Morris v. Cullipher

• Decision Date: 14 October 1991
• Docket Number: No. 91-42,91-42
• Parties: Garland F. MORRIS, Jr., Appellant, v. Sophia R. CULLIPHER, Executrix of the Estate of Garland F. Morris, Sr., Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 878

816 S.W.2d 878

306 Ark. 646

Garland F. MORRIS, Jr., Appellant, v. Sophia R. CULLIPHER, Executrix of the Estate of Garland F Morris, Sr., Deceased, Appellee.

No. 91-42.

Supreme Court of Arkansas.

Oct. 14, 1991.

[306 Ark. 647] David J. Potter, Texarkana, for appellant.

Randall Goodwin, Texarkana, Smilie Watkins, Dallas, for appellee.

BROWN, Justice.

This appeal is a probate matter in which the appellant, Garland F. Morris, Jr., contests the performance of the appellee, Sophia The decedent, Garland F. Morris, Sr., died testate in Garland, Miller County, Arkansas on January 7, 1985. He was survived by Cullipher, who was his second wife and who has since remarried, and by Morris Jr., who was his only son by a previous marriage. Morris Sr. divorced his first wife in 1966 and married Cullipher that same year. Prior to the divorce Morris Sr. had lived in Texas but upon remarrying, he and Cullipher moved to Garland. For the duration of their marriage, they farmed 1,123.22 acres of land in Miller County--370 acres were owned solely by Cullipher, 633.22 acres were owned as tenants by the entirety, and 120 acres were owned solely by Morris Sr. As they made money, they bought certificates of deposit from four Texas banks in their joint names. They also held their Arkansas farm operation as tenants by the entirety and used the money derived from that operation to buy farm equipment and livestock.

R. Cullipher, as executrix of the decedent's estate on various grounds, including breach of fiduciary duty. The probate court entered an order denying relief on September 13, 1990. Morris Jr. now appeals and raises five points for reversal. There is no merit in any of the arguments, and we affirm.

Morris Sr. died in 1985, and his will was admitted to probate. Cullipher was appointed executrix of his estate, which was valued at approximately $295,000. The jointly held Texas certificates of deposit which Cullipher determined passed to her by right of survivorship under Arkansas law were valued at $268,848. Cullipher took ownership of those certificates and transferred them to Arkansas. More than two years later on November 17, 1987, Morris Jr. petitioned to have Cullipher removed as executrix. Hearings on this petition and other matters relating to discovery and the administration of this estate were held with the final hearing commencing on May 3, 1990. The probate judge denied the petition and entered his order with accompanying findings of fact and conclusions of law on September 13, 1990.

I. REMOVAL OF EXECUTRIX

Morris Jr. urged the probate judge to remove Cullipher for multiple reasons. His first argument was premised on a perceived failure on her part to prepare inventories and accountings for the estate in a satisfactory manner. The facts, however, undermine Morris Jr.'s assertions. On April 29, 1985, Morris Jr. waived the necessity for an inventory and accounting. A year later on May 22, 1986, he changed his mind and withdrew his waiver. He further petitioned to compel Cullipher to file the documents. The probate judge ordered her to do so on August 11, 1986, but directed that the documents not be filed as part of the probate clerk's record. Cullipher proceeded to prepare and send an inventory and accounting to counsel for Morris Jr. within thirty days of that order. She then filed amended and supplemental accountings on March 7, 1988, and November 28, 1989. On March 30, 1990, she filed a comprehensive accounting and amended inventory. The comprehensive accounting replaced previous accountings filed. On May 1, 1990, she filed a supplemental accounting.

We have held that where there is substantial compliance with the executrix's obligation to file an inventory and accounting and no evidence of wrongdoing, we will deny relief for a fiduciary breach. See Petty v. Lewis, 285 Ark. 3, 684 S.W.2d 250 (1985). Here, it is clear from the above that Cullipher did prepare and furnish accountings as well as an inventory after Morris Jr. withdrew his waiver. Although Morris Jr. contests the sufficiency of these documents, the probate judge found no deficiency in Cullipher's performance in this regard. We agree and affirm the probate judge's ruling.

Morris Jr. also presses the point that a fiduciary breach occurred because Cullipher refused to comply with the decedent's "desire" in his will that Cullipher and Morris Jr. engage in joint farming operations. This language is clearly precatory and, as such, is ineffective to dispose Nor does the will direct or require Cullipher to make disbursements of money to Morris Jr. There is only the "desire" that Cullipher do so which, again, is precatory. Allegations were also made regarding Cullipher's administration of the Texas C.D.'s and claims against the estate. These issues are discussed more fully below but, in sum, we agree that evidence of wrongdoing is lacking, as the probate judge found. Finally, Cullipher's failure to close out the estate has been due in no small part to the multiple lawsuits prosecuted by Morris Jr. against Cullipher and the estate. There was no error in the probate judge's refusal to find any breach of fiduciary duty.

of property. In addition, the Arkansas farm passed to Cullipher by right of survivorship, and, therefore, was not affected by language in the will. See Estate of Wells v. Sanford, 281 Ark. 242, 663 S.W.2d 174 (1984).

II. DISCOVERY RESTRICTION AND CONTINUANCE

Though the original petition for removal of Cullipher was filed by Morris Jr. on November 17, 1987, the trial on the petition did not commence until March 16, 1990. No discovery had been conducted by Morris Jr. at the time the trial commenced. The probate judge recessed the trial on March 19, 1990, until May 3, 1990, and subsequently entered a scheduling order on March 27, 1990, which mandated preparation of the comprehensive accounting and inventory and which contemplated additional discovery pertaining to the bank accounts and C.D.'s. On March 30, 1990, Cullipher filed a comprehensive accounting and inventory. On April 12, 1990, Morris Jr. filed requests for production of business documents regarding the decedent's farm operation going back twenty-three years, which were to be furnished in five days. The ostensible reason for the request was to trace the title of the property to determine what was individually owned by the decedent or jointly owned. On May 1, 1990, the probate judge entered a protective order denying the expansive discovery, and on July 30, 1990, the probate judge struck subsequent discovery which had been served by Morris Jr. on Cullipher. (Cullipher contends in this regard that most of the title records to personal property were provided to Morris Jr. in advance of the May 3, 1990 hearing.) When the trial reconvened on May 3, Morris Jr. moved for a continuance on the basis that he had not had an opportunity to review all of the provided material. The motion was denied as untimely.

Lack of diligence is a factor to consider in denying a continuance. Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984). Moreover, a trial judge has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by this court absent abuse of discretion which is prejudicial to the appealing party. See Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980); Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). Also, when the continuance is based on a request for additional discovery, the appellant must not only show that there has been an abuse of discretion, but also that the additional discovery would have changed the outcome of the trial. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). We hold that the probate judge was correct, and that there was no abuse of discretion regarding discovery and the continuance.

III. PAYMENT OF CLAIMS

Morris Jr. next contests the procedure by which Cullipher paid claims filed against the estate. Specifically, he argues that certain claims timely presented as debts of the decedent were not filed with verifications and allowed by the court prior to payment. The Statute of Nonclaim is not raised by the appellant as an issue.

It is true that the probate judge did not allow these claims prior to their payment by Cullipher. But the judge approved their payment after the fact in his September 13 Morris Jr. further contests payment of significant legal and accounting fees as administrative expenses of the estate. The authorizing statute reads:

1990, order. In the past we have held that substantial compliance with the formalities for filing and approving claims is sufficient under certain circumstances. See Merritt v. Rollins, 231 Ark. 384, 329 S.W.2d 544 (1959) (registered mail of claim to personal representative as specified by statute not required when claim is personally delivered). Because of the probate judge's subsequent approval of these claims, we hold that there was substantial compliance in this case.

(b) Claims for expenses of administration may be allowed upon application of the claimant or of the personal representative, or may be allowed at any accounting, regardless of whether or not they have been paid by...