Burns v. Estate of Cole

219 S.W.3d 134, 364 Ark. 280
CourtSupreme Court of Arkansas
DecidedDecember 1, 2005
Docket04-1343
StatusPublished
Cited by6 cases

This text of 219 S.W.3d 134 (Burns v. Estate of Cole) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Estate of Cole, 219 S.W.3d 134, 364 Ark. 280 (Ark. 2005).

Opinion

Betty C. Dickey, Justice.

Appellant Jason Virgil Burns challenges the circuit court’s dismissal of his claim against appellee, the Estate of Jerry Noel Cole, in which he claims to be the natural child and heir of the deceased. He argues that the circuit court erred in (1) refusing to determine that he commenced an action or asserted a claim within 180 days from the death of the decedent, as required by Ark. Code Ann. section 28-9-209(d); (2) determining that one of the six conditions under section 28-9-209(d)(1) through (d)(6) must be satisfied within the 180-day requirement; and (3) finding that the deceased did not make a written acknowledgment that he was the natural father of Bums pursuant to section 28-9-209(2). This appeal requires interpretation of our statutes; therefore, our jurisdiction in this case is pursuant to Ark. Sup. Ct. R. 1-2(b)(6) (Repl. 2005). We find no error and affirm.

Jerry Noel Cole died intestate on April 9, 2003, with his sisters, Barbara Matson and Judy Jameson, as his only known living heirs. On May 29, 2003, Ms. Matson and Ms. Jameson filed an affidavit for collection of the Cole estate. Later that day, Burns filed a Petition for Appointment of Administrator, stating that he was an interested party because he was the son of the decedent. The circuit court granted the petition, and Burns was named administrator of the estate. The circuit court later granted Burns’ motion in which he requested authorization for the Arkansas Crime Lab to release a portion of the decedent’s DNA to establish paternity. Burns subsequently received a DNA report, dated November 11, 2003, showing a 99.99% probability that the decedent was his natural father. Consequently, on April 26, 2004, Burns filed a motion seeking a judicial determination that he was the natural child of the decedent.

During a hearing on May 4, 2004, testimony revealed that Burns’ birth name was Jason Virgil Cole. A few months after his birth, his mother changed his last name to Burns, the name of her husband, Donald Burns, so that the child would be able to receive military benefits as his son. The couple later divorced, and while Donald never adopted Jason, the chancery court found him to be his father and ordered him to pay child support. Many years later, after Jason Burns had fathered a daughter, evidence was presented that the decedent had sent Burns’ mother a Christmas card stating that he wanted to have a relationship with his granddaughter. Burns argued that his Petition for Appointment of Administrator was an action commenced or claim asserted against the estate, and that it was filed within 180 days from the death of the decedent, as required by Ark. Code Ann. section 28-9-209(d). Additionally, he argued that the decedent acknowledged in writing that Burns was his natural child, pursuant to section 28-9-209 (d)(2), by sending the Christmas card to Burns’ mother.

The circuit court dismissed Burns’ claims against the estate and revoked its order appointing Burns as personal representative of the estate. The court explained that filing a petition to administer an estate within 180 days of decedent’s death could not be considered an action or claim against the estate pursuant to section 28-9-209 (d). Additionally, the court found that the card sent by the decedent to Burns’ mother was insufficient to establish written acknowledgment that Burns was the natural child of the decedent under section 28-9-209 (d)(2). Burns now appeals the circuit court’s dismissal.

This court reviews probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000); Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999). We are not bound by the circuit court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.

The basic rule of statutory construction is to give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning. Id. In addition, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Burnette v. State, 354 Ark. 584, 127 S.W.3d 479 (2003).

At issue in this appeal is the language of Ark. Code Ann. section 28-9-209 (d). Burns first contends that the mere filing of his Petition for Appointment of Administrator on May 29, 2003, qualifies as an “action” or “claim” against the estate under section 28-9-209(d). We disagree. By filing the petition for appointment as administrator of the estate, Burns was claiming to be the acknowledged legitimate son and heir of the decedent. “Heir denotes a person entitled by the law of descent and distribution to the real and personal property of an intestate decedent, but does not include a surviving spouse[.]” Ark. Code Ann. § 28-1-102(10).

It is clear that at the time the petition was filed, Burns had not been legally declared the legitimate child of the decedent. Indeed, the decree from Burns’ mother’s divorce and his most recent birth certificate indicated that Donald Burns was his natural father. Bums even admitted to his illegitimate status when he filed a motion requesting that the circuit court declare him as the natural child of the decedent. Moreover, although he attached a DNA report to the motion, which showed a 99.99% probability that the decedent was his natural father, the motion was not filed until April 26, 2004, well beyond the 180-day requirement under Ark. Code Ann. section 28-9-209 (d).

In sum, we conclude that because Burns has never been determined a legitimate heir of the decedent, his petition for appointment as administrator of the estate cannot constitute an action or claim against the estate under Ark. Code Ann. section 28-9-209(d). It logically follows that because the petition was not an action or claim against the estate, Burns did not comply with the 180-day requirement under section 29-9-209 (d). For these reasons, the circuit court did not err in finding that Burns failed to comply with section 29-9-209(d).

The fact that Burns was not found to be a legitimate heir does not necessarily preclude him from inheriting from the estate. This leads us to Burns’ second point on appeal, that he was not required to satisfy one of the six conditions set out in Ark. Code Ann. section 28-9-209(d)(l) through (d)(6) within 180 days from the death of the decedent. Section 28-9-209(d) provides in pertinent part:

(d) ...

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Bluebook (online)
219 S.W.3d 134, 364 Ark. 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-estate-of-cole-ark-2005.