Long v. Alford

374 S.W.3d 219, 2010 Ark. App. 233, 2010 Ark. App. LEXIS 233
CourtCourt of Appeals of Arkansas
DecidedMarch 10, 2010
DocketNo. CA 09-676
StatusPublished
Cited by1 cases

This text of 374 S.W.3d 219 (Long v. Alford) 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
Long v. Alford, 374 S.W.3d 219, 2010 Ark. App. 233, 2010 Ark. App. LEXIS 233 (Ark. Ct. App. 2010).

Opinion

JOHN B. ROBBINS, Judge.

I,This appeal involves an acrimonious dispute over the estate of Mack Henry Long, deceased. The probate proceedings were consolidated with a declaratory-judgment action involving the construction of a trust created by decedent. The Pulaski County Circuit Court denied a request by appellant Patsy Long, the ex-wife of decedent and executrix of his estate, to exhume his remains for reburial in a plot decedent owned with Long; allowed the claim against the estate filed by appellee Fredye Alford, decedent’s only child, for the expense of the funeral arranged by Alford; and appointed a successor trustee to administer a trust created by ^decedent. Long raises three points challenging those rulings. We affirm in part, reverse in part, and dismiss in part.1

The decedent and Long were married for approximately seven years before they divorced in 1977. After their divorce, decedent and Long lived together for more than thirty years until decedent’s death on July 30, 2008. In 2005, decedent executed a will in which he referred to Long as his spouse. In his will, decedent bequeathed his entire estate to a revocable trust. The will nominated decedent’s brother Garland Hughes and Long to serve as co-administrators of his estate. Finally, the will provided that decedent had made arrangements for burial in a specific plot in Roselawn Memorial Garden in Pine Bluff. He directed that Long alone make all final arrangements.

[sOn January 6, 2009, Alford filed an amended claim against the estate in the amount of $11,675.63. This claim included, among other things, the expense of the funeral, the monument for decedent’s grave, veterinary expenses for the decedent’s dog, Bunny, and a monument for the dog’s grave.

Alford filed a petition seeking to have decedent’s estate administered intestate. The petition was filed on the day of decedent’s death. The circuit court appointed Alford as administratrix on the same day. On Long’s motion, the court revoked the letters of administration one week later on August 7, 2008. Long filed a petition seeking to admit the decedent’s will to probate on August 6, 2008. The will was admitted to probate and Long was appointed personal representative of the estate by order entered on December 4, 2008.

On January 20, 2009, Long filed a petition seeking to exhume the decedent’s body so that it could be reburied in a plot decedent owned with Long in the same cemetery in Pine Bluff. The petition ál-leged that Alford made the arrangements for decedent’s burial in disregard of decedent’s wishes. The petition cited Arkansas Code Annotated section 20-17-102 (Repl. 2005) as authority and sought to have the cost of exhumation and reburial paid from the trust.

In her response to the petition to exhume, Alford stated that, at the time of burial, she was unaware of the provision of her father’s will specifying where he was to be buried or that Long was to make the funeral arrangements. Alford also asserted that Long was estopped from seeking the exhumation of decedent’s body because she failed to bring the directive to the attention of either Alford or the funeral director until approximately six months after decedent’s death. In support of her response, Alford also submitted an affidavit from Vonda Gifford, the funeral director who made the arrangements for the decedent’s funeral, who stated that she had two telephone conversations with Long concerning the arrangements. In the first conversation, Gifford said that she advised Long that burial would be at Rose-lawn Cemetery. Gifford said that, in the second conversation, which was on the day of the funeral, |4Long advised her that she would not attend the graveside services. Gifford further stated that Long never advised her about the existence of decedent’s will or otherwise objected to the funeral arrangements or place of burial. In a second affidavit, Adam Robinson, the owner of the funeral home, testified that the cost of exhuming the body and moving it to another plot would be $8,272, not including the cost of moving the monument.

On March 10, 2009, the circuit court entered an order allowing Alford’s claim against the estate in the sum of $10,014.71. The claim as allowed included a reduced fee for the funeral home and the cost of Bunny’s veterinary treatment. The court disallowed a claim for the monument for the dog’s grave. The court took Long’s petition to exhume the body under advisement.

On March 13, 2009, the circuit court issued a letter opinion regarding Long’s request for exhumation. The court found that decedent complied with section 20-17-102(b). The court stated that, had decedent’s directive been known prior to burial, the court would have ordered that decedent be buried as he directed. However, the court found that only Long knew about the directive and did not bring it to the attention of either Alford or the funeral director. The court noted that there was a strong public policy against disinterment. The court also considered the factors set forth in Tozer v. Warden, 101 Ark.App. 396, 278 S.W.3d 134 (2008). The court concluded that the public policy against disinterment, the unanimous wishes of decedent’s family, Long’s failure to call attention to the directive before burial, and Long’s lack of any family relationship to decedent outweighed decedent’s directive. The court | ¡-.denied the request for exhumation. The court’s written order on the request for exhumation was entered on March 23, 2009. On March 25, 2009, Long filed her notice of appeal from both the order concerning the claim against the estate and the order on exhumation.

Our standard of review in probate cases is well settled. This court reviews probate proceedings de novo on the record, but it will not reverse the decision of the circuit court unless it is clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

We first address Alford’s argument that we lack appellate jurisdiction over Long’s first point concerning the request to exhume the decedent’s body. Alford bases her argument on Arkansas Code Annotated section 28-1-104 (Repl.2004), which sets forth the jurisdiction of the probate court. Section 28-1-104 does not list exhumation as one of the seven areas governed by the probate code.2 Because exhumation is not listed, this court, according to Alford, lacks authority to consider the exhumation issue. We disagree.

Probate orders, with two exceptions neither of which is applicable here, are ap-pealable pursuant to Ark.Code Ann. § 28-1-116(a) (Supp.2004) and Arkansas Rule of Appellate Procedure — Civil 2(a)(12), which incorporates this statute.3 See Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008). We hold that we have appellate jurisdiction because the personal representative petitioned the probate division of the circuit court, during administration of the decedent’s estate, to enforce a provision in the decedent’s will by ordering exhumation and reburial. We now proceed to the merits of the appeal.

In her first point, Long argues that the circuit court erred in failing to enforce decedent’s clear wishes as to his place of burial contained in his will. We agree.

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

Related

Bank of the Ozarks v. Cossey
2014 Ark. App. 581 (Court of Appeals of Arkansas, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
374 S.W.3d 219, 2010 Ark. App. 233, 2010 Ark. App. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-alford-arkctapp-2010.