In Re Estate of Conover

801 S.W.2d 299, 304 Ark. 268, 1990 Ark. LEXIS 608
CourtSupreme Court of Arkansas
DecidedDecember 21, 1990
Docket90-284
StatusPublished
Cited by12 cases

This text of 801 S.W.2d 299 (In Re Estate of Conover) 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
In Re Estate of Conover, 801 S.W.2d 299, 304 Ark. 268, 1990 Ark. LEXIS 608 (Ark. 1990).

Opinion

Tom Glaze, Justice.

This case involves the construction of Kerman Jackson’s will. Kerman Jackson died on March 13,1986, and was survived by four children, Janice Gabriel, Kerman Jackson, Fannie Mobley and Barbara Conover. Barbara Conover suffered from encephalitis (inflammation of the brain) and was dependent on her father before his death. Apparently, for this reason, a trust was provided for Barbara in the residuary clause of Jackson’s will. Barbara Conover was the sole beneficiary of this trust, and her bills were paid out of the trust money by her sister, Fannie Mobley, as trustee and the executrix of their father’s estate. Under this residuary provision, the residuary trust for Barbara was to terminate upon her death, and the proceeds were to be divided among the decedent’s other three children per stirpes. The residuary provision in the will stated specifically that none of the lawful descendants of Barbara Conover shall take any part of the estate or trust property.

A separate provision of the decedent’s will is in question in this appeal. That provision involved a bequest of Jackson’s stock in the Grady W. Jones Company, which was to be divided equally among his four children, per stirpes. On agreement of the four children, the stock was sold after Jackson’s death, and each child received $62,000, the distributions being made on September 29, 1988, February 1, 1989 and April 18, 1989. Barbara Conover’s distributive share was put into the Conover residuary trust.

While her father’s will was still being probated, Barbara Conover died intestate on July 18, 1989. Her daughter, Lisa McNabb, as administratrix of her mother’s estate, filed a complaint for turnover of assets against Fannie Mobley, as executrix of Jackson’s estate and against Barbara’s brother and two sisters individually. In denying McNabb’s claim, the probate court found that the intent of the testator, Jackson, was that the children of his daughter, Barbara Conover, not take under any part of his will.

On appeal, McNabb argues the stock was a specific legacy bequeathed to Jackson’s four children per stirpes and Barbara’s share from the sale of the stock should have been given directly to her and upon her death, to her estate. In other words, under the terms of the Jackson’s will, the stock proceeds were wrongly put in the Conover residuary trust. We agree. Therefore, we reverse and remand for Barbara’s distributive shares to be made pursuant to our holding.

First, we briefly dispose of the appellees’ argument that Barbara had waived her right to protest the distribution of the stock sale proceeds when her father’s will was being probated. The record shows otherwise. Barbara consented to the sale of the stock and signed a waiver of appearance and notice to the probate hearing, but there is no showing that she agreed or consented to her share of the stock sale proceeds being put in the residuary trust. Further, we do not find the fact that she used the money in the trust for her living expenses persuasive that she waived anything. Clearly, the testamentary trust was established for that purpose under the residuary clause in Jackson’s will, which contained the majority of his estate. And furthermore, there was no showing that Barbara’s living expenses came from the stock sale proceeds instead of the money placed in the trust by the residuary clause. Lastly, in support of their waiver argument, the appellees argue Barbara willingly gave the residuary trustee money she received from her father’s IRA to be put in the trust fund. We fail to see how that act showed Barbara consented to the stock sale proceeds being placed in the trust, especially when witnesses, including her sister, Janice, testified that she voiced anger to such placement.

Under Ark. Code Ann. § 28-53-110(d) (1987), a suit to recover property improperly distributed or money improperly paid is barred three years after the decedent’s death or two years after the time of distribution of the payment, whichever last occurs. Under the facts of this case, the last distribution of the stock sale proceeds was made on April 18,1989,and McN abb, as administrix of Barbara’s estate, filed her suit on October 11, 1989. Thus, we conclude that Barbara never waived her right to protest the improper distribution of the money from the stock sale and that McNabb’s action challenging that distribution was timely.

Now, we address the construction of the Jackson will, which is the gist of this appeal. We have stated that the paramount principle in the interpretation of wills is that the intention of the testator will govern. Motes/Henes Trust v. Motes, 297 Ark. 380, 761 S.W.2d 938 (1988). The intention of the testator is to be gathered from the four corners of the instrument, itself, considering the language used and giving meaning to all of its provisions, when possible to do so. Armstrong v. Butler, 262 Ark. 31, 552 S.W.2d 452 (1977). The will is to be liberally construed. Motes, 297 Ark. 380, 761 S.W.2d 938. Only when there is uncertainty as to the testator’s intentions from looking at the language used in the will, may the court read the language employed by the testator in the light of circumstances existing when the will was written. Martin v. Simmons, 250 Ark. 774, 467 S.W.2d 165 (1971). However, oral testimony is admissible only for the purpose of showing the meaning of the words used in the will when they are ambiguous, and not to show what the testator intended, as distinguished from his expressed words. Armstrong, 262 Ark. 31, 553 S.W.2d 453.

Keeping these rules of construction in mind, we must interpret the following language from Jackson’s will:

ARTICLE IV
BEQUESTS
B. If my wife, Georgia Helen Jackson, predeceases me then I give, devise and bequeath my stock in Grady W. Jones Co. to my children (Barbara Ann Conover, Little Rock, Arkansas; Janice Faye Gabriel, Sherwood, Arkansas; Kerman Eric Jackson, Jackson, Mississippi; and Fannie Lou Mobley, Pine Bluff, Arkansas) in equal shares per stirpes, provided however I direct that my son, Kerman Eric Jackson shall have the option for a period of one year after my death within which to purchase from three sisters of their decendants their shares of said stock and interest at the then book value of said shares of stock or interest.
C. If my wife... predeceases me then I give, devise and bequeath; one-fourth ('/<) of my gross estate (which has not been distributed in Article IV Paragraph B of this Will) to Janice Faye Gabriel; one-fourth ('/a) of my gross estate (which has not been distributed in Article IV Paragraph B of this Will) to Kerman Eric Jackson; one-fourth O/4) of my gross estate (which has not been distributed in Article IV Paragraph B of this will) to Fannie Lou Mobley; and one-fourth O/4) in trust, to the trustee named in Article II of this Will, for the uses and purposes hereinafter set forth: . . .
* * *
5.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Estate of Whiting v. Comm'r
2004 T.C. Memo. 68 (U.S. Tax Court, 2004)
Jones v. Ellison
15 S.W.3d 710 (Court of Appeals of Arkansas, 2000)
Aycock Pontiac, Inc. v. Aycock
983 S.W.2d 915 (Supreme Court of Arkansas, 1998)
Burnett v. First Commercial Trust Co.
939 S.W.2d 827 (Supreme Court of Arkansas, 1997)
Chlanda v. Estate of Fuller
932 S.W.2d 760 (Supreme Court of Arkansas, 1996)
Estate of Robertson v. Commissioner
98 T.C. No. 47 (U.S. Tax Court, 1992)
Matter of Estate of Lindsey
832 S.W.2d 808 (Supreme Court of Arkansas, 1992)
Edwards v. Farm Bureau Mutual Insurance
823 S.W.2d 903 (Supreme Court of Arkansas, 1992)
Gifford v. Estate of Gifford
805 S.W.2d 71 (Supreme Court of Arkansas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
801 S.W.2d 299, 304 Ark. 268, 1990 Ark. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-conover-ark-1990.