{ "id": 1891428, "name": "Dorene LEATHERWOOD v. Inez MEISCH, In the Matter of the Estate of Francis F. Meisch, Deceased", "name_abbreviation": "Leatherwood v. Meisch", "decision_date": "1988-11-14", "docket_number": "88-107", "first_page": "91", "last_page": "96", "citations": [ { "type": "official", "cite": "297 Ark. 91" }, { "type": "parallel", "cite": "759 S.W.2d 559" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "271 Ark. 818", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756232 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/271/0818-01" ] }, { "cite": "281 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742315 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0072-01" ] }, { "cite": "288 Ark. 199", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718722 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0199-01" ] }, { "cite": "2 S.W.2d 974", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1928, "opinion_index": 0 }, { "cite": "176 Ark. 660", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1400044 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ark/176/0660-01" ] }, { "cite": "209 Ark. 983", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475837 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/ark/209/0983-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-39-407", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "271 Ark. 818", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756232 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/271/0818-01" ] }, { "cite": "288 Ark. 199", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718722 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/288/0199-01" ] }, { "cite": "209 Ark. 983", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475837 ], "weight": 2, "year": 1946, "opinion_index": 1, "case_paths": [ "/ark/209/0983-01" ] }, { "cite": "288 Ark. 552", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723118 ], "weight": 2, "year": 1986, "opinion_index": 2, "case_paths": [ "/ark/288/0552-01" ] }, { "cite": "23 Ark. 569", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1866127 ], "year": 1861, "opinion_index": 2, "case_paths": [ "/ark/23/0569-01" ] }, { "cite": "232 S.W. 939", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1921, "opinion_index": 2 }, { "cite": "149 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721123 ], "year": 1921, "opinion_index": 2, "case_paths": [ "/ark/149/0527-01" ] }, { "cite": "149 S.W. 908", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1912, "opinion_index": 2 }, { "cite": "104 Ark. 600", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350598 ], "year": 1912, "opinion_index": 2, "case_paths": [ "/ark/104/0600-01" ] }, { "cite": "271 Ark. 818", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756232 ], "weight": 2, "year": 1981, "opinion_index": 2, "case_paths": [ "/ark/271/0818-01" ] } ], "analysis": { "cardinality": 539, "char_count": 10387, "ocr_confidence": 0.925, "pagerank": { "raw": 6.297473442524488e-08, "percentile": 0.3875982731039532 }, "sha256": "34ea502a0a4da2ea468cfb57b01707454296feee1db5a3d95181af59638c41d3", "simhash": "1:81feec4090aa70e1", "word_count": 1821 }, "last_updated": "2023-07-14T17:24:39.933112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., and Newbern, J., concur.", "Purtle, J., dissents.", "Holt, C.J., joins in this opinion." ], "parties": [ "Dorene LEATHERWOOD v. Inez MEISCH, In the Matter of the Estate of Francis F. Meisch, Deceased" ], "opinions": [ { "text": "Steele Hays, Justice.\nThe only question to be decided is whether appellant Dorene Meisch Leatherwood is a pretermitted child under the will of her late father, Francis F. Meisch. Mrs. Leatherwood is the only child of Francis Meisch and Dorothy Meisch, who divorced in 1953. Francis Meisch died on December 29, 1985, survived by his widow, Inez Meisch, and by Mrs. Leatherwood.\nInez Meisch petitioned the probate court for the probate of a will dated February 9, 1973, naming Inez Meisch as executrix with Dorene Leatherwood as alternate. The will provided that if Inez Meisch survived, she would receive the entire estate \u2014 if not, then the estate would go to Dorene Leatherwood.\nSubsequently, Mrs. Leatherwood objected to the 1973 will and offered two later wills \u2014 one dated October 29, 1980, and the other dated March 14,1984. The petition asked that the 1984 will be probated and that Mrs. Leatherwood be declared to be a pretermitted child under the 1984 will.\nThe 1984 will was admitted to probate as the last known will of Francis Meisch. It provided that Inez Meisch would serve as executrix and, if she survived, would receive the entire estate. If Mrs. Meisch did not survive, the entire estate was to be divided into two equal shares, \u201cone of which shall be distributed to those persons who would constitute my heirs at law on the date of my death, and the other share distributable to those persons who would constitute the heirs at law of my said wife on the date of her death.\u201d The will does not mention Mrs. Leatherwood by name.\nMrs. Leatherwood contends here, as she did before the probate court, that she is a pretermitted child within the language of Ark. Code Ann. \u00a7 28-39-407(b) (1987):\n(b) PRETERMITTED CHILDREN: If, at the time of the execution of a will, there is a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.\nThe probate judge held that Mrs. Leatherwood came within a class mentioned in the will and was not, therefore, pretermitted. Mrs. Leatherwood has appealed and we affirm.\nOur relevant cases can be summarized succintly \u2014 if the word \u201cheir\u201d or \u201cheirs\u201d is used by the testator in a colloquial sense to refer to children, or descendants, as opposed to a technical, legal sense, then the requirements of \u00a7 28-39-407(b) (1987) are met. Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946); Powell v. Hayes, 176 Ark. 660, 2 S.W.2d 974 (1928). Thus in Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986), we held the following language was a sufficient mention of children to uphold a will which excluded them:\nI am mindful of the fact that I have willingly and intentionally omitted to provide for all my heirs or other relatives not specifically mentioned herein.\nSimilarly, in Petty v. Chaney, Ex\u2019x, 281 Ark. 72, 661 S.W.2d 373 (1983), we held that a provision for \u201cmy wife and my descendants,\u201d was sufficient.\nMrs. Leatherwood relies on the case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), which the concurring opinion finds indistinguishable from the case now before us. But how could it be said the words \u201cheir\u201d or \u201cdescendant\u201d are used in a colloquial sense when they do not even appear? The probate judge found the wording in Robinson to be technical and we affirmed. Perhaps the difference is only one of degree, but most differences are, when closely examined. The language in Robinson provides that the estate would:\ndevolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution in the State of Missouri.\nThat is the terminology of the technician, the cant of the legal profession, not the words a layman might choose to refer colloquially to a child or to children.\nWhile we review probate cases de novo, we cannot say the trial judge\u2019s order was clearly erroneous and, accordingly, we affirm.\nHolt, C.J., and Newbern, J., concur.\nPurtle, J., dissents.\nThe 1980 will nominated Mrs. Leatherwood to be executrix and recited that if a pending divorce suit was finalized prior to the death of Francis Meisch, Inez would receive nothing, but if the death should occur before finalization, Inez would receive only her statutory interest as widow. The residue of the estate was bequeathed to Dorene Leatherwood.", "type": "majority", "author": "Steele Hays, Justice." }, { "text": "David Newbern, Justice,\nconcurring. The result reached in this case is correct, however, I cannot accept the abstract \u201ccolloquial-technical\u201d distinction made in the majority opinion. The will purported to distribute a share of the estate to \u201cmy heirs at law on the date of my death.\u201d In Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), we held a child was pretermitted because not included in a devise or bequest \u201cto those persons entitled to share in the . . . estate in accordance with the laws of descent and distribution in the State of Missouri.\u201d By just looking at the two sets of words, it is impossible for me to say one is more or less technical than the other.\nWe recently reviewed the cases involving the technical-colloquial distinction. Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986). One of the cases reviewed was Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946), where a testator\u2019s statement appointing an executor with \u201cfull power to sell and dispose of it [property] [if] in his (its) judgment it is necessary or ... to the advantage of . . . the heirs\u201d was held a sufficient reference to the testator\u2019s children to avoid pretermitting them. We looked at the circumstances in which the words were used and found the testator had no heirs other than his three children, we then found it was reasonable to assume he was using the term \u201cheirs\u201d in the non-technical sense to refer to the children.\nAs we noted in the Young case, the purpose of the pretermitted child statute is not to compel a testator to provide for his children; it is to provide for the child the testator may simply have forgotten to mention. It is clear to me that the testator must have meant to include Dorene Leatherwood in the category \u201cheirs,\u201d because she was his only child. Therefore, it was not erroneous for the court to find that she was mentioned in the will.\nHolt, C.J., joins in this opinion.", "type": "concurrence", "author": "David Newbern, Justice," }, { "text": "John I. Purtle, Justice,\ndissenting. I cannot go along with the majority opinion in this case because it clearly obliterates the requirement that an heir be mentioned in a will by a name or as a member of a class. The pertinent part of the statute relating to pretermitted children states that if there is a \u201cliving child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue.\u201d In this case the court has gone so far as to hold that the mere designation of the contingent beneficiaries as \u201cmy heirs at law\u201d satisfied the requirement that a child be mentioned. This decision is simply not in keeping with the plain words of the statute and most of our past decisions. In this case the so-called class is \u201cthose persons who would constitute my heirs at law on the date of my death.\u201d That phrase simply restates the law of descent and distribution and has no effect whatsoever on any person\u2019s right to inherit.\nI think we ought to return to our holdings such as that of Crossett Lumber Company v. Files, 104 Ark. 600, 149 S.W. 908 (1912), where this court held that if a testator failed to mention the name of his only surviving child, that child was pretermitted. We have a long line of cases holding that if the names of all, any, or either of the testator\u2019s children are omitted in the will, the testator is deemed to have died intestate as to those omitted. Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939 (1921), Branton v. Branton, 23 Ark. 569 (1861). These decisions were rendered under prior law, but the principle is the same. The case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), cited in the majority opinion, concerned the designation of \u201cthose persons who would be entitled to share in the distribution of the estate in accordance with the law of descent and distribution of the state of Missouri.\u201d We held this was insufficient to exclude two children who were not named in the will. We upheld the trial judge\u2019s decision that the failure to name the children in the will rendered them pretermitted children. We have also held that the failure of the testator to mention a child or issue of a deceased child resulted in treating such omitted heirs as though no will had been made. Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986).\nWe need to get away from these strained constructions which interpret certain language as \u201ctechnical\u201d and other language as \u201ccommon usage.\u201d Over a period of time, and by use of common sense, we have learned that a \u201cclass\u201d of devisees is simply not equivalent to those who are \u201cheirs at law.\u201d A \u201cclass\u201d consists of such groups as brothers, sisters, children, grandchildren, nieces, nephews, etc. The reason for making a will in the first place is to dispose of property in a manner which would not be followed if left to the law of descent and distribution. The reason our cases have been fairly consistent in requiring the testator at least to mention a descendant as a member of a class is to prevent the unintentional disinheritance of a legitimate heir. It is my opinion that we ought to get back to the basics and require a will to meet the requirements of the statute.\nThe appellant, the only child of the decedent, was not mentioned by name or by class in the will. By any standard she is pretermitted and therefore entitled to her intestate share of the estate.", "type": "dissent", "author": "John I. Purtle, Justice," } ], "attorneys": [ "Zachary D. Wilson, for appellant.", "Phil Stratton and Casey Jones, Ltd., by: Phil Stratton, for appellee." ], "corrections": "", "head_matter": "Dorene LEATHERWOOD v. Inez MEISCH, In the Matter of the Estate of Francis F. Meisch, Deceased\n88-107\n759 S.W.2d 559\nSupreme Court of Arkansas\nOpinion delivered November 14, 1988\nZachary D. Wilson, for appellant.\nPhil Stratton and Casey Jones, Ltd., by: Phil Stratton, for appellee." }, "file_name": "0091-01", "first_page_order": 117, "last_page_order": 122 }