Craig v. Carrigo

• Decision Date: 26 June 2003
• Docket Number: No. 01-1408.,01-1408.
• Citation: 121 S.W.3d 154,353 Ark. 761
• Parties: Sharlett CRAIG, Personal Representative of the Estate of Earle L. Berrell, Deceased, and Erika Arndt v. Bonita Berrell CARRIGO and Edward James Berrell.
• Court: Arkansas Supreme Court

121 S.W.3d 154

353 Ark. 761

Sharlett CRAIG, Personal Representative of the Estate of Earle L. Berrell, Deceased, and Erika Arndt v.Bonita Berrell CARRIGO and Edward James Berrell.

No. 01-1408.

Supreme Court of Arkansas.

June 26, 2003.

William F. Sherman, Little Rock, for appellants.

Ann C. Donovan, Fayetteville, for appellees.

W.H. "DUB"ARNOLD, Chief Justice.

AppellantsSharlett Craig, personal representative of the estate of Earle L. Berrell, and Erika Arndt have appealed the order of the Pulaski County Circuit Court determining that the decedent's children, AppelleesBonita Berrell Carrigo and Edward James Berrell, are pretermitted heirs of the estate and thus entitled to inherit the real property located in Pulaski County.This is the second appeal of this matter to this court.SeeCraig v. Carrigo,340 Ark. 624, 12 S.W.3d 229(2000).Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(7).For reversal, Appellants argue that the trial court erred by: (1) applying Arkansas law to the decedent's will; (2) ruling that Appellant Arndt was not the common-law wife of the decedent (3) refusing to give effect to the expressed intent of the testator over the law regarding pretermitted children; and (4) granting attorney's fees and costs to Appellees to be paid from the estate.We affirm on the first three points, and we dismiss on the fourth point.

The record reflects that the decedent, Earle Berrell, and Appellant Arndt began living together in Alberta, Canada, in 1992.At the time, both Berrell and Arndt were married to other people.Arndt's marriage to Uwe Arndt was dissolved on May 28, 1994, and Berrell's marriage to Margaret Berrell was dissolved on January 7, 1996.Prior to their divorces, on February 4, 1994, Berrell executed a holographic will that left all of his property, real and personal, including that located in Arkansas, to Arndt.The will did not mention Berrell's two children from previous marriages.Berrell died on October 20, 1997.

A few months after his death, Arndt initiated probate proceedings in Alberta, Canada.In April 1998, she also initiated an ancillary probate proceeding in Pulaski County.The first application for ancillary probate omitted the fact that Berrell had two children.Instead, it reflected that there were no children and that Arndt was Berrell's common-law wife and the only beneficiary.An amended application, however, reflected that the decedent had an adopted son, Appellee Berrell, and that there was a possible missing adult female child, Appellee Carrigo.Both applications asked that Arndt be appointed as personal representative of the Arkansas estate.

The pleadings reflect that the decedent's property in Arkansas consisted of an escrow account, managed by AppellantSharlett Craig, a certificate of deposit, and real property located at 24 Coolwood Drive in Little Rock.The total value of the Arkansas property, as reflected in the amended application, was approximately $64,000.

The trial court entered an order directing issuance of ancillary letters, but denied appointment of Arndt as personal representative.The trial court believed that the Arkansas estate should be represented by an Arkansas resident.As a result, Appellant Craig was appointed to be the personal representative.

After receiving notice of the Arkansas probate proceeding, Appellees hired separate counsel and contested the holographic will to the extent that it omitted any mention of them.They asserted that they were entitled to inherit the real property, on the ground that they were pretermitted children, as provided in Ark.Code. Ann. § 28-39-407(b)(1987).

In December 1998, Appellant Craig filed a motion for determination of heirship and legal interests in the Arkansas estate.Thereafter, the parties submitted briefs and exhibits in support of their positions, and several hearings were conducted.In a letter order dated May 31, 2001, the trial court determined that because the will failed to mention Appellees, the decedent's children, they were entitled to inherit the Arkansas real property as pretermitted children.The trial court also found that Arndt was the common-law spouse of the decedent and was thus entitled to a dower interest in the real property.Finally, the trial court found that Arndt was entitled to the Arkansas personal property.

Approximately one week after the trial court issued its letter order, counsel for Appellees filed an objection to the court's finding that Arndt was the common-law wife of the decedent.Counsel's letter reflects in part:

I have a problem with one paragraph in your letter opinion about the stipulated facts and would only like to point out that while those facts were stipulated to, other facts stipulated to were that the "State" of Alberta does not recognize common law marriages (as enumerated in many of the trial briefs) and that the pension award was based solely on federal law and not on an individual state's (Alberta's) recognition of common law marriage.

Following receipt of counsel's objection, the trial court set the matter for a hearing.Thereafter, on September 10, 2001, the trial court entered an order finding that there was insufficient proof to demonstrate that Arndt was Berrell's common-law spouse.Based on this finding, the trial court determined that Arndt had no dower interest in the Arkansas real property.Appellants filed a timely notice of appeal of that order on October 5, 2001.

Also in September 2001, Appellees' counsel filed a motion for attorney's fees and costs to be awarded from the estate.Appellants objected on the ground that the trial court lacked jurisdiction to award any fees because an appeal was pending.Appellants also argued that there was no legal basis to grant attorney's fees from the estate to pay for counsel hired by some of the heirs.Following a hearing on the issue, the trial court granted the motion.An order awarding Appellees' attorney's fees of $9,200 and costs of $800 was entered on March 14, 2002.An amended fee order was entered on April 15, 2002.The record does not contain a notice of appeal from either fee order.

As an initial matter, we note our well-settled standard of review of probate cases.This court reviews probate proceedings de novo on the record, but it will not reverse the decision of the trial court unless it is clearly erroneous.Holmes v. McClendon,349 Ark. 162, 76 S.W.3d 836(2002);Craig,340 Ark. 624, 12 S.W.3d 229.In conducting its review, this court gives due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses.Holmes,349 Ark. 162, 76 S.W.3d 836.

I.Applicable Law for Interpreting Canadian Will

For their first point for reversal, Appellants argue that the trial court erred in refusing to apply the law of Alberta, Canada, in interpreting the will.They contend that because the will was validly executed under the laws of the foreign jurisdiction, it is not subject to the Arkansas law pertaining to pretermitted children.They contend further that the trial court should have given strict interpretation to the will, which left all real and personal property to Arndt, because this was an ancillary probate proceeding.Thus, they contend that the law of the decedent's domicile should have been applied.Before discussing this issue, we note that this appeal only concerns the real property; there is no dispute concerning the trial court's award of the personal property to Arndt.

The great weight of authority in this country "holds that the law of situs governs the interpretation and effect of a will of realty."Luther L. McDougal et al., American Conflicts Law§ 184, at 659 (5th ed.2001).Similarly, the Restatement (Second) of Conflict of Laws§ 240(1971) provides:

(1) A will insofar as it devises an interest in land is construed in accordance with the rules of construction of the state designated for this purpose in the will.

(2)In the absence of such a designation, the will is construed in accordance with the rules of construction that would be applied by the courts of the situs.[Emphasis added.]

Arkansas law has long subscribed to the principle that the law of the situs governs the construction of wills devising real property.SeeBank of Oak Grove v. Wilmot State Bank,279 Ark. 107, 648 S.W.2d 802(1983);Layman v. Hodnett,205 Ark. 367, 168 S.W.2d 819(1943);Bowen v. Frank,179 Ark. 1004, 18 S.W.2d 1037(1929);Crossett Lumber Co. v. Files,104 Ark. 600, 149 S.W. 908(1912).In Layman,this court held that "[w]hile the courts of some states hold otherwise, it is well settled in this state that the law of the situs of the real property controls the construction of wills by which same is devised."205 Ark. at 369, 168 S.W.2d at 820.To support this holding, the Layman court quoted with approval Professor Leflar's words: "The Arkansas decisions have consistently followed the view that the law of the situs governs the effect and interpretation of wills of land."Id.(quotingRobert A. Leflar, Arkansas Law of Conflict of Laws§ 157).

Appellants concede that, generally, the law of the situs controls the effect and interpretation of wills of land.However, they assert that there are two statutory provisions in our Probate Code that may require a different result based on the facts of this case.The first statute is Ark.Code Ann. § 28-25-105(1987), which provides:

A will executed outside this state in a manner prescribed by §§ 28-25-101—28-25-104 or a written will executed outside this state in a manner prescribed by the law of the place of its execution or by the law of the testator's domicile at the time of its execution shall have the same force and effect in this state as if executed in this state in compliance with the provisions of §§ 28-25-101—28-25-104.[Emphasis added.]

It is unclear how this section supports their position that a will validly executed in accordance with the laws of a...