Thomas B. Burke, Special Justice.
Appellants are the surviving children of the decedent, R.A. Pickens. The decedent died testate, and appellants are neither beneficiaries under his will nor creditors of the estate. Appellee is the executor of the decedent’s estate and is the son-in-law of the decedent’s surviving spouse. His mother-in-law and his wife were also named as defendants below. Appellants prosecute this interlocutory appeal from an order of the probate court denying appellants’ petition to remove the executor, for an accounting, for restitution, and for appointment of an administrator in succession, and from orders denying appellants’ petition for appointment of special counsel and denying reconsideration of the petition for appointment of special counsel. The underlying dispute stems from appellants’ desire to. cause a wrongful death action to be commenced against the decedent’s attending physician, appellee, his wife, and mother-in-law. We hold that the order denying the petition to remove the executor is appealable, but that appeal is dismissed because appellants have no right to prosecute the appeal. In addition, the probate court lacked jurisdiction to order an accounting and restitution, and the denial of those remedies is affirmed. The denial of appellants’ petitions for appointment of special counsel and the denial of reconsideration are not clearly erroneous, and, therefore, we affirm the orders of the probate court.
Appellants’ petition for removal of the executor alleged that the decedent’s death was caused by the wrongful conduct of the decedent’s attending physician, along with that of appellee, his wife, and mother-in-law, and that the appellee-executor would not commence a wrongful death action because he, together with his wife and mother-in-law, were prospective defendants. Appellants submitted various affidavits and deposition testimony in support of their contention that the decedent’s death was caused by such wrongful conduct. Appellants also alleged that the executor had mismanaged estate assets and therefore committed waste. Appellants sought to remove the executor and to cause a successor to be appointed for the purpose of prosecuting the action for wrongful death and to require an accounting and restitution. The probate court denied the petition, holding that appellants were not beneficiaries under the decedent’s last will and testament and, therefore, lacked standing to petition for the removal of the executor.
Rule 2 of the Arkansas Rules of Appellate Procedure governs when an appeal may be taken. Rule 2, however, preserves all statutory rights of appeal which were in existence at the effective date of the rules, July 1, 1979. Act 38 of 1973, which authorized this court to prescribe these rules, provides that rights of appeal shall continue as authorized by law. See Court’s Notes to Ark. R. App. P. 2. Section 28-1-116 of the Arkansas Code Annotated of 1987 provides for appeals from probate causes involving wills, estates, and fiduciary relationships. It was enacted in 1949. It was in effect at the time Rule 2 was adopted and, therefore, determines whether there is a right of appeal in this case.
Section 28-1-116(a) of the Arkansas Code Annotated provides that a person aggrieved by an order of the probate court has a right to appeal. Subsection (b), however, provides that there is no right of appeal from an order appointing or refusing to appoint a special administrator. In Re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991). In addition, section 28-48-103(f) provides that an order appointing a special administrator shall not be appealable. Thus, any order of a probate court is generally appealable, but there can be no appeal from an order appointing or refusing to appoint a special administrator. In this case, the probate court order did more than refuse the appointment of a special administrator, i.e., it refused to remove the executor because of an alleged conflict of interest. The denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. See Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972); Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953); Ark. Code Ann. § 28-1-116(a), (1987). That part of the order denying the removal of the executor is appealable.
Even though it is an appealable order, appellants have no right to appeal the order. The removal statute provides that an executor may be removed for various reasons, either upon the court’s own motion or upon the petition of “an interested person.” Ark. Code Ann. § 28-48-105 (a)(1) and (2) (1987). Appellants are not interested persons. The decedent died testate and left them nothing under the will. They are not heirs. They are not creditors. They have no claim against the estate. The Probate Code defines “interested person” as “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered.” Ark. Code Ann. § 28-l-102(a)(l) (1987). “Heir” is defined as “a person entitled by law of descent and distribution to the real and personal property of an intestate decedent.” Id. at (a) (10). The statute regarding appointment of successor administrators also provides that one can be appointed upon petition of “an interested person.” Ark. Code Ann. § 28-48-107(a) (1987).
Even though appellants are not interested persons, the trial court may have considered their petition for a successor personal representative as something that could cause the court to act on its own motion. It apparently did so and appointed a special administrator to investigate the wrongful death claim. This investigation was done by a person with no alleged conflict of interest and thus satisfied the concern about any possible conflict of interest on the part of the executor. The court did nothing further on its own motion. This action does not make appellants “interested parties,” and it does not give them a right to appeal the court’s refusal to appoint a successor representative.
Appellants assert an interest in the decedent’s estate based on an álleged contract by the decedent to make a will devising certain real property to one of the appellants and based on their alleged interest as remaindermen in other real property whose interest vested upon the death of the decedent, who owned only a life estate. Appellants’ claims to real property based on the alleged oral contract and their status as remaindermen are not claims against the estate, but represent claims made adversely to the estate by those who are not beneficiaries of the estate, i.e., strangers to the estate. It has long been our rule that the probate court lacks jurisdiction to resolve such disputes. Bratcher v. Bratcher, 36 Ark. App. 206, 821 S.W.2d 481 (1991); see also Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965). Thus, the probate court’s denial of these remedies is affirmed.
After denying appellants’ petition, the probate court appointed a special administrator, W. H. Dillahunty, a member of the bar of this court, for the purpose of determining whether an action for wrongful death should be commenced.
Free access — add to your briefcase to read the full text and ask questions with AI
Thomas B. Burke, Special Justice.
Appellants are the surviving children of the decedent, R.A. Pickens. The decedent died testate, and appellants are neither beneficiaries under his will nor creditors of the estate. Appellee is the executor of the decedent’s estate and is the son-in-law of the decedent’s surviving spouse. His mother-in-law and his wife were also named as defendants below. Appellants prosecute this interlocutory appeal from an order of the probate court denying appellants’ petition to remove the executor, for an accounting, for restitution, and for appointment of an administrator in succession, and from orders denying appellants’ petition for appointment of special counsel and denying reconsideration of the petition for appointment of special counsel. The underlying dispute stems from appellants’ desire to. cause a wrongful death action to be commenced against the decedent’s attending physician, appellee, his wife, and mother-in-law. We hold that the order denying the petition to remove the executor is appealable, but that appeal is dismissed because appellants have no right to prosecute the appeal. In addition, the probate court lacked jurisdiction to order an accounting and restitution, and the denial of those remedies is affirmed. The denial of appellants’ petitions for appointment of special counsel and the denial of reconsideration are not clearly erroneous, and, therefore, we affirm the orders of the probate court.
Appellants’ petition for removal of the executor alleged that the decedent’s death was caused by the wrongful conduct of the decedent’s attending physician, along with that of appellee, his wife, and mother-in-law, and that the appellee-executor would not commence a wrongful death action because he, together with his wife and mother-in-law, were prospective defendants. Appellants submitted various affidavits and deposition testimony in support of their contention that the decedent’s death was caused by such wrongful conduct. Appellants also alleged that the executor had mismanaged estate assets and therefore committed waste. Appellants sought to remove the executor and to cause a successor to be appointed for the purpose of prosecuting the action for wrongful death and to require an accounting and restitution. The probate court denied the petition, holding that appellants were not beneficiaries under the decedent’s last will and testament and, therefore, lacked standing to petition for the removal of the executor.
Rule 2 of the Arkansas Rules of Appellate Procedure governs when an appeal may be taken. Rule 2, however, preserves all statutory rights of appeal which were in existence at the effective date of the rules, July 1, 1979. Act 38 of 1973, which authorized this court to prescribe these rules, provides that rights of appeal shall continue as authorized by law. See Court’s Notes to Ark. R. App. P. 2. Section 28-1-116 of the Arkansas Code Annotated of 1987 provides for appeals from probate causes involving wills, estates, and fiduciary relationships. It was enacted in 1949. It was in effect at the time Rule 2 was adopted and, therefore, determines whether there is a right of appeal in this case.
Section 28-1-116(a) of the Arkansas Code Annotated provides that a person aggrieved by an order of the probate court has a right to appeal. Subsection (b), however, provides that there is no right of appeal from an order appointing or refusing to appoint a special administrator. In Re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991). In addition, section 28-48-103(f) provides that an order appointing a special administrator shall not be appealable. Thus, any order of a probate court is generally appealable, but there can be no appeal from an order appointing or refusing to appoint a special administrator. In this case, the probate court order did more than refuse the appointment of a special administrator, i.e., it refused to remove the executor because of an alleged conflict of interest. The denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. See Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972); Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953); Ark. Code Ann. § 28-1-116(a), (1987). That part of the order denying the removal of the executor is appealable.
Even though it is an appealable order, appellants have no right to appeal the order. The removal statute provides that an executor may be removed for various reasons, either upon the court’s own motion or upon the petition of “an interested person.” Ark. Code Ann. § 28-48-105 (a)(1) and (2) (1987). Appellants are not interested persons. The decedent died testate and left them nothing under the will. They are not heirs. They are not creditors. They have no claim against the estate. The Probate Code defines “interested person” as “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered.” Ark. Code Ann. § 28-l-102(a)(l) (1987). “Heir” is defined as “a person entitled by law of descent and distribution to the real and personal property of an intestate decedent.” Id. at (a) (10). The statute regarding appointment of successor administrators also provides that one can be appointed upon petition of “an interested person.” Ark. Code Ann. § 28-48-107(a) (1987).
Even though appellants are not interested persons, the trial court may have considered their petition for a successor personal representative as something that could cause the court to act on its own motion. It apparently did so and appointed a special administrator to investigate the wrongful death claim. This investigation was done by a person with no alleged conflict of interest and thus satisfied the concern about any possible conflict of interest on the part of the executor. The court did nothing further on its own motion. This action does not make appellants “interested parties,” and it does not give them a right to appeal the court’s refusal to appoint a successor representative.
Appellants assert an interest in the decedent’s estate based on an álleged contract by the decedent to make a will devising certain real property to one of the appellants and based on their alleged interest as remaindermen in other real property whose interest vested upon the death of the decedent, who owned only a life estate. Appellants’ claims to real property based on the alleged oral contract and their status as remaindermen are not claims against the estate, but represent claims made adversely to the estate by those who are not beneficiaries of the estate, i.e., strangers to the estate. It has long been our rule that the probate court lacks jurisdiction to resolve such disputes. Bratcher v. Bratcher, 36 Ark. App. 206, 821 S.W.2d 481 (1991); see also Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965). Thus, the probate court’s denial of these remedies is affirmed.
After denying appellants’ petition, the probate court appointed a special administrator, W. H. Dillahunty, a member of the bar of this court, for the purpose of determining whether an action for wrongful death should be commenced. The special administrator’s report stated that he had reviewed all of the materials and statutes relating to the contemplated wrongful death action, and he concluded that an action for wrongful death against the attending physician would likely survive a motion for summary judgment. He did, however, characterize the recoverable damages as considerably limited and pointed out that recovery was not certain and that there was no certainty a recovery would be of a sufficient amount to justify the expense of bringing the action. His report noted that potential damages were limited due to the widow’s opposition to commencement of the action and due to the fact that no compensatory damages would be recovered in favor of appellants. The special administrator was of the opinion that independent counsel would not accept the case on a contingent fee basis, and he was unwilling to attempt to persuade competent counsel to accept the cause on such a basis.
After the filing of the special administrator’s report, appellants filed a petition for the appointment of special counsel to commence the wrongful death action. The petition alleged that experienced trial counsel had agreed to commence the action on a contingent fee basis so as to result in no expense to the estate absent a recovery.
On the basis of the special administrator’s report, the probate court entered an order denying the petition for appointment of special counsel and subsequently entered an order denying reconsideration of that petition. Appellants appeal from these two orders, and we address them on the merits because appellants are persons entitled to recover damages for mental anguish as the result of a wrongful death.
Appellants cite section 16-62-102(b) of the Arkansas Code Annotated of 1987, which provides that every wrongful death action shall be brought by and in the name of the personal representative of the deceased person. Appellants contend that the executor, together with his wife and mother-in-law, are prospective defendants in the wrongful death action which appellants seek to have commenced and that the probate court abused its discretion in refusing to appoint special counsel in light of the conflict between the executor’s personal interest and his duties as a personal representative.
The probate court has broad discretion to appoint a special administrator. Section 28-48-103(a), in material part, provides:
For good cause shown, a special administrator may be appointed. . . . after the appointment of an executor. . . . without the removal of the executor.
Ark. Code Ann. § 28-48-103(a) (1987). The appointment may be “for a specified time, to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment.” Ark. Code Ann. § 28-48-103(c) (1987).
In the case at bar, the probate court appointed the special administrator:
for the sole purpose of determining whether or not a malpractice suit should be brought against Dr. Hoagland [the decedent’s attending physician] and, further, to determine whether or not a wrongful death action should be initiated against Carol Pickens, Laurie Black and/or Freddie Black [the surviving spouse, her daughter, and appellee].
The effect of any conflict of interest of the executor in determining whether to initiate a wrongful death action was removed by the appointment of the special administrator. That appointment removed the executor from the decision-making process and ensured that the contemplated litigation would be considered independently and objectively. The special administrator’s report is well-reasoned, and the probate court’s orders based on it and denying the appointment of special counsel are not clearly erroneous. We' do not reverse such orders unless clearly erroneous. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986).
Affirmed.
Corbin and Brown, JJ., not participating. Hays and Glaze, JJ., dissent.