Dunklin v. Ramsay

944 S.W.2d 76, 328 Ark. 263, 1997 Ark. LEXIS 248

• Court: Supreme Court of Arkansas
• Decided: April 28, 1997
• Docket: 96-471
• Status: Published

Opinions

Donald L. Corbin, Justice.

This appeal is from an order of the Arkansas County Probate Court, Southern District, holding that Appellant George H. Dunklin Jr., co-executor, did not have standing to challenge the petition for partial distribution of the estate of Hattie Boone Black, filed by the majority of the co-executors of the decedent’s estate. This court has jurisdiction to hear the appeal on the basis that it presents an issue of first impression requiring us to interpret an act of the General Assembly. Ark. Sup. Ct. R. 1-2(a)(17)(i) and (vi) (as amended by per curiam order July 15, 1996). We find no error and affirm the judgment of the probate court.

The pertinent facts of this case are not in dispute. Miss Hattie Boone Black died on February 5, 1993, and left as her last will and testament an instrument dated July 22, 1988, which nominated and appointed Appellant and all four Appellees, Louis L. Ramsay Jr., Lester Asher McKinley, Warren A. Jennings Jr., and Georgea Boone McKinley Greaves, as executors of the estate. The will also listed the surviving heirs and devisees of the decedent as Georgea Oliver McKinley and Elisabeth Black Dunklin, both sisters of the decedent, and the Hattie Boone Black Testamentary Trust. All five of the executors named in the will were additionally named as trustees of the foregoing testamentary trust, with three of the five, namely Appellant and Lester Asher McKinley, both nephews of the decedent, and Georgea Boone McKinley Greaves, niece of the decedent, being beneficiaries of the trust. The will provided that the powers granted to the trustees were to be exercised by a majority of the trustees entitled to vote with respect to the particular issue involved. Additionally, subsection (h) of Article III of the will included an in terrorem clause, which provided that any named beneficiary who contested or disputed the probate of the will would forfeit his or her interest in the estate.

On February 8, 1993, the executors filed a petition for probate of the will, which was granted that same date. On November 30, 1994, Appellees filed a petition for partial distribution of the estate. Appellant responded to the petition with an objection to the Appellees’ interpretation of Article II of the decedent’s will, which provided in pertinent part:

I give and bequeath all of my personal property, whether tangible or intangible (with the sole exception of all common stock in Black, Inc., and in all other corporations, owned by me at the time of my death), to my sister, Georgea Oliver McKinley.

In their petition for partial distribution, Appellees stated that a majority of the co-executors had agreed that this bequest should be construed to include all tangible and intangible personal property belonging to the decedent at the time of her death except for the decedent’s stock in Black, Inc., since that was the only corporation that was owned by the decedent at the time of her death. Appellant was the sole dissenter, asserting that the parenthetical clause included all common stock in Black, Inc., as well as any other corporations in which the decedent had an ownership interest. In other words, the dispute here centers around the question of whether the reference to the decedent’s ownership in the parenthetical clause applies to her ownership of any common stock or her ownership in whole of any corporation.

Appellees filed a motion for summary judgment requesting the probate court to dismiss Appellant’s response on the ground that he had no standing as a co-executor to contest or resist the construction agreed upon and sought by the majority of the executors. Appellees included in their motion a portion of the interrogatories posed to Appellant in which Appellant indicated that he was seeking an interpretation or construction of the will solely in his capacity as co-executor.

Appellant responded to the motion by stating that he had standing to request a construction of the will, as provided in Ark. Code Ann. § 28-26-101 (b) (1987), as an “interested person” due to his status as a fiduciary. Appellant cites as authority Ark. Code Ann. § 28-l-102(a)(ll) (1987), which defines “interested persons” as including “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary[.]”

In their reply, Appellees asserted that Appellant was not acting as an “interested person,” but rather as a co-executor. Appellees further argued that as a dissenting co-executor, Appellant had no power to act contrary to the will of the majority of the executors pursuant to Ark. Code Ann. § 28-48-104(a) (1987), which provides:

Unless otherwise provided by will, the powers given to two (2) personal representatives may by exercised only by their joint action, and powers given to more than two (2) personal representatives may be exercised only by the joint action of a majority of them. [Emphasis added.]

A hearing was held on the motion, and the probate court ruled that Appellant’s objection to the majority’s interpretation of the will was overruled on the basis that a dissenting co-executor has no standing to object to the majority’s actions under existing law. This appeal followed.

As provided in Ark. Code Ann. § 28-1-116 (1987), a right to review by this court lies from all probate court orders, with a few exceptions not applicable to this case. Section 28-1-116(a), (b); In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995). We review probate matters de novo on appeal, but we will not reverse the findings of the probate judge unless they are clearly erroneous. Wells v. Estate of Welb, 325 Ark. 16, 922 S.W.2d 715 (1996); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996). In an appeal from the grant of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom judgment was entered. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 922 S.W.2d 718 (1996). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997).

In support of his argument on appeal, Appellant asserts that: (1) He is a fiduciary, by way of his status as a co-executor, and as such he may petition the probate court to construe the will as provided in section 28-26-101 and (2) the probate judge’s ruling deprived him of any meaningful right to seek a construction of the will or to contest Appellees’ petition in that any attempt by him to contest the petition as a legatee or beneficiary would subject him to the repercussions of the in terrorem clause of the will.

Appellees contend that it is plainly evident from the language of section 28-48-104 that power may only be exercised by the joint action of a majority of an estate’s “personal representatives,” which is defined in section 28-l-102(a)(19) as executors or administrators. In support of their position, Appellees cite us to the case of In re Greenberg’s Estate, 146 N.E.2d 404 (Ill. App. 1957). The issue in that case was whether a single co-executor had the right to hire independent counsel in his capacity as co-executor contrary to the express opposition of a majority of the co-executors.¹ The Illinois appeals court held that although the dissenting co-executor was free as an individual to seek independent counsel at his own expense, he did not have the power to obtain his own counsel at the expense of the estate. The court went on to hold:

Apart from the directive of the will providing for majority control, the salutary principle of law as enunciated in Dingman v. Boyle, 285 Ill. 144, 120 N.E. 487, Coleman v. Connolly, 242 Ill. 574, 90 N.E. 278, and Wilson v. Mason, 158 Ill. 304, 42 N.E. 134, is that co-executors and co-trustees must act as an entity in matters pertaining to the administration of the estate; any other rule would lead to confusion and chaos and create unnecessary charges against estate funds. ... If each co-executor were to be allowed independent counsel, it could well be that in the approach to every decision there would be as many opinions as co-executors.

Id. at 408. Although the present case does not involve an identical issue, the analysis provided by the Illinois appeals court against such individual power is clearly applicable to the question presented here.

Appellees contend further that, for purposes of seeking a construction of the decedent’s will, Appellant is not an “interested person” as contemplated by section 28-26-101, because his status as a fiduciary is wholly dependent upon his status as a co-executor. Appellees do not dispute that Appellant has the right to petition the probate court for a construction of the decedent’s will in his capacity of legatee or beneficiary, although he must do so at the risk of losing his interest in the proceeds of the will. Appellees contend, however, that if Appellant has been deprived of any meaningful right for construction of the will by the in terrorem clause, as he claims, it is the result of the decedent’s wishes, as opposed to the ruling by the probate court.

We conclude that the plain language in section 28-48-104 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 a majority of them, unless otherwise provided by the will. The language on the face of the statute is clear and, thus, there is no need for further interpretation of the statute. Additionally, we are not persuaded by Appellant’s argument that he may nonetheless petition for construction of the will in his capacity of fiduciary, as we conclude that his status as fiduciary is wholly dependent upon his status as co-executor.

As for Appellant’s contention that he is deprived of any meaningful opportunity to seek interpretation or construction of the will due to the harsh repercussions of the in terrorem clause, we agree with Appellees’ assertion that any such deprivation was arranged by the decedent herself, not the probate judge. This court has previously reviewed such in terrorem clauses and has consistently held that such clauses are valid. See, e.g., Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986); Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962); Ellsworth v. Arkansas Nat’l Bank, 194 Ark. 1032, 109 S.W.2d 1258 (1937).

Based upon the foregoing analysis, we affirm the order of the probate court holding that Appellant, in his capacity as co-executor, lacked standing to oppose the action of the majority of the executors and the majority’s interpretation or construction of the decedent’s will.

Affirmed.

G. William Lavender, Richard Lusby, and Walter L. Skelton, Sp.JJ., join in this opinion. John Harris Jones, Sp.C.J., and Richard C. Kalkbrenner, Sp.J., dissent. Arnold, C.J., Newbern, Glaze, Brown, and Thornton, JJ., not participating.

1 The decedent’s will in that case contained a directive that provided for majority control by the co-executors.