Burnett v. First Commercial Trust Co.

• Decision Date: 03 March 1997
• Docket Number: No. 96-994,96-994
• Citation: 939 S.W.2d 827,327 Ark. 430
• Parties: Jeanne W. BURNETT, Appellant, v. FIRST COMMERCIAL TRUST COMPANY, Appellee,
• Court: Arkansas Supreme Court

Page 827

939 S.W.2d 827

327 Ark. 430

Jeanne W. BURNETT, Appellant, v. FIRST COMMERCIAL TRUST COMPANY, Appellee,

No. 96-994.

Supreme Court of Arkansas.

March 3, 1997.

Dan McCraw, Hot Springs, for appellant.

Richard L. Slagle, Little Rock, for appellee.

ARNOLD, Chief Justice.

This is a case involving a testamentary trust. The issue is whether the will containing the trust is ambiguous in its disposition of the testatrix's property. We hold that the will is not ambiguous, and that the chancellor erred in receiving parol evidence on the question of the testatrix's intent. We therefore reverse and remand.

The testatrix, Lois E. Burnett, died on June 10, 1994. At the time of her death, her family consisted of her brother, James Burnett, her nephew, William Spencer, Jr., and Spencer's six children. Mrs. Burnett's will provided for her funeral expenses and made several small, specific bequests. The will then disposed of the remainder of her estate as follows:

I give, devise, and bequeath all the rest and residue of my estate, whether real, personal, or mixed, and of whatever kind or nature, wheresoever located and whenever acquired to Arkansas Bank and Trust [now First Commercial Trust Company] in Trust for my friend, Flournoy Adkins, during his lifetime.

The terms of said trust being as follows:

1. Flournoy Adkins is to receive my automobile at the time of my death for his use and benefit.

2. Flournoy Adkins has the right and use of my home located as follows:

[description of the property]

Upon the death of Flournoy Adkins, the Trustee shall distribute the above described land as follows: one-half interest to my nephew, William Spencer, Jr., and one-half interest to his six children ... in equal shares, share and share alike.

As can be seen, the will instructs the trustee that the realty contained in the trust corpus is to be distributed upon the death of Flournoy Adkins. However, it makes no provision for the distribution of the personalty contained in the trust corpus. The distinction is important. At the time of Mrs. Burnett's death, the real property in the trust was valued at $25,000.00; the personal property was valued at $194,702.14.

On May 3, 1995, First Commercial brought an action for declaratory judgment seeking instructions on how to distribute the personalty in the trust upon Flournoy Adkins's death. First Commercial claimed that the trust's failure to expressly provide for such distribution was the result of a clerical error. The complaint asked that the personalty be distributed in the same manner as the realty: one-half to William Spencer, Jr., and one-half to the Spencer children. James Burnett, who had received no bequest in the will, answered the complaint. He contended that any part of the trust corpus lacking specific directions for distribution should pass through the laws of intestate succession. The chancellor found that the silence of the will regarding the distribution of the personalty created an ambiguity. He thus allowed the use of parol evidence to explain the omission.

Bruce Garrett, the attorney who prepared Mrs. Burnett's will, testified that Mrs. Burnett came to him in 1992 to change her will. Garrett testified that the will's failure to provide for the disposition of the trust's personal property was the result of a clerical error. The provision which read, "upon the death of Flournoy Adkins, the Trustee shall distribute the above described land " should have read, "shall distribute the above described land and personalty ". Garrett further testified that Mrs. Burnett had decided to cut James out of the will and to provide for her friend, Flournoy Adkins. The previous will, which Mrs. Burnett executed in 1990, had bequeathed the bulk of her estate to James Burnett and William Spencer, Jr. A copy of Mrs. Burnett's old will reflecting the deletions, additions, and handwritten notes of Garrett and his secretary, was introduced into evidence. The exhibit shows that the provisions which were made for James Burnett in 1990 were marked through. A witness who was experienced in the use of shorthand testified that some of the secretary's notes on the will could be translated as directing the personal property to be distributed to the residual beneficiaries upon Adkins's death.

The chancellor, after hearing the evidence, found that the testatrix intended to bequeath all trust property, including personal property, to William Spencer, Jr., and his six children, upon the death of Flournoy Adkins. Jeanne Burnett, as special administratrix of her late husband's estate, brings this appeal.

Ordinarily, the intention of the testator is to be gathered from the four corners of the instrument itself. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). Extrinsic evidence may be received on the issue of the testator's intent, but only where the terms of the will are ambiguous. In re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990). The language of Mrs. Burnett's will unequivocally expresses the intention that, upon the death of Flournoy Adkins, the land contained in the trust shall be distributed. No mention is made of her substantial personal estate. The question we must answer is whether Mrs. Burnett's failure to dispose of her entire estate creates an ambiguity. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression used in a written instrument. Smith v. Smith, 229 Ark. 579, 317 S.W.2d 275 (1958). Such a definition contemplates the need for interpretation of terms actually used in the will. As such, it does not encompass the situation in which a testatrix does not dispose of a portion of her estate. We have recognized that oral evidence should not be used to supply terms in a writing which are wholly absent. Hickman v. Trust of Heath, House & Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992).

In a similar case from Texas, In re Estate of Hunt, 908 S.W.2d 483 (Tex.App.1995), a testatrix failed to completely dispose of a remainder interest in a trust. The court said the following:

It is true that Marguerite Hunt failed to completely dispose of her estate in the Will. It is also true that upon reading the entire will it is reasonable to presume that it was Marguerite Hunt's intention to award the remainder interest in the Delph Trust to the Salvation Army. But she did not say so. And we are prohibited from speculating as to what Marguerite Hunt would have done had she completed her will. A court may not rewrite a will or add provisions under the guise of construction of the language of the will in order to reflect some presumed intention of the testatrix. Even though there is a strong presumption against intestacy, the presumption does not arise when the testatrix fails, through design or otherwise, to make a complete disposition of her property. (Citations omitted).

Our own case law has espoused much the same philosophy--that the paramount objective in interpreting a will is the intention of the testator as expressed in the language of the will, and that it is presumed that a testatrix knows the contents of the will she executes. Chlanda v. Estate of Fuller, 326 Ark. 551, 932 S.W.2d 760 (1996); Armstrong v. Butler, supra; Heirs of Mills v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971). The Heirs of Mills case is particularly enlightening. There, Mr. Mills's will contained a number of contingency provisions, including a provision that bequeathed most of his estate to a nephew and a sister-in-law, should Mills and his wife die in a "common disaster". However, the will failed to provide for the situation in which Mrs. Mills might predecease her husband. In fact, she did predecease him. Mr. Mills's heirs (who were not provided for in his will) filed suit, contending that, since the will made no bequest in the event Mrs. Mills predeceased her husband, Mr. Mills's estate should pass through the laws of intestate succession. In holding that the will contained no ambiguity, we said the following:

actually our holding in this case may not be in accord with the actual intention of the testator--existing in his mind--but certainly it is in accord with long established law that the court's finding shall be based on the intention of the testator--as expressed by the language of the will.

Id. at 704, 466 S.W.2d at 938.

First Commercial argues that our acceptance of the appellant's argument will result in a partial intestacy. In response to a similar contention, we said the following in Chlanda v. Estate of Fuller, supra:

It is correct to state that there is a presumption in the rules of construction that 'a person who takes the time and effort to make a will does not desire partial intestacy'. Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982). However, a probate court should not resort to the rules of construction unless the intent of the testator, as shown by his express words, is in doubt.

326 Ark. at 555, 932 S.W.2d at 763.

The express language of Mrs. Burnett's testamentary disposition reflects the unambiguous intention that, upon the death of Flournoy Adkins, the land, and no other property contained in the trust corpus, shall pass under the will. We must therefore reverse and remand this case with instructions to enter orders consistent with this opinion.

Reversed and remanded.

GLAZE and THORNTON, JJ., dissent.

THORNTON, Justice, dissenting.

This is an appeal from an order of the Garland County Chancery Court's finding that an ambiguity exists in the provisions included in the Last Will and Testament of Lois E. Burnett, which requires judicial interpretation of the conflict and repugnance between the provisions of the instrument. Based upon that finding of ambiguity, the Chancellor considered evidence and resolved the ambiguity by requiring the disposition of all property, real, personal, and mixed, as follows: one-half to Ms. Burnett's nephew, Willie Spencer, and one-half to Mr. Spencer's children, upon the death of Flournoy Adkins,...