{ "id": 6138289, "name": "Susan Lynn CLEAVES v. James Raymond PARKER and John Edward Parker", "name_abbreviation": "Cleaves v. Parker", "decision_date": "2005-11-16", "docket_number": "CA 05-130", "first_page": "150", "last_page": "160", "citations": [ { "type": "official", "cite": "93 Ark. App. 150" }, { "type": "parallel", "cite": "217 S.W.3d 136" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 28-53-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "pin_cites": [ { "parenthetical": "abatement statute" } ], "opinion_index": 0 }, { "cite": "202 Ark. 1017", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449920 ], "weight": 5, "year": 1941, "pin_cites": [ { "page": "1023" }, { "page": "822" }, { "page": "1022" }, { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ark/202/1017-01" ] }, { "cite": "112 S.W.2d 417", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "195 Ark. 431", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721379 ], "opinion_index": 0, "case_paths": [ "/ark/195/0431-01" ] }, { "cite": "82 Ark. App. 521", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142878 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "526" }, { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ark-app/82/0521-01" ] }, { "cite": "83 Ark. App. 354", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141909 ], "weight": 7, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/83/0354-01" ] }, { "cite": "67 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136378 ], "weight": 4, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0025-01" ] }, { "cite": "330 Ark. 660", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298618 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/330/0660-01" ] }, { "cite": "112 S.W.2d 417", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "195 Ark. 431", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721379 ], "opinion_index": 1, "case_paths": [ "/ark/195/0431-01" ] }, { "cite": "67 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136378 ], "weight": 3, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/67/0025-01" ] }, { "cite": "58 Ark. App. 68", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137173 ], "weight": 2, "year": 1997, "opinion_index": 2, "case_paths": [ "/ark-app/58/0068-01" ] }, { "cite": "82 Ark. App. 539", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143045 ], "weight": 2, "year": 2003, "opinion_index": 2, "case_paths": [ "/ark-app/82/0539-01" ] }, { "cite": "341 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257721 ], "weight": 2, "year": 2000, "opinion_index": 2, "case_paths": [ "/ark/341/0558-01" ] }, { "cite": "91 Ark. App. 102", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137715 ], "weight": 2, "year": 2005, "opinion_index": 2, "case_paths": [ "/ark-app/91/0102-01" ] }, { "cite": "355 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2649574 ], "year": 2003, "opinion_index": 2, "case_paths": [ "/ark/355/0434-01" ] }, { "cite": "269 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712500 ], "weight": 2, "year": 1980, "opinion_index": 2, "case_paths": [ "/ark/269/0001-01" ] }, { "cite": "268 S.W. 32", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 2 }, { "cite": "167 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1376977 ], "year": 1925, "opinion_index": 2, "case_paths": [ "/ark/167/0622-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-53-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "b" } ], "opinion_index": 2 } ], "analysis": { "cardinality": 749, "char_count": 17421, "ocr_confidence": 0.746, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4133150233855333 }, "sha256": "f06739ba1d5996ed38c46d3452791b59ee32ca07090a01ddbee6b61c1926b5ba", "simhash": "1:5b26c7937fcef7f7", "word_count": 2969 }, "last_updated": "2023-07-14T22:52:25.043286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, Bird, Griffen, and Baker, JJ., agree.", "Pittman, C.J., Gladwin, Crabtree, and Roaf, JJ., dissent.", "Pittman, C.J., and Crabtree, J., join." ], "parties": [ "Susan Lynn CLEAVES v. James Raymond PARKER and John Edward Parker" ], "opinions": [ { "text": "David M. Glover, Judge.\nJack Parker, the testator, left a udge. died. Appellant, Susan Cleaves, lived with the testator at the time of his death and was named as a beneficiary in the will. Appellees James Parker and John Parker were the testator\u2019s brothers. James was named as executor of the will, and John was a beneficiary under the will. The only portion of the will at issue in this appeal is the final devise. The trial court found that Mr. Parker\u2019s chosen language was ambiguous, and after hearing testimony about surrounding circumstances, found that the final provision was a specific, rather than a residuary, devise. The effect of this finding resulted in a pro rata sharing of expenses among the beneficiaries, rather than paying the expenses out of what appellant contends was a residuary devise to appellee John Parker. We reverse and remand.\nStandard of Review\nProbate cases are reviewed de novo on the record. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). However, an order of the probate court will not be reversed unless clearly erroneous. Id. Clearly erroneous means that, although there is evidence to support the court\u2019s findings, the appellate court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.\nThe holographic will\nMr. Parker\u2019s two-page holographic will is reproduced in full as follows:\nAs earlier stated, the devise that is at issue in this case appears at the very end of the will, just above Mr. Parker\u2019s name and the date. The devise provides: \u201cAll the remaining monetary assets go to my Brother John to do with as he sees fit.\u201d Appellant contends that the trial court erred in holding that this devise was specific rather than residuary. We agree.\nIn the interpretation of wills, the paramount principle is that the intent of the testator governs. Metzgar v. Rodgers, 83 Ark. App. 354, 128 S.W.3d 5 (2003). The testator\u2019s intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator\u2019s intent if the terms of the will are ambiguous. Id. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression in a written instrument. Id. The apparent meaning ofparticular words, phrases, or provisions in a will should be harmonized, if possible, to such scheme, plan, or dominant purpose that appears to have been the intention of the testator. Id. When the words of one part of a will are capable of a two-fold construction, the construction that is most consistent with the intention of the testator, as ascertained from other portions of the will, should be adopted. Id.\nIn Harrison v. Harrison, 82 Ark. App. 521, 526, 120 S.W.3d 144, 147 (2003), we explained the court\u2019s role:\nThe function of a court in dealing with a will is purely judicial; and its sole duty and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable or more in accordance with what the court might believe to have been the testator\u2019s unexpressed intentions. \u201cThe appellants are correct in the statement that the purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will.\u201d Jackson v. Robinson, 195 Ark. 431, 112 S.W.2d 417, 418.\nExamining the four corners of Mr. Parker\u2019s holographic will, we find no ambiguity in the devise in question, and we hold that it is residuary in nature. Black\u2019s Law Dictionary defines \u201cresiduary devise\u201d as a \u201cdevise of the remainder of the testator\u2019s property left after other specific devises are taken.\u201d Id., page 484 (8th ed. 2004). \u201cThe \u2018residue\u2019 of an estate is that which remains after the payment of all costs, debts, and particular legacies.\u201d Goforth v. Goforth, 202 Ark. 1017, 1023, 154 S.W.2d 819, 822 (1941). On the other hand, a specific legacy or devise is a gift by will of a specific article or part of the testator\u2019s estate, which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by delivery of the particular thing. Goforth, supra.\n\u201cThe mere enumeration of property in a residuary clause of a will in general terms does not constitute the legacy or devise a specific one. There must be something in connection with the enumeration of property to show that the testator\u2019s intention was to make the devise or legacy a specific one before the courts will so declare it. \u201d ... \u2018The general rule is that an enumeration of specific articles in a residuary clause will not make the bequest specific as to such articles unless they are designated in such a way as to differentiate them from the residue. A bequest of all of a man\u2019s property is residuary and not a specific legacy, since its import is the same as expressed by the words, \u2018rest and residue.\u2019 \u201d\n202 Ark. at 1022, 154 S.W.2d at 822. The Goforth court affirmed the trial court\u2019s finding that the following devise was general, or residuary, rather than specific in nature: \u201cI bequeath to my beloved son, Walter Goforth, all of my personal property of whatsoever kind and wheresoever situated left by me at my death.\u201d\nHere, appellant contends that the devise should be construed to give effect to each of the three essential words. That is, that Mr. Parker intended to devise his remaining assets, which just happened to be \u201cmonetary\u201d in nature. We agree. In addition, in the context of Mr. Parker\u2019s will, the phrase \u201cremaining monetary assets\u201d does not contain the necessary language of specificity for it to be a specific devise. The devise is immediately preceded by a devise of $20,000 in life insurance proceeds, which, although ineffective, nevertheless tends to explain Mr. Parker\u2019s use of the word \u201cmonetary\u201d in the devise in question. Further, the devise is placed at the end of the will where residuary clauses are normally placed. Mr. Parker\u2019s use of the word \u201cremaining\u201d is certainly residuary in nature. Also, with respect to the other devises in the two-page holographic instrument, all of which were specific, Mr. Parker repeatedly used the word \u201cmy,\u201d yet did not use that possessory word in the devise in question.\nIn light of our interpretation of Mr. Parker\u2019s holographic will, we also hold that the trial court erred in concluding that the estate\u2019s expenses should be shared on a pro rata basis by all of the beneficiaries. See Ark. Code Ann. \u00a7 28-53-107 (Repl. 2004) (abatement statute).\nFor her second point of appeal, appellant challenges the trial court\u2019s award of fees to the executor. However, this point was presented as an alternative point of appeal, to be addressed only if the trial court\u2019s interpretation of the will were affirmed. Because we are reversing the trial court on the first point of appeal, it is not necessary for us to address appellant\u2019s second point of appeal.\nWe reverse and remand this case to the trial court to enter an order consistent with this opinion.\nReversed and remanded.\nRobbins, Bird, Griffen, and Baker, JJ., agree.\nPittman, C.J., Gladwin, Crabtree, and Roaf, JJ., dissent.", "type": "majority", "author": "David M. Glover, Judge." }, { "text": "Robert J. Gladwin, Judge,\ndissenting. In reversing the udge, completely ignored the basic rules of English and has determined that the word \u201cmonetary\u201d has no meaning in this holographic will. It has also ignored our standard of review for probate cases. For these reasons, I dissent.\nAt issue in this case is the' devise that provides, \u201cAll the remaining monetary assets go to my brother John to do with as he sees fit.\u201d The trial court found this final devise to be ambiguous and allowed evidence of the decedent\u2019s intent to determine whether the devise was specific or residuary. The trial court made the following findings of fact: 1) that the funds in question were inherited funds; 2) that the decedent protected those funds, neither permitting invasion, sale, distribution nor transfer during his lifetime; 3) that decedent did not comingle the funds with those of the distributee, Susan Lynn Cleaves; 4) that distributee Susan Lynn Cleaves and decedent shared household expenses; 5) that it was not unreasonable to assume decedent would intend to have those funds remain in the family; 6) that the term \u201cmonetary\u201d was meant to cover the decedent\u2019s liquid funds as described in the February 26, 2004 order. The court therefore found the clause in question to be a specific devise.\nProbate cases are reviewed de novo on the record. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). However, an order of the probate court will not be reversed unless it is clearly erroneous. Id. We defer to the superior position of the chancellor to judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). The function of the court in dealing with a will is purely judicial; and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable or more in accordance with what the court might believe to have been the testator\u2019s unexpressed intentions. Jackson v. Robinson, 195 Ark. 431, 112 S.W.2d 417 (1938).\nThe majority holds that the devise in question is not ambiguous and is residuary in nature. The majority goes on to state that the clause in question \u201cremaining monetary assets\u201d does not contain the \u201cnecessary language of specificity\u201d for it to be a specific devise. However, it does not explain what \u201cnecessary language of specificity\u201d would be sufficient. The majority totally fails to explain how the trial court\u2019s ruling is clearly erroneous after giving deference to the trial court\u2019s superior position to make findings of fact.\nA rudimentary review of elementary English will show that the majority has determined that the word \u201cmonetary\u201d has no meaning in this will. \u201cAll the remaining monetary assets\u201d is a subject phrase with assets being the subject. The assets are modified by the words \u201call the remaining\u201d that describe which assets go to the brother, John. If this were the entire phrase, then it would be residuary, and the majority\u2019s analysis would be correct. However, the decedent did not give John all the remaining assets. The decedent gave all the remaining monetary assets. \u201cMonetary\u201d is a word of limitation describing which remaining assets go to John.\nWebster\u2019s 3rd International Dictionary defines \u201cmonetary\u201d as \u201cof or relating to money or to the instrumentalities and organization by which money is supplied to the economy.\u201d Webster\u2019s II New College Dictionary defines \u201cmonetary\u201d as \u201cof or relating to money or its means of circulation.\u201d Given these definitions, I fail to see how the trial court was clearly erroneous in finding that the term \u201cmonetary\u201d was meant to cover the decedent\u2019s liquid funds. The majority seems to actually bolster this argument by stating that the devise immediately preceding the devise in question \u201ctends to explain Mr. Parker\u2019s use of the word \u2018monetary\u2019.\u201d In that devise, the decedent stated \u201cmy life insurance policy ($500) redeme (sic) value - and - 20K death payment ? goes to Susan Cleaves.\u201d If the majority is insinuating that a life insurance policy is a monetary asset, then monetary assets would surely include those assets that the trial court found to be liquid funds, and not the entire remaining estate.\nThe majority further states that the clause is residuary because it is at the end of the will, yet it cites no law to support the proposition that the final devise must be residuary. While I agree that many residuary clauses tend to appear at the end of wills, it is by no means presumed that a final devise of a will must be residuary. Further, I fail to see the importance of the decedent\u2019s use of the word \u201cmy\u201d in the other devises. \u201cMy\u201d is simply a possessive pronoun, and there is no question that all the remaining monetary assets belonged to the decedent also. Therefore, the use of the word \u201cmy\u201d is of no legal import at all.\nGiven that I believe \u201call the remaining monetary assets\u201d means something less than all remaining assets, I would hold that the devise of the decedent\u2019s will is a specific devise. Therefore, I would further hold that the trial court was not clearly erroneous and would affirm.\nPittman, C.J., and Crabtree, J., join.", "type": "dissent", "author": "Robert J. Gladwin, Judge," }, { "text": "Andree Layton Roaf, Judge,\ndissenting. I would affirm udge, believe the devise at issue is a general devise, and because the appellant did not make this argument to the trial court, nor does she raise it on appeal.\nA specific legacy, as defined in Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925), is a \u201cgift by will of a specific article or part of the testator\u2019s estate, which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by the delivery of the particular thing.\u201d The devise at issue in the present case is worded as follows: \u201cAll the remaining monetary-assets go to my Brother John to do with as he sees fit.\u201d Jack Parker, the testator, did not distinguish any funds he might own from the rest of his monetary assets. Here, he used the general term \u201cmonetary assets\u201d and did not list any funds or accounts that this money might possibly come from. See Barnes v. Sewell, 269 Ark. 1, 598 S.W.2d 77 (1980) (holding that will paragraph in which testatrix bequeathed \u201call monies I may possess, my checking account monies, savings account monies, Certificates of Deposits, bonds of any nature and other evidence of debt such as promissory notes\u201d was a specific rather than general bequest despite the contention that the bequest mentioned no amount and referred to no particular fund). Jack knew that he owned certain funds and could have listed the funds and account numbers in his will. Ifjack had referred to his \u201cremaining monetary assets\u201d and then listed out what funds and accounts he wished this money to come from, then it would have clearly been a specific devise. Here, the devise is only a general one because Jack did not even hint as to what these \u201cmonetary assets\u201d were and, he, in no way, attempted to distinguish certain monetary assets from others.\nThis case is confusing, however, because the parties have framed the issue in terms of specific devises versus residual devises when the issue is whether this is a specific devise or a general devise. According to the parties in this case, if it is not residual, then it is specific. This is not a correct statement of the law, because a devise can be properly classified as a general devise and neither a residual nor a specific devise.\nAccording to the Arkansas abatement statute, the order of abatement is as follows:\n(1) Property not disposed of by the will;\n(2) Property devised to the residuary devisee;\n(3) Property disposed of by the will but not specifically devised and not devised to the residuary devisee; and\n(4) Property specifically devised.\nArk. Code Ann. \u00a7 28-53-107 (Repl. 2004). The trial court found that the appellee John\u2019s devise falls into category (4) along with appellant\u2019s devise, so that the two devises abate equally. However, John\u2019s devise instead falls into category (3), which is \u201c[pjroperty disposed of by the will but not specifically devised and not devised to the residuary devisee.\u201d This means that the property of the devise at issue in the present case would abate before any property specifically devised. John\u2019s bequest of monies therefore would abate before appellant\u2019s specific bequest of the house.\nThe language of Ark. Code Ann. \u00a7 28-53-107 (b)(1) further sheds some light on the issue. It states, \u201cA general devise charged on any specific property or fund, for purpose of abatement, shall be deemed property specifically devised to the extent of the value of the thing on which it is charged.\u201d This language clearly demonstrates that the \u201cgeneral devise\u201d category (Category 3 in the statute) clearly exists. It also supports the argument that general devises of money not charged on a specific property or fund are deemed general devises and not specific devises. In the present case, the decedent did not charge his general devise of money on any specific property or fund.\nFinally, the trial court is correct in that the devise at issue is certainly not a residual devise. The appellant, however, has not argued that the bequest is a general devise, but rather that it is a residuary devise. We can affirm a trial court if it reaches the right result for the wrong reason Middleton v. Lockhart, 355 Ark. 434, 139 W.W.3d 500 (2003); Moore Inv. Co., Inc. v. Mitchell, 91 Ark. App. 102, 208 S.W.3d 803 (2005). Flowever, we do not reverse a trial court where, as in the case before us, an argument is raised neither below nor on appeal. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Sheets v. Dollarway Sch. Dist., 82 Ark. App. 539, 120 S.W.3d 119 (2003); McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997). We should not do so in this case.", "type": "dissent", "author": "Andree Layton Roaf, Judge," } ], "attorneys": [ "Catlett & Stodola, P.L.C., by: S. Graham Catlett and Paul Charton, for appellant.", "Stephen W. Tedder, for appellee John Edward Parker.", "Ralph G. Brodie & Associates, Ltd., by: Ralph G. Brodie and Michael K. Cornett, for appellee James Raymond Parker Jr." ], "corrections": "", "head_matter": "Susan Lynn CLEAVES v. James Raymond PARKER and John Edward Parker\nCA 05-130\n217 S.W.3d 136\nCourt of Appeals of Arkansas\nOpinion delivered November 16, 2005\nCatlett & Stodola, P.L.C., by: S. Graham Catlett and Paul Charton, for appellant.\nStephen W. Tedder, for appellee John Edward Parker.\nRalph G. Brodie & Associates, Ltd., by: Ralph G. Brodie and Michael K. Cornett, for appellee James Raymond Parker Jr." }, "file_name": "0150-01", "first_page_order": 176, "last_page_order": 186 }