Nowak v. Etchieson, 5--3952

Decision Date31 October 1966
Docket NumberNo. 5--3952,5--3952
Citation241 Ark. 328,408 S.W.2d 476
PartiesZilpha NOWAK, Appellant, v. J. F. ETCHIESON, Executor, et al., Appellees.
CourtArkansas Supreme Court

Gardner & Steinsiek, Blytheville, for appellant.

Marcus Evrard and H. G. Partlow, Jr., and Graham Sudbury, and Oscar Fendler, Blytheville, for appellee.

BLAND, Justice.

The merits of this controversy involve the construction of the Last Will and Testament of Ida B. Crockett. The will was executed March 27, 1963, consisting of six typewritten pages, signed by Ida B. Crockett and validly witnessed. Also involved is an instrument dated January 16, 1964 entitled 'Codicil to Last Will and Testament'. Both of these instruments were admitted to probate on September 8, 1965.

By the terms of her will, provision was made for the payment of her just debts, taxes and expenses of administration. She bequeathed certain items of personal property to various persons and gave $1.00 to each niece or nephew not mentioned in the will.

The pertinent paragraphs of the will are nine and ten. In paragraph nine she devised to J. F. Etchieson as Trustee:

'* * * 'all of the rest and residue of my real estate, wherever the same may be situated, of which I die seized and possessed,' with directions that it be sold and with further directions to 'divide the proceeds of such sale equally among the within named Ella Cunningham, Bertha Miller and Gladys Martin.' The Trustee was to seek no further authority regarding the sale other than from the three beneficiaries of the trust who have been named herein. Merle Gaines, who was renting Testatrix' farm land at the time of the execution of the will, was given preferential right to purchase said real estate.'

Paragraph ten is copied in full from the will:

'I give and bequeath to my nieces, Zilpha Nowak and Ella Lutz, as tenants in common owning equal interests with each other, all of the rest and residue of my property, if there be any such residue, that shall remain after the foregoing provisions of my will shall have been fully complied with.'

The codicil to the last will and testament devised a certain savings account in the Blytheville Federal Savings and Loan Association to Ella Lutz Cunningham, dependent on survivorship with remainder over to Don Lutz.

Prior to the death of the Testatrix, a niece, Ella Lutz, who is one and the same person as Ella Cunningham, died intestate being survived by two sons, Don Lutz and Marvin Lutz. It was stipulated that all parties to this action are of full age.

Objection was filed to the admission of the codicil to probate on behalf of appellant and Mrs. Gladys Martin, both of whom are mentioned in the Last Will and Testament of Ida B. Crockett, and also seeking a construction of the will.

On October 29, 1965, the Probate Court heard the objections to the admission of the codicil to probate and the petition to construe the will, and held that the codicil dated January 16, 1964 was not executed in accordance with the laws relating to the execution of wills and testaments and ordered it stricken from the probate records. The court also held that all property devised to Ella Lutz had lapsed and that this property, excluding that which was mentioned in the codicil, would pass and descend as though Ida B. Crockett had died intestate.

The court further held that the property described in the codicil to the last will and testament, this being the savings account in the Blytheville Federal Savings and Loan Association, would fall into the provisions of paragraph ten of the last will and testament dated March 27, 1963; that Zilpha Nowak is entitled to one-half of all property devised in paragraph ten and the remaining one-half shall be as though Ida B. Crockett died intestate.

Appellant appeals and contends that she is the residuary devisee and that one-half of all property which would have otherwise passed to Ella Lutz would pass to her as residuary beneficiary under the terms of the will.

Don Lutz, who was mentioned in the codicil, filed his notice of cross-appeal from the court's holding that the codicil is invalid.

For reversal appellant relies on two points:

'1. The Probate Court erred in making determination that all property devised and bequeathed to Ella Lutz under the Last Will and Testament of Ida B. Crockett passes intestate.

2. That the court should have held that all property devised and bequeathed to Ella Lutz passed into the residuary clause, paragraph 10, of the Last Will and Testament of Ida B. Crockett.'

It is crystal clear that the codicil was not executed according to the provision of Ark.Stat.Ann. § 60--403 (Supp.1965) and the chancellor was correct in denying probate and striking it from the probate record. So, the cross-appeal must be affirmed.

We also think the chancellor was correct in his construction of the will....

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3 cases
  • Festinger v. Kantor
    • United States
    • Arkansas Supreme Court
    • May 4, 1981
    ...by the testamentary trust was contained in his will. See Fletcher v. Hurdle, 259 Ark. 649, 536 S.W.2d 109 (1976); Nowak v. Etchieson, 241 Ark. 328, 408 S.W.2d 476 (1966). We do not overlook Act 183 of 1979 but that clearly does not apply to the will of Sam Epstein who died some thirty-five ......
  • Stevenson v. Marques, 5--3991
    • United States
    • Arkansas Supreme Court
    • October 31, 1966
  • Nowak v. Martin
    • United States
    • Arkansas Supreme Court
    • October 16, 1967
    ...is the second appeal growing out of litigation over the last will and testament of Ida B. Crockett. The first appeal, Nowak v. Etchieson, 241 Ark. 328, 408 S.W.2d 476, concerned the validity of the codicil to the will and the disposition of a lapsed legacy. The present appeal concerns the d......

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