{ "id": 1712500, "name": "Jim BARNES, Executor v. Jane Christania SEWELL", "name_abbreviation": "Barnes v. Sewell", "decision_date": "1980-05-05", "docket_number": "80-37", "first_page": "1", "last_page": "4", "citations": [ { "type": "official", "cite": "269 Ark. 1" }, { "type": "parallel", "cite": "598 S.W.2d 77" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "260 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616772 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/260/0111-01" ] }, { "cite": "202 Ark. 1017", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449920 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/1017-01" ] }, { "cite": "268 S.W. 32", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "167 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1376977 ], "opinion_index": 0, "case_paths": [ "/ark/167/0622-01" ] } ], "analysis": { "cardinality": 357, "char_count": 6081, "ocr_confidence": 0.712, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3325881161411341 }, "sha256": "fc0544de256c92d50a84afcf70194cec8fa872e71ae7e201651b894c0781d5a1", "simhash": "1:8e195b25ef04ee72", "word_count": 1059 }, "last_updated": "2023-07-14T14:52:47.346821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jim BARNES, Executor v. Jane Christania SEWELL" ], "opinions": [ { "text": "John A. Fogleman, Chief Justice.\nThe sole question on this appeal is whether the probate judge erred in holding that a paragraph in the will of Sophina Carter was a specific, rather than a general, bequest. We find that he did not and affirm.\nMrs. Carter left an instrument dated February 7, 1977, as her will. It was offered for probate upon the petition of appellant Jim Barnes, who was named as executor by a codicil executed by Mrs. Carter on March 23, 1977. The third paragraph of the will, the one in question, provided:\n\u201cI bequeath all 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, to my niece, Christania Sewell\u201d.\nChristania Sewell filed a petition for abatement and contribution alleging that the executor had used the terms named in the paragraph in question to pay costs of administration and that he planned to pay all costs of administration, all claims against the estate and all estate taxes from those assets. She alleged that this action was contrary to Ark. Stat. Ann. \u00a7\u00a7 62-2903 and 62-2904 (Repl. 1971). She prayed that no other claims or costs of administration be paid, that abatement of the various gifts be \u201cappropriated\u201d in accordance with the above named statutes, that an accounting be rendered to determine what monies were possessed by the decedent in the form of checking account monies, savings account monies, certificates of deposit, bonds of any nature, and other evidence of debt, such as promissory notes, that contribution in accordance with the shares of other beneficiaries be made in accordance with the above named statutes, that any amounts determined to have been wrongfully removed from the gift to the petitioner be returned to her, that she have a lien on the property of other beneficiaries of the will and that she recover her attorney\u2019s fees.\nThis petition was controverted by the attorney for the estate, who later withdrew, and, as the scrivener of the will, testified as to the intention of the testatrix. After a hearing, the probate judge sustained appellee\u2019s position.\nIt was stipulated that all the devises and bequests in the will, except for those in the residuary clause and the paragraph in question, were specific gifts. Appellant argues that the bequest here is not a specific legacy under the following definition set out in Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32, viz:\n\u201cA 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.\u201d\nIt would be difficult to find a clause more nearly like the one in question here than that held to be a specific legacy in Holcomb. There the clause at issue was:\nTo my dear Uncle Joe Mullin, who raised and fostered my sister and me, I give, devise and bequeath all the money I may have on deposit in any bank at the time of my death.\nIt is also difficult to conceive of any language that the testatrix in this case might have used which more clearly indicated her desire to bequeath to her niece, appellee here, all her money including that on deposit in checking accounts and savings accounts, whether payable on demand or after the passage of a specified time, together with all evidences of debt, such as bonds and promissory notes.\nThis clause is not at all comparable with the clause in question in Goforth v. Goforth, 202 Ark. 1017, 154 S.W. 2d 819, where there was a bequest of \u2018\u2018all of my personal property of whatsoever kind and wheresoever situated, left by me at my death.\u201d In that case, we equated the language of the particular clause with the words \u201call the rest and residue of my personal property.\u201d We concluded that the/ use of the language \u201call of my personal property\u201d made the bequest a residuary legacy rather than a specific one. In addition to the definition in Holcomb, we relied upon textbook statements of requirements for a specific legacy, when the language relied upon is in a residuary clause. In the will of Mrs. Carter, there was a residuary clause by which she gave, devised and bequeathed \u201c[a]ll the rest and residue of the estate, whether real, personal or mixed, of every kind and nature whatsoever and wheresoever situated, which I may now own or hereafter acquire,\u201d to her great nieces and nephews. It is quite easy to distinguish the bequest of appellee from the residue in the will before us.\nAppellant argues that the bequest in this case fails to qualify as a specific legacy because it mentions no amount and refers to no particular fund. In this respect it is like the bequest in Holcomb, where no amount and no particular bank were mentioned.\nAppellant also relies upon the testimony of the scrivener who said:\n*** I know what the will means to me, and what I intended to do, and what Mrs. Carter intended to do was to make a general grant of liquid assets and I said, \u201cI bequest all the money I possess\u201d, and then I began to enumerate the types of money. \u201cChecking account, savings account money, and certificates of deposit, and evidence of debt.\u201d\nThis testimony was proferred but not admitted by the probate judge. It was properly excluded. In Binns v. Vick, 260 Ark. 111, 538 S.W. 2d 283, relied upon by appellant, we held that extrinsic evidence is admissible in determining the testator\u2019s intention to show the meaning of the words the testator used but not to show what the testator meant as distinguished from the words of the will. The attorney in this case was not attempting to testify as to the meaning of the words used by the testatrix. He was attempting to tell the court what the testatrix meant to say as distinguished from the unambiguous words used.\nThe judgment of the probate court is affirmed.", "type": "majority", "author": "John A. Fogleman, Chief Justice." } ], "attorneys": [ "Steel & Clardy, by: Floyd Clardy, for appellant.", "Philip M. Clay, for appellee." ], "corrections": "", "head_matter": "Jim BARNES, Executor v. Jane Christania SEWELL\n80-37\n598 S.W. 2d 77\nSupreme Court of Arkansas\nOpinion delivered May 5, 1980\nSteel & Clardy, by: Floyd Clardy, for appellant.\nPhilip M. Clay, for appellee." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 34 }