{ "id": 6136895, "name": "Wael ABDIN v. Delores ABDIN", "name_abbreviation": "Abdin v. Abdin", "decision_date": "2007-12-19", "docket_number": "CA 07-140", "first_page": "56", "last_page": "61", "citations": [ { "type": "official", "cite": "101 Ark. App. 56" }, { "type": "parallel", "cite": "270 S.W.3d 361" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "80 Ark.App. 416", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142166 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/80/0416-01" ] }, { "cite": "287 P. 450", "category": "reporters:state_regional", "reporter": "P.", "year": 1930, "opinion_index": 0 }, { "cite": "209 Cal. 360", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2178612 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/cal/209/0360-01" ] }, { "cite": "182 S.W. 272", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "121 Ark. 617", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559454 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ark/121/0617-01" ] }, { "cite": "112 S.W.2d 35", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1938, "opinion_index": 0 }, { "cite": "195 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719100 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ark/195/0173-01" ] }, { "cite": "83 Ark. App. 354", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141909 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "holding that the trial court's findings regarding ambiguous provisions of a will are not overturned unless clearly erroneous" }, { "parenthetical": "holding that the trial court's findings regarding ambiguous provisions of a will are not overturned unless clearly erroneous" } ], "opinion_index": 0, "case_paths": [ "/ark-app/83/0354-01" ] }, { "cite": "35 Ark. App. 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6647476 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/35/0077-01" ] }, { "cite": "242 Cal. Rptr. 246", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1987, "opinion_index": 0 }, { "cite": "196 Cal. App. 3d 957", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2218715 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/cal-app-3d/196/0957-01" ] }, { "cite": "157 S.C. 407", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2016083 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/sc/157/0407-01" ] }, { "cite": "259 P. 431", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 1552969 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/32/0452-01" ] }, { "cite": "202 Cal. 138", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2165085 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/cal/202/0138-01" ] }, { "cite": "89 Ark. App. 62", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137078 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/89/0062-01" ] }, { "cite": "370 Ark. 323", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5569378 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/370/0323-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-48-109", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "94 Ark. App. 12", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136272 ], "weight": 4, "year": 2006, "pin_cites": [ { "parenthetical": "Abdin I" }, { "parenthetical": "Abdin I" }, { "page": "13-14" }, { "page": "61-62" } ], "opinion_index": 0, "case_paths": [ "/ark-app/94/0012-01" ] } ], "analysis": { "cardinality": 566, "char_count": 8969, "ocr_confidence": 0.769, "pagerank": { "raw": 7.052393210097117e-08, "percentile": 0.4252846401469738 }, "sha256": "66fbb4f5859180e4f510a374367dbb7a55cbabe5ec2195c91e9200bc627f7ee1", "simhash": "1:c722b23d643c1327", "word_count": 1561 }, "last_updated": "2023-07-14T19:59:08.797430+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Heffley and Baker., JJ., agree." ], "parties": [ "Wael ABDIN v. Delores ABDIN" ], "opinions": [ { "text": "David M. Glover, Judge.\nAppellant, Wael Abdin, appeals from an order refusing to award him expenses and fees for attempting to probate a lost will. We find no error and affirm.\nMike Abdin died on March 15, 2000, shortly after returning home from a trip to his native Israel. His widow, appellee Delores Abdin, probated a 1984 will that named her executrix and left most of Mike\u2019s estate to her or the couple\u2019s two daughters. Thereafter, Mike\u2019s brother, appellant Wael Abdin, filed a petition to probate a lost will that Mike allegedly executed in the Arabic language while visiting Israel in January 2000. This will left nothing to Mike\u2019s wife and daughters. We described it in a prior appeal, Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006) (Abdin I), as follows:\nAn English translation of the typed will shows it to be rather unusual by Western standards. It is made \u201cIn The Name of Allah Most Gracious Most Merciful,\u201d and it makes no precise bequest of money or property to any person. Instead, it provides for \u201cthe amount of money and property I have specified for my three sisters (and a Share for my family) according to the Islamic law of Allah and His Messenger,\u201d with the \u201cbiggest share\u201d going to \u201cmy sister Hala.\u201d It also contains several provisions stating that the testator \u201cwould like\u201d for the following to occur: 1) Wael to invest Hala\u2019s share for her; 2) Wael to buy a house and \u201cmake it an Islamic trust,\u201d to be leased, with the proceeds going to his other sisters; 3) \u201cyou to build a Mosque\u201d in Jerusalem named after Mike; 4) Wael to send someone to perform the Hajj obligation on behalf of Mike and his mother; 5) his brothers and sisters to buy a new store for his younger brother, Muhannad. Finally, the will states that the testator had:\nleft some signed checks with my brother Hani, so you may make use of them after I pass away.... From the family share, I would like you to build a DeWan (Hall or a Family Center) and to name it after my father\u2019s name....\nAbdin I, 94 Ark. App. at 13-14, 223 S.W.3d at 61-62.\nFollowing a hearing on July 20 and 21, 2004, the circuit court found that Wael failed to prove Mike\u2019s signature on the Israeli will. The court refused to admit the will to probate, and we affirmed in an opinion issued January 16, 2006. Abdin I, supra.\nAfter our decision in Abdin I, Wael returned to circuit court and filed a petition to recover over $100,000 in expenses and fees incurred in his unsuccessful attempt to probate the lost will. He relied on Ark. Code Ann. \u00a7 28-48-109(a) (Repl. 2004), which provides:\nWhen any person nominated in a will as executor or the administrator with the will annexed, in good faith defends the will or prosecutes any proceedings for the purpose of having it admitted to probate, whether successful or not, he or she shall be allowed out of the estate his or her necessary expenses and disbursements including reasonable attorney\u2019s fees in such proceedings.\nThis statute permits two classes of litigants to recover necessary expenses and attorney fees incurred in the unsuccessful defense or probate of a will: 1) a person nominated in a will as executor; or 2) an administrator with the will annexed. The trial court found that Wael fell into neither of these categories and dismissed Wael\u2019s petition. Wael appeals from that ruling.\nProbate cases are reviewed de novo on appeal, and we do not reverse the trial court\u2019s decision unless it is clearly erroneous. Cloud v. Brandt, 370 Ark. 323, 259 S.W.3d 439 (2007). A trial court\u2019s conclusion on a question of law is given no deference on appeal. N. W. Ark. Recovery, Inc. v. Davis, 89 Ark. App. 62, 200 S.W.3d 481 (2004).\nWe first address Wael\u2019s argument that he was a \u201cperson nominated in a will as executor.\u201d He concedes that the lost will named no executor and did not expressly nominate him as such. However, he claims that the will\u2019s language manifested an intent that he act as executor. He points to the will\u2019s request that he secure his older sister\u2019s share and invest it for her; that he buy a house, place it in an \u201cIslamic trust,\u201d lease it, and have the rent paid to two other sisters; and that he send someone to perform the Hajj obligation on behalf of Mike and his mother. He also claims that the request that an unspecified person, \u201cyou,\u201d build a mosque, use the signed checks, and build a dewan, refers to him and manifests the same intent. As authority, he cites In re Parker\u2019s Estate, 202 Cal. 138, 259 P. 431 (1927), Des Portes v. Des Portes, 157 S.C. 407, 154 S.E. 426 (1930), and Estate of Baird v. Baird, 196 Cal. App. 3d 957, 242 Cal. Rptr. 246 (1987), for the proposition that a person may be deemed an executor if the testator asks him to perform duties normally associated with a personal representative.\nWe make no ruling as to whether section 28-48-109(a) applies when a person\u2019s nomination as executor is implied rather than expressed. Instead, we hold that, even if such an interpretation were permitted under our strict construction of attorney-fee statutes, see City of Little Rock v. Quinn, 35 Ark. App. 77, 811 S.W.2d 6 (1991), we are not persuaded that the will in this case clothed Wael, even impliedly, with the status of an executor. While the will asked Wael to perform several tasks that are in the nature of an executor\u2019s duties, it made similar requests of an unnamed person, \u201cyou.\u201d The will\u2019s overall language indicates that \u201cyou\u201d may well have included all of Mike Abdin\u2019s brothers and sisters rather than Wael alone. One provision asked that \u201cyou, brothers and sisters\u201d buy a new store for a younger brother \u201cbecause you as you know my father and my mother used to love him very much. ...\u201d Another provision stated that the testator \u201cwould like that all of you have a good relationship with my wife and with my daughter[s].\u201d A subsequent paragraph provided that the testator \u201cleft some signed checks with my brother Hani, so you may make use of them. ...\u201d Given these provisions, the trial court could reasonably have interpreted the will as a series of requests to various family members without naming an executor. Thus, no clear error occurred. See Metzgar v. Rodgers, 83 Ark. App. 354, 128 S.W.3d 5 (2003) (holding that the trial court\u2019s findings regarding ambiguous provisions of a will are not overturned unless clearly erroneous).\nWe likewise agree with the trial court\u2019s finding that Wael did not qualify as an administrator with the will annexed. When a decedent leaves a will that does not nominate an executor, or the person named as executor cannot serve, the court appoints an administrator with the will annexed to perform the duties connected with settlement of the estate. See Whitlow v. Patterson, 195 Ark. 173, 112 S.W.2d 35 (1938); Gordon v. Greening, 121 Ark. 617, 182 S.W. 272 (1916). See also 34 C.J.S. Wills ( 947 (1998). In order to have an administrator with the will annexed, the will must first have been deemed valid and duly admitted to probate. See 34 C.J.S. Wills \u00a7 947 (1998); Luckey v. Superior Court, 209 Cal. 360, 287 P. 450 (1930).\nThe lost will in this case was never deemed valid and duly admitted to probate; consequently, it is not possible for Wael to qualify as an administrator with the will annexed. Wael recognizes this but argues that section 28-49-109(a) inconsistently permits recovery of expenses and fees for a legal impossibility: the unsuccessful probate of a will by an administrator with the will annexed. In fact, no such inconsistency exists. The statute applies not only to the unsuccessful probate of a will but to the unsuccessful defense of a will as well. It reads: \u201cWhen any person nominated in a will as executor or the administrator with the will annexed, in good faith defends the will or prosecutes any proceedings for the purpose of having it admitted to probate . . . .\u201d (Emphasis added.) It is perfectly conceivable that an administrator with the will annexed, properly appointed after probate, could be called upon to defend the will. If his defense were unsuccessful, the statute would apply and allow him to recover his necessary expenses and fees from the estate.\nBased on the foregoing, we affirm the trial court\u2019s ruling that Wael lacked the capacity to seek fees and expenses under section 28-48-109(a). Our holding makes it unnecessary to address Wael\u2019s argument that he propounded the lost will in good faith and Delores\u2019s argument that Wael\u2019s fee petition was untimely under ' Ark. R. Civ. P. 54(e).\nAffirmed.\nHeffley and Baker., JJ., agree.\nAlthough the trial court did not elaborate on its basis for finding thatWael was not nominated in the will as executor, we may uphold the court\u2019s finding if it is correct for any reason. Fritzinger v. Beene, 80 Ark.App. 416,97 S.W.3d 440 (2003).", "type": "majority", "author": "David M. Glover, Judge." } ], "attorneys": [ "Hatfield & Lassiter, by: Richard F. Hatfield, for appellant.", "McMath Woods, P.A., by: Will Bond, for appellee." ], "corrections": "", "head_matter": "Wael ABDIN v. Delores ABDIN\nCA 07-140\n270 S.W.3d 361\nCourt of Appeals of Arkansas\nOpinion delivered December 19, 2007\nHatfield & Lassiter, by: Richard F. Hatfield, for appellant.\nMcMath Woods, P.A., by: Will Bond, for appellee." }, "file_name": "0056-01", "first_page_order": 86, "last_page_order": 91 }