{ "id": 6139633, "name": "Virginia JONES, Carolyn Smalling, and Margaret Barron v. Vernita ELLISON", "name_abbreviation": "Jones v. Ellison", "decision_date": "2000-05-03", "docket_number": "CA 99-803", "first_page": "162", "last_page": "169", "citations": [ { "type": "official", "cite": "70 Ark. App. 162" }, { "type": "parallel", "cite": "15 S.W.3d 710" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "66 Ark. App. 220", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139831 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/66/0220-01" ] }, { "cite": "338 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243480 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0220-01" ] }, { "cite": "304 Ark. 352", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880916 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0352-01" ] }, { "cite": "54 Ark. App. 298", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140560 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/54/0298-01" ] }, { "cite": "324 Ark. 461", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9161167 ], "weight": 3, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0461-01" ] }, { "cite": "42 Ark. App. 230", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140475 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0230-01" ] }, { "cite": "304 Ark. 268", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880960 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0268-01" ] }, { "cite": "305 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916843 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0046-01" ] }, { "cite": "62 Ark. App. 89", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137338 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/62/0089-01" ] }, { "cite": "67 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136378 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0025-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-25-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-25-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 1 } ], "analysis": { "cardinality": 617, "char_count": 12734, "ocr_confidence": 0.739, "pagerank": { "raw": 6.642137631490024e-08, "percentile": 0.405111070182084 }, "sha256": "e0abedb5abf093e778ccc5200c9b2d9ea383f24b729bbd8f8fd4496e94b529ab", "simhash": "1:0fe2f60c44acdda6", "word_count": 2155 }, "last_updated": "2023-07-14T22:52:11.491630+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart, Jennings, and Meads, JJ., agree.", "Pittman and Crabtree, JJ., dissent." ], "parties": [ "Virginia JONES, Carolyn Smalling, and Margaret Barron v. Vernita ELLISON" ], "opinions": [ { "text": "OLLY Neal, Judge.\nMinnie Lou Timmins died testate on September 24, 1998, leaving an estate worth more than $2,000,000. On October 27, 1998, the executor of the decedent\u2019s estate, First United Trust Company (First United), through its attorney, Michael F. Mahoney, filed a petition to construe the last will and testament of Ms. Timmins in relation to a jewelry box containing several pieces of jewelry and a handwritten note discovered in the decedent\u2019s dresser drawer. The note found in the jewelry box was handwritten entirely by the decedent and contained the following words: \u201cI want Vernita Ellison to have these items and Snuggles.\u201d The end of the note contained the signature and date \u201cMinnie Lou, September 29, 1997.\u201d In its petition, First United asserted that in determining the assets of the decedent\u2019s estate, it discovered the following items of tangible personal property in the jewelry box: (1) a watch on a chain; (2) one ring \u2014 one center stone \u2014 six small stones; (3) one necklace \u2014 one center stone \u2014 four small stones, (4) one engagement ring \u2014 one center stone \u2014 one side stone, (5) one wedding ring \u2014 five small stones, (6) a note. First United asserted that it was unable to determine from the decedent\u2019s will whether the property contained in the jewelry box should be distributed to the residuary beneficiaries, the appellants in this case, or whether the handwritten note was part of the will, which would require the contents of the jewelry box to be given to Vernita Elhson. On November 10, 1998, Vernita Ellison filed a response to the petition claiming that she served as a paid caretaker for the decedent and that on many occasions, the decedent made it known to her that the jewelry box in the decedent\u2019s dresser drawer contained items of jewelry as described in the petition, which were to be given to her. The appellants, Virginia Jones, Carolyn Smalling, and Margaret Barron (now deceased), filed a separate response to the petition claiming that the handwritten note did not comply with the decedent\u2019s reservation of right under Ark. Code Ann. \u00a7 28-25-107 (1987), in paragraph two of the will. Paragraph two of the decedent\u2019s last will and testament states as follows:\nI reserve the right, pursuant to Section 4 of Act 814 of the Acts of the General Assembly of the State of Arkansas for 1979 (Ark. Code Ann. 28-25-107), to make disposition of tangible personal property by attaching or associating with this Will a written, dated statement and list signed by me or in my handwriting designating the devisees of items of tangible personal property.\nThe appellants alleged that the handwritten note did not evidence testamentary intent as required by law in that it did not state -\u201cat my death\u201d or other words evidencing testamentary intent. They further alleged that the note did not describe any object with reasonable certainty and that there was a patent ambiguity in the words \u201cthese items\u201d of personal property. The appellants requested the trial court to disallow any extrinsic evidence as to the intention of the decedent and asked the trial court to grant them a summary judgment determining that the handwritten note was an ineffective testamentary disposition of the decedent\u2019s personal property.\nAt a hearing on these matters presented by the parties, the appellants objected to any testimony by Vernita Ellison on the ground that testimony relating to the intention of the testatrix should not be admitted into evidence. The trial court allowed Ms. Ellison to proffer her testimony and reserved its ruling on the appellants\u2019 motion for summary judgment and their objection to Ms. Ellison\u2019s testimony.\nIn his letter opinion dated February 24, 1999, the trial judge made the following findings:\nMrs. Timmins knew she had a will. She also knew that the will provided that she could dispose of personal property by a separate written, signed and dated list.\nShe may not have used the words testamentary disposition but \u201chave\u201d means that she wanted the items to belong to Mrs. Ellison. There is no specific list but \u201cthese items\u201d inside the jewelry box which contained the note left no doubt as to what the items were.\nOn appeal, appellants first argue that the trial court erred in finding that the handwritten note found in the jewelry box described the items therein with reasonable certainty under Ark. Code Ann. \u00a7 28-25-107(b)(2) (1987). Section 28-25-107(b)(2) states that \u201cto be admissible under this subsection as evidence of the intended disposition, the writing must either be in the handwriting of the testatrix or be signed by her and must describe the items and devisees with reasonable certainty.\u201d\nProbate cases are reviewed de novo on the record. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). The decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). The cardinal principle in the interpretation of wills is that the testatrix\u2019s intent governs. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991). That intention is to be gathered from the four corners of the instrument and by giving meaning to the provisions in their entirety, if possible. In re Estate of Conover v. Mobley, 304 Ark. 268, 801 S.W.2d 299 (1990).\nWhen construing a testamentary document to arrive at the testatrix\u2019s intention, one does not look at the intention that existed in the testatrix\u2019s mind at the time of the execution, but that which is expressed by the language of the instrument. Acklin v. Riddell, 42 Ark. App. 230, 856 S.W.2d 322 (1993). A testatrix\u2019s intention should be ascertained from the instrument itself and given its expressed intent. Id.\nIn the present case, the handwritten note found in the decedent\u2019s jewelry box stated that the decedent wanted Vernita Ellison to have her dog \u201cSnuggles\u201d and what she termed \u201cthese items.\u201d The parties stipulated that after Voncile Berry, Trust Officer at First United Trust Company, learned of the jewelry, she went to the decedent\u2019s home and found the jewelry box containing the note inside the dresser drawer.\nThe appellants argue that the note in question is uncertain because it is portable in nature and capable of being placed in any confined area by a third party, and that the appellee and her husband had \u201cclear and unfettered\u201d access to the decedent\u2019s home at least two days before the decedent\u2019s death. However, the abstract does not reflect that the appellants\u2019 arguments were made to the probate judge. Cleveland v. Estate of Stark, 324 Ark. 461, 923 S.W.2d 857 (1996). The record on appeal is limited to that which is abstracted. Id. The appellate court does not address arguments raised for the first time on appeal. McNeely v. State, 54 Ark. App. 298, 925 S.W.2d 177 (1996). Nonetheless, the testatrix recited words of testamentary intent to give Ms. Ellison her dog and the jewelry contained within the jewelry box by stating in the note that she \u201cwant[ed] Vernita Ellison to have\u201d the items and by placing the note directly in the jewelry box with the items. Further, there was no evidence introduced reflecting that Ms. Ellison had tampered with the note left by the testatrix. The paramount principle in the interpretation of wills is that the intention of the testatrix will govern and in the absence of fraud or deception in the execution of a will, strict technical construction of the statutory requirements is avoided in order to give effect to the testatrix\u2019s wishes. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).\nFor their next point on appeal, the appellants argue that the trial court erred in admitting the testimony of Vernita Ellison to prove the intent of the testatrix as it related to the note found in the jewelry box. However, we find no merit in this argument for two reasons. First, the abstract does not reflect that the appellants obtained a ruling on their objection to Ms. Ellison\u2019s testimony. To preserve a point for appellate review, a party must obtain a ruling from the trial court. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). The burden of obtaining a ruling on a point is on the movant and any objections and questions left unresolved are waived and may not be relied upon on appeal. Casteel v. State Farm Mut. Auto. Ins. Co., 66 Ark. App. 220, 989 S.W.2d 547 (1999). Secondly, the letter opinion of the trial court does not appear to have relied on Ms. Ellison\u2019s testimony in its finding that the decedent intended to dispose of the items in the note by giving them to Ms. Ellison.\nFor their last point on appeal, the appellants argue that the trial court erred in failing to give effect to paragraph two of the decedent\u2019s will. As previously stated, paragraph two of the decedent\u2019s last will and testament stated that the decedent reserved the right to make disposition of her tangible property by \u201cattaching or associating\u201d with her will \u201ca written, dated statement and fist\u201d signed in her handwriting. In this case, although the note found in the jewelry box was not attached to the will, it was enclosed in the jewelry box with specific items that could be identified, and it listed the devisee of the items. The note was further dated and signed in the handwriting of the testatrix. In finding that Section 28-25-107 was met in this case, the trial court made the following remarks:\nOn September 29, 1997, the decedent left such a note in a jewelry-box along with various rings and other jewelry. The note stated: \u201cI want Vernita Ellison to have these items and Snuggles.\u201d The facts produced at trial conclusively showed that Mrs. Timmins knew that she had a Will, and knew that the Will allowed her to dispose of personal property by a separate written, sign [sic] and dated document.\nOn these facts, we cannot say that the probate court\u2019s findings that the note should be admitted as a part of the decedent\u2019s will and that the tangible personal property listed in the note should be distributed to Vernita Ellison are clearly erroneous.\nAffirmed.\nHart, Jennings, and Meads, JJ., agree.\nPittman and Crabtree, JJ., dissent.", "type": "majority", "author": "OLLY Neal, Judge." }, { "text": "TERRY CRABTREE, Judge,\ndissenting. I agree with the facts as stated in the majority opinion, but I am unable to agree that the handwritten note indicated granting of the property to the appellee in accordance with the statute. Ark. Code Ann. \u00a7 28-25-107 (1987) provides:\n(a) Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.\n(b)(1) Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or fist to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities, and property used in trade or business.\n(2) To be admissible under this subsection as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must describe the items and devisees with reasonable certainty.\n(3) The writing may be referred to as one to be in existence at the time of the testator\u2019s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will (emphasis added).\nI simply do not believe that the writing in this case describes the items with reasonable certainty as required by statute. The note left by Mrs. Timmins stated, \u201cI want Vernita Ellision to have these items and Snuggles (the dog).\u201d The note was left in a jewelry box. The note does not describe anything, much less the property to be disposed of. This writing simply is not sufficient to describe the property.\nAnother problem with the writing left in the jewelry box is that it could be moved to a lock box or anywhere and still carry the weight of the testatrix\u2019s signature. In my opinion, the possibility of fraud is too great to extend the meaning of the statute as far as the majority opinion does.\nI would reverse.\nPittman, J., agrees.", "type": "dissent", "author": "TERRY CRABTREE, Judge," } ], "attorneys": [ "J. V. Spencer, III, for appellants.", "Compton, Prewett, Thomas & Hickey, by: Ted Botner, for appellee." ], "corrections": "", "head_matter": "Virginia JONES, Carolyn Smalling, and Margaret Barron v. Vernita ELLISON\nCA 99-803\n15 S.W.3d 710\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered May 3, 2000\n[Petition for rehearing denied June 7, 2000. ]\nJ. V. Spencer, III, for appellants.\nCompton, Prewett, Thomas & Hickey, by: Ted Botner, for appellee.\nPittman and Crabtree, JJ., would grant." }, "file_name": "0162-01", "first_page_order": 192, "last_page_order": 199 }