Brown v. Hawkins

240 S.W.2d 863, 219 Ark. 239, 1951 Ark. LEXIS 499

• Court: Supreme Court of Arkansas
• Decided: July 2, 1951
• Docket: 4-9583
• Status: Published

Opinions

Griffin Smith, Chief Justice.

The controversy is a sequence to Hawkins v. Hawkins, 218 Ark. 423, 236 S. W. 2d 733.

The appeal is from an order of April 25, 1951, dismissing a petition to set aside a judgment of probate, to the end that the minor as an adopted son might be represented as an interested party in the contest now narrowed to the single question of the testator’s mental capacity.

The will was admitted to probate May 4, 1950, with notice by publication only. The order from which the appeal comes was predicated upon the minor’s petition of February 27, 1951—filed a day following the Supreme Court decision in the Hawkins case.

The sole ground for dismissing the petition is that it was filed too late. Ark. Stat’s, § 62-2114. The trial judge held that the new probate code (Act 140 of 1949) did not contain a savings clause in favor of minors, excepting them from limitation.

We agree with this determination. The principle was stated by Judge Hart in Jenkins v. Jenkins, 144 Ark. 417, 222 S. W. 714. Courts can not, in the absence of a showing that fraud was practiced in procuring the order, or that some omission involving jurisdiction vitiated the judgment, give relief contrary to clearly expressed legislative purposes. We are not permitted to read into the statute something the lawmaking body withheld.

Appellants’ brief does not point to any particular error other than the general proposition that in the circumstances here the judiciary should work out a method for the minor’s protection. This could be done if jurisdictional errors were present. The petition of May 4, 1950 (asking that the will be probated) named six persons as surviving spouse, heirs, and devisees, but the minor was not mentioned. But the will was before the court, and it contained this statement:

“Not being unmindful of Clyde Eugene Brown, who was the child of my former wife, said child being adopted by me and subsequently said child was adopted by other adoptive parents, thereby releasing me from further legal liability on behalf of said minor child,—but in order that no discrepancy may arise as to my intent concerning said child, I hereby bequeath [to him the sum of $1].”

There is no legal requirement that the names of heirs and devisees be published in the warning order.

We feel that the overall intent in limiting the time of contest and in not mailing an exception in favor of minors was part of a plan to give certainty to court orders and provide security for those who in dealing with property must necessarily depend upon recorded transactions.

Affirmed.

Mr. Justice Holt, Mr. Justice McFaddin, and Mr. Justice Ward, dissent.