{ "id": 6139234, "name": "Sheila E. ROBINSON, As the Removed Administratrix of the Estate of Reginald G. Robinson, Sr., Deceased v. Linda WINSTON, As the Administratrix of the Estate of Reginald G. Robinson, Sr., Deceased", "name_abbreviation": "Robinson v. Winston", "decision_date": "1998-12-02", "docket_number": "CA 98-205", "first_page": "170", "last_page": "176", "citations": [ { "type": "official", "cite": "64 Ark. App. 170" }, { "type": "parallel", "cite": "984 S.W.2d 38" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "44 Ark. App. 62", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137020 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/44/0062-01" ] }, { "cite": "62 Ark. App. 19", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136246 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/62/0019-01" ] }, { "cite": "57 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "317 Mass. 195", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 927269 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/mass/317/0195-01" ] }, { "cite": "231 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697045 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "205" }, { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ark/231/0197-01" ] }, { "cite": "319 Ark. 574", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453627 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "581" }, { "page": "581-82" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ark/319/0574-01" ] }, { "cite": "293 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869704 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0397-01" ] }, { "cite": "2 Ark. App. 116", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138600 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/2/0116-01" ] }, { "cite": "316 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907821 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0499-01" ] }, { "cite": "22 Ark. App. 144", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6660189 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "149" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ark-app/22/0144-01" ] }, { "cite": "47 Ark. App. 156", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139539 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/47/0156-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 } ], "analysis": { "cardinality": 555, "char_count": 9996, "ocr_confidence": 0.746, "pagerank": { "raw": 1.3491222361177058e-07, "percentile": 0.6329123821504652 }, "sha256": "fd3cb4d2a8b98843e908a1c5b58473c125ddcd949c1132c462f27ec37e5eec7a", "simhash": "1:44e46c4724205710", "word_count": 1603 }, "last_updated": "2023-07-14T22:49:30.714857+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Arey and Griffen, JJ., agree." ], "parties": [ "Sheila E. ROBINSON, As the Removed Administratrix of the Estate of Reginald G. Robinson, Sr., Deceased v. Linda WINSTON, As the Administratrix of the Estate of Reginald G. Robinson, Sr., Deceased" ], "opinions": [ { "text": "Margaret Meads, Judge.\nAppellant Sheila Robinson is the widow of Reginald Robinson, a West Helena fireman who was killed in the line of duty on May 8, 1997. Mr. Robinson died intestate. Appellee Linda Winston is the ex-wife of the decedent and the mother of his daughter, Candrice C. Robinson. On May 20, 1997, appellant petitioned to be appointed administratrix of the estate and listed the decedent\u2019s mother and two sons as his heirs. Appellant failed to name Cand-rice as an heir and did not send notice of her petition to Candrice or the other heirs. On June 20, 1997, the probate judge appointed appellant administratrix of the estate.\nOn August 27, 1997, appellee filed an objection to appellant\u2019s appointment as administratrix; in the alternative, she asked that she be appointed co-administratrix. Appellee alleged that appellant and her attorneys purposely disregarded Candrice as an heir of the decedent and failed to file a claim for death benefits with the State Claims Commission. Appellee also requested that Candrice be declared a legitimate heir of the estate. Appellant objected to appellee\u2019s request to be appointed co-administratrix because appellee had no relationship to the decedent and stated: \u201cLinda Winston is an ex-wife of the decease[d]; [she] may have some interest adverse to and in conflict with the estate for some claimed back support or other monies . . . .\u201d\nAt a hearing held September 26, 1997, appellee testified that she had learned from the decedent\u2019s mother of appellant\u2019s failure to name Candrice as an heir on the petition and that when she asked appellant to include Candrice as an heir, appellant told her to have her own lawyer do so. She said that this conversation prompted her to file her objection to appellant\u2019s appointment as administratrix. She also stated that she had received no information indicating that appellant had filed a death-benefit claim with the State Claims Commission.\nAppellant testified that she had given Candrice\u2019s name to her out-of-state lawyer before the petition was prepared. She admitted, however, that, before she signed the petition, she noticed that Candrice\u2019s name was missing and that she had not yet amended it. She also admitted that she and the decedent had been separated at the time of his death. She contended that she had already filed a death-benefit claim with the State Claims Commission.\nBy order filed October 16, 1997, the judge found that appellant\u2019s appointment as administratrix had not been published; that notice had not been provided to the known heirs; that Candrice, an heir, had been omitted from the petition; that appellant was aware of this omission at the time she signed the petition; and that appellant had not amended the petition after appellee bought the matter to her attention. The judge found that appellant had faded to perform basic duties required of her as administratrix, including (1) giving public notice after her appointment or providing proof of such notice; (2) providing notice of her appointment to the heirs; (3) fifing an inventory; (4) fisting all of the known heirs on the petition; (5) marshalling all of the assets of the estate; and (6) amending pleadings when informed of their deficiencies. The judge also noted that \u201cobvious tension exists between the current Administratrix and the heirs-at-law as demonstrated during the hearing on this petition.\u201d The judge found appellant unsuitable to serve as administratrix, removed her from that position, and granted appellee\u2019s request to be appointed successor admin-istratrix.\nAppellant first argues that because appellee is not an \u201cinterested person\u201d as defined by the Arkansas Probate Code, the probate court\u2019s order removing her and appointing appellee as successor administratrix is clearly erroneous. She says that the probate code defines \u201cinterested person\u201d as any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary, Ark. Code Ann. \u00a7 28-l-102(a)(ll) (1987), and that appellee\u2019s only relationship to the decedent is that of ex-spouse.\nAppellee responds that we should not consider this argument on appeal because appellant failed to raise it below. In her reply brief, appellant argues that she did not have to raise this argument below because the probate court was without subject-matter jurisdiction to decide the issue.\nSubject-matter jurisdiction is the power of the court to adjudge certain matters and to act on facts alleged. Leinen v. Ark. Dept. of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994). In Banning v. State, 22 Ark. App. 144, 149, 737 S.W.2d 167, 170 (1987), we explained:\nThe rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power.\nArkansas Code Annotated section 28-48-105 (1987) authorizes the probate court to remove a personal representative for various reasons, either upon the court\u2019s own motion or upon the petition of an interested person. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). Therefore, the probate court had the authority to remove appellant on its own motion, and we cannot agree that the probate court lacked subject-matter jurisdiction of this issue. See Pickens, supra.\nBecause the probate court did not lack subject-matter jurisdiction, the issue of whether or not appellee was an interested person should have been raised at trial. A question not raised in the court below by the pleadings or arguments of counsel cannot be considered for the first time on appeal. Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377 (1981). Questions left unresolved are waived and may not be relied upon on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Because appellant\u2019s argument was not raised at trial, we do not consider it on appeal.\nAppellant also argues that the probate court erred in finding her to be unsuitable to serve as administratrix and in removing her from that position. Arkansas Code Annotated section 28-48-105 (1987) provides among other things that the court may remove a personal representative who becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his trust, has mismanaged the estate, or has failed to perform any duty imposed by law.\nIn In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995), the supreme court acknowledged that the probate code does not define the term \u201cunsuitable\u201d but quoted, as it had before in Davis v. Adams, 231 Ark. 197, 205, 328 S.W.2d 851, 856 (1959), the definition of that term provided by the Massachusetts Supreme Court in Quincy Trust Co. v. Taylor, 317 Mass. 195, 57 N.E.2d 573 (1944):\nThe statutory word \u201cunsuitable\u201d gives wide discretion to a probate judge .... Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, prompdy, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.\n319 Ark. at 581, 892 S.W.2d.at 495. In Vesa, the supreme court also acknowledged that \u201cfamily friction\u201d and \u201ccontinuous bickering\u201d can adversely affect an administrator\u2019s suitability. Id. at 581-82, 892 S.W.2d at 495.\nHere, there was evidence that Candrice\u2019s name had been omitted as an heir to the estate, and this omission was not corrected when appellant was informed of the error. We think that was enough for the probate judge to find appellant unsuitable because of a mental attitude toward some person interested in the estate that created a reasonable doubt whether appellant would act honorably, fairly, and dispassionately in her trust. Moreover, appellant hired Wisconsin attorneys for an Arkansas probate matter. Appellant\u2019s choice of Wisconsin attorneys was a sufficient ground to believe that appellant\u2019s continuance in office would likely render the administration of the estate difficult, inefficient or unduly protracted. Finally, we cannot ignore the probate judge\u2019s finding of obvious tension between appellant and the heirs-at-law, which was demonstrated during the hearing on appellee\u2019s petition.\nAn executor of an estate occupies a fiduciary position and must exercise the utmost good faith in all transactions affecting the estate. Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998). Although probate cases are reviewed de novo on the record, we will not reverse the findings of the probate judge unless they are clearly erroneous, giving due deference to the probate judge\u2019s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).\nWe cannot find that the probate judge was clearly erroneous in removing appellant as administratrix of the estate.\nAffirmed.\nArey and Griffen, JJ., agree.", "type": "majority", "author": "Margaret Meads, Judge." } ], "attorneys": [ "Daggett, Van Dover, Donovan & Perry, PLLC, by: J. Shane Baker, for appellant.", "Wilson & Valley, by: E. Dion Wilson, for appellee." ], "corrections": "", "head_matter": "Sheila E. ROBINSON, As the Removed Administratrix of the Estate of Reginald G. Robinson, Sr., Deceased v. Linda WINSTON, As the Administratrix of the Estate of Reginald G. Robinson, Sr., Deceased\nCA 98-205\n984 S.W.2d 38\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 2, 1998\nDaggett, Van Dover, Donovan & Perry, PLLC, by: J. Shane Baker, for appellant.\nWilson & Valley, by: E. Dion Wilson, for appellee." }, "file_name": "0170-01", "first_page_order": 192, "last_page_order": 198 }