{ "id": 6139465, "name": "Valda STOKAN, et al. v. ESTATE OF MARJORIE CANN, et al.", "name_abbreviation": "Stokan v. Estate of Cann", "decision_date": "2007-10-31", "docket_number": "CA 06-996", "first_page": "216", "last_page": "220", "citations": [ { "type": "official", "cite": "100 Ark. App. 216" }, { "type": "parallel", "cite": "266 S.W.3d 210" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "338 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243591 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "494" }, { "page": "24-25" } ], "opinion_index": 0, "case_paths": [ "/ark/338/0487-01" ] }, { "cite": "344 Ark. 555", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210147 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "568" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ark/344/0555-01" ] }, { "cite": "82 Ark. App. 224", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140336 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "227" }, { "page": "819" } ], "opinion_index": 0, "case_paths": [ "/ark-app/82/0224-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-9-215", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-9-205", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "year": 2004, "pin_cites": [ { "page": "(a)", "parenthetical": "A" }, { "parenthetical": "a" }, { "page": "(a)(3)" }, { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-9-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2004, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-9-214", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 2004, "pin_cites": [ { "page": "(6)" }, { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "325 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369284 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "18" }, { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0016-01" ] } ], "analysis": { "cardinality": 482, "char_count": 9578, "ocr_confidence": 0.783, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30838728435518825 }, "sha256": "f8e44ea99574921cbca28fd5f44a8e70268daab5510b68fd575883862e6a4250", "simhash": "1:39297c00657bddca", "word_count": 1580 }, "last_updated": "2023-07-14T22:52:18.034517+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Baker and Miller, JJ., agree." ], "parties": [ "Valda STOKAN, et al. v. ESTATE OF MARJORIE CANN, et al." ], "opinions": [ { "text": "D.P. Marshall Jr., Judge.\nThis case involves Arkansas\u2019s intestacy statutes. Marjorie Cann, a retired schoolteacher, died in 2005. She left no spouse, no descendants, no will, and an estate worth approximately $700,000.00. Her many cousins disagreed about how they should share Cann\u2019s estate. After several hearings and briefing, the probate division of the circuit court entered an order distributing Cann\u2019s estate. Five of Cann\u2019s paternal first cousins, once removed \u2014 we will refer to them collectively as \u201cthe paternal cousins\u201d \u2014 have appealed that distribution. Our review is de novo. Wells v. Estate of Wells, 325 Ark. 16, 18, 922 S.W.2d 715, 716 (1996). The question of law presented is whether Judge Brantley correcdy applied several provisions of our probate code about intestate succession to the interesting and undisputed facts of this case. She did.\nI.\nBefore it divided Cann\u2019s estate among her extended family, the circuit court had to determine the members of Cann\u2019s inheriting class \u2014 the persons entitled to take from her estate. To do so, the court looked to our table of descent. Ark. Code Ann. \u00a7 28-9-214 (Repl. 2004). The provision relevant to Cann\u2019s estate states:\n[I]f the intestate is survived by no descendant, then in respect to such portion of his or her heritable estate as does not pass under subdivisions (2)-(5) of this section, the inheriting class will be the surviving grandparents, uncles, and aunts of the intestate.... If any uncle or aunt of the intestate shall predecease the intestate, the descendants of the deceased uncle or aunt will take, per capita or per stirpes according to \u00a7\u00a7 28-9-204 and 28-9-205, the share the decedent would have taken if he or she had survived the intestate [.]\nArk. Code Ann. \u00a7 28-9-214(6).\nWhen she died, Cann\u2019s closest living relatives were her sixteen maternal first cousins. Seven of Cann\u2019s first cousins had predeceased her \u2014 leaving children (Cann\u2019s first cousins, once removed) and other descendants. Under \u00a7 28-9-214(6), the circuit court held that Cann\u2019s inheriting class consisted of her grandparents, uncles and aunts (who were all deceased) and their living descendants \u2014 including Cann\u2019s first cousins and the descendants of her deceased first cousins. Cf. Restatement (Third) of Prop.: Wills and Other Donative Transfers \u00a7 2.4 (1999).\nAfter the circuit court determined the members of Cann\u2019s inheriting class, the next question was how much of the estate each class member would receive. To answer that question, the court referred, as it was directed to do by \u00a7 28-9-214, to the code provisions about distribution. Ark. Code Ann. \u00a7 28-9-204 (Repl. 2004) explains how Cann\u2019s heirs were to take their shares from her estate:\n(1)(A) If all members of the class who inherit.. . from an intestate are related to the intestate in equal degree, they will inherit... in equal shares and will be said to take per capita.\n(2) If the members of the inheriting class are related to the intestate in unequal degree, those in the nearer degree will take per capita or in their own right, and those in the more remote degree will take per stirpes or through representation as provided in \u00a7 28-9-205.\nSection 204(1) (A) did not apply because Cann\u2019s inheriting class included both her surviving first cousins and the descendants of her deceased first cousins. Therefore, the circuit court turned to Ark. Code Ann. \u00a7 28-9-205 (Repl. 2004) to divide Cann\u2019s estate.\nArkansas Code Annotated \u00a7 28-9-205 explains when and how to divide an estate per stirpes. Its formula directed the circuit court to divide Cann\u2019s estate into as many equal shares as there were surviving heirs in the nearest degree of kinship to Cann and deceased heirs of the same degree of kinship who had surviving descendants. Ark. Code Ann. \u00a7 28-9-205(a) (2)(A) & (B). This provision applied to Cann\u2019s sixteen living first cousins and to the seven first cousins who had predeceased Cann, but left descendants who survived her. It did not apply, as the paternal cousins argue, to the deceased aunts, uncles, and grandparents \u2014 they were deceased members of the inheriting class, and thus only their living descendants took their shares of the estate. Ark. Code Ann. \u00a7 28-9-205 (a) (2) (A) & (B). Each of Cann\u2019s surviving first cousins was to take per capita, receiving one full share. The descendants of each predeceased first cousin were to take per stirpes, dividing one share proportionally among them. Ark. Code Ann. \u00a7 28-9-205(a)(3).\nFollowing Ark. Code Ann. \u00a7 28-9-205 (a) (2), the circuit court divided Cann\u2019s estate into twenty-three equal shares. Each of her living first cousins got 1/23 of her estate. The descendants of Cann\u2019s deceased first cousins \u2014 including her paternal cousins who have appealed \u2014 took their representative share of their deceased parents\u2019 1/23 share. One of these first cousins, once removed, predeceased Cann, and his five living children received his share per stirpes pursuant to \u00a7 28-9-205 (b).\nII.\nOn appeal, the paternal cousins argue that the circuit court misread and misapplied Ark. Code Ann. \u00a7 28-9-214(6). Cann\u2019s estate, they say, should have been divided per capita at the grandparent/aunt/uncle level of kinship, with a per stirpes distribution to the cousins from there. The paternal cousins assert that \u201c[t]he fact that the statute omits a clause stating that if all of the aunts, uncles and grandparents predecease the estate, the descendants shall take per stirpes or per capita means the only reasonable interpretation [is] that the estate was to be divided at the level of aunt and uncle.\u201d (Emphasis added.) Otherwise, they say, the estate should escheat to the county of Cann\u2019s residence under Ark. Code Ann. \u00a7 28-9-215(3).\nWe disagree. We may not focus exclusively, as the paternal cousins\u2019 argument does, on one part of our probate code. Instead, we must consider and apply all the relevant provisions of the code in harmony. Atkinson v. Knowles, 82 Ark. App. 224, 227, 105 S.W.3d 818, 819 (2003). And the paternal cousins\u2019 argument fails to acknowledge the relationship between Ark. Code Ann. \u00a7\u00a7 28-9-204 & 205 and Ark. Code Ann. \u00a7 28-9-214.\nThese other applicable statutes make plain that the \u201cany\u201d in \u00a7 28-9-214(6) is capacious enough to include the situation here: Cann\u2019s grandparents, aunts, and uncles predeceased her but left descendants living at the time of Cann\u2019s death. That circumstance fixed the inheriting class at the surviving-first-cousin level.\nWe acknowledge that the words of \u00a7 28-9-214(6) will bear another interpretation. It is possible to read the introductory phrase \u2014 \u201cthe inheriting class will be the surviving grandparents, uncles, and aunts of the intestate[ ]\u201d \u2014 as a condition that one of these named individuals must survive Cann before this section of the code applies. But this interpretation does not get the paternal cousins where they want to go \u2014 a per capita distribution from the grandparent/uncle/aunt level.1 The paternal cousins note this interpretation but do not strongly press it. They see that it would lead to an escheat of Cann\u2019s estate to Pulaski County.\nWe reject this interpretation of \u00a7 28-9-214(6) for two reasons. First, it would require us to read the words \u201cbut not all of them\u201d into the last sentence of \u00a7 28-9-214(6): \u201cIf any uncle or aunt of the intestate but not all of them shall predecease the intestate, the descendants of the deceased uncle or aunt will take . . . We may not, however, add words to the statute. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 568, 42 S.W.3d 443, 451 (2001). Again, we must give effect to and harmonize all the statute\u2019s terms if possible. Ford v. Keith, 338 Ark. 487, 494, 996 S.W.2d 20, 24-25 (1999). Second, this alternative reading would defeat the manifest purpose of our intestacy statutes: to prescribe a default rule for equitably dividing the intestate\u2019s estate among her family, with escheat as the last resort.\nReading a condition of survivorship into the introductory phrase of \u00a7 28-9-214(6) would lead to the escheat of Mrs. Cann\u2019s estate to the county of her residence at death. She would have no surviving heir under \u00a7 28-9-214(6) (grandparents, uncles, and aunts) or \u00a7 28-9-214(7) (great grandparents, great uncles, great aunts), and her estate would pass pursuant to \u00a7 28-9-214(8) and \u00a7 28-9-215(3) to Pulaski County. Considered as a whole, our intestacy statutes disfavor escheats. This sound policy echoes the common law. 30A C.J.S. Escheat \u00a7 1 (2007). Faced-with two permissible readings of \u00a7 28-9-214(6), we adopt the one that is more consistent with all the words in this section and our law\u2019s preference for Cann\u2019s albeit distant kin over Pulaski County.\nThe modified per stirpes intestacy scheme in Arkansas is unusual. Restatement \u00a7 2.4 cmt. i. And it is complex. Illuminated by all the provisions about intestacy, our statutes are clear nonetheless. Under these statutes, the per capita distribution is at the first level at which the intestate has surviving heirs, \u00a7 28-9-205(a)(2), regardless of what level was used to determine the inheriting class under \u00a7 28-9-214. Because all of Cann\u2019s aunts, uncles, and grandparents had predeceased her, the circuit court correctly made the per capita distribution of Cann\u2019s estate at the first-cousin level.\nAffirmed.\nBaker and Miller, JJ., agree.", "type": "majority", "author": "D.P. Marshall Jr., Judge." } ], "attorneys": [ "Timothy Denison and David O. Bowden, for appellants.", "Haught & Wade, LLP, by: John Cogan Wade and William D. Haught, for appellees." ], "corrections": "", "head_matter": "Valda STOKAN, et al. v. ESTATE OF MARJORIE CANN, et al.\nCA 06-996\n266 S.W.3d 210\nCourt of Appeals of Arkansas\nOpinion delivered October 31, 2007\nTimothy Denison and David O. Bowden, for appellants.\nHaught & Wade, LLP, by: John Cogan Wade and William D. Haught, for appellees." }, "file_name": "0216-01", "first_page_order": 244, "last_page_order": 248 }