-116, any order of a probate court is generally appealable, but under subsection (f) of this section, there can be no appeal from an order appointing or refusing to appoint a special administrator; however, the denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

There can be no appeal from an order refusing to appoint a special administrator. Harwood v. Monroe, 65 Ark. App. 57, 984 S.W.2d 93 (1999).

Appointment for Appeal.

A trial court was authorized to appoint a special administrator to appeal a decision setting aside the will of a deceased where the executor, due to relationship to parties concerned, did not want to take an appeal. Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954).

Insurance Claims.

A special administrator cannot be appointed solely to assert such rights as a claimant might have had against a decedent's insurance carrier. Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970).

There is no authority for the appointment of a special administrator solely for the purpose of receiving proceeds in an action for damages alleged to have resulted from the negligence of a decedent where the prospective plaintiff alleged that the insurance carrier of the decedent fraudulently induced him to delay prosecution of his claim until the time for filing a claim against the estate had expired by falsely representing that it would settle the claim as soon as plaintiff's injuries could be evaluated. Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970).

There was no question that the probate court had jurisdiction to appoint a special administrator in order to perform the particular acts of litigating wrongful death and life insurance actions. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Jurisdiction to Appoint.

Where the heirs at law attacked probate of a will and filed petitions asking for the removal of the executor on the ground that he failed to include certain assets in the inventory and while matters were pending, the probate court granted a petition for appointment of a special administrator for purpose of filing proceedings against executors and others, the appointment of the special administrator was proper since the probate court had original and exclusive jurisdiction to appoint a special administrator. Breshears v. Williams, 223 Ark. 368, 265 S.W.2d 956 (1954).

Nonresident Appointees.

This section authorizes a court to appoint a nonresident as a special administrator. Evans v. Cano Del Castillo, 220 Ark. 350, 247 S.W.2d 947 (1952).

The appointment of Mexican counsel for purpose of filing a wrongful death action on behalf of a deceased was an appointment of a special administrator. Evans v. Cano Del Castillo, 220 Ark. 350, 247 S.W.2d 947 (1952).

An order appointing a nonresident as a special administrator is not appealable. Evans v. Cano Del Castillo, 220 Ark. 350, 247 S.W.2d 947 (1952).

Receipt of Service.

The appointment of a special administrator for the purpose of service in order to fix venue in damage suit based on the negligence of deceased was erroneous, but was valid until order of appointment was vacated, since order was voidable. Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953).

Service in a damage suit on a special administrator appointed for that purpose was valid though the special administrator was thereafter removed and a general administrator appointed. Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953).

Standing.

Order appointing the administratrix on April 11, 2003, as special administratrix specifically stated that the term was for six months; thus, her term expired on October 11, 2003, before she filed complaints against all of the appellees except for the medical center; unless a person was the personal representative or executor of the estate at the time of filing, he had no standing to file a complaint on behalf of the estate and any complaint filed was a nullity, and because the administratrix's complaint was a nullity, her nonsuit on December 6, 2004, did not dismiss these complaints; it dismissed only the properly filed complaint against the medical center, and because the first complaints filed were nullities, the November 17, 2005 complaint was the first complaint filed by a properly appointed personal representative and no savings statute applied; thus, the administratrix's complaint against the medical personnel was barred by the statute of limitations. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Tort Claims.

Probate division of the circuit court had the authority under § 28-53-119 and this section to appoint a special administrator for the limited purpose of pursuing unliquidated tort claims that were not addressed before the estate of the special administrator's parent was closed. Although the circuit court did not use the word “reopen” in its order, its intent was clear enough because it found that the decedent's estate was opened and closed without resolving wrongful death or survival claims and that a special administrator was necessary to pursue the claims. Arman v. Chi St. Vincent Hot Springs, 2019 Ark. App. 187, 574 S.W.3d 731 (2019).

Cited: Constitution State Ins. Co. v. Passmore, 18 Ark. App. 247, 713 S.W.2d 255 (1986); Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998); Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004); Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).

Case Notes

Construction.

The plain language of this section clearly mandates that in situations where there are more than two executors of a decedent's estate the powers given to them may be exercised only by the joint action of the majority of them, unless otherwise provided by the will. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997).

Research References

Ark. L. Rev.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds the Appointment of a Special Personal Representative to an Estate Is Voidable, but Not Void, upon the Discovery of a Disqualifying Characteristic, 66 Ark. L. Rev. 1145 (2013).

Case Notes

Appeal.

The denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Burden of Proof.

Where no evidence or testimony was produced at the hearing to provide any basis for removing the administrator, record before the Supreme Court, consisting solely of the pleadings, did not prove that the probate court committed error as a matter of law in retaining the administrator and holding that alleged conflicts or mismanagement would be cured by appointing a special administrator to pursue appeal of judgment against the estate. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986).

Where motion was made to have person removed as administrator of estate and probate court responded by appointing a special administrator to appeal court decision adverse to the estate but retained such person as administrator for all other purposes, the burden was on movant to present a record on appeal demonstrating that the probate court's decision was clearly erroneous, and in the absence of that showing, the Supreme Court would not reverse. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986).

Effect of Removal.

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) § 28-1-115(b) states that no vacation of a probate court order affects a prior act, (2) subsection (b) of this section states that removing a personal representative does not invalidate prior official acts, and (3) § 28-48-102(d)(2) also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

—Retention of Attorneys.

Where the personal representative of the estate of a person killed in a traffic collision contracted with attorneys to file a wrongful death action, the contract did not confer a vested right on the attorneys to carry the death action to a conclusion, and a successor representative could engage other attorneys. Gentry v. Richardson, 228 Ark. 677, 309 S.W.2d 721 (1958).

Beneficiaries may prefer to have independent counsel to protect their interests in a wrongful death suit, but as long as the code provides that the personal representative is the party to bring the action, that party has the absolute right to choose counsel for that purpose. Should the personal representative or chosen council fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative, and a representative can be removed pursuant to this section if the court finds him unsuitable. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

—Service of Process.

Service of process in a suit on a special administrator appointed for that purpose is valid though the special administrator is thereafter removed and a general administrator appointed. Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953).

Failure to File Account.

It was no excuse for disobedience of a citation issued pursuant to a statute that an administrator had filed an account several years before which the court had not acted upon. Ex parte Pearce, 44 Ark. 509 (1884) (decision under prior law).

Grounds for Removal.

Circuit court did not abuse its discretion in not removing a coexecutor as one of the coexecutors of a decedent's estate, under this section, because (1) although the circuit court found that the coexecutor had made some errors as one of the coexecutors, it also found that the coexecutor was not intentionally attempting to harm the widow; (2) the circuit court did not find that any of the coexecutor's actions endangered the estate property or that they were intended to harm any party; and (3) the circuit court weighed the coexecutor's actions, both positive and negative, and found that, on balance, the positive benefits to the estate outweighed the negative. Taylor v. Woods, 102 Ark. App. 92, 282 S.W.3d 285 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 625 (Aug. 20, 2008).

Trial court did not clearly err in granting a mother's petition to replace a father as guardian of their 21-year-old son, who had Williams syndrome, because the son needed a guardian who was vigilant in ensuring that his needs were met; there were several occasions where the father delayed or denied the son medical attention. Hoffarth v. Harp, 2009 Ark. App. 240, 303 S.W.3d 96 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 684 (May 6, 2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 575 (Sept. 10, 2009).

—Failure Generally.

Where an administrator failed to give bond, failed to receive letters of administration, and generally failed to carry out her duties as an administrator and her health did not permit her to perform these duties, she should have been removed by the court as she was unsuitable and incapable of discharging her trust and had failed to perform the duties imposed by law. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

—Improper Accounting.

Where an administrator failed to file a satisfactory account, although admonished to do so some thirteen years earlier, and where she had persistently acted in furtherance of her own interests in a manner to deprive her stepchildren of benefits, she should be removed. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

—Not Shown.

Although the personal representative may not have done everything he should have done to keep the estate's assets properly maintained, and had made partial distribution without court approval as required by statute, since the right people had received the money and could reimburse it if necessary, insufficient grounds for removal pursuant to subdivision (a)(1) of this section were shown. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).

—Removal Not Required.

There was no error in the probate judge's refusal to find any breach of fiduciary duty that would require removal of the executrix. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

—Unable to Perform.

Where the evidence showed that two sisters' joint guardianship of a third sister's estate was marked by continual quarreling and bickering, the best interests of ward demanded termination of the guardianship, since the guardians in such circumstances were incapable of satisfactorily performing the duties imposed upon them by law and the courts. Omohundro v. Erhart, 228 Ark. 910, 311 S.W.2d 309 (1958).

Instructions to Jury.

In a will contest in which a trust was involved, instructions which told the jury that the testator could appoint whom she pleased for executor of her will and also that probate court had right to remove executor and appoint another in proper case were not erroneous. Bocquin v. Theurer, 133 Ark. 448, 202 S.W. 845 (1918), superseded by statute as stated in, Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964) (decision under prior law).

Interested Persons.

Where the decedent died testate and left them nothing under the will, the decedent's surviving children were not heirs and were not creditors, and were thus not “interested persons” as that term is used in §§ 28-1-102(a)(11), 28-48-107(a), and subdivision (a)(2) of this section. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Jurisdiction.

By the service of a citation, a probate court obtained jurisdiction of the person of an administrator, and any action thereafter revoking his letters, restating his accounts, rejecting former settlements, or ordering distribution of money on hand was within the jurisdiction of the court and not void. Ex parte Pearce, 44 Ark. 509 (1884) (decision under prior law).

Removal Order.

This section authorizes the removal of a personal representative on the court's own motion, provided the removal order complies otherwise with this section's requirements. In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Review.

Decision not to remove the personal representatives was not clearly erroneous, because the appellate court could not say that the circuit courts decision had left a definite and firm conviction that a mistake had been committed, when the circuit court admonished the personal representatives to put the widow's interests above their own since they owed her a fiduciary duty, and the circuit court understood that there was animosity but noted that there would be court supervision of the probate process. Ashley v. Ashley, 2012 Ark. App. 236, 405 S.W.3d 419 (2012).

Cited: Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Jones v. Jones, 301 Ark. 367, 784 S.W.2d 161 (1990); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996); Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997); Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002).

Case Notes

Appointment After Final Settlement.

An order of a probate court appointing an administrator in succession after the former administrator's final settlement had been approved was without jurisdiction and void. Beckett v. Whittington, 92 Ark. 230, 122 S.W. 633 (1909) (decision under prior law).

Appointment Generally.

Personal representative discharged and released the estate from her right to seek appointment that she otherwise had pursuant to the Probate Code and the terms of the will. Green v. McAuley, 59 Ark. App. 114, 953 S.W.2d 66 (1997).

Discretion of Court.

It is within a court's discretion to refuse to permit an interested party to serve as an administrator in succession of an estate where an accounting proceeding has been instituted, since such a party would thereby be assuming the dual role of assailant and defender of the accounting proceeding. Burnett v. United States Fid. & Guar. Co., 228 Ark. 857, 310 S.W.2d 806 (1958).

Where allowing the administrator to resign did not affect the venue fixed in the actions already filed against the estate and remedies were available for the appointment of a successor administrator, the probate judge did not abuse his discretion in permitting the administrator to resign. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

Estoppel to Sue.

Where appellant, as administrator in succession, received without objection from her predecessor certain notes secured by mortgage belonging to the estate, sued and foreclosed the mortgage, both she and her wards, heirs of the deceased, were estopped thereafter to sue her predecessor for the money which the notes represented. Meyer v. Fidelity & Deposit Co., 197 Ark. 418, 122 S.W.2d 586 (1938) (decision under prior law).

Insolvency of Representative.

Upon the insolvency of a bank designated by a testator as his executor and trustee, the chancery court, independently of any provision in a will, properly appointed a trustee in succession. Bieatt v. Echols, 181 Ark. 235, 25 S.W.2d 431 (1930) (decision under prior law).

Interested Persons.

Where a suit had been filed against an estate at a time when the estate had an administrator and the administrator petitioned the court to resign, the parties filing the suit were interested parties and aggrieved parties for the purposes of appealing from probate court orders allowing the administrator to resign. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

Where the decedent died testate and left them nothing under the will, the decedent's surviving children were not heirs and were not creditors, and were thus not “interested persons” as that term is used in §§ 28-1-102(a)(11), 28-48-105(a)(2), and subsection (a) of this section. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Necessity for Appointment.

The necessity for appointment of an administrator de bonis non having been adjudged by probate court was held to be conclusive in a collateral issue. Stewart v. Smiley, 46 Ark. 373 (1885) (decision under prior law).

Powers Generally.

The extent of the power of an administrator de bonis non was held to collect and administer such property and effects of the deceased as were unadministered by the former representative, as remained in specie, and were capable of being ascertained and identified as the specific property of the estate represented by him. Finn v. Hempstead, 24 Ark. (11 Barber) 111 (1863) (decision under prior law).

Prerequisites to Action on Bond.

An administrator in succession must proceed in the probate court against the former executor or administrator for a settlement or an accounting and an order to pay over the sum found due him before he can sue the bondsmen of the former executor or administrator. Statham v. Brooke, 140 Ark. 187, 215 S.W. 581 (1919) (decision under prior law).

Presentation of Claims.

It is not necessary to the validity of the judgment of the circuit court against a deceased administrator's estate relative to his account that it should be presented to his executors. McLain v. Sprigg, 174 Ark. 1052, 298 S.W. 870 (1927) (decision under prior law).

Research References

Ark. L. Rev.

Analyzing the Estate, 21 Ark. L. Rev. 1.

Case Notes

In General.

This section provides formulas to compensate personal representatives and attorneys, but does not limit the type of allowable administrative claims. Eddins v. Style Optics, Inc., 71 Ark. App. 102, 35 S.W.3d 315 (2000).

Attorney's Fees.

The fact that an administrator was authorized by a probate court to institute a suit to recover in proper forum an amount due the estate and employ attorneys, did not give the court in which the suit was instituted jurisdiction to distribute the attorney's fees; rather, the entire fund recovered became the property of the estate to be administered by the probate court. Gilleylen v. Hallman, 141 Ark. 52, 216 S.W. 15 (1919) (decision under prior law).

Where the value of the personalty plus real property was $1,484,200, the attorney's fee of $22,500 was not excessive. Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986).

Amount of attorneys' fees awarded held proper. Adams v. West, 293 Ark. 192, 736 S.W.2d 4 (1987).

This section authorizes the probate court to increase or decrease legal fees in accordance with the value of legal services rendered. Nabers v. Estate of Setser, 310 Ark. 194, 833 S.W.2d 375 (1992).

Award of attorney fees to siblings' brother for legal work on their mother's estate was appropriate because the trial court's order recited the factors taken into consideration in making the award, which was approximately one-third less than the amount authorized by this section. Rollins v. Rollins, 94 Ark. App. 65, 224 S.W.3d 554 (2006).

Fees awarded to an estate's attorney from a testator's son were not excessive under subdivision (d)(3) of this section because the attorney's statement set forth, in detail, the work required to address the son's seemingly endless actions that delayed the proceeding and prevented an orderly distribution of the estate; the son filed numerous, unfounded motions and consistently opposed the actions taken by the executor and other heirs. Shafer v. Estate of Shafer, 2012 Ark. App. 177, 393 S.W.3d 565 (2012).

It was within the trial court's discretion to award attorney's fees to a successor trustee for services that were rendered in connection with the administration of an estate where it was apparent that there was a dispute regarding distribution that would require adjudication by a court, and the successor trustee had litigated whether certain items of real property were trust assets and also the efficacy of the trust documents created by the wife after her husband's death. Cason v. Lambert, 2015 Ark. App. 41, 454 S.W.3d 250 (2015).

—Appeals.

Where those appealing from an order of the probate court allowing attorney's fees failed to bring up the testimony heard in the probate court, the Supreme Court presumed the court's action to have been correct. Brown v. Brown, 222 Ark. 832, 262 S.W.2d 896 (1953).

—Authorization of Employment.

In an order to entitle an attorney to retain a commission out of moneys of an estate collected under the employment of the administrator, it was necessary to show that the probate court authorized the employment. Turner v. Tapscott, 30 Ark. 312 (1874), overruled, Pike v. Thomas, 62 Ark. 223, 35 S.W. 212 (1896) (decision under prior law).

This section specifically authorizes the personal representative to employ legal counsel and contemplates that counsel's fee will be paid by the estate, not the personal representative. Alexander v. First Nat'l Bank, 278 Ark. 406, 646 S.W.2d 684 (1983).

Probate courts can authorize the administrator to employ counsel in the necessary protection of the estate in his hands and may allow fees for such services rendered the administrator to protect and preserve the estate; however, the court has no jurisdiction to award fees for services rendered to an individual beneficiary. Croft v. Clark, 24 Ark. App. 16, 748 S.W.2d 149 (1988).

—Category.

An attorney's fee was held in the same category as necessary expenses and, when allowed, should take its place in the account current, with the probate courts having jurisdiction. Kenyon v. Gregory, 127 Ark. 525, 192 S.W. 887 (1917) (decision under prior law).

—Contracts Not Binding.

Attorneys were not deprived of a property right without due process of law where their contract of employment with an administrator for the purpose of filing wrongful death action was terminated by probate court without notice to them or opportunity to be heard after appointment of successor administrator, since the order of court was purely prospective in operation and did not involve denial of due process. Gentry v. Richardson, 228 Ark. 677, 309 S.W.2d 721 (1958).

A party has no right to make a contract for legal services which is binding on a court; however a court has the power and jurisdiction to approve a claim for legal services made by a party where the court feels the claim is justified. Black v. Thompson, 237 Ark. 304, 372 S.W.2d 593 (1963).

—Discretion of Court.

Where there was no order of the probate court authorizing an administrator to employ an attorney, it was in the discretion of the court to allow him credit for fees paid to an attorney, and its order was conclusive where no abuse was shown. Reynolds v. Canal & Banking Co., 30 Ark. 520 (1875) (decision under prior law).

An attorneys' fees award which was less than the statutory standard set out in this section was not an abuse of court's discretion where the bulk of the services performed by the attorneys in the probate proceedings were done on behalf of the executor in its individual capacity to obtain credits for tax payments made out of the in-state assets of the estate. Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), cert. denied, First Nat'l Bank v. Smith, 439 U.S. 883, 99 S. Ct. 223, 58 L. Ed. 2d 195 (1978).

Where executor's position was in derogation of the interests of the estate as a whole, the trial court abused its discretion in ordering the attorneys' fees to be paid from the assets of the estate. Croft v. Clark, 24 Ark. App. 16, 748 S.W.2d 149 (1988).

The probate judge has authority to approve legal fees in excess of the statutory legal fees under subsection (d) and to approve accounting fees under subsection (e). Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

No abuse of discretion was shown by the trial court in the allowance of legal fees. Nabers v. Estate of Setser, 310 Ark. 194, 833 S.W.2d 375 (1992).

—Evidence.

In the absence of proof that executor and attorney fees are unreasonable or in violation of this section, such fees will be affirmed. Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997), cert. denied, 522 U.S. 820, 118 S. Ct. 73 (1997).

—Liability of Representative.

An administrator could not escape personal liability for an attorney's fee by showing that the court did not authorize the employment of the attorney. Tucker v. Grace, 61 Ark. 410, 33 S.W. 530 (1895) (decision under prior law).

—Not Allowed.

An administrator had no power to bind an estate by an agreement to convey to an attorney a part of the estate as compensation for his professional services in defending an action for the possession of land of the estate. Bryan v. Craig, 64 Ark. 438, 44 S.W. 348 (1897) (decision under prior law).

An attorney's fee was not allowed an administrator for resisting a suit to compel him to do his duty. Jacoway v. Hall, 67 Ark. 340, 55 S.W. 12 (1900) (decision under prior law).

A probate court was without jurisdiction to allow an attorney for heirs a fee out of assets of an estate for resisting a sale of lands to pay debts. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900) (decision under prior law).

Although the statutory fee schedule was not an inflexible maximum where a fee of $2,000 for the preparation of estate tax returns was covered by a separate agreement with an individual as beneficiary of the will rather than as executor and it was not authorized or approved by the probate court, the allowance to attorney of fee for administration work in connection with estate in excess of the fee schedule was not justified and attorney was not entitled to the $2,000 for preparation of estate tax return. Warfield v. Burnside, 240 Ark. 316, 399 S.W.2d 676 (1966).

—Recourse to Equity.

Where a portion of the heirs and distributees employed an attorney to contest the settlement of the executor, the probate court had no power to direct the payment of the attorney's fee by the executor out of the residuary fund of the estate; if it was a proper case for contribution by all interested in the estate, the remedy was in chancery only. McPaxton v. Dickson, 15 Ark. (2 Barber) 97 (1854) (decision under prior law).

An attorney could, in equity, subject the assets of an estate to the payment of his fee where his services were of value to the estate and the administrator was insolvent. Pike v. Thomas, 65 Ark. 437, 47 S.W. 110 (1898) (decision under prior law).

Expenses.

An administrator was held to be a trustee and could not profit on claims against the estate; rather, he would be allowed only what he paid for them, plus interest. Wolf v. Banks, 41 Ark. 104 (1883) (decision under prior law).

An executor or administrator was entitled to be indemnified out of the assets of the estate for expenditures made or liabilities incurred in the legitimate exercise of his trust. State ex rel. Altheimer v. Hunter, 56 Ark. 159, 19 S.W. 496 (1892) (decision under prior law).

—Funeral.

Although an executor voluntarily paid the funeral expenses of the deceased, he was entitled to credit therefor as expenses incident to administration of the estate. Holt v. Cassinelli, 203 Ark. 1138, 160 S.W.2d 877 (1942) (decision under prior law).

—Insurance Premiums.

Allowance of insurance premiums paid by a personal representative was justified. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918) (decision under prior law).

—Personal Expenditures.

An administrator was entitled to his advances for the estate plus six percent simple interest. Trimble v. James, 40 Ark. 393 (1883) (decision under prior law).

—Preservation of Estate.

Money expended by an administrator in the preservation of an estate could be allowed as expenses of administration on final settlement, but a representative of a deceased administrator could not collect expenses of administration from an estate unless there had been an accounting. Smith v. Davis, 51 Ark. 415, 11 S.W. 681 (1889) (decision under prior law).

An executor not entitled to compensation under a will was entitled to allowance for legitimate expenses incurred in the care and management of the estate. Hill v. Zanone, 184 Ark. 594, 43 S.W.2d 238 (1931) (decision under prior law).

—Statement Required.

An administrator was entitled to ordinary expenses, but needed to file an itemized statement showing the necessity therefor. Scroggins v. Osborn Co., 181 Ark. 424, 26 S.W.2d 95 (1930) (decision under prior law).

—Traveling.

It was not error to allow an administrator necessary traveling expenses. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918) (decision under prior law).

Personal Representatives' Fees.

Former statute fixed the compensation of an administrator for his entire trouble and risk in attending to the settlement of an estate, and not merely for collecting its debts. The probate judge could allow as such compensation the maximum percent upon the value of the estate fixed by statute, or he could, in the exercise of sound discretion, allow less than the maximum, according to the circumstances of the case. Ex parte Bell, 14 Ark. (1 Barber) 76 (1853) (decision under prior law).

A probate court may fix the compensation to be allowed an administrator, but it cannot exceed the rates set by statute. Souter v. Fly, 182 Ark. 791, 33 S.W.2d 408 (1931) (decision under prior law).

Where the successor administrator collected rents and made disbursements, and there was no evidence that it made any discretionary or time-consuming judgments with respect to the management of the real estate, there was no evidence of “substantial services” having been performed; therefore, the successor administrator was not entitled to extra fees in excess of the listed percentages. Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986).

Circuit court did not abuse its discretion in allowing a coexecutor of a decedent's estate a $5000 executor's fee, under subsection (c) of this section, because the circuit court considered the proper factors because (1) the coexecutor was found not to have acted so as to intentionally harm the widow and to have provided valuable services to the estate; (2) the circuit court found that the undervaluation of the estate property could have harmed the heirs in terms of estate taxes and that the coexecutor's actions (such as the construction of the will) benefitted some of the heirs to the detriment of other heirs; and (3) the circuit court found that a higher fee was warranted. Taylor v. Woods, 102 Ark. App. 92, 282 S.W.3d 285 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 625 (Aug. 20, 2008).

Fees awarded to an executor from a testator's son were not excessive under subsection (a) of this section because the executor, who coordinated a judicial sale of the real and personal property while struggling with the behavior of the son, testified about the necessity of the services, the lack of duplication, and the huge role that the son played in delaying the closing of the estate. Shafer v. Estate of Shafer, 2012 Ark. App. 177, 393 S.W.3d 565 (2012).

—Allowance on Appeal.

Upon appeal from a probate court's confirmation of an administrator's account of settlement, he could be allowed commissions in the circuit court, though he credited himself with none and none were allowed by the probate court. Williams v. Cubage, 36 Ark. 307 (1880) (decision under prior law).

—Contracts.

An administrator could not bind an estate by contract to pay his fee. Pike v. Thomas, 62 Ark. 223, 35 S.W. 212 (1896) (decision under prior law).

—Credit for Uncollectible Items.

The destruction or larceny of notes did not entitle the administrator to credit for them; they could still be collected by a suit for lost instruments. Williams v. Cubage, 36 Ark. 307 (1880) (decision under prior law).

The fact that an account current was approved without allowing credit for uncollected items did not constitute a final adjudication that such items were collectible, nor preclude an order allowing credit therefor when it was found that the items were uncollectible. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918) (decision under prior law).

—Determination.

Where evidence was to the effect that executor operated testator's department store for about one year during which time about $158,000 passed through its hands and there was hardly a day during a two-year period that executor did not perform some duty in connection with the administration of the estate and where the personal property of the estate was valued at $77,977.98 and the real estate at $66,000, an executor's fee of $5,000 was held to be not excessive. However, on rehearing where it was established that the actual operation of the store was under the management of third persons and that the work by the executor was not substantially greater than that usually done by personal representatives the fee was reduced to $2,489.34 as to the personalty and $250 as to the realty. Saad v. Arkansas Trust Co., 225 Ark. 33, 280 S.W.2d 894 (1955).

—Discounting Claims.

An administrator was not allowed to profit by discounting claims. Jacoway v. Hall, 67 Ark. 340, 55 S.W. 12 (1900) (decision under prior law).

—Discretion of Court.

Allowance of commissions to executor, for his risk and trouble and for improvements put on testator's real estate, was a matter within the jurisdiction of the probate court, and its judgment was conclusive in the absence of showing fraud in the allowance. Ringgold v. Stone, 20 Ark. (7 Barber) 526 (1859) (decision under prior law).

It was within the discretion of the probate court to allow the maximum compensation for services as an administrator, and this discretion would not be disturbed unless abused. Triplett v. Chipman, 153 Ark. 12, 240 S.W. 23 (1922) (decision under prior law).

A trial court did not abuse its discretionary authority in allowing only a $4,000 executor's fee where a five-year delay in administration of an Arkansas estate was primarily due to the executor's initiating the original probate in Mississippi in disregard of advice of counsel. Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), cert. denied, First Nat'l Bank v. Smith, 439 U.S. 883, 99 S. Ct. 223, 58 L. Ed. 2d 195 (1978).

—Foreclosure of Mortgage.

An administrator was not entitled to a commission on the proceeds of a sale of property belonging to his intestate made under a decree in chancery foreclosing a mortgage. Reynolds v. Canal & Banking Co., 30 Ark. 520 (1875) (decision under prior law).

—Incorporation by Reference.

Where a will provided that the executor should be allowed such fees as by law are allowed to administrators and executors, the executor was entitled to the fees allowed by statute. State Nat'l Bank v. Fisher, 186 Ark. 42, 52 S.W.2d 51 (1932) (decision under prior law).

—Limitation in Wills.

A testator could limit the executor's compensation by terms of his will, as statutory provisions applied only when a will did not otherwise provide. Gordon v. Greening, 121 Ark. 617, 182 S.W. 272 (1916) (decision under prior law).

—Not Allowed.

If nothing passed through an administrator's hands, he was entitled to no fees. Adamson v. Parker, 74 Ark. 168, 85 S.W. 239 (1905) (decision under prior law).

The entitlement of an administrator to compensation was questionable where she had not made a proper accounting, where the real property had not become an asset in the hands of the personal representative, where she had not been authorized to operate a business, and by the fact that she would receive and retain all the personal estate. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

—Widow.

Where a widow was the administrator of the estate, it did not affect her right to receive commissions. Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917) (decision under prior law).

A widow was entitled to only $3,000 as compensation for her services as executor, pursuant to this section, rather than the statutory maximum of $49,000, which she computed based on an estate in excess of $1,770,000, since the evidence showed that she was 87 years old, in poor health, and that her brother, an attorney and accountant, largely performed the work done. Hanna v. Hanna, 273 Ark. 399, 619 S.W.2d 655 (1981).

Cited: City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986); Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000).

Case Notes

Attorney's Fees Allowed.

Where attorneys appointed by the court to represent an administrator had worked two or three weeks negotiating with the proper authorities for the restoration of a drug and narcotic permit in connection with the operation of a drug store and had had weekly conferences with the administrator over a period from June 21, 1960, through January 31, 1962, an attorney's fee of $2,500 for such services was justified, it being less than the statutory fee. Black v. Thompson, 235 Ark. 725, 361 S.W.2d 753 (1962).

Attorney's Fees Not Allowed.

Decedent's brother, who unsuccessfully attempted to probate an allegedly lost will of the decedent, was not entitled to recover fees and expenses under subsection (a) of this section as he was not nominated as the executor of that will and he did not qualify as an administrator with the will annexed as the will was never deemed valid and admitted to probate. Abdin v. Abdin, 101 Ark. App. 56, 270 S.W.3d 361 (2007).

Contractual Arrangement with Beneficiary.

Where attorneys entered into a contractual arrangement with the principal beneficiary of a will who was also the executor named therein for a contingent fee, they were estopped from pursuing the alternative course of seeking a fee from the decedent's estate on a quantum meruit basis when defense of principal will proved unsuccessful. Warfield v. Burnside, 240 Ark. 316, 399 S.W.2d 676 (1966).

Good Faith.

The good or bad faith of a person offering a will for probate is not controlling as to the allowance of the attorney fees, but rather the fact that the attorneys were appointed by the court to represent the administrator of the estate and thereafter rendered services in behalf of the estate entitles them to remuneration. Black v. Thompson, 235 Ark. 725, 361 S.W.2d 753 (1962).

The record did not support allegation that administrator did not act in “good faith” under this section in offering the will for probate, and, in considering her background, it could not be assumed that she acted in bad faith when in fact she would have been remiss in her duty had she failed to offer the will for probate, especially where it was not established that she helped procure it. Black v. Thompson, 235 Ark. 725, 361 S.W.2d 753 (1962).

Research References

Am. Jur. 31 Am. Jur. 2d, Exec. & Ad., § 122 et seq.

C.J.S. 33 C.J.S., Exec. & Ad., §§ 71-77.

Case Notes

Action on Bond.

A cause of action did not accrue upon an administrator's bond until his accounts were settled and an order made by the court directing him to pay the amount found due to the parties entitled to receive it. George v. Elms, 46 Ark. 260 (1885); State ex rel. McCreary v. Roth, 47 Ark. 222, 1 S.W. 98 (1886) (preceding decisions under prior law).

When a probate court made a settlement of a deceased administrator's accounts before an administrator was appointed on his estate, neither the principal nor his sureties were legally before the court, and such settlement would not be a cause of action on the bond. State v. Drake, 52 Ark. 350, 12 S.W. 706 (1889) (decision under prior law).

If the accounts of an administrator showing nothing due from him were confirmed by the probate court, no liability would rest upon his sureties until the settlement thus made was impeached in a court of equity. Crouch v. Edwards, 52 Ark. 499, 12 S.W. 1070 (1889) (decision under prior law).

Authority of Court.

It was within the power of the probate court, on the application of a surety in an administrator's bond, to require the administrator to give a new bond when it was made to appear that the sureties in his bond were insufficient. Renfro v. White, 23 Ark. (10 Barber) 195 (1861) (decision under prior law).

On affidavit filed by interested party in an estate that the administrator was insolvent, it was error for the probate court to revoke the letters of administration without requiring the administrator to give additional bond and without showing that his securities were not ample. Collier v. Kilcrease, 27 Ark. 10 (1871) (decision under prior law).

A probate court had no authority, on application of guardian, to substitute new bonds and sureties for old bonds and sureties theretofore approved and accepted by it for reasons which are not provided by statute. White v. New Amsterdam Cas. Co., 195 Ark. 249, 111 S.W.2d 477 (1937) (decision under prior law).

Contribution by Cosurety.

Where a surety upon a guardian's bond who had been compelled to pay over money due by the guardian upon termination of the fiduciary relation sued his cosurety for contribution, it was no defense that the plaintiff consented that the guardian might retain and use the ward's money by paying interest therefor and that the probate court thereupon made an order reciting such consent and authorizing the guardian to retain the money “until further order.” Berton v. Anderson, 56 Ark. 470, 20 S.W. 250 (1892) (decision under prior law).

Death of Surety.

The liability of a surety on an administrator's bond was not discharged by the surety's death, but extended to the entire term of the administrator. Hecht v. Scaggs, 53 Ark. 291, 13 S.W. 930 (1890) (decision under prior law).

Direction Against Bond in Will.

Where a will provided for appointment of widow as executor without giving bond and without making reports and settlements, the remainderman in the estate had no right to require a bond and an accounting from the widow who was a life tenant, without alleging and proving mismanagement, waste, or conversion. Dillen v. Fancher, 197 Ark. 995, 125 S.W.2d 110 (1939) (decision under prior law).

Where letters testamentary were granted by the clerk, in vacation, he had no discretion in any case to dispense with the bond required by statute, even where the will directed otherwise; rather, in such matters the probate court had a large discretion, which would not be controlled by the Supreme Court, unless abused. Dillen v. Fancher, 197 Ark. 995, 125 S.W.2d 110 (1939) (decision under prior law).

Discharge of Sureties.

The sureties on an administrator's bond could apply to the probate court to be discharged on any statutory ground; however, such an application could not be made under a former statute relating to the discharge of sureties on official bonds. Valcourt v. Sessions, 30 Ark. 515 (1875) (decision under prior law).

Where guardian and sureties were before the probate court and an order permitting substitution of surety, approving new bond, and releasing the sureties on the original bond was made by the court of its own motion, but not entered on the record, an order nunc pro tunc, directing that it be shown on the judgment record, was proper, but the order did not discharge former sureties from liability that might have accrued prior to the order. Williams v. Goodwin, 200 Ark. 897, 141 S.W.2d 515 (1940) (decision under prior law).

Liability of Guardian.

The primary liability of a guardian who had been removed by the court should have been determined before a judgment was entered against the surety on the guardian's bond. Continental Ins. Cos. v. Estate of Rowan, 250 Ark. 724, 466 S.W.2d 942 (1971).

Necessity of Bond.

The giving of a bond by a guardian was held to be a condition precedent to the issuance of letters of guardianship and the authority to act as a guardian. Norris v. Dunn, 184 Ark. 511, 43 S.W.2d 77 (1931) (decision under prior law).

Cited: Sulcer v. Northwestern Nat'l Ins. Co., 263 Ark. 583, 566 S.W.2d 397 (1978).

Case Notes

Failure to Furnish Bond.

Where an administrator fails to furnish bond and otherwise fails to qualify as administrator, the court has full power to remove the administrator on its own initiative. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Case Notes

Relief from Original Liability.

An additional or second administration bond entered into by order of the probate court on the death of a security in the first bond, whether upon or without the complaint of an interested party, relieved the securities in the first bond from all liability occurring after execution of the second bond. State v. Stroop, 22 Ark. (9 Barber) 328 (1860) (decision under prior law).

Case Notes

Sufficiency.

An administrator's bond was held to be a statutory bond; if insufficient by reason of any inadvertent omission from its express terms, such deficiency had to be deemed as supplied by the law, and additions to the bond not authorized by law would be declared as surplusage. Meyer v. Fidelity & Deposit Co., 197 Ark. 418, 122 S.W.2d 586 (1938) (decision under prior law).

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Case Notes

Substitutions of Sureties.

A probate court had no authority, on application of a guardian, to substitute new bonds and sureties for old bonds and sureties theretofore approved and accepted by it, for reasons which were not provided by statute. White v. New Amsterdam Cas. Co., 195 Ark. 249, 111 S.W.2d 477 (1937) (decision under prior law).

Where guardian and sureties were before the probate court and an order permitting substitution of surety, approving new bond, and releasing the sureties on the original bond was made by the court of its own motion, but not entered on the record, an order nunc pro tunc, directing that it be shown on the judgment record, was proper; but the order did not discharge former sureties from liability that might have accrued prior to the order. Williams v. Goodwin, 200 Ark. 897, 141 S.W.2d 515 (1940) (decision under prior law).

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Case Notes

Cause for Substitution of Sureties.

A probate court had no authority, on the application of a guardian, to substitute new bonds and sureties for old bonds and sureties theretofore approved and accepted by it, for reasons which were not provided by statute. White v. New Amsterdam Cas. Co., 195 Ark. 249, 111 S.W.2d 477 (1937) (decision under prior law).

Entry of Record.

Where the guardian and sureties were before the probate court and an order permitting substitution of surety, approving new bond, and releasing the sureties on the original bond was made by the court of its own motion, but not entered on the record, an order nunc pro tunc, directing that it be shown on the judgment record, was proper; but the order did not discharge the former sureties from liability that might have accrued prior to the order. Williams v. Goodwin, 200 Ark. 897, 141 S.W.2d 515 (1940) (decision under prior law).

Written Demand.

An order requiring a personal representative to secure a bond was proper and did not constitute a deprivation of due process where (1) the appellees complied with subsection (c)(2) by filing their written demand (i.e., their administrative claim) and petitioning the probate court for an order directing the estate's assets be returned or, alternatively, requiring the personal representative to secure a bond, (2) the petition was served upon the personal representative, and (3) the probate court held a hearing on the petition and granted the relief sought in the petition. Eddins v. Style Optics, Inc., 71 Ark. App. 102, 35 S.W.3d 315 (2000).

Case Notes

Personal Representative in Succession.

An administrator in succession was not charged with the illegal acts of his predecessor to the extent that he, if he accepted the trust when appointed and when he made bond, had to take such trust coupled with the mandatory duty to determine the legality or illegality of his predecessor's conduct and act accordingly. Meyer v. Fidelity & Deposit Co., 197 Ark. 418, 122 S.W.2d 586 (1938) (decision under prior law).

Case Notes

Accrual of Action on Bond.

The statute of limitations did not begin to run in favor of a surety on a deceased guardian's bond until there was a final settlement of the guardian's accounts in the probate court and an order to pay over the balance due the ward. State ex rel. Davis v. Buck, 63 Ark. 218, 37 S.W. 881 (1896); Rhea v. Bagley, 66 Ark. 93, 49 S.W. 492 (1899) (decisions under prior law).

Upon termination of the guardianship relation and an adjustment of the accounts and establishment of the amount due from the guardian, the cause of action accrued at once, if there was some person capable of suing; if there was no such person, then the cause of action was postponed until there was someone capable of suing. Wallace v. Swepston, 74 Ark. 520, 86 S.W. 398 (1905) (decision under prior law).

Liability of Sureties.

Where a guardian secured a new bond, but there was no discharge of old bond, both sets of bondsmen could have been liable. Beakley v. Cunningham, 112 Ark. 71, 165 S.W. 259 (1914) (decision under prior law).

Order of Distribution.

An order of a probate court ascertaining amount of funds in hands of administrator and directing him to pay the funds into court for benefit of heirs, without naming them, was not an order of distribution sufficient to authorize heirs to sue on administrator's bond to recover funds for their own use. Ferguson v. Carr, 85 Ark. 246, 107 S.W. 1177 (1908) (decision under prior law).

Prerequisite to Suit.

A suit could not be brought on a bond until there was an order of the probate court to pay over. Connelly v. Weatherford, 33 Ark. 658 (1878); Vance v. Beattie, 35 Ark. 93 (1879); State ex rel. Davis v. Buck, 63 Ark. 218, 37 S.W. 881 (1896); Beakley v. Cunningham, 112 Ark. 71, 165 S.W. 259 (1914) (decisions under prior law).

The settlement by the probate court of a deceased guardian's account was sufficient to support an action against his surety for the amount found due, though no order of payment was made. Smith v. Smithson, 48 Ark. 261, 3 S.W. 49 (1887) (decision under prior law).

The rule that a cause of action against a surety on a guardian's bond did not accrue until the amount of the liability was established by an order of the probate court and an order was made by such court directing the amount to be paid over was limited, so far as the prerequisite of an order to pay over was concerned, to settlements which were not final and where the guardianship was left continuing. Wallace v. Swepston, 74 Ark. 520, 86 S.W. 398 (1905) (decision under prior law).

An action on a bond was not maintainable until the probate court had adjusted the accounts of the administrator and ordered him to pay over the amount found to be in his hands. Planters' Mut. Ins. Ass'n v. Harris, 96 Ark. 222, 131 S.W. 949 (1910) (decision under prior law).

Revivor.

Statute for reviving judgment against administrators held not to apply to probate judgments. Rose v. Thompson, 36 Ark. 254, 1880 Ark. LEXIS 90 (1880), overruled in part, Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973) (decision under prior law).

Rights of Distributees.

A distributee of an estate was not entitled to bring an action against the administrator for waste or conversion of the assets without showing that the claims of creditors had been satisfied; however, if judgment was obtained, the amount recovered should have been paid to the administrator in succession, to be distributed under direction of the probate court. Brice v. Taylor, 51 Ark. 75, 9 S.W. 854 (1888) (decision under prior law).

The failure of administrator to comply with an order of distribution was such a breach of his bond as justified action by a distributee. Ferguson v. Carr, 85 Ark. 246, 107 S.W. 1177 (1908) (decision under prior law).

Subrogation.

Sureties upon a deceased guardian's bond who had been forced to make good his default would be subrogated to the remedy of the ward against the guardian's homestead. State ex rel. Luck v. Atkins, 53 Ark. 303, 13 S.W. 1097 (1890) (decision under prior law).

Research References

Am. Jur. 31 Am. Jur. 2d, Exec. & Ad., § 607 et seq.

C.J.S. 34 C.J.S., Exec. & Ad., § 974 et seq.

Case Notes

Appointment Unnecessary.

A sheriff could act as public administrator by virtue of his office without appointment by the probate court. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931) (decision under prior law).

Assumption of Administration.

Until the sheriff assumed the duty of administering or was directed by the court to do so, he did not become the administrator of a particular estate and could not be required to allow or reject a claim against it. Williamson v. Furbush, 31 Ark. 539 (1876) (decision under prior law).

The general power to act as public administrator could be assumed by the sheriff taking the property into possession, if necessary, to prevent waste or he could do so upon the order of the probate court. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931) (decision under prior law).

Jurisdiction of Probate Court.

A public administrator could, in the first instance, act on his own judgment, but the probate court had jurisdiction to determine all questions arising in the progress of the administration. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931) (decision under prior law).

Power Generally.

A public administrator had no more or greater power, authority, or rights than other administrators. State v. Rottaken, 34 Ark. 144 (1879) (decision under prior law).

Refusal to Administer.

Where there was no administration upon an estate, and the sheriff refused to administer, and the creditor was a nonresident and could not administer, they afforded no grounds for chancery to assume jurisdiction to administer the estate. The probate court had exclusive original jurisdiction, and the sheriff could be compelled to administer. Flash, Lewis & Co. v. Gresham, 36 Ark. 529 (1880) (decision under prior law).

Case Notes

Liability.

Where the sheriff took charge of the estate and filed a settlement showing him indebted to the distributees, he was not relieved from liability for the amount so shown to be due by the fact that no record was found showing the administration. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931) (decision under prior law).

Settlement of Account.

An order of the probate court approving the settlement of a sheriff as public administrator indorsed on the back of the settlement was a valid judgment although not recorded. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931) (decision under prior law).

Case Notes

Liability.

The bond of a sheriff executed in his capacity of public administrator was primarily liable for any losses resulting from his failure to comply with its conditions, and remedies on it had to be exhausted before recourse could be had to his official bond as sheriff. Briggs v. Manning, 80 Ark. 303, 80 Ark. 304, 97 S.W. 289 (1906) (decision under prior law).

Case Notes

Applicability.

Where defendant also served as a co-executrix of her mother's estate, subdivision (b)(2) of this section permitted her to preserve and maintain real property in the estate, but where the title to the real property vested in defendant immediately on her mother's death, the circuit court erred in approving any expenditures for the property made after the mother's death. Monk v. Griffin, 92 Ark. App. 320, 213 S.W.3d 651 (2005).

Where decedent's will devised her real property to her daughter so long as she outlived her brother, the property passed to decedent's daughter and vested in fee simple absolute; the property was not an asset in the hands of the estate representative for purposes of this section. Therefore, a receipt for assets of the estate signed by the family after decedent's death did not constitute a family settlement agreement which altered the terms of decedent's will. Butler v. Dike, 2009 Ark. App. 435, 320 S.W.3d 647 (2009).

—Personalty.

Title to personal property of an intestate became vested in the personal representative when appointed and remained so vested until distribution upon proper order of the probate court; heirship was determined at the time of distribution. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950) (decision under prior law).

—Realty.

An administrator had no control of an intestate's lands, nor the rents thereof, when they were not needed for the payment of debts. Stewart v. Smiley, 46 Ark. 373 (1885); Hamilton Coal & Coke Co. v. Johns, 175 Ark. 1146, 1 S.W.2d 812 (1928); Mayo v. Bank, 188 Ark. 330, 65 S.W.2d 549 (1933) (preceding decisions under prior law).

An administrator was not entitled to possession of lands of which his intestate had only a naked legal title without substantial interest. Chowning v. Stanfield, 49 Ark. 87, 4 S.W. 276 (1886) (decision under prior law).

An administrator could not stand for or represent the heirs when the title to land was involved, nor was he entitled to the possession of lands unless they were needed to pay debt of the deceased. Jones v. Jones, 107 Ark. 402, 155 S.W. 117 (1913) (decision under prior law).

While lands were assets in the hands of an executor or administrator for purpose of payment of debts of estate, yet the title to the lands passed direct to the heirs upon death of an intestate subject only to right of administrator to have the lands sold if it was necessary for payment of the decedent's debts. Pfaff v. Heizman, 218 Ark. 201, 235 S.W.2d 551, 23 A.L.R.2d 957 (1951) (decision under prior law).

The provisions of this section were not designed to make an administrator automatically entitled to the real estate of a deceased intestate and did not change the rule that legal title to an intestate's land upon his death vests and descends to his heirs at law, subject to the widow's dower and the payment of debts through his administrator. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955).

Under this section, real property is an asset in the hands of an administrator only when a court finds that it should be sold, mortgaged, leased, or exchanged for purposes stated in § 28-51-103. Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

Only when real property has become an asset in an administrator's hands may he, in the language of this section, maintain or defend an action for the possession thereof, or to determine or protect the title thereto. Estate of Knott v. Jones, 14 Ark. App. 271, 687 S.W.2d 529 (1985).

Applicability.

—Realty.

By failing to challenge a land-sale agreement which involved the transfer of property by the decedent to the executrix's daughter less than 2 years before the decedent's death, the executrix did not completely discharge her duty to marshal all assets of the estate. Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998).

Bankruptcy.

Where the estate of a deceased was, in the course of administration, with unpaid debts for which the land was liable, and physical possession of the land was in a person claiming under a deed of heirs at law of the decedent who filed a voluntary petition in bankruptcy more than four months before the probate court obtained jurisdiction, it was held that the bankruptcy court did not have jurisdiction to enjoin the probate court from selling the land for the debts of the estate. Bank of Hamburg v. Tri-State Sav. & Loan Ass'n, 69 F.2d 436 (8th Cir. 1934) (decision under prior law).

Ejectment.

An administrator was entitled to the possession of any real estate of which his intestate died seized and could maintain ejectment against the heirs at law, except the widow or her tenant occupying the mansion and farm attached before the assignment of dower. Carnall v. Wilson, 21 Ark. (8 Barber) 62 (1860) (decision under prior law).

The legal title to an intestate's lands, upon his death, descended to and vested in his heirs at law, subject to the widow's dower and the payment of debts through his administrator. Except against the widow's dower, the administrator could, until the debts were all paid, enforce his right to the possession thereof by maintaining or defending an ejectment action. Culberhouse v. Shirey, 42 Ark. 25 (1883) (decision under prior law).

The lands of a decedent were assets in the hands of an executor or administrator and deemed in his possession and subject to his control for the payment of debts of the decedent; the administrator could maintain ejectment to recover possession of lands when necessary for the payment of the debts of the estate without joining the heirs in the suit. Burton v. Gorman, 125 Ark. 141, 188 S.W. 561 (1916) (decision under prior law).

Execution of Mortgage.

Before a probate court could acquire jurisdiction to authorize an administrator to mortgage real property, a petition had to show that indebtedness to be paid from proceeds for the loan constituted a lien at the time the intestate died, unless the court order recited that independent evidence was presented showing a jurisdictional fact. Reed v. Futrall, 195 Ark. 1044, 115 S.W.2d 542 (1938) (decision under prior law).

Where an order was entered by the probate court which authorized the executor to borrow funds for purposes which fell within those permissible ones listed in § 28-51-103, the mortgaged land became an asset in the hands of the executor and subject to the probate court's jurisdiction under subdivision (b)(1). Rowland v. Farm Credit Bank, 41 Ark. App. 79, 848 S.W.2d 433 (1993).

Where the court authorized the mortgaging of real estate which was an asset in the hands of the executor, for purposes which were not themselves authorized by statute, it did not serve to oust the court of jurisdiction or to render its order void and subject to collateral attack. Rowland v. Farm Credit Bank, 41 Ark. App. 79, 848 S.W.2d 433 (1993).

Foreign Representatives.

A foreign administrator could not sue for possession of intestate's lands in this state. Fairchild v. Hagel, 54 Ark. 61, 14 S.W. 1102 (1890) (decision under prior law).

Leases.

In an administrator's suit to recover the royalty on coal lands of the intestate leased for five years to the defendant, in which it was claimed that the lease was void because the lands were not assets in the administrator's hands and could not be leased by the administrator without a court order, it was held that, since the defendant had possession of the land for three years under the lease and had paid royalties for two years, the relation of landlord and tenant was established and the lease was enforceable. Hamilton Coal & Coke Co. v. Johns, 175 Ark. 1146, 1 S.W.2d 812 (1928) (decision under prior law).

An administrator was without authority to execute a lease of lands which were in his hands only for the purpose of paying debts. Bingham v. Rhea, 201 Ark. 200, 143 S.W.2d 1087 (1940) (decision under prior law).

Parties.

In an action by an administrator for the possession of lands claimed by his intestate, he could have his right to possession for the purpose of administration determined without the heirs being parties, inasmuch as such actions only affected the mere right to possession between the parties; however, when the title was affected, the heirs were necessary parties. Chowning v. Stanfield, 49 Ark. 87, 4 S.W. 276 (1886) (decision under prior law).

A personal representative who was timely substituted as the plaintiff in an estate's suit for an injunction had a property interest, giving her standing to sue as the real party in interest. White v. Welsh, 327 Ark. 465, 939 S.W.2d 299 (1997).

Judgment creditors were indispensable parties to a suit to enjoin the administrator from selling the real property of the estate for the payment of their judgments. Evans v. Gorman, 115 F. 399 (C.C.E.D. Ark. 1902) (decision under prior law).

A decedent's administrator was a necessary party to a suit for specific performance of an alleged oral contract whereby the decedent was to convey to the plaintiff all the decedent's real and personal property for the plaintiff's services where the administrator claimed the right of possession of the realty to pay the estate debts. Jensen v. Housley, 207 Ark. 742, 182 S.W.2d 758 (1944) (decision under prior law).

Pleadings.

Where a decedent, prior to his death, became indebted on a note to the defendant and at the same time executed a deed to the defendant, a complaint by the administrator of decedent's estate which alleged that personal assets of the estate were insufficient to pay the debts of the estate and which further alleged that deed was a mortgage and that land was an asset of the estate subject to the mortgage of the defendant, asked that the court declare the deed a mortgage and that defendant be required to foreclose the mortgage, and requested that, upon sale, the surplus be turned over to the plaintiff as administrator stated a good cause of action. Tyler v. Morgan, 214 Ark. 667, 217 S.W.2d 606 (1949) (decision under prior law).

Allegation in suit by an administrator to recover personalty from defendants that defendants had received and converted personalty of deceased stated good cause of action under this section. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955).

Where there was no allegation that the property in question had ever become an asset in the hands of an administrator, the administrator was not entitled, under this section, to maintain an action to recover real property of decedent allegedly obtained by defendants by duress and undue influence on the decedent. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955).

Purchases by Representatives.

Where the property of a decedent was sold by order of a chancery court, an administrator could not purchase at the sale. Reeder v. Meredith, 78 Ark. 111, 93 S.W. 558 (1906); Eagle v. Terrell, 95 Ark. 434, 130 S.W. 550 (1910) (preceding decisions under prior law).

Recovery of Proceeds.

A probate court has the authority to order and direct an administrator to bring suit for benefit of an estate to recover proceeds from the sale of land which a person has obtained from decedent by means of confidential relationship, duress, fraud, misrepresentation, and undue influence and while decedent was mentally incompetent. Health Betterment Found. v. Thomas, 225 Ark. 529, 283 S.W.2d 863 (1955).

Under this section, a probate court has jurisdiction to order an executor to collect a promissory note given for rent on devised lands and distribute the proceeds among the devisees. Pigue v. Grooms, 248 Ark. 262, 451 S.W.2d 181 (1970).

Recovery of Property.

Under this section, an administrator is empowered to sue for and recover the personal property of the estate. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955).

Under the direction of the court, a personal representative has the right to maintain a suit, whether its object is to recover real estate or the proceeds derived from the sale of real estate, where it has been ascertained that the real property was wrongfully obtained from the decedent. Health Betterment Found. v. Thomas, 225 Ark. 529, 283 S.W.2d 863 (1955).

Recovery of Rents.

A widow in possession of the mansion of her late husband was entitled, in her own right, to collect the rents from the farm until dower was assigned her. Mobley v. Andrews, 55 Ark. 222, 17 S.W. 805 (1891) (decision under prior law).

An administrator was not entitled to recover rents on a building owned by his intestate where he neither alleged nor proved that the rents were needed to pay intestate's debts. Campbell v. Smith, 167 Ark. 633, 268 S.W. 359 (1925) (decision under prior law).

Where an administrator is not directed to take possession of realty under this section and the land is distributed to the heirs, it is not error for the court to order him to pay delay rental money received after closing the estate into the registry of the court where a partition suit involving the land is pending, although such order is made after the estate is closed and as part of an order denying a motion to set aside an order disallowing a claim against the estate. Boyd v. Matthews, 239 Ark. 112, 388 S.W.2d 102 (1965).

Rights of Heirs.

An heir at law would not acquire seizin of the lands of his ancestor so long as the lands remained in the possession of the administrator and there were outstanding debts. Tate v. Jay, 31 Ark. 576 (1876) (decision under prior law).

Sale of Property.

A probate court's authority to order a sale does not encompass the power to order a partition, which is preferably accomplished by a division in kind, and an application for a sale must be made only for certain purposes and by the personal representative, not by the widow. Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979).

Real estate vests in the heirs of a decedent, subject to the widow's dower and to sale for the payment of debts, the preservation or protection of the assets of the estate, the distribution of the estate, or any other purpose in the best interest of the estate; the sale, however, is not necessarily free of the widow's dower, and such a sale is not void for want of jurisdiction, but is simply inoperative as far as the widow's dower is concerned. Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

Suits for Partition.

Intestate's title to realty, irrespective of the extent of her interest, at the moment of her death, vested in her heirs, subject to the payment of her debts; and intestate's administrator, in whom title to the property never did vest, could not maintain suit for partition of land in which intestate held a fractional interest. Calmese v. Weinstein, 234 Ark. 237, 351 S.W.2d 437 (1961).

Where an administrator held real estate in her possession as an asset of the estate, collected rents, paid taxes, and kept the property insured, it was error for a chancery court to entertain jurisdiction of a petition for partition filed by one of the heirs. Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968).

Unlawful Detainer.

Where neither the allegation nor the proof established that possession of intestate's property or rents therefrom were needed to pay intestate's debts, the administrator had no right to maintain an action of unlawful detainer. Lockhart v. Roberts, 208 Ark. 569, 187 S.W.2d 183 (1945) (decision under prior law).

Cited: Boyd v. Bradley, 239 Ark. 120, 388 S.W.2d 107 (1965); Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990); Graham v. State, 34 Ark. App. 126, 806 S.W.2d 32 (1991); Darr v. Bankston, 327 Ark. 723, 940 S.W.2d 481 (1997); Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006).

Case Notes

Jurisdiction of Court.

Although a probate court had no power to attach property in probate proceedings where the widow appeared in open court and stipulated that she had assigned notes to the estate and agreed to turn them over to the administrator, this action gave the probate court jurisdiction to order that the notes be turned over. Hartman v. Hartman, 228 Ark. 692, 309 S.W.2d 737 (1958).

In a proceeding by the executor of an estate against a niece to determine ownership of bank account, where both parties agreed to submit their differences to the probate court, that court could take and retain jurisdiction. Park v. McClemens, 231 Ark. 983, 334 S.W.2d 709 (Ark. 1960).

A probate court had jurisdiction to determine ownership of money in banks where the administrator voluntarily submitted to its jurisdiction and first objected on appeal; if the appellant had not wanted to submit the issue to the probate court, an objection should have been made before a full scale trial was had, and then the appellant could have raised the question on appeal. Hobbs v. Collins, 234 Ark. 779, 354 S.W.2d 551 (1962).

Circuit court did not err by refusing to enforce the family-settlement agreement as requested; this section did not authorize the circuit court to force someone to give property to the decedent's estate simply because a person interested in the estate believed that it belonged to the decedent. Trask v. Trask, 2018 Ark. App. 400, 559 S.W.3d 277 (2018).

Res Judicata.

Where there were no minor children, an action by a deceased's widow as administrator to recover personal property belonging to the estate would bar a subsequent suit by the same plaintiff as the widow. Raymond v. Raymond, 134 Ark. 484, 204 S.W. 311 (1918) (decision under prior law).

Cited: Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955); Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20 (1974); Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990); Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006).

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Panel on Settlement Procedures, 11 Ark. L. Rev. 54.

Case Notes

Authority of Court.

A personal representative has the authority to settle tort claims due an estate, and the probate court has authority to approve such settlements. Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997).

Breach of Contract.

A decedent's personal representatives could bring a breach of contract action against an attorney who allegedly failed to draft the decedent's will in accord with the decedent's desires. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Common Law Power.

Acts 1848, § 1, p. 27, did not take away the common law power of an administrator to compromise a debt when a compromise was made pursuant to this section, as it relieved the administrator of the burden of proving that he acted judiciously. Wilks v. Slaughter, 49 Ark. 235, 4 S.W. 766 (1887); Wunderlich v. Bowen, 193 Ark. 284, 100 S.W.2d 80 (1936) (decisions under prior law).

No Compromise.

An agreement where the administrator of the seller of two mules permitted the buyer to keep the mules until fall and then to pay for them was not a compromise under former statute. Lee v. Wagner, 185 Ark. 374, 47 S.W.2d 33 (1932) (decision under prior law).

Provisions Inapplicable.

This section was held inapplicable to the petition of a widow, as administrator, alleging that the estate was insufficient to satisfy the dower and statutory rights of the widow or to pay the expenses of administration and claims in full and seeking full distribution of assets in exchange for her payment of all claims and expenses, and an order granting the petition would be set aside where the notice required by § 28-51-103, in relation to a petition for dower, was not given. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

Unliquidated Claims.

An administrator could compromise and accept settlement of an unliquidated claim for damages without special authority from a probate court. Treadway v. St. Louis, I.M. & S. Ry., 127 Ark. 211, 191 S.W. 930 (1917) (decision under prior law).

Cited: Baker v. State Farm Fire & Cas. Co., 34 Ark. App. 59, 805 S.W.2d 665 (1991); McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997).

Case Notes

Equity Interest.

Where there was evidence to indicate that an estate may have included equity in an automobile, since the decedent had purchased the property, the administrator should have proceeded to pay for it from the assets of the estate, sold it as provided in § 28-49-107, obtained authority to abandon it as permitted under this section, or applied to the court for assignment of it to her as part of her statutory allowance under § 28-39-101, as she was accountable for it, either by accounting under the Probate Code or for conversion under § 28-49-105. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Case Notes

Disposition Options.

Where there was evidence to indicate that an estate may have included equity in an automobile, since the decedent had purchased the property, the administrator should have proceeded to pay for it from the assets of the estate, sold it as provided in this section, obtained authority to abandon it as permitted under § 28-49-106, or applied to the court for assignment of it to her as part of her statutory allowance under § 28-39-101, as she was accountable for it, either by accounting under the Probate Code or for conversion under § 28-49-105. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Inadequate Estate.

Where an estate was inadequate to complete payments on lands purchased by the decedent, the probate court could order the sale of the decedent's interest. Smith v. Pinnell, 107 Ark. 185, 154 S.W. 497 (1913) (decision under prior law).

Responsibility for Debt.

After a wife elected to take against her husband's will, a trial court did not err in ruling that the husband's estate was responsible for remaining debt owed to a creditor because the debt was mainly used for the construction of chicken houses and, therefore, the estate would receive the major benefit of the loan. Combs v. Stewart, 374 Ark. 409, 288 S.W.3d 574 (2008).

Sale Without Order.

A private sale made without authority from the court should not be confirmed. Gibbs v. Singfield, 115 Ark. 385, 171 S.W. 144 (1914) (decision under prior law).

Case Notes

Dower.

Where a widow joined her husband in the execution of a mortgage of his land, she was entitled to dower therein, subject to the mortgage, but could not require the administrator to apply the personal estate to redeem the land. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891) (decision under prior law).

Jurisdiction.

A petition requesting the right to sell homestead of a minor to pay the debts of an estate, such sale to be subject to a mortgage thereon, conferred no jurisdiction on the probate court under former statute. Bank of Mulberry v. Frazier, 178 Ark. 28, 9 S.W.2d 793 (1928) (decision under prior law).

Research References

Ark. L. Rev.

Fraudulent Conveyances in Arkansas, 19 Ark. L. Rev. 149.

Case Notes

Allegations in Complaint.

An administrator was not entitled to recover real property under this section where the complaint did not contain the allegation that defendants had obtained the property by fraud and undue influence upon the decedent. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955).

Determinative Factors.

The Supreme Court of Arkansas has recognized certain indicia of fraudulent intent, including insolvency or indebtedness of the transferor, inadequate or fictitious consideration, retention of property by the debtor, the pendency or threat of litigation, secrecy or concealment, and the employment of unusual business practices; transfers to a debtor's family members are particularly suspect. United States v. Bryant, 15 F.3d 756 (8th Cir. 1994).

A couple's conveyance of substantially all their real and personal property to their children in trust, for nominal consideration, when litigation over substantial tax deficiencies and penalties was pending, exhibited all or virtually all of the indicia of fraud recognized in Arkansas; the claim by the father that he had a heart attack in 1985 and the conveyance was motivated by bona fide estate planning consideration was inadequate to avoid summary judgment in favor of the government under the well established principles of Arkansas fraudulent conveyance law. United States v. Bryant, 15 F.3d 756 (8th Cir. 1994).

Administratrix, wife of the decedent, who sought to divorce the decedent but reconciled shortly before the decedent's death, convinced the trial court the monies in a transfer-on-death account (TOD account), naming children from the decedent's former marriage as the beneficiaries, was a fraudulent transfer; if the TOD account was owned by both the decedent and the administratrix, the administratrix could claim dower rights in the property, but decedent's children presented compelling facts that the account was separate property owned by the decedent, and the trial court erred in granting summary judgment in favor of the administratrix. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003).

Jurisdiction.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the circuit court erroneously ruled that the probate court had exclusive jurisdiction and that the circuit court lacked jurisdiction; under Ark. Const. Amend. 80, § 6, and the fact that, under the Uniform Transfer on Death Security Registration Act, § 28-14-101 et seq., the money transferred from the TOD account did not become part of the estate, the circuit court clearly had jurisdiction. Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).

Parties to Action.

Where the administrator of an estate would not bring suit to set aside a fraudulent conveyance, it was proper for the widow to bring it and join the administrator as a defendant. Rush v. Smith, 239 Ark. 874, 394 S.W.2d 613 (1965).

Personal Representative as Grantee.

Where an administrator was the fraudulent grantee of the decedent, her husband, she held the property in trust for the heirs at law, and the limitations did not begin to run against a suit by them for its recovery until she repudiated the trust. Bumpass v. McGehee, 247 F. 306 (8th Cir. 1917) (decision under prior law).

Where the executor of an alleged fraudulent grantor was the grantee and refused to bring a suit to set the deed aside, the heirs at law of the grantor had the right to bring it, making the executor a defendant. Moore v. Waldstein, 74 Ark. 273, 85 S.W. 416 (1905) (decision under prior law).

Standing.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the transferee's argument failed that the personal representative of the estate and not the creditor had standing for such an action; while there are procedures within the probate code that would allow for the challenge of an alleged fraudulent conveyance, section 28-14-109(b) concerning TODs plainly allows creditors to pursue their claims against transferees under other Arkansas laws, and thus a creditor also may pursue its claim under the Fraudulent Transfers Act, § 4-59-201 et seq.Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019) (decided under pre-2017 version of § 4-59-201 et seq.).

Validity of Deed.

Although a deceased executed a deed with the intent to defraud his creditors, the deed did not take effect until delivery and when it was not delivered until a subsequent time, when there were no creditors of the deceased who could suffer by the transfer, the deed was not void. Deniston v. Phillips, 121 Ark. 550, 181 S.W. 911 (1916) (decision under prior law).

Cited: Dereuisseaux v. Bell, 238 Ark. 60, 378 S.W.2d 208 (1964).

Case Notes

Bond and Accounting.

Where a will provided for the appointment of a widow as the executor without giving bond and without making reports and settlements, a remainderman in the estate had no right to require a bond and an accounting from the widow, who was a life tenant, without alleging and proving mismanagement, waste, or conversion. Dillen v. Fancher, 197 Ark. 995, 125 S.W.2d 110 (1939) (decision under prior law).

Filing Requirements.

Since this section requires the filing of an inventory in a prescribed form and §§ 28-52-103 and 28-52-104 also set out requirements as to form and time of accounting, the fact that an administrator filed a “first and final report” purporting to furnish full information with respect to everything pertaining to the estate was not compliance in the manner and form required by these sections. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

An inventory was inadequate where the personal representative failed to attach an affidavit as required by subsection (a). Eddins v. Style Optics, Inc., 71 Ark. App. 102, 35 S.W.3d 315 (2000).

Jurisdiction.

A probate court has jurisdiction to direct the executor of an estate to collect and distribute the proceeds from a rental note if the granting of a petition would be for the best interest of the estate and the devisees. Pigue v. Grooms, 248 Ark. 262, 451 S.W.2d 181 (1970).

A probate court erred in refusing to take jurisdiction of an executor's petition asking that he be directed to collect rent note for land which the testator had left to five separate devisees where the devisees were scattered geographically, the tenant would naturally demand the surrender of the note when he paid it, and devisees were unable to agree upon the distribution of the proceeds. Pigue v. Grooms, 248 Ark. 262, 451 S.W.2d 181 (1970).

Res Judicata.

Where the heirs did not perfect an appeal from a judgment of a circuit court reversing a judgment of a probate court requiring an executor to make an inventory and file accounts in a proceeding instituted by them, they could not relitigate the same question in a subsequent proceeding instituted by the probate clerk by which the heirs became parties on their own motion. Parker v. Williams, 172 Ark. 699, 290 S.W. 67 (1927) (decision under prior law).

Case Notes

Operation in General.

Where a testator devised land to debtor and appointed him executor, the value of the land conveyed by debtor, which could not be impressed with lien to the extent of indebtedness, had to be treated as cash once in hand but converted, and undisposed lands were assets in the hands of the executor, subject to satisfaction of charges against the estate. Blocker v. Scherer, 206 Ark. 28, 174 S.W.2d 371 (1943) (decision under prior law).

Parol Evidence.

On the issue whether or not a legacy or devise was intended to forgive a debt from the legatee or devisee, parol evidence was held admissible. Blocker v. Scherer, 206 Ark. 28, 174 S.W.2d 371 (1943) (decision under prior law).

Transferable Title.

Where a will devising land to debtor and appointing him executor was made after the debt was contracted and contained no directive requiring payment of the obligation before benefits of the devise could vest, the debtor took a title he could transfer until legally restrained from doing so. Blocker v. Scherer, 206 Ark. 28, 174 S.W.2d 371 (1943) (decision under prior law).

Research References

Ark. L. Rev.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Case Notes

Trade Creditors.

Where business was continued by an administrator or executor, trade creditors could not resort to the general assets of the estate for the purpose of reimbursement or payment; rather, their remedies were confined to the assets embarked in the trade or business. State ex rel. Altheimer v. Hunter, 56 Ark. 159, 19 S.W. 496 (1892) (decision under prior law).

Cited: In re Estate of Spann, 257 Ark. 857, 520 S.W.2d 286 (1975); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Case Notes

Borrowing When No Lien.

A mortgage executed by the administrator of an estate when no debt secured by a lien existed at the time of the death of the intestate was void. Reed v. Futrall, 195 Ark. 1044, 115 S.W.2d 542 (1938); Acker v. Watkins, 199 Ark. 573, 134 S.W.2d 523 (1939) (decisions under prior law).

Case Notes

Conveyance of Land.

To convey land there had to be a valid executory contract made by the decedent before a probate court could order specific performance, and jurisdiction would not be presumed. Oliver v. Routh, 123 Ark. 189, 184 S.W. 843 (1916) (decision under prior law).

In a suit by mortgagor against the administrator of mortgagee to compel conveyance of certain lands which mortgagee had purchased at trustee's sale, evidence of agreement that mortgagor should have an extension of time to pay the mortgage debt or should have the right to redeem or repurchase, and contract was made before expiration of time within which redemption might have been effected from trustee's sale, warranted a decree for the plaintiff. Wood v. Conner, 205 Ark. 582, 170 S.W.2d 997 (1943) (decision under prior law).

New Liability.

An executor could not create a new liability where none existed before by binding an estate upon an unaccepted subscription which was ineffectual because it had not been accepted during the subscriber's lifetime. Blanton v. Forrest City Mfg. Co., 138 Ark. 508, 212 S.W. 330 (1919) (decision under prior law).

Case Notes

Arbitrary Charge.

It was error to direct an arbitrary charge of the highest legal rate without first making investigation as to whether the charge was just and reasonable. Howard v. Manning, 65 Ark. 122, 44 S.W. 1126 (1898) (decision under prior law).

Interest Not Chargeable.

An administrator who, with the court's authority, converted a minor's estate into cash and deposited the money to his credit as administrator and made no personal use thereof was not chargeable with interest. Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931) (decision under prior law).

Money Ready for Distribution.

No authority was conferred to order an administrator to lend money ready for distribution, and the lending of such money was an illegal expenditure. Boyd v. Duncan, 178 Ark. 772, 12 S.W.2d 395 (1929) (decision under prior law).

Case Notes

Out-of-State Banks.

This section neither specifically authorizes nor prohibits an executor from depositing the funds of an estate in an out-of-state bank. Graham v. State, 34 Ark. App. 126, 806 S.W.2d 32 (1991).