Alexander v. Estate of Alexander

• Decision Date: 19 December 2002
• Docket Number: No. 02-847.,02-847.
• Citation: 93 S.W.3d 688,351 Ark. 359
• Parties: Sean ALEXANDER, by and through his Court-Appointed Guardian and Parent Charmaine ALEXANDER, v. The ESTATE OF Ray Edward ALEXANDER, Deceased.
• Court: Arkansas Supreme Court

93 S.W.3d 688

351 Ark. 359

Sean ALEXANDER, by and through his Court-Appointed Guardian and Parent Charmaine ALEXANDER, v. The ESTATE OF Ray Edward ALEXANDER, Deceased.

No. 02-847.

Supreme Court of Arkansas.

December 19, 2002.

COPYRIGHT MATERIAL OMITTED

Wood, Smith, Schnipper & Clay, by: John T. Vines and Philip M. Clay, Hot Springs, for appellant.

Steven B. Davis, Harrison, for appellee.

ANNABELLE CLINTON IMBER, Justice.

The sole issue on appeal is whether Sean Alexander is a pretermitted child under the will of his late grandfather, Ray Edward Alexander, pursuant to Ark.Code. Ann. § 28-39-407(b) (1987). The facts in this case are undisputed. Sean is the issue of the testator's deceased son, James Edward Alexander. The will did not specifically mention or provide for Sean. Nonetheless, the circuit court held that a reference in a rule-against-perpetuities clause to "the last survivor of my issue on the date of my death" was sufficient mention of Sean as a member of a class to remove him from the status of a pretermitted child under section 28-39-407(b). We disagree and reverse and remand.

Ray Edward Alexander executed his last will and testament on June 19, 1997. He died on September 12, 2000. At the time of his death, Ray had no surviving spouse but left as his heirs-at-law two children, Charles Frederick Alexander and Judy Rae Currie, and one grandchild, Sean Alexander, the child of a deceased son, James Edward Alexander. Appellee Charles Frederick Alexander, who was named as executor in his father's will, promptly filed a petition for probate of the will. The will was duly admitted to probate on September 19, 2000, and Charles was appointed executor of the estate. The court's order also listed Sean as an heir.

The decedent's will left the entire estate to Charles, but if he did not survive, the estate would devolve to his issue per stirpes. If none of these survived, the will provided that the estate would then vest in Judy Rae Currie; but, if she failed to survive, her issue would inherit the estate per stirpes.¹ A specific provision of the will mentioned Ray's former spouse and excluded her as a beneficiary. However, the will did not specifically mention either James Edward Alexander, Ray's other child who was deceased at the time of the will's execution, or Sean Alexander, James's son and Ray's grandson.

On June 4, 2001, Appellant Charmaine Alexander, as guardian of Sean Alexander, petitioned the probate court for a determination of Sean's heirship as a pretermitted child pursuant to Ark.Code Ann. § 28-39-407(b). In his reply to the petition, Charles denied Sean's status as a pretermitted child. Both parties then filed motions for summary judgment on the matter. Charmaine asserted that the decedent's last will and testament made no mention of either James or Sean. In contending to the contrary, Charles argued that Sean was sufficiently mentioned by class in the will.

The probate division of circuit court² entered a detailed order on March 25 2002, finding that the record showed there was no genuine issue as to any material fact and that Sean Alexander was not a pretermitted child. In its order, the court held the following language in the will to be dispositive:

Notwithstanding anything herein to the contrary, any gift, devise or bequest hereunder shall vest not later than (21) years after the death of the last survivor of my issue living on the date of my death.

The lower court ruled that "the mention of [Sean] as a part of the class of lawful issue living at the date of the testator[`s death] is sufficient under the law to avoid pretermitted status." Charmaine then moved for the court to amend its findings pursuant to Ark. R. Civ. P. 52, or in the alternative, to order a new trial pursuant to Ark. R. Civ. P. 59. Her motions were denied, and Charmaine now appeals from the circuit court's summary judgment ruling on Sean's status as a pretermitted child.

Probate cases are reviewed de novo on appeal. Witt v. Rosen, 298 Ark. 187, 765 S.W.2d 956 (1989). Also, in an appeal from the granting of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom the motion is directed. Mangum v. Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990). In this case, all of the material facts have been stipulated by the parties. Thus, there only remains the question of whether the moving party here is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998).

Charmaine's primary contention is that because neither Sean nor his deceased father was mentioned in the will, Sean is a pretermitted child as contemplated by Ark.Code. Ann. § 28-39-407(b) (1987). The crux of her appeal is that the language cited by the circuit court is technical, and not sufficient to mention Sean for purposes of section 28-39-407(b). Charles, on the other hand, argues that the mention of Sean as a member of a one-person class was sufficient under the statute to avoid pretermitted status. Charles adds that the circuit court's order should be affirmed because it carries out the clearly expressed intention of the testator.

The law in Arkansas as to pretermitted heirs is well-established. The statute reads as follows:

PRETERMITTED CHILDREN. If, at the time of the execution of a will, there is a living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

Ark.Code Ann. § 28-39-407(b). The pretermitted-child statute applies to both omitted children of the testator and omitted issue of a deceased child of the testator. Mangum v. Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990); Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). Extrinsic evidence is not admissible to show that a testator intended to disinherit a pretermitted child. Mangum v. Fuller, supra; Holland v. Willis, supra. The purpose of the pretermitted-child statute is to avoid the inadvertent or unintentional omission of children or issue of deceased children unless an intent to disinherit is expressed in the will. Holland v. Willis, supra; Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981). In Arkansas, there is a strong presumption against disherison. Robinson v. Mays, supra. When a will fails to mention a child or the issue of a deceased child, that omission operates in favor of the pretermitted child without regard to the real intention of the testator. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). Furthermore, this court has stated that the object of the statute is "to prevent injustice to a child or descendant from occurring by reason of the forgetfulness of a testator who might, at the time of making his will, overlook the fact that he had such child or descendant." Petty v. Chaney, 281 Ark. 72, 73 661 S.W.2d 373, 374 (1983) (quoting Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944)).

As a general rule, the testator's mention of children, or issue of predeceased children, as a class is sufficient to preclude the application of the pretermitted-child statute. Ark.Code Ann. § 28-39-407(b); Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986). In Dykes v. Dykes 294 Ark. 158, 741 S.W.2d 256 (1987), this court held that the testator clearly mentioned his children by class by stating in his will that, "[m]y children know that my wife and I love them dearly." Id. at 159, 741 S.W.2d at 256. However, words used in a technical, legal sense are not sufficient to avoid the pretermitted status of a child or issue of a predeceased child. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

In Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), the will made no mention of the decedent's children by a first marriage; it left the entire estate to the child of a second marriage, but if that child failed to survive, then the estate would go to her husband and their two sons in equal parts. If none of these survived, paragraph 4(c) of the will provided that the estate would "devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution of the State of Missouri." 271 Ark. at 820, 610 S.W.2d at 886. This court held that the quoted language was technical and not sufficient to overcome Arkansas's strong presumption against disherison. 271 Ark. 818, 610 S.W.2d 885. In so holding, we reiterated that the purpose of the pretermitted-child statute is not to interfere with the testator's right to dispose of property, but to avoid the inadvertent or unintentional omission of a child unless the will expresses an intent to disinherit. Id. We also declined to further extend the reasoning of our decisions in Taylor v. Cammack 209 Ark. 983, 193 S.W.2d 323 (1946), and Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928), where we held that each testator...