{ "id": 6065762, "name": "Thomas G. CARMODY and Dr. Norman C. Savers Jr., as Co-administrators of the Estate of Helen Virginia v. George Philip BETTS as Executor of the Estate of Linnie Betts, et al", "name_abbreviation": "Carmody v. Betts", "decision_date": "2008-11-19", "docket_number": "CA 07-1286", "first_page": "84", "last_page": "90", "citations": [ { "type": "official", "cite": "104 Ark. App. 84" }, { "type": "parallel", "cite": "289 S.W.3d 174" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "85 Ark. App. 526", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142435 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/85/0526-01" ] }, { "cite": "367 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3696202 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/367/0241-01" ] }, { "cite": "250 Ark. 774", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636919 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0774-01" ] }, { "cite": "79 Ark. App. 20", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136355 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/79/0020-01" ] }, { "cite": "345 Ark. 84", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939027 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0084-01" ] }, { "cite": "359 Ark. 424", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3712456 ], "weight": 7, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/359/0424-01" ] }, { "cite": "102 Ark. App. 92", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137802 ], "weight": 6, "year": 2008, "opinion_index": 0, "case_paths": [ "/ark-app/102/0092-01" ] }, { "cite": "281 Ark. 242", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742327 ], "weight": 4, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0242-01" ] }, { "cite": "215 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464666 ], "weight": 6, "year": 1949, "pin_cites": [ { "parenthetical": "relying on the Restatement of Trusts \u00a7 128, comment e (1935)" }, { "parenthetical": "relying on the Restatement of Trusts \u00a7 128, comment e (1935)" }, { "page": "467" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ark/215/0463-01" ] } ], "analysis": { "cardinality": 696, "char_count": 14643, "ocr_confidence": 0.782, "pagerank": { "raw": 5.979310919121835e-08, "percentile": 0.37187225973406174 }, "sha256": "74681968ebe05cde66f02eafba0e2546ee9274295d053b68a71bd4e89fe2289f", "simhash": "1:b1193c8220e49356", "word_count": 2422 }, "last_updated": "2023-07-14T18:37:35.435157+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Vaught and Hunt, JJ., agree." ], "parties": [ "Thomas G. CARMODY and Dr. Norman C. Savers Jr., as Co-administrators of the Estate of Helen Virginia v. George Philip BETTS as Executor of the Estate of Linnie Betts, et al" ], "opinions": [ { "text": "Robert J. Gladwin, Judge.\nThomas Carmody and Dr. Norman Savers, as co-administrators of the Estate of\nHelen Coan, deceased, and on behalf ofher heirs, have appealed from a circuit court's order construing the 1984 will ofMs. Coan's brother, Joseph Coan, Jr. Because Ms. Coan was disabled and remained incompetent all of her life, Mr. Coan served as guardian of her person and estate and set up a testamentary trust for her support in his will. Ms. Coan also had substantial assets of her own. Mr. Coan's will directed that, upon his sister's death, the remainder of the trust, after certain specific bequests, was to be distributed equally to appellee Metropolitan Opera Association, Inc., and Georgetown University, his alma mater, to be used by them in his memory.\nThe will stated:\n(a) During the lifetime of my sister, Helen Virginia Coan, my Co-Trustees are authorized and directed to pay for the above beneficiary any part of the annual income from said trust necessary to provide for her care, welfare, and maintenance. I direct that such payment shall be made at least monthly. It is my intention herein to provide for the care, welfare, and maintenance of my incompetent sister for the remainder of her fife, specifically from the income from said trust, if possible.\n(b) My Co-Trustees are directed that the principal of the trust may be encroached upon and may be invaded if necessary, to provide for the care, welfare, and maintenance of my sister, but my Co-Trustees are directed to provide for the needs only from the income of said trust, if possible. My Co-Trustees are directed that any undistributed income shall become a part of the principal of the trust.\nAfter Mr. Coan\u2019s death in 1984, Linnie Betts (now deceased), an employee of the bank where the Coan siblings\u2019 funds were held, was appointed successor guardian of Ms. Coan and her estate. Ms. Betts also served as a co-administrator of Mr. Coan\u2019s estate and as a co-trustee of his testamentary trust with John Gaughan. After Ms. Coan died in 2005, appellants alleged that the trustees had violated the terms of the trust by considering Ms. Coan\u2019s personal assets in determining the necessity of using the money in the trust for her support. Appellees, George Betts, Administrator of the Estate of Linnie Betts; Michael Gaughan, Administrator of the Estate of Joseph Coan; Bancorpsouth, Inc.; Western Surety Company; Metropolitan Opera; and the Estate of Joseph Coan, argued that the will gave the trustees discretion to consider Ms. Coan\u2019s personal assets in determining her need of support from the trust.\nAt the hearing on the will\u2019s construction, all parties agreed that the will was unambiguous. The circuit court construed the will as giving the trustees discretion in determining Ms. Coan\u2019s need of the trust\u2019s income and principal:\nThe Court recognized that the cardinal rule in construing a will or trust instrument is that the intention of the setdor must be ascertained. In order to properly interpret a will or trust the intent of the testator or setdor must be determined and that intent should govern. This intention is to be determined by examination of the four corners of the instrument, considering the language used, giving meaning to all of its relevant provisions whenever possible.\nUpon examination of the entire instrument it appears clear that JWC had three primary objectives in mind at the time of the execution of his will and trust. First, he wanted to ensure that HVC, his severely mentally retarded sister with whom he was obviously very close, would continue to receive the very best care and support that could be provided. JWC had obviously committed himself to this effort through his adult life and fully accepted this responsibility following the death of his parents. The substantial assets within JWC\u2019s mother\u2019s estate were never severed but remained commingled as a source of revenue and assets which were used for the care of HVC during her lifetime.\nSecondly, the language contained in the will and trust clearly indicates that JWC had a strong desire to preserve the family home and contents as well as at least $125,000 to be distributed to specific deserving individuals upon the death of HVC.\nFinally, there are two nonprofit institutions, the Metropolitan Opera of New York and his alma mater, Georgetown University, which the testator strongly desired to give the remainder of his estate equally in his remembrance.\nThe Court is well aware of the fine of Arkansas cases concerning the construction of will and trust language dealing with the distribution of income and principal that have held that, unless something appears in the will indicating a different purpose, it is ordinarily presumed that the testator intended the beneficiary to be supported and maintained from estate income or from the sale of part of the corpus. Cross v. Farr [sic], 215 Ark. 463, 221 S.W.2d 24 (1949); Bailey v. Sanford Trustee [sic], 281 Ark. 242, 663 S.W.2d 174 (1984). Arguably, the rulings in these cases indicate that in a circumstance similar to the situation before us, the co-trustees had no discretion and could not consider the assets of the incompetent HVC in determining whether income or principal assets of the trust were to be expended for her care.\nHowever, the Court is of the opinion that these cases can be distinguished from that of the present case. Those cases basically dealt with whether or not the trustee had the right to liquidate certain assets for the purpose of providing funds of the support of the beneficiary, though the beneficiary had individual assets which could be used for said purpose. In both cases the settlor specifically pledged all income and principal in the trust for the support of the beneficiary.\nThe language as contained in the testamentary trust within the will of JWC contains language of limitation, which would strongly indicate his desire to preserve the principal assets of his estate for distribution as per the terms of the will and trust, which were not absolutely necessary for the purpose of the continuing care of his sister. The will and trust clearly instruct the co-trustees to use only that part of the income \u201cnecessary\u201d for his sister\u2019s care. In addition he expected there to be income in excess of that necessary to sustain her, as the undistributed income was to become a part of the principal. This language demonstrates a clear intention by JWC for the preservation and distribution of the assets remaining following his sister\u2019s death. It is only reasonable that the settlor\u2019s intention was that the substantial assets in his sister\u2019s name were to be taken into consideration and used for her support when possible.\nRestatement (Third) Trust, Section 50, Comment e, contains language that supports the position that the assets of the trust beneficiary (HVC) are to be considered by a trustee in determining what expenses were to be paid from trust assets.\nWhen considering all of the language contained in the trust and will, the Court is convinced that this language indicates the intention of JWC was that his sister\u2019s assets must be taken into consideration in order to make the stated gifts to individuals and institutions that he cared for so deeply. The co-trustees, therefore, did not violate this intention or the terms of the document by considering the assets of HVC or her guardianship as a source of payment for her care.\nOn appeal, appellants argue that the circuit court failed to follow precedent and misconstrued the will. We review probate cases de novo and affirm the circuit court\u2019s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Taylor v. Woods, 102 Ark. App. 92, 282 S.W.3d 285 (2008). In the interpretation of wills, the paramount principle is that the intent of the testator governs. Id. The testator\u2019s intent is to be gathered from the four corners of the instrument itself. Id. In construing a trust, we apply the same rules applicable to the construction of wills. Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004). This intention is to be determined from viewing the four corners of the instrument, considering the language used, and giving meaning to all of its provisions, whenever possible. Id. We will construe the words and sentences used in a will or trust in their ordinary sense in order to arrive at the testator\u2019s true intention. Id. In order to determine the intentions of the testator, consideration must be given to every part of the will. Id. When the purpose of a trust is ascertained, that purpose will take precedence over all other canons of construction. Wisener v. Burns, 345 Ark. 84, 44 S.W.3d 289 (2001).\nExtrinsic evidence may be received on the issue of the testator\u2019s intent only if the terms of the will are ambiguous. Taylor v. Woods, supra. The determination of whether there is an ambiguity is a matter of law. Thinn v. Parks, 79 Ark. App. 20, 83 S.W.3d 430 (2002). Absent a finding of ambiguity by the court, testimony about the settlor\u2019s intent should not be considered. Id. When the terms of a trust are unambiguous, it is the court\u2019s duty to construe the written agreement according to the plain meaning of the language employed. Bailey v. Delta Trust & Bank, supra. Here, all parties agreed at the hearing and on appeal that the will was unambiguous, and we concur.\nPrior Arkansas cases construing trust language about the distribution of income and principal for the support of a beneficiary have held that phrases such as \u201cnecessary for support\u201d were presumed to mean that the trustee was to use the money for that purpose regardless of the beneficiary\u2019s ability to pay unless the trust contained language indicating a contrary intent. Cross v. Pharr, 215 Ark. 463, 221 S.W.2d 24 (1949) (relying on the Restatement of Trusts \u00a7 128, comment e (1935)). See also Bailey v. Delta Trust & Bank, supra; Estate of Wells v. Sanford, 281 Ark. 242, 663 S.W.2d 174 (1984); Martin v. Simmons First Nat\u2019l Bank, 250 Ark. 774, 467 S.W.2d 165 (1971).\nThe Restatement (Second) of Trusts section 128 (1959) was also in line with Arkansas cases. This presumption changed, however, in the Restatement (Third) of Trusts, section 50 (2003), as explained in comment e:\ne. Significance of beneficiary\u2019s other resources. It is important to ascertain whether a trustee, in determining the distributions to be made to a beneficiary under an objective standard (such as a support standard), (i) is required to take account of the beneficiary\u2019s other resources, (ii) is prohibited from doing so, or (iii) is to consider the other resources but has some discretion in the matter. If the trust provisions do not address the question, the general rule of construction presumes the last of these.\nSpecifically, with several qualifications (below), the presumption is that the trustee is to take the beneficiary\u2019s other resources into account in determining whether and in what amounts distributions are to be made, except insofar as, in the trustee\u2019s discretionary judgment, the settlor\u2019s intended treatment of the beneficiary or the purposes of the trust will in some respect be better accomplished by not doing so.\nNoting that the cases are in conflict on this issue, the Reporter\u2019s notes about comment e stated that the Restatement (Third) of Trusts reflects a recent trend that is more realistic as a reflection of probable settlor objectives. In Bailey v. Delta Trust & Bank, supra, which was decided after the adoption of the Restatement (Third) of Trusts, the court did not address whether section 50 should be adopted on this issue. The supreme court and this court have relied upon some sections of the Restatement (Third) of Trusts, but have not yet expressly adopted section 50. See Alexander v. McEwan, 367 Ark. 241, 239 S.W.3d 519 (2006); Taylor v. Woods, supra; Trott v. Jones, 85 Ark. App. 526, 157 S.W.3d 592 (2004).\nWe need not decide, however, whether the circuit court erred in relying on section 50 of the Restatement (Third) of Trusts. Instead, this case can, in line with Arkansas precedent, be affirmed as a situation in which \u201csomething appeared] in the will indicating a different purpose\u201d than an intention that the beneficiary would be supported from the estate income and principal without regard to Ms. Coan\u2019s personal resources. See Cross v. Pharr, 215 Ark. at 467, 221 S.W.2d at 26. In Article Six, section (C)(a), the will stated that the co-trustees were authorized to pay for Ms. Coan \u201cany part of the annual income from said trust necessary to provide for her care, welfare and maintenance.\u201d This section treated the current income differently from principal. Section (C)(b)\u2019s provision that the principal \u201cmay be encroached upon if necessary\u201d was not mandatory and implied some discretion by the co-trustees. Section (C)(b) added, \u201cbut my Co-Trustees are directed to provide for the needs from the income of said trust, if possible,\u201d emphasizing the settlor\u2019s intent to protect the principal. Section (C)(b) concluded with \u201cMy Co-Trustees are directed that any undistributed income shall become part of the principal of the trust.\u201d This language indicated that Mr. Coan believed that current income would be more than sufficient to meet Ms. Coan\u2019s needs and also reflected an intent to protect the principal. Further, the next subsection provided for the distribution of the principal and all undistributed income upon the termination of the trust, without adding the qualification \u201cif any remains.\u201d For these reasons, we find no error in the circuit court\u2019s construction of the will or in its adherence to precedent.\nAffirmed.\nVaught and Hunt, JJ., agree.", "type": "majority", "author": "Robert J. Gladwin, Judge." } ], "attorneys": [ "Wilkinson Carmody Gilliam, by: ArthurR. Carmody, Jr.; Marshall & See, by: Pat Marshall; and Katherine Savers McGovern, for appellants.", "Harrell, Lindsey & Carr, P.A., by: Paul E. Lindsey, for appellee Michael P. Gaughan.", "Allen P. Roberts, for appellee Estate of Joseph William Patrick Coan, Jr., Deceased.", "Dover Dixon Home PLLC, by: Gary B. Rogers, for appellee Metropolitan Opera Association, Inc.", "James M. Pratt, Jr., for appellee George P. Betts, Administrator of the Estate of Linnie Betts, Deceased.", "Eugene D. Bramblett, for appellee BancorpSouth, Inc.", "Wright, Lindsey & Jennings LLP, by: Bettina E. Brownstein and James R. Van Dover, for appellee Western Surety Company." ], "corrections": "", "head_matter": "Thomas G. CARMODY and Dr. Norman C. Savers Jr., as Co-administrators of the Estate of Helen Virginia v. George Philip BETTS as Executor of the Estate of Linnie Betts, et al\nCA 07-1286\n289 S.W.3d 174\nCourt of Appeals of Arkansas\nOpinion delivered November 19, 2008\n[Rehearing denied January 7, 2009.]\nWilkinson Carmody Gilliam, by: ArthurR. Carmody, Jr.; Marshall & See, by: Pat Marshall; and Katherine Savers McGovern, for appellants.\nHarrell, Lindsey & Carr, P.A., by: Paul E. Lindsey, for appellee Michael P. Gaughan.\nAllen P. Roberts, for appellee Estate of Joseph William Patrick Coan, Jr., Deceased.\nDover Dixon Home PLLC, by: Gary B. Rogers, for appellee Metropolitan Opera Association, Inc.\nJames M. Pratt, Jr., for appellee George P. Betts, Administrator of the Estate of Linnie Betts, Deceased.\nEugene D. Bramblett, for appellee BancorpSouth, Inc.\nWright, Lindsey & Jennings LLP, by: Bettina E. Brownstein and James R. Van Dover, for appellee Western Surety Company." }, "file_name": "0084-01", "first_page_order": 110, "last_page_order": 116 }