Parker v. Bowlan

• Decision Date: 20 March 1967
• Docket Number: No. 5--4170,5--4170
• Citation: 412 S.W.2d 597,242 Ark. 192
• Parties: Bernie PARKER, Appellant, v. Ruby BOWLAN, Executrix of the Estate of Nellie Jarvis, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 597

412 S.W.2d 597

242 Ark. 192

Bernie PARKER, Appellant, v. Ruby BOWLAN, Executrix of the Estate of Nellie Jarvis, Deceased, Appellee.

No. 5--4170.

Supreme Court of Arkansas.

March 20, 1967.

J. B. Reed, Lonoke, for appellant.

Chas. A. Walls, Jr., Lonoke, for appellee.

HARRIS, Chief Justice.

Mrs. Nellie Jarvis, a widow, died on May 24, 1963, leaving surviving her six children, including one minor, Dwight Jarvis, who was living with her when she passed away. At the time of her demise, Mrs. Jarvis owned 80 acres of land, which is the subject of this litigation. ¹ On October 4, 1963, Jeff Jarvis, Jr., one of the children, was appointed administrator of the estate. Nearly two years later, on September 2, 1965, Jeff Jarvis, Jr. (also known as Thomas J. Jarvis), executed a deed in his individual capacity to Bernie Parker, appellant herein, purportedly conveying an undivided one-sixth interest in and to the real estate herein mentioned. Mona Jarvis, wife of Jeff, released her rights in the property. On October 2, a petition was filed, asking the court for an order directing the administrator to account for funds in the estate, and also requesting his removal as administrator, this petition being filed by Ruby Bowlan (a sister to the administrator and the minor), as guardian of Dweight Jarvis. Jeff Jarvis, Jr., had left the state soon after he executed the above mentioned deed to Parker. Thereafter, a writing purporting to be the last will of Nellie Jarvis was found; this was admitted to probate on October 7, 1965, and Ruby Bowlan was named executrix (actually administratrix with the will annexed). The instrument purports to leave the property to the minor, Dwight, and does not mention the names of any of the other children. Subsequently, appellant filed a petition entitled 'Petition for Contest of Will,' alleging that he was 'an interested person' in the estate of Nellie Jarvis, and that he had a vested interest in the real property being administered. Parker asserted that he, by virtue of the deed he had received from Jeff Jarvis, Jr., was the owner, along with the other five surviving children, of an undivided one-sixth interest in the lands. Further:

'The instrument filed herein on October 7, 1965, purporting to be the last will and testament of Nellie Jarvis is ineffectual as to the said son of the said decedent, the said Thomas J. Jarvis, also known as Jeff Jarvis, Jr., for the reasons that:

(a) Nellie Jarvis, in the instrument filed herein which purports to be her last will and testament, did not name her children separately, and,

(b) She did not provide for them as a class.'

Ruby Bowlan, as executrix, responded to Parker's petition, and asserted that appellant was an improper party to maintain a petition for contest of the will. It was further alleged that any interest held by Jeff Jarvis, Jr., in the estate was subject to his actions as administrator, no inventory, or accounting having been filed. Mrs. Bowlan prayed that Parker's petition be dismissed. On trial, the court held that appellant was an improper party to contest the will, and thereupon dismissed the petition. From the order so entered, appellant brings this appeal.

We think the trial court reached an erroneous conclusion, and this was probably predicated on the fact that the petition filed was considered a will contest, and, of course, as previously set out, appellant's petition is entitled, 'Petition for Contest of Will.' However, the mere fact that it is so titled is not controlling, and it is necessary to look to the allegations of the petition, particularly the prayer for relief, in order to make a determination. In the petition, appellant stated that he was the owner, by right of purchase, of an undivided one-sixth interest to the property here in question, and his prayer is as follows:

'WHEREFORE, the petitioner prays that the Court make a finding of heirship in this estate; that the instrument purporting to be the last will and testament of the decedent be declared ineffectual as to her son, Thomas J. Jarvis, also known as Jeff Jarvis, Jr., and ineffectual as to the petitioners interest in the lands acquired by the petitioner from the said Thomas J. Jarvis, also known as Jeff Jarvis, Jr. * * *'

It will be at once noted that there is no allegation that the will was not entitled to probate, either on the basis that it was not legally executed, or because of mental incompetency or undue influence. Generally speaking, a will contest is based on the allegations and contentions that no will exists, i.e., statutory requirements for execution of the instrument were not complied with--or, because of mental infirmities, the party was not mentally capable of making a will--or, in case of undue influence, ² the purported instrument was not the testator's will but that of someone else. Appellant does not ask that the instrument be denied probate; he only asks that it be declared ineffectual as to Thomas J. Jarvis (Jeff Jarvis, Jr.), because Jarvis was not mentioned in his mother's will.

As far as this record is concerned, there is no doubt but that Parker legally acquired the interest of Jeff Jarvis, Jr., in the lands, there being no controversy but that Jarvis and wife conveyed their interest to Parker by deed. In Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623, this court said:

'Our statute provides that immediately upon the intestate's death, the title to real estate descends to the heirs at law, subject to the widow's dower and the payment of debts. See § 61--101, Ark.Stats.1947. The two Sections, Sec. 62--411 and Sec. 62--911, Ark.Stats.1947, concerning lands as assets in the hands of the administrator, have been uniformly construed to mean that the title to the lands passes direct to the heirs on the death of the intestate, subject to the rights of the administrator to have the Probate Court sell the lands if such be necessary to pay the debts of the deceased.'

In Calmese v. Weinstein, Administrator, 234 Ark. 237, 351 S.W.2d 437, this holding was reiterated, the court stating:

'Prior to Act 140 of 1949 the Probate Code, Sec. 66 of Pope's Digest was the governing Statute and said: 'Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts.' Sec. 94 of of the Probate Code as now found in § 62--2401, Ark.Stats. says: '* * * real property shall be an asset in the hands of the personal representative when so directed by the will, or when and if necessary for the payment of debts, or expenses of administration.' The quoted language of the Probate Code was not designed to make the administrator automatically entitled to the real estate of a deceased intestate. The quoted language of the Probate Code continues the rationale of our cases decided under Sec. 66 of Pope's Digest; and these cases hold that the legal title of an intestate's land, upon his death, descends and vests in his heirs at law, subject to the widow's dower and the payment of debts through his administrator.

(Citing cases.) Sec. 62--2701, Ark.Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of our cases, as above cited.'

At the time of the execution of the deed from Jeff Jarvis, Jr., to appellant, the elderly Mrs. Jarvis had apparently died intestate. Jarvis had been named administrator, and the time for filing claims against the estate had expired. The record does not reflect that it will be necessary to sell the real estate in order to pay debts of the deceased. It was not until after the conveyance that the purported will was found. Of course, the vesting in an heir of an...