Hilburn v. First State Bank of Springdale

Decision Date12 April 1976
Docket NumberNo. 75--353,75--353
Citation535 S.W.2d 810,259 Ark. 569
PartiesJewel HILBURN, Appellant, v. FIRST STATE BANK OF SPRINGDALE, Arkansas, Administrator, Appellee.
CourtArkansas Supreme Court

Franklin Wilder, Fort Smith, for appellant.

Joe B. Reed, Springdale, for Administrator, First State Bank.

Rudy Moore, Jr., Fayetteville, for John Hilburn and Steve Hilburn, minor heirs and sons of John Robert Hilburn, deceased.

James M. Roy, Jr., Springdale, for Susan Jane Hilburn, widow of John Robert hilburn, decedent.

FOGLEMAN, Justice.

Since we agree with appellant that the probate court had no jurisdiction, we reverse its judgment without considering other points for reversal.

John Robert Hilburn died intestate October 16, 1974 at Springdale. He left a widow, Susan Jane Hilburn. He also left two sons, John and Steve Hilburn. The First State Bank of Springdale was appointed administrator. In the petition for appointment, personal property was valued at $10,000. Real estate was described as 'value in question at this time.' The real property that was the subject of this proceeding was described in the inventory and a value of $15,000 was ascribed to it.

Jewel Hilburn was the mother of the decedent. She filed exceptions to the inventory, on the ground that the lands involved did not belong to the decedent. The widow filed a petition for statutory allowances and dower. The administrator filed a petition asking that it be authorized to sell all the property of the estate.

Jewel Hilburn filed a response to the widow's petition, asking that the real estate be deleted from the inventory, and alleging that the land was not owned by the decedent and that the widow had surreptitiously secured and recorded an undelivered deed after the death of the decedent, knowing that the deed had never been delivered and that it had been secured by fraud and undue influence. Jewel Hilburn also filed a response to the petition for the sale of the realty and personalty, making the same allegations and asking that a hearing be had on her exceptions to the inventory. She later amended her response to the petition for sale of realty by alleging that all times relevant to her execution of the deed under which appellees claim title to the realty, she was incompetent to execute a conveyance, by reason of her alcoholism resulting in brain damage. She also alleged that she had not intended to either execute or deliver the deed.

A hearing on these pleadings was held and the probate judge held against appellant Jewel Hilburn and dismissed her exceptions to the inventory. It should be noted at the outset that Jewel Hilburn was not an heir, distributee or devisee of her son, or a beneficiary of, or claimant against, his estate. She was a 'third person,' i.e., a stranger to the estate. Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57.

The probate court is a court of special and limited Jurisdiction, even though it is a court of superior and general jurisdiction within those limits. Huff v. Hot Springs Savings, Trust & Guaranty Co., s85 Ark. 20, 45 S.W.2d 508; Branch v. Veteran's Administration, 189 Ark. 662, 74 S.W.2d 800; Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373. It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Huff v. Hot Springs Savings, Trust & Guaranty Co., supra; Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825; Smith v. Walker, 187 Ark. 161, 58 S.W.2d 946; Lewis v. Rutherford, supra. A probate court is without jurisdiction to grant equitable relief, even though it may apply equitable doctrines in probate matters properly brought before it. Jones v. Graham, 36 Ark. 383. See also, Merrell v. Smith, 226 Ark. 1016, 295 S.W.2d 624; Bonner v. Sledd, 158 Ark. 47, 249 S.W. 556; Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36.

The constitution vested in the probate courts exclusive original jurisdiction 'in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The judge of the probate court shall try all issues of the law and of facts arising in causes or proceedings within the jurisdiction of said court, and therein pending.' Art. 7, § 34, as amended by Amendment 24, § 1. Ark.Stat.Ann., Const. (1947). The statutory jurisdiction of the court is stated by Ark.Stat.Ann. § 62--2004(b) (Repl.1971), viz:

Jurisdiction. The Probate Court shall have jurisdiction of the administration, settlement and distribution of estates of decedents, the probate of wills, the persons and estates of minors, persons of unsound mind and their estates, the determination of heirship, adoption, and (concurrent with jurisdiction of other courts) jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate; and all such other matters as are now or may hereafter be by law provided. The judge of the Probate Court shall try all issues of law and of fact arising in causes or proceedings within the jurisdiction of said court and therein pending. The court shall have the same powers to execute its jurisdiction and to carry out its orders and judgments, including the award of costs, as now exist in courts of general jurisdiction; and the same presumptions shall exist as to the validity of its orders and judgments as of the orders and judgments of courts of general jurisdiction.

The probate court's lack of jurisdiction to determine contests over property rights and titles between the personal representative and third parties or strangers to the estate has long been recognized. Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166; Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140; Gordon v. Clark, 149 Ark. 173, 232 S.W. 19; Huff v. Hot Springs Savings, Trust & Guaranty Co., supra; Ellsworth v. Cornes, supra. See also, Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20.

The enactment of the Probate Code did not enlarge the jurisdiction of the court to hear contests over property rights between the personal representative and third persons. See Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956. See also, Mills v. Latham, 215 Ark. 128, 219 S.W.2d 609. It was pointed out in Cross that the enlargement of the jurisdiction of the court, by the Probate Code was by addition of determination of heirship, adoption, and concurrent jurisdiction to establish lost wills and for construction of wills 'when incident to the administration of an estate.' The probate courts also remained courts of law, not equity, after the adoption of the Probate Code and were not consolidated with the chancery courts. Young v. Young, 201 Ark. 984, 147 S.W.2d 736; Mills v. Latham, supra. See also, Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360.

The distinction between probate jurisdiction and jurisdiction of matters which are cognizable only in equity has been recognized by us. See Bonner v. Sledd, 158 Ark. 47, 249 S.W. 556, where we held that the probate court had jurisdiction of a claim for services to a decedent under an oral contract to compensate the claimant by a testamentary bequest and devise, since the claimant did not seek specific performance of the contract. See also, Arkansas Valley Trust Co. v. Young, supra. Clearly, the relief sought by appellant was, like specific performance, peculiarly and exclusively within the jurisdiction of a court of equity. Myers v. Hobbs, 195 Ark. 1026, 115 S.W.2d 880; McCracken v. McBee, 96 Ark. 251, 131 S.W. 450; Tandy v. Smith, 173 Ark. 828, 293 S.W. 735. See also, Salyers v. Smith, 67 Ark. 526, 55 S.W. 936.

Appellees rely upon Hobbs v. Collins, 234 Ark. 779, 354 S.W.2d 551; Massey v. Doke, 123 Ark. 211, 185 S.W. 271; Arkansas Valley Trust Co. v. Young supra; Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808; Gocio v. Seamster, 203 Ark. 937, 160 S.W.2d 194; Jansen v. Blissenbach, 214 Ark. 755, 217 S.W.2d 849; Carlson v, carlson, 224 Ark. 284, 273 S.W.2d 542, and Park v. McClemens, 231 Ark. 983, 334 S.W.2d 709, to sustain probate court jurisdiction. They also city Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W.2d 48 and Washam v. First National Bank, 248 Ark. 984, 455 S.W.2d 96 as examples of the exercise of probate jurisdiction and seek to distinguish Ellsworth v. Cornes, supra, classifying as dictum the language adverse to their position. Most of the cases cited by appellees are readily distinguishable, others not quite so easily. Others are clearly inapplicable. See Jansen v. Blissenbach, supra; Massey v. Doke, supra; Arkansas Valley Trust Co. v. Young, supra; Gocio v. Seamster, supra. Gocio v. Seamster, and Carlson v. Carlson, supra, are consistent with appellant's position. Porterfield v. Porterfield, supra, and Washam v. First National Bank, supra, also seem consistent. At least there is nothing to indicate that they are inconsistent.

We first point out that we reviewed many of these cases in Snow v. Martensen, supra, where we reversed the probate court's dismissal of a challenge by beneficiaries under the will of the decedent to the inventory filed by the personal representative who was the other beneficiary, and who had not listed a savings account, claiming it by right of survivorship. The personal representative claimed to be a stranger to the estate, insofar as that account was concerned and this was the basis of her motion to dismiss. We rejected that contention and in reviewing the cases distinguished Hartman v. Hartman, 228 Ark. 692, 309 S.W.2d 737, in which the contest was between the widow and her husband's estate and in which the validity of her assignment of the notes in question to her deceased husband was not passed on by the probate court. But we restated and applied the rule stated in Ellsworth v. Cornes, which appellee labels dictum, saying:

In Ellsworth v. Cornes, ...

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