Keenan v. Peevy

• Decision Date: 03 December 1979
• Docket Number: No. 78-192,78-192
• Parties: Gary KEENAN, Administrator of the Estate of Frances Ritcheson, Appellant, v. Paul D. PEEVY et al., Appellees.
• Court: Arkansas Supreme Court

Page 259

590 S.W.2d 259

267 Ark. 218

Gary KEENAN, Administrator of the Estate of Frances

Ritcheson, Appellant, v. Paul D. PEEVY et al., Appellees.

No. 78-192.

Supreme Court of Arkansas.

Dec. 3, 1979.

James M. Roy, Jr., Springdale, for appellant.

Davis, Douglas & Penix, P. A., Springdale, for appellees.

FOGLEMAN, Justice.

This appeal was taken from a decree of the chancery court sustaining a demurrer to the complaint of appellant Gary Keenan, as Administrator of the Estate of Frances Ritcheson, against appellee Paul D. Peevy and others and dismissing that complaint. Our review in this situation requires that we accept all facts well pleaded in the complaint as true, draw all reasonable inferences and indulge every reasonable intendment in favor of the pleader, and construe the complaint most favorably to the plaintiff. Tri-B Advertising, Inc. v. Arkansas State Highway Com'n., 260 Ark. 227, 539 S.W.2d 430; Brewer v. Hawkins, 241 Ark. 460, 408 S.W.2d 492; Howell v. Simon, 225 Ark. 535, 283 S.W.2d 680; Simms v. Tingle, 232 Ark. 239, 335 S.W.2d 449. In the light appropriate for review, we will state some allegations as facts.

C. R. Ritcheson died on July 19, 1971. Paul Peevy was appointed administrator of his estate on August 19, 1971, on Peevy's petition. Peevy applied for his own appointment as guardian of Frances Ritcheson, on July 26, 1971 and he was appointed by W. H. Enfield, a circuit judge acting as probate judge on exchange on the same day. Frances Ritcheson died on August 5, 1973. Gary Keenan was appointed administrator of her estate on July 12, 1976. The complaint in this action was filed on June 27, 1977. Oral arguments on the demurrers were heard on February 6, 1978. The chancellor's memorandum opinion on the demurrers to appellant's complaint was rendered on April 12, 1978, and the order of the chancery court dismissing appellant's complaint was entered April 24, 1978.

At the time of her death, Mrs. Ritcheson owned the following property in her own right:

Lot 6 in Block 2 of the Replat of Lots 3 and 14 in Block 2, Oakcrest Addition to the City of Rogers, which was conveyed to C. R. Ritcheson and Frances M. Ritcheson, husband and wife, by the entirety, by warranty deed dated March 7, 1964;

32 acres in the NE 1/4 NE 1/4 of Sec. 14, Township 20 N, R 29 W, which was conveyed to C. R. Ritcheson and Frances Ritcheson, husband and wife, as tenants by the entirety, by warranty deed dated August 7, 1970;

344 shares of common stock of American Telephone & Telegraph Company, issued to Claude R. Ritcheson and Frances C. Ritcheson, as joint tenants, as joint tenants with right of survivorship or as joint tenants with right of survivorship and not as tenants in common;

Certain household goods and effects;

A 1968 Cadillac automobile; and

Two diamond rings.

Appellant alleged that the order appointing Peevy as guardian and all proceedings had in said guardianship of Frances Ritcheson were null and void for want of jurisdiction of the probate court to make the appointment. The following reasons, among others, were alleged:

The petition shows on its face that Frances Ritcheson was not an incompetent within the meaning of Ark.Stat.Ann. § 57-601(c)(2) (Repl.1971). It stated that she was unable to care for herself because of physical impairment, not that she was mentally incompetent;

No notice was ever given to Frances Ritcheson (who signed the petition for the appointment of Peevy) as required by Ark.Stat.Ann. § 57-601(a)(1) (57-611(a) (1)) (Repl.1971), or to one of her nearest competent relatives by blood or marriage as required by Ark.Stat.Ann. § 57-611(b)(5) (Repl.1971);

There was no evidence of compliance with Ark.Stat.Ann. §§ 57-614-615 (Repl.1971), by proof of incompetence of Frances Ritcheson and no evidence that a hearing was held on the petition after proper notice to any party, or that any hearing was held or affidavit submitted on the question of her incompetency;

The petition for sale dated October 7, 1971, states that the property will be sold at private sale, but the notice of sale published in a newspaper as required by Ark.Stat.Ann. § 62-2718 (Repl.1971), stated that the property would be sold at public sale and there was no compliance with the requirements for a private sale;

An order entered on October 14, 1971, on the petition for sale filed October 7, 1971, set no date for hearing on the petition, but simply stated that a hearing would be held, and no hearing was ever held;

No notice of the order of October 14, 1971, was given to Frances Ritcheson, Lilly Kerr or Golda O'Brien;

No order of sale was entered in compliance with Ark.Stat.Ann. §§ 62-2714, -2717 (Repl.1977);

An amended order dated April 24, 1972, and filed April 26, 1972, attempting to correct deficiencies in the sale was totally invalid because no petition for the order was ever filed, no notice to interested parties of any hearing on this order was ever given, no hearing date was set and no hearing was ever held One order of confirmation refers to an order dated September 3, 1972, a date subsequent to the order of confirmation; the other incorrectly refers to the order of October 14, 1972, as an order of sale. There is no reference in either of two orders confirming the sale to the property purportedly affected by it.

Appellant alleged that deeds by Peevy, as administrator and guardian, purporting to convey the property were wholly null and void not only because of the invalidity of the sale and orders of confirmation and the invalidity of the guardianship itself, but because no petition was ever filed in the guardianship proceeding for the sale of the tract.

Appellant alleged that the petition for sale and the order confirming the sale of the 32-acre tract, entered in the guardianship proceeding, were also null and void, because: (1) the guardianship proceeding was invalid; (2) no notice of the proposed sale was given to Frances Ritcheson or to her nearest relative; (3) there was no notice that any publication was ever made of the order of the probate court setting May 18, 1972, as the date of hearing on a petition for sale; (4) the report of sale was not filed within ten days after the alleged sale; (5) the order confirming the sale was invalid because it was filed on June 8, 1972, two days after the filing of the report of sale.

Appellant also alleged that the sale of a 17-acre tract of land owned by C. R. Ritcheson, in which Mrs. Ritcheson had a right of dower, was invalid, not only for the reasons alleged as to the sale of the lands held by the Ritchesons as tenants by the entirety, but also for the following reasons:

The tract was incorrectly described;

The notice of sale was ineffective because it was dated November 13, 1971, but filed October 26, 1971;

The amended order of sale filed April 24, 1972, and the order confirming it on August 31, 1972, were null and void, because they approved a sale made more than six months after the initial appraisal of the lots.

It was also alleged that a petition for sale of the 17 acres executed on (in the guardianship proceedings) March 20, 1973, and filed on March 22, 1973, was null and void because no notice of the petition was ever given Frances Ritcheson or any interested party before the entry of an order for the sale on March 22, 1973, and any alleged notice to Gary Keenan, as guardian of Frances Ritcheson was invalid because of the invalidity of the guardianship proceeding.

Appellant asserted that an order of sale on April 12, 1973, a report of sale on the same date, and a confirmation of sale on April 19, 1973, were null and void because there was no appraisal of the lands within six months of the date of the orders, no terms of sale were set out and no proper notice was given. Appellant also alleged that the confirmation of the sale was invalid for the same reason the sale of the lands held as an estate by the entirety was invalid.

Appellant then attacked the validity of the sale of the 344 shares of American Telephone & Telegraph Company stock for the following reasons:

The probate court had no jurisdiction over the stock;

The petition for sale filed October 7, 1971, and the order entered October 14, 1971, were never furnished to any interested party;

No notice was given to the heirs;

No date was set for a hearing, no hearing was ever held and no order ever entered allowing the sale of the stock;

No appraisal was ever filed and no report of sale made.

Attacking the validity of the sale of Mrs. Ritcheson's household goods and effects, the Cadillac automobile and the two diamond rings, appellant alleged:

No notice of the petition for sale of the personal property or the order thereon was ever given to Frances Ritcheson. There was a conflict of interest between Peevy in his capacity as administrator and in his capacity as guardian, so that he could not fulfill his fiduciary capacity in a manner to protect the interests of both Frances Ritcheson and C. R. Ritcheson's estate in receiving notice of the proceedings;

The property was not appraised and no appraisal ever filed in the probate court;

There is no evidence of the identity of the purchaser, how the property was sold or the manner in which payment was to be made by either a report of sale or an order of confirmation.

Appellant alleged that Peevy and his attorney had been allowed fees for the guardianship proceedings and that Peevy should be held accountable for these fees and the bond premium paid. As a basis for recovery of punitive damages, appellant alleged that the acts of Peevy were done wilfully, wantonly, maliciously and with reckless disregard for the rights of Frances Ritcheson and her estate.

Appellant asked that a deed conveying the lot in Rogers to defendants-appellees, G. M. and Ruth S. Tubbs, a mortgage executed by them to defendant-appellee First Federal Savings & Loan Association of Rogers, a deed conveying the 32-acre tract to Charlie W. and Shirley J. Smith, and a deed conveying the...