{ "id": 1751519, "name": "E. Nell KIDD, Executrix v. Beulah P. SPARKS", "name_abbreviation": "Kidd v. Sparks", "decision_date": "1982-05-10", "docket_number": "81-244", "first_page": "85", "last_page": "93", "citations": [ { "type": "official", "cite": "276 Ark. 85" }, { "type": "parallel", "cite": "633 S.W.2d 13" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "151 S.W. 1014", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1912, "opinion_index": 0 }, { "cite": "105 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347061 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ark/105/0558-01" ] }, { "cite": "217 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721684 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0499-01" ] }, { "cite": "98 S.W.2d 959", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1936, "opinion_index": 0 }, { "cite": "193 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411001 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/ark/193/0233-01" ] }, { "cite": "213 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467001 ], "weight": 3, "year": 1948, "opinion_index": 0, "case_paths": [ "/ark/213/0061-01" ] }, { "cite": "65 S.W.2d 527", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1928, "opinion_index": 0 }, { "cite": "177 Ark. 204", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719819 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ark/177/0204-01" ] }, { "cite": "268 S.W. 32", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 0 }, { "cite": "167 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1376977 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ark/167/0622-01" ] }, { "cite": "65 S.W. 2d 527", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1928, "opinion_index": 1 }, { "cite": "208 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478537 ], "weight": 3, "year": 1945, "opinion_index": 1, "case_paths": [ "/ark/208/0478-01" ] }, { "cite": "5 Vand. L. Rev. 125", "category": "journals:journal", "reporter": "Vand. L. Rev.", "year": 1951, "opinion_index": 1 }, { "cite": "213 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467001 ], "weight": 4, "year": 1948, "opinion_index": 1, "case_paths": [ "/ark/213/0061-01" ] }, { "cite": "177 Ark. 204", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719819 ], "year": 1928, "opinion_index": 1, "case_paths": [ "/ark/177/0204-01" ] }, { "cite": "268 S.W. 32", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 1 }, { "cite": "167 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1376977 ], "year": 1925, "opinion_index": 1, "case_paths": [ "/ark/167/0622-01" ] } ], "analysis": { "cardinality": 644, "char_count": 14676, "ocr_confidence": 0.824, "pagerank": { "raw": 1.5932512784558501e-07, "percentile": 0.6824156543489601 }, "sha256": "377e17ec75a92ff7ec55bd07a2833c687b553c34af78fe1e9bfff76ba39b98e1", "simhash": "1:826b9c37f3eda917", "word_count": 2526 }, "last_updated": "2023-07-14T15:52:15.988639+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, Dudley and Hays, JJ., dissent.", "I am authorized to state that Mr. Justice Holt and Mr. Justice Hays join in this opinion." ], "parties": [ "E. Nell KIDD, Executrix v. Beulah P. SPARKS" ], "opinions": [ { "text": "John I. Purtle, Justice.\nThis case involves the interpretation of a will which the testator prepared by filling in blank lines on a commercially printed will kit form. Use of such a device is at best risky, as even the most skilled probate attorney would have difficulty with the unsuitable and inept printed provisions in this will kit. The provision to be construed is set out below, with the capitalized printing of this opinion representing the portion of the will which was typed by the testator and the regular printing of this opinion representing that part of the will which was commercially printed.\nI hereby give, bequeath and devise unto BEULAH SPARKS. MY WIFE ALL OUR PERSONAL BELONGINGS EXCEPT THE RESTRICTIONS BELOW. ____\nall of my estate and property, both real and personal, of which I may die seized and possessed, wherever the same may be located or situated and of whatsoever kind or character. However, it is my desire and I hereby, direct that the following restrictions, stipulations and divisions shall be and is, a part of this, my last will and testament.\nTO BOB SPARKS. MY SON ALL MY TOOLS.\nTO BOB SPARKS, MY SON AND PATSY K. KIRK, MY DAUGHTER THE PROCEEDS FROM TWO REAL ESTATE ESCROW ACCOUNTS.\n(ESCROW BETWEEN HENRY A. GARDNER III AND M. L. SPARKS. 10 ACRES. SEC. 19 TOWNSHIP 15 NORTH RANGE 32 WEST, PAYMENT OF $200.00 PER MONTH._\n(ESCROW BETWEEN DAVID WALTON AND M. L. SPARKS. HOUSE LOCATED AT 301 EAST NORTH. PAYMENT OF $201.71 PER MONTH.)_\nAt the time of execution of the will, the Bank of Lincoln held in escrow a promissory note, secured by a mortgage, payable to the decedent, made by Henry A. Gardner III and Linda Gardner. Approximately nine months before the testator\u2019s death this note was paid in full, by a lump sum prepayment, with the final payment being made by cashier\u2019s check in the amount of $12,405.65. With the cashier\u2019s check and his personal check in the amount of $2,594.35 the decedent purchased a $15,000 certificate of deposit in the Bank of Lincoln.\nAt the time of the execution of the will the Bank of Lincoln held in escrow a second promissory note and mortgage, payable to the decedent at the rate of $202.71 per month, made by David Walton and Phyllis Walton. At the date of death, $18,762.30 of principal and interest to maturity remained due.\nThe trial court held that the will should be construed as devising to Beulah Sparks all of the decedent\u2019s personal property except his tools and the $18,762.30 proceeds remaining due under the Walton note. The trial court held that the term \u201cproceeds\u201d included the balance of principal and interest payable. The Gardner note was held to be adeemed by extinction, with the result of the ademption being to pass all residuary property to Beulah Sparks, the surviving spouse, under the above-quoted language from the printed form. We affirm.\nThe first issue is whether the legacies to be paid from two real estate escrow accounts were adeemed. This turns on the additional question: were the legacies specific or demonstrative?\nA specific legacy is the bequest of a particular thing, as distinguished from all others of the same or similar kind, and must be satisfied only by the delivery of the particular thing. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). A demonstrative legacy is one stated by designation only, such as a certain interest or fund from which the bequest of money, or amount of value, shall be primarily paid or satisfied. Stifft v. W. B. Worthen Co., 177 Ark. 204, 65 S.W.2d 527 (1928). In the present case the decedent made specific legacies to his children. They were to receive the \"proceeds from two real estate escrow accounts,\u201d which the testator described as being payable in installments of so much a month. Each indebtedness was described sufficiently to make them clearly specific legacies, in that anyone could understand the bequest to the children. Thus, when one of the accounts was prepaid in full, that account was no longer within the testator\u2019s description of the legacy. The will did not refer to two real estate escrow accounts, \"or their proceeds,\u201d which could have been construed as an alternative reference.\nA similar situation to the one under consideration existed in Mee v. Cusineau, Executrix, 213 Ark. 61, 209 S.W.2d 445 (1948). There the will stated that the testator left to a certain legatee \"all of the lots owned by me, or in which I may have an equity or interest at the time of my death in the Busch Park Addition...\u201d To another legatee: \u201cI give, devise and bequeath the real estate owned by me, or in which I have an equity or interest at the time of my death, known as the \u2018McClendon Springs Property\u2019 ...\u201d A part of the last-mentioned property had been subdivided into lots which the testator had sold to various individuals prior to her death. As the lots were paid for a deed was given by the testator. At the time of her demise some of the lots had been paid out and deeds executed while others were still being paid on at the time of her death. Other portions of the McClendon Springs property, totaling 320 acres, were sold by warranty deed, which purchase was on credit, executed by promissory notes secured by a mortgage in favor of the testator. The testator released two tracts of 50 and 20 acres each from the mortgage which were conveyed by the purchaser on the same day. In our opinion in the Mee case we quoted with approval language from 28 R.C.L. which states:\nThe rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption.\nWe also held that:\n... a disposition by testator in his life time, of property specifically devised operates as a revocation of the devise; and a conveyance of a part of such property operates as an ademption of the devise to the extent of the lands conveyed.\nAnd in summing up, we said:\nSo here there was an ademption as to the fifty-acre and the twenty-acre tracts of land, and as to any of the purchase money Miss Busch may have collected, but not as to the purchase money remaining unpaid at the time of her death.\nThe ruling of the trial judge was exactly in accord with the foregoing language. It is a fact that the testator no longer had an interest in the Gardner tract because it had been collected prior to his death. There were no proceeds to be collected from the Gardner sale at the time of the testator\u2019s death. He had received the money and converted it into other forms of property.\nCommon logic says that the Gardner note had been adeemed prior to the testator\u2019s death. Obviously, the testator could have placed his childrens\u2019 names on the CD if he had wanted them to receive it. The trial court seems to have looked to the intent of the testator in making its ruling. Absent obvious error we will not reverse the trial court in its holding. The paramount aim in the construction of a will is to determine and give effect to the testator\u2019s intention. We hold the Gardner property was adeemed in accordance with the reasoning and holding in Mee v. Cusineau, supra.\nAs to the residuary clause, the appellant contends that the trial court erred in construing the language on this printed form as containing one. The trial court was correct in looking to rules of construction, for when the testator\u2019s intent is in doubt the court should resort to rules of construction and presumptions. Hoyle v. Baddour, 193 Ark. 233, 98 S.W.2d 959 (1936). One of these presumptions is that a person who takes the time and effort to make a will does not desire partial intestacy. Brunk v. Merchants National Bank, 217 Ark. 499, 230 S.W.2d 932 (1950). If at all possible, we will broaden or enlarge a residuary clause to avoid partial intestacy. Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014 (1912). The language \u201cI hereby give, bequeath and devise unto Beulah Sparks, my wife all our personal belongings except ...\u201d coupled with \u201call of my estate and property, both real and personal of which I may die seized and possessed, wherever same may be located or situated and of whatsoever kind or character\u201d is sufficient to leave the residue of the estate to the surviving spouse, especially when any other construction would result in partial intestacy.\nAffirmed.\nHolt, Dudley and Hays, JJ., dissent.", "type": "majority", "author": "John I. Purtle, Justice." }, { "text": "Robert H. Dudley, Justice,\ndissenting. I dissent from that part of the majority opinion which holds that gifts of \u201cthe proceeds from two real estate escrow accounts\u201d created specific, rather than demonstrative, legacies.\nIn determining whether a legacy is specific or demonstrative many courts have recognized a distinction between gifts of specific property and gifts of the proceeds of specific property. Note: \u201cWills \u2014 Ademption: Bequest of Proceeds of Specific Property,\u201d 5 Vand. L. Rev. 125 (1951). While our cases have not clearly set out this distinction it seems to have been followed and we have traditionally opted for the better view which is not to apply the doctrine of ademption to a gift of the proceeds where the fund can be traced and identified in a subsequently purchased security. This reluctance to extend the doctrine of ademption to a demonstrative legacy of \u201cproceeds\u201d where the funds can be traced and identified is more likely to effectuate the testator\u2019s intention. See Mee v. Cusineau, 213 Ark. 61, 209 S.W.2d 445 (1948); Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945), and 5 Vand. L. Rev., supra.\nIf the testator had made a bequest of a particular item, as distinguished from all others of the same kind, and which could be satisfied only by the delivery of that particular thing there would be a specific legacy. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). However, \u201cthe proceeds from two real estate accounts\u201d is not a specific legacy. It is a legacy by designation, a demonstrative legacy. A demonstrative legacy is one stated by designation only, such as a certain interest or fund from which the bequest of money, or amount of value, shall be primarily paid or satisfied. Stifft v. W.B. Worthen Co., 177 Ark. 204, 65 S.W. 2d 527 (1928). The testator did not bequeath the Gardners\u2019 note, as distinguished from all other notes, and which could be satisfied only by delivery of that note. Instead, he bequeathed \u201cthe proceeds from two real estate accounts\u201d and the Gardners\u2019 note was included within one of the accounts. Thus there was a demonstrative legacy of \u201cthe proceeds,\u201d nota specific legacy of the Gardners\u2019 note. When a testator has given a demonstrative legacy we look to the intention of the testator instead of applying the doctrine of ademption as a matter of law. Mee v. Cusineau, supra.\nThe Gardners\u2019 note was prepaid in full prior to the date of death of the testator. The proceeds of the earlier regular monthly payments cannot be traced and there was an obvious ademption of the proceeds to that extent, but the proceeds of the final payment can be traced by the cashier\u2019s check and identified with absolute certainty as representing $12,405.65 of the $15,000 purchase price of the certificate of deposit. The majority opinion states, \u201cThere were no proceeds to be collected from the Gardner sale at the time of the testator\u2019s death. He had received the money and converted it into other forms of property.\u201d That is exactly the point \u2014 the main issue \u2014 only the form of security was changed. The form of security was changed from the Gardners\u2019 promissory note to the bank\u2019s promissory note. In Mitchell v. Mitchell, supra, we said:\n. . . Generally speaking a change in the form of a security bequeathed does not of itself work an ademption. It must be shown that the testator intended to give specific securities of the form or nature mentioned in the will . . . [before there is an ademption].\nIn the same vein, in Mee v. Cusineau, supra, we said:\n... If the terms of the will show that testator contemplates some change in the form of the gift, or even a sale and reinvestment of the proceeds, and that he intended to pass the proceeds, or the property in which the proceeds are reinvested, to the original beneficiary, full effect will be given to such provision. If testator gives the \u201cproceeds\u201d of certain property, and it appears, from the terms of the will, that he gives such proceeds even if the property is sold in his life time, the beneficiary may have the proceeds as far as they can be traced . . . [Emphasis supplied.]\nThe testator stated that he intended to devise the proceeds. The greater part, or $12,405.65, of the testator\u2019s interest in the certificate of deposit is indelibly traceable to the final payment, or proceeds, of the Gardners\u2019 promissory note. The final payment on the note was not commingled with other money in any of the testator\u2019s other accounts. He simply took the certified check for final payment in the amount of $12,405.65 and added to it $2,594.35 from his checking account and purchased the $15,000 certificate of deposit. There is only a change in the form of security and there should be no extinction by ademption of that part of the certificate of deposit which $12,405.65 bears to $15,000 or 82.69 percent of the certificate.\nThe majority opinion is not buttressed by the statement \u201cObviously, the testator could have placed his children\u2019s names on the certificate of deposit if he wanted them to receive it.\u201d If the testator was familiar with our prior cases he surely thought his children would receive the demonstrative legacy which he described as \u201cthe proceeds from\u201d the accounts. But regardless of whether he was familiar with a demonstrative legacy, if this concept is followed to its ul t\u00edmate conclusion, the will would have been ineffective to pass even the original promissory notes because \u201che could have placed his children\u2019s names\u201d on all of his property. This rhetoric amounts to an ademption of the doctrine of wills rather than the application of a doctrine of partial revocation by operation of law.\nI would hold that there should be no extinction by ademption as to \u201cthe proceeds\u201d bequeathed which can be clearly traced and definitely identified in a subsequently purchased security.\nI am authorized to state that Mr. Justice Holt and Mr. Justice Hays join in this opinion.", "type": "dissent", "author": "Robert H. Dudley, Justice," } ], "attorneys": [ "Boyce R. Davis, for appellant.", "John C. Everett of Everett & Whitlock, for appellee." ], "corrections": "", "head_matter": "E. Nell KIDD, Executrix v. Beulah P. SPARKS\n81-244\n633 S.W.2d 13\nSupreme Court of Arkansas\nOpinion delivered May 10, 1982\n[Rehearing denied June 7, 1982.]\nBoyce R. Davis, for appellant.\nJohn C. Everett of Everett & Whitlock, for appellee.\nDudley and Hays, JJ., would grant rehearing." }, "file_name": "0085-01", "first_page_order": 109, "last_page_order": 117 }