Osborn v. Bryant

2009 Ark. 358, 324 S.W.3d 687, 2009 Ark. LEXIS 388
CourtSupreme Court of Arkansas
DecidedJune 18, 2009
Docket09-73
StatusPublished
Cited by11 cases

This text of 2009 Ark. 358 (Osborn v. Bryant) 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
Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687, 2009 Ark. LEXIS 388 (Ark. 2009).

Opinion

DONALD L. CORBIN, Justice.

| Appellants Brenda Bryant Osborn, Opal M. Garfí, Altha P. Hickman, Norma Sexton, Linda Bliss, Rita Gilliam, Gene Bryant, Billy Ray Bryant, and Beverly Beeman appeal the order of the Jackson County Circuit Court granting a declaratory judgment in favor of Appellees Billy Bryant, Betty Hamby, Norma Knight, Mabel Kimberling, and Dortha M. Whitener. Appellants argue that the circuit court erred in declaring that Lacy Bryant died intestate and that his will could not be used as evidence of Osborn’s claim to certain property. This case is presented to us as a petition for review from the court of appeals’ decision in Osborn v. Bryant, 104 Ark.App. 257, 290 S.W.3d 620 (2009); hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(e) and 2-4. For the reason set forth Rbelow, we reverse the order of the circuit court and remand this case for proceedings consistent with this opinion.

The present controversy concerns the ownership of eighty acres of land in Jackson County. The land, which consists of a twenty-acre homestead and sixty acres of farmland, was owned by Lacy Bryant. At the time of his death on June 15, 1994, Lacy was survived by his wife, Naomi Bryant, and eight children. 1 Lacy left a will devising a life-estate interest in the twenty-acre homestead and sixty-acre tract to his wife, Naomi, with the remainder to Appellant Brenda Bryant Osborn, one of Lacy’s children, conditioned upon her payment of $200 per acre to the remaining heirs for the sixty-acre tract. The will further provided that if Brenda elected not to purchase the property from the other heirs, it was to be divided equally between Lacy’s children, per stirpes.

Upon Lacy’s death, Brenda filed an affidavit for collection of small estate, pursuant to ArkCode Ann. § 28-41-101 (Repl. 2004 & Supp.2007), and attached her father’s will to the affidavit. The same day she filed the affidavit, Brenda also filed a “Notice of Probate.” Proof of publication of the notice was subsequently filed on October 14, 1994. Thereafter, on June 21, 1995, Brenda executed and filed an “Administrator’s Deed,” which incorporated the terms of her father’s will.

Naomi died on November 1, 2004. Following her mother’s death, Brenda asserted her claim to the remainder interest in her father’s property and tendered payment to Lacy’s | .¡remaining heirs. Those heirs who are now Appellants in the instant matter accepted the payments; those heirs who are now Appellees declined her payments and opted to file the instant action, seeking a declaratory judgment, partition, and asserting a breach-of-contract claim. Therein, Appellees requested the following declarations: (1) that Lacy’s will was invalid, as it had never been probated and could not now be probated; (2) that the “Administrator’s Deed” executed by Brenda was void and invalid; and (3) that Lacy died intestate and that his property should pass according to the laws of intestacy. Appellees requested the court to partition the land or, alternatively, to order it sold and the proceeds divided equally among Lacy’s heirs.

A hearing on the petition was held on December 19, 2005. Appellees argued that the will and deed were nullities under Ark.Code Ann. § 28-40-104 (Repl.2004 & Supp.2007), the statute governing the use of a will as evidence of a devise. Appellees also asserted that the exceptions in section 28-40-104 were not applicable, as a probate proceeding had commenced, namely the filing of the affidavit and administrator’s deed. Appellants countered that the small-estate procedure they had utilized was excepted from the provisions in section 28^40-104, and cited to this court’s decision in Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982), for support. Appellants also argued that Brenda was authorized to execute the administrator’s deed, pursuant to Ark.Code Ann. § 28-41-102(d) (Repl.2004). At the conclusion of the hearing, the court announced that it was taking the matter under advisement.

14An order granting the petition for declaratory judgment was subsequently entered on June 12, 2006. The circuit court found that Lacy’s will was never probated. Although the court found that the will was never revoked, it also found that Brenda could not use it as evidence to support her claim of ownership to the eighty-acre tract. This finding was based on the court’s reasoning that once Brenda filed the small-estate affidavit and issued the “Administrator’s Deed” to herself, she was using a probate proceeding to effect the succession of estate property and, thus, could not satisfy the requirements of section 28-40-104(b)(1). The court also concluded:

[T]he small estate collection statute specifically provides for a distributee taking transfer of real property to issue a deed to himself or herself. However, the small estate collection statute was designed to pass small, non-complex, and usually uncontroverted estates to the proper heirs without full probate administration. It was not intended to provide a means for avoid probate where there is an elevated likelihood of conflict among heirs, there are out-of-state heirs not likely to see the published notice, and the will provides conditions precedent to the transfer of property.

The court reserved ruling on the request for partition and the breach-of-contract claim until a final hearing could be held. Appellants filed a notice of appeal on July 11, 2006. On May 16, 2007, the court of appeals, in an unpublished opinion, dismissed the appeal for lack of a final order pursuant to Ark. R. Civ. P. 54(b). 2

| .^Following the court of appeals’ dismissal, the circuit court entered a decree of partition on March 31, 2008. Therein, the trial court held that the land could not be divided and ordered it sold, with the proceeds to be divided among the heirs. 3 Appellants filed a timely notice of appeal to the court of appeals. The court of appeals reversed, holding that the circuit court erred in its interpretation of section 28-40-104 because it failed to give effect to subsection (b)’s provision that exempts small-estate proceedings from the requirement that a will must be proved valid to be used as evidence of a devise. See Osborn, 104 Ark.App. 257, 290 S.W.3d 620. Following the court of appeals’ decision, this court granted Appellees’ petition for review. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. See Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).

Appellants raise the following two points on appeal: (1) the distribution of Lacy’s property without administration was properly accomplished, and the administrator’s deed should be recognized as a valid conveyance of Lacy’s property to Brenda; (2) the circuit court incorrectly applied section 28^0-104 in determining that Lacy’s will could not be used as evidence of a devise.

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Bluebook (online)
2009 Ark. 358, 324 S.W.3d 687, 2009 Ark. LEXIS 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborn-v-bryant-ark-2009.