{ "id": 6139503, "name": "Peggy TAYLOR, Administratrix of the Estate of Gladys Hamilton, Deceased v. Jimmy Don HAMILTON and The Estate of Samuel Hamilton, Deceased", "name_abbreviation": "Taylor v. Hamilton", "decision_date": "2005-03-09", "docket_number": "CA 04-886", "first_page": "235", "last_page": "245", "citations": [ { "type": "official", "cite": "90 Ark. App. 235" }, { "type": "parallel", "cite": "205 S.W.3d 149" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "299 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888352 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0523-01" ] }, { "cite": "21 Ark. App. 165", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140143 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0165-01" ] }, { "cite": "318 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455865 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0637-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-40-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-50-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "345 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939041 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0249-01" ] }, { "cite": "67 Ark. App. 227", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139076 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0227-01" ] }, { "cite": "294 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895716 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/294/0421-01" ] }, { "cite": "356 Ark. 90", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5369977 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0090-01" ] }, { "cite": "79 Ark. App. 43", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136843 ], "weight": 13, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/79/0043-01" ] }, { "cite": "38 Ark. App. 71", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137411 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0071-01" ] }, { "cite": "80 Ark. App. 430", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142351 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/80/0430-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-40-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "pin_cites": [ { "parenthetical": "providing that probate proceedings shall be deemed commenced by the filing of a petition, the issuance of letters, and the qualification of a personal representative" } ], "opinion_index": 0 }, { "cite": "242 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717747 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0111-01" ] }, { "cite": "336 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51205 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0345-01" ] }, { "cite": "342 Ark. 662", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342350 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0662-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 28-9-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 9, "year": 2004, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" }, { "parenthetical": "d" }, { "page": "(d)" }, { "page": "(d)" }, { "parenthetical": "d" }, { "parenthetical": "d" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 779, "char_count": 18888, "ocr_confidence": 0.727, "pagerank": { "raw": 1.4124864847587795e-07, "percentile": 0.6472323289890646 }, "sha256": "4483096be24fb817d08186605258020ed9ed55d42e75d9b77c20af24be8b001a", "simhash": "1:d0afc5e4e4aa0598", "word_count": 3151 }, "last_updated": "2023-07-14T21:14:05.733265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird and Baker, JJ., agree." ], "parties": [ "Peggy TAYLOR, Administratrix of the Estate of Gladys Hamilton, Deceased v. Jimmy Don HAMILTON and The Estate of Samuel Hamilton, Deceased" ], "opinions": [ { "text": "Terry Crabtree, Judge.\nPeggy Taylor, administratrix of the estate of Gladys Hamilton, brings this appeal from two orders of the Jefferson County Circuit Court\u2019s probate division. On May 3,2004, the court found that appellee Jimmy Don Hamilton was the son of Samuel D. Hamilton, who died on October 20, 2001, and that Jimmy was entitled, as a pretermitted heir, to an intestate share of Samuel\u2019s estate. Samuel was survived by his widow, Gladys Hamilton, whom he married in 1953 and with whom he had no children. Gladys died on December 2, 2002. Appellant also appeals from a June 21, 2004 order in which the court overruled Gladys\u2019s objection to Jimmy\u2019s claim and determined that Gladys and Jimmy were the only heirs and distributees of Samuel\u2019s estate. In that order, the court stated that Samuel\u2019s will had been probated and that Jimmy was a preter-mitted heir entided to an intestate share of Samuel\u2019s estate, subject to Gladys\u2019s widow\u2019s allowances and dower during her lifetime. We find no error and affirm.\nJimmy was born out of wedlock on September 12, 1953, to Velonia Adams, who listed Samuel as Jimmy\u2019s father on the birth certificate. Jimmy was Samuel\u2019s only child. Velonia and Jimmy moved to Flint, Michigan, when Jimmy was about two years old. A paternity action was never filed against Samuel during his lifetime. However, according to Jimmy, he and Samuel had a relationship and saw each other many times over the years. On November 13, 1998, Samuel signed a will leaving all of his estate to Gladys and nominating her as his executrix. In his wifi, Samuel stated that he had no children. Although Samuel died on October 20, 2001, Gladys did not inform Jimmy of his father\u2019s death until March 2002, when Jimmy called and asked to speak to Samuel.\nOn March 26, 2002, Jimmy filed a petition against Gladys to establish Samuel\u2019s paternity in the Jefferson County Circuit Court. He stated that he was in need of an expedited hearing to determine his paternity before April 20, 2002, to avoid being denied his lawful right to inherit property from his father. In response, Gladys denied Samuel\u2019s paternity of Jimmy but did not mention any failure to join Samuel\u2019s estate as a necessary party. After a hearing, the court found, on April 18, 2002, that Samuel was Jimmy\u2019s father. The court stated that the order was final for the purpose of determining Jimmy\u2019s paternity but provided that Gladys could, within forty-five days, request that Jimmy submit to a DNA test and that Samuel\u2019s remains could be exhumed. The DNA testing was done and demonstrated that the probability of Samuel\u2019s paternity of Jimmy was greater than 99.99%.\nOn April 8, 2002, Jimmy filed a petition for the appointment of administration of Samuel\u2019s estate, stating that he wanted to make a claim against it within the time prescribed by law (180 days after Samuel\u2019s death) and requesting a determination of heirship and a declaration that he was Samuel\u2019s son. The next day, Jimmy filed an affidavit to claim against the estate on the ground that he was Samuel\u2019s illegitimate son. On July 10, 2002, Jimmy filed an amended petition for the appointment of Ruth Carey as adminis-tratrix of Samuel\u2019s estate. An order appointing Ms. Carey as administratrix and her letters of administration were filed that day. On July 16, 2002, the administratrix published the statutory notice to creditors.\nOn August 14, 2002, Gladys filed a petition for the determination of heirs. She alleged that, because Jimmy did not make Samuel\u2019s estate a party to the paternity action, the circuit court was not a court of \u201ccompetent jurisdiction\u201d and, therefore, Jimmy had failed to satisfy the requirement of Ark. Code Ann. \u00a7 28-9-209(d) (Repl. 2004) of competent jurisdiction establish the paternity of the child within 180 days of the father\u2019s death. In her accompanying brief, Gladys argued that, because the putative father of the child is a necessary party to such litigation, the paternity order did not bind Samuel\u2019s estate. In a supplemental brief, she argued that, because the circuit court in the paternity action did not have personal jurisdiction over Samuel\u2019s estate, the court lacked subject-matter jurisdiction. In response, Jimmy argued that Gladys, who was a defendant in the paternity action, waived this argument by failing to raise it in that proceeding and that the paternity decision was res judicata as to her.\nOn January 13, 2003, the attorney for the administratrix wrote the circuit judge, stating that it was his and the administra-trix\u2019s belief that she should not take a side in the dispute. On April 10, 2003, the probate court entered an order dismissing Gladys\u2019s petition for the determination of heirs. The court found that, although Samuel\u2019s estate was an indispensable party to the paternity action, Gladys, who was a party, failed to assert a defense of failure to join an indispensable party under Ark. R. Civ. P.19 and, therefore, waived her right to assert that defense in the paternity and probate proceedings. On June 11, 2003, appellant filed a petition to probate Samuel\u2019s will, which was admitted to probate on June 24, 2003. Ms. Carey was reappointed administratrix with will annexed on June 26, 2003. On July 3, 2003, Ms. Carey filed a notice of probate of will and appointment of personal representative.\nIn its May 3, 2004 order, the court found that Jimmy was Samuel\u2019s son and that he was pretermitted in Samuel\u2019s will and allowed Jimmy\u2019s claim to an intestate share of the estate. On June 21, 2004, the court made a determination of heirship, finding that Gladys and Jimmy were the only claimants, heirs, and distributees of the estate. The court found that Jimmy was a pretermitted heir entitled to an intestate share of the estate, subject only to the widow\u2019s allowances and dower during her lifetime. The court found that Jimmy was entitled to the remainder of Samuel\u2019s property. This appeal followed.\nThis appeal is being taken from a probate matter and, therefore, falls under the rule that almost all probate-court orders are appealable. Except for an order removing a fiduciary for failure to give a new bond or render an account, or an order appointing a special administrator, a person aggrieved by an order of the probate court may obtain appellate review of the order. See Ark. Code Ann. \u00a7 28-l-116(a) and (b) (Repl. 2004). The rules that apply in equity cases apply in appeals from probate orders. Ark. Code Ann. \u00a7 28 \u2014 1\u2014116(g)(1) (Repl. 2004). We review probate proceedings de novo, but we will not reverse the decision of the trial court unless it is clearly erroneous. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).\nIn her first point on appeal, appellant asserts that, because Samuel\u2019s estate was not a party to the paternity proceeding, the circuit court rendering that decision was not a \u201ccourt of competent jurisdiction\u201d according to Ark. Code Ann. \u00a7 28-9-209(d) (Repl. 2004), which provides in relevant part:\nAn illegitimate child or his or her descendants may inherit real or personal property in the same manner as a legitimate child from the child\u2019s mother or her blood kindred. The child may inherit real or personal property from his or her father or from his or her father\u2019s blood kindred, provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father:\n(1) A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this section ....\nIn support of her argument, appellant cites Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999), in which the supreme court interpreted the phrase \u201ccompetent jurisdiction\u201d within a federal statute as referring to a court that has both subject-matter jurisdiction and personal jurisdiction. Appellant admits that the circuit court had subject-matter jurisdiction and personal jurisdiction over her in the paternity proceeding. However, she argues, the circuit court lacked personal jurisdiction over Samuel\u2019s estate, and therefore, could not enter a conclusive finding of paternity. She points out that a personal representative of Samuel\u2019s estate was not appointed until July 10, 2002, and therefore, the estate did not exist until then. See Jenkins v. Means, 242 Ark. 111, (1967); Ark. Code Ann. \u00a7 28-40-102 (Repl. 2004) (providing that probate proceedings shall be deemed commenced by the filing of a petition, the issuance of letters, and the qualification of a personal representative).\nWe need not, however, decide whether Samuel\u2019s estate was a necessary party to the paternity action because Gladys clearly waived that issue and was bound by that decision. Although subject-matter jurisdiction cannot be waived, the failure to join a necessary party can be waived by the parties who have assented to the court\u2019s personal jurisdiction over them, as did Gladys. Rogers v. Rogers, 80 Ark. App. 430, 97 S.W.3d 429 (2003); Ark. R. Civ. P. 12(h)(2). Appellant argues that she could not have waived this issue because Samuel\u2019s estate was not yet in existence and could not be served with process until after the paternity decision was rendered. We disagree. As an interested party and the executrix named in the will, Gladys clearly could have opened an estate for Samuel; certainly, she could have brought this question to the attention of the court in the paternity proceeding. Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something that is inconsistent with the right or his intention to rely upon it. Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992).\nAdditionally, the doctrine of res judicata applies to Gladys\u2019s objection to Jimmy\u2019s claim. The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. See Van Curen v. Arkansas Prof l Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id. The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Id. Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Id. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id.\nIssue preclusion is also known as collateral estoppel. Id. The doctrine of collateral estoppel bars the relitigation of issues of law or fact actually litigated in the first suit. Id. When an issue of law or fact is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Id. Collateral estoppel is based upon the policy of limiting litigation to one fair trial on an issue. Id. Unlike claim preclusion, collateral estoppel does not require mutuality of parties before the doctrine can be applied, usually defensively. See Riverdale Dev. Co., LLC v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). Collateral estoppel may be asserted by a stranger to the first decree but is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question in the earlier proceeding. Van Curen v. Arkansas Prof'l Bail Bondsman Licensing Bd., supra. For collateral estoppel to apply, the following elements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; (4) the determination must have been essential to the judgment. Id.\nGladys appeared as a defendant in the paternity action, which was fully litigated, without raising the necessary or indispensable party issue, and did not take an appeal from the court\u2019s decision finding that Samuel was Jimmy\u2019s father. The circuit court clearly had subject-matter jurisdiction of the paternity action, and without question, it had personal jurisdiction over Gladys. Therefore, we hold that collateral estoppel applies to the paternity court\u2019s finding that Samuel was Jimmy\u2019s father and claim-preclusion bars appellant\u2019s argument in this proceeding that Samuel\u2019s estate should have been a party to the paternity action.\nAdditionally, because Jimmy and Gladys were Samuel\u2019s only heirs or beneficiaries, no prejudice to Samuel\u2019s estate or any other person has been demonstrated. Gladys was the only beneficiary of Samuel\u2019s will and the only person affected by Jimmy\u2019s taking of his intestate share as a pretermitted heir. As the court stated in the June 21, 2004 order, no one else filed a claim to Samuel\u2019s estate, which has chosen to waive its right to object to Jimmy\u2019s claim, and-the only person who objected was Gladys. Accordingly, we hold that the judgment rendered in the absence of Samuel\u2019s estate was, under the particular facts of this case, valid. Although Samuel\u2019s estate accepts the binding nature of the paternity decision, we need not decide whether it binds any party other than Jimmy and Gladys, because Gladys is the only party challenging its validity.\nIn her briefs second point, appellant again points out that the estate was not in existence until the administratrix was appointed and letters of administration were issued on July 10, 2002, almost three months after the running of the 180-day period set forth in Ark. Code Ann. \u00a7 28-9-209 (d). She argues, therefore, that Jimmy\u2019s petition filed with the probate court on April 8, 2002, did not satisfy that statute\u2019s requirement that an action be commenced or a claim asserted against the estate within 180 days and that he should be barred from inheriting from Samuel\u2019s estate. In Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1998), the supreme court stated that Ark. Code Ann. \u00a7 28-9-209 created a new right for illegitimate children; that this right exists for only 180 days; and that the 180-day period is a condition qualifying the right of action and not a mere limitation on the remedy. Accord Raspberry v. Ivory, 67 Ark. App. 227, 998 S.W.2d 431 (1999). In response, Jimmy argues that appellant has changed her argument on appeal. In her petition for determination of heirs filed on August 14, 2002, appellant simply asserted that Jimmy had not satisfied Ark. Code Ann. \u00a7 28-9-209(d)\u2019s requirement that a court of competent jurisdiction establish his paternity. Additionally, appellant\u2019s attorney stipulated at the January 7, 2003 hearing that the claim against the estate had been filed within 180 days. It is well settled that an appellant may not change the grounds for objection on appeal but is limited by the scope and nature of his objections and arguments at trial. City of Benton v. Arkansas Soil & Water Conservation Comm\u2019n, 345 Ark. 249, 45 S.W.3d 805 (2001). Indeed, appellant apparently conceded this issue at oral argument.\nIn any event, appellant has not cited, nor have we found, any case that holds that a claim asserted after a petition is filed but before an administrator is appointed is not valid for purposes of preserving an illegitimate child\u2019s rights under Ark. Code Ann. \u00a7 28-9-209(d). We affirm on this point.\nIn her next point, appellant contends that Jimmy failed to file his claim against Samuel\u2019s estate within the time prescribed by the nonclaim statute, Ark. Code Ann. \u00a7 28-50-101 (a) (Repl. 2004), which requires that claims be filed against an estate within three months after the administratrix publishes the notice to creditors. She argues that, because Jimmy filed his petition before the estate was opened, and did not refile it after the estate was opened and within the time prescribed by the statute, he should be barred from taking his intestate share. We disagree.\nUnder the nonclaim statute, the time begins to run when the notice to creditors is published. According to Ark. Code Ann. \u00a7 28-40-103(a) (Repl. 2004), this may occur years after the decedent\u2019s death. However, Ark. Code Ann. \u00a7 28-9-209 (d) requires that an illegitimate child\u2019s claim be brought within 180 days after the father\u2019s death. Both statutes cannot logically apply to the same claim. Also, the nonclaim statute can be characterized as a general statute, and Ark. Code Ann. \u00a7 28-9-209 as a specific statute; therefore, the nonclaim statute does not apply to this situation. See Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994). Additionally, in Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987), we noted that the statute of nonclaim comprehends such debts or demands as might have been enforced against the decedent. Certainly, Jimmy could not have brought this claim against Samuel. Therefore, we conclude that the non-claim statute does not apply to claims brought by children under Ark. Code Ann. \u00a7 28-9-209 (d) and affirm on this point.\nAffirmed.\nBird and Baker, JJ., agree.\nAppellees argue that Jimmy and Gladys were the real parties in interest as to the disposition of Samuel\u2019s estate. See Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989).\nArkansas Code Annotated \u00a7 28-39-407(b) (Repl. 2004) provides that, when a child is omitted from his father\u2019s will, the testator \u201cshall be deemed to have died intestate with respect to the child\u201d and the child \u201cshall... recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he.. .would have inherited had there been no will.\u201d", "type": "majority", "author": "Terry Crabtree, Judge." } ], "attorneys": [ "Bridges, Young, Matthews & Drake, PLC, by: John P. Talbot and James C. Moser, Jr., for appellant.", "John Harris Jones, for appellee." ], "corrections": "", "head_matter": "Peggy TAYLOR, Administratrix of the Estate of Gladys Hamilton, Deceased v. Jimmy Don HAMILTON and The Estate of Samuel Hamilton, Deceased\nCA 04-886\n205 S.W.3d 149\nCourt of Appeals of Arkansas\nOpinion delivered March 9, 2005\n[Rehearing denied April 13, 2005.]\nBridges, Young, Matthews & Drake, PLC, by: John P. Talbot and James C. Moser, Jr., for appellant.\nJohn Harris Jones, for appellee." }, "file_name": "0235-01", "first_page_order": 259, "last_page_order": 269 }