Jones v. Ellison

15 S.W.3d 710, 70 Ark. App. 162, 2000 Ark. App. LEXIS 312
CourtCourt of Appeals of Arkansas
DecidedMay 3, 2000
DocketCA 99-803
StatusPublished
Cited by2 cases

This text of 15 S.W.3d 710 (Jones v. Ellison) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Ellison, 15 S.W.3d 710, 70 Ark. App. 162, 2000 Ark. App. LEXIS 312 (Ark. Ct. App. 2000).

Opinions

OLLY Neal, Judge.

Minnie Lou Timmins died testate on September 24, 1998, leaving an estate worth more than $2,000,000. On October 27, 1998, the executor of the decedent’s estate, First United Trust Company (First United), through its attorney, Michael F. Mahoney, filed a petition to construe the last will and testament of Ms. Timmins in relation to a jewelry box containing several pieces of jewelry and a handwritten note discovered in the decedent’s dresser drawer. The note found in the jewelry box was handwritten entirely by the decedent and contained the following words: “I want Vernita Ellison to have these items and Snuggles.” The end of the note contained the signature and date “Minnie Lou, September 29, 1997.” In its petition, First United asserted that in determining the assets of the decedent’s estate, it discovered the following items of tangible personal property in the jewelry box: (1) a watch on a chain; (2) one ring — one center stone — six small stones; (3) one necklace — one center stone — four small stones, (4) one engagement ring — one center stone — one side stone, (5) one wedding ring — five small stones, (6) a note. First United asserted that it was unable to determine from the decedent’s will whether the property contained in the jewelry box should be distributed to the residuary beneficiaries, the appellants in this case, or whether the handwritten note was part of the will, which would require the contents of the jewelry box to be given to Vernita Elhson. On November 10, 1998, Vernita Ellison filed a response to the petition claiming that she served as a paid caretaker for the decedent and that on many occasions, the decedent made it known to her that the jewelry box in the decedent’s dresser drawer contained items of jewelry as described in the petition, which were to be given to her. The appellants, Virginia Jones, Carolyn Smalling, and Margaret Barron (now deceased), filed a separate response to the petition claiming that the handwritten note did not comply with the decedent’s reservation of right under Ark. Code Ann. § 28-25-107 (1987), in paragraph two of the will. Paragraph two of the decedent’s last will and testament states as follows:

I reserve the right, pursuant to Section 4 of Act 814 of the Acts of the General Assembly of the State of Arkansas for 1979 (Ark. Code Ann. 28-25-107), to make disposition of tangible personal property by attaching or associating with this Will a written, dated statement and list signed by me or in my handwriting designating the devisees of items of tangible personal property.

The appellants alleged that the handwritten note did not evidence testamentary intent as required by law in that it did not state -“at my death” or other words evidencing testamentary intent. They further alleged that the note did not describe any object with reasonable certainty and that there was a patent ambiguity in the words “these items” of personal property. The appellants requested the trial court to disallow any extrinsic evidence as to the intention of the decedent and asked the trial court to grant them a summary judgment determining that the handwritten note was an ineffective testamentary disposition of the decedent’s personal property.

At a hearing on these matters presented by the parties, the appellants objected to any testimony by Vernita Ellison on the ground that testimony relating to the intention of the testatrix should not be admitted into evidence. The trial court allowed Ms. Ellison to proffer her testimony and reserved its ruling on the appellants’ motion for summary judgment and their objection to Ms. Ellison’s testimony.

In his letter opinion dated February 24, 1999, the trial judge made the following findings:

Mrs. Timmins knew she had a will. She also knew that the will provided that she could dispose of personal property by a separate written, signed and dated list.
She may not have used the words testamentary disposition but “have” means that she wanted the items to belong to Mrs. Ellison. There is no specific list but “these items” inside the jewelry box which contained the note left no doubt as to what the items were.

On appeal, appellants first argue that the trial court erred in finding that the handwritten note found in the jewelry box described the items therein with reasonable certainty under Ark. Code Ann. § 28-25-107(b)(2) (1987). Section 28-25-107(b)(2) states that “to be admissible under this subsection as evidence of the intended disposition, the writing must either be in the handwriting of the testatrix or be signed by her and must describe the items and devisees with reasonable certainty.”

Probate cases are reviewed de novo on the record. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). The decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). The cardinal principle in the interpretation of wills is that the testatrix’s intent governs. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991). That intention is to be gathered from the four corners of the instrument and by giving meaning to the provisions in their entirety, if possible. In re Estate of Conover v. Mobley, 304 Ark. 268, 801 S.W.2d 299 (1990).

When construing a testamentary document to arrive at the testatrix’s intention, one does not look at the intention that existed in the testatrix’s mind at the time of the execution, but that which is expressed by the language of the instrument. Acklin v. Riddell, 42 Ark. App. 230, 856 S.W.2d 322 (1993). A testatrix’s intention should be ascertained from the instrument itself and given its expressed intent. Id.

In the present case, the handwritten note found in the decedent’s jewelry box stated that the decedent wanted Vernita Ellison to have her dog “Snuggles” and what she termed “these items.” The parties stipulated that after Voncile Berry, Trust Officer at First United Trust Company, learned of the jewelry, she went to the decedent’s home and found the jewelry box containing the note inside the dresser drawer.

The appellants argue that the note in question is uncertain because it is portable in nature and capable of being placed in any confined area by a third party, and that the appellee and her husband had “clear and unfettered” access to the decedent’s home at least two days before the decedent’s death. However, the abstract does not reflect that the appellants’ arguments were made to the probate judge. Cleveland v. Estate of Stark, 324 Ark. 461, 923 S.W.2d 857 (1996). The record on appeal is limited to that which is abstracted. Id. The appellate court does not address arguments raised for the first time on appeal. McNeely v. State, 54 Ark. App. 298, 925 S.W.2d 177 (1996).

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Cite This Page — Counsel Stack

Bluebook (online)
15 S.W.3d 710, 70 Ark. App. 162, 2000 Ark. App. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-ellison-arkctapp-2000.