{ "id": 1880916, "name": "Raymond Dykes CLARK and Florence Elizabeth Sherman v. NATIONAL BANK OF COMMERCE of Pine Bluff and William Edward Pratt", "name_abbreviation": "Clark v. National Bank of Commerce", "decision_date": "1991-01-28", "docket_number": "90-244", "first_page": "352", "last_page": "359", "citations": [ { "type": "official", "cite": "304 Ark. 352" }, { "type": "parallel", "cite": "802 S.W.2d 452" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "263 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672621 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0370-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-40-119", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "237 Ark. 356", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737943 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/237/0356-01" ] }, { "cite": "286 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721418 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0403-01" ] }, { "cite": "297 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891411 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0380-01" ] }, { "cite": "262 Ark. 31", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675886 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0031-01" ] }, { "cite": "248 Ark. 904", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597705 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/248/0904-01" ] }, { "cite": "280 Ark. 21", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744762 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0021-01" ] }, { "cite": "218 Ark. 554", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612012 ], "weight": 3, "year": 1951, "opinion_index": 0, "case_paths": [ "/ark/218/0554-01" ] }, { "cite": "240 S.W. 1068", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 0 }, { "cite": "153 Ark. 355", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362256 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ark/153/0355-01" ] }, { "cite": "181 S.W. 896", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1915, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "121 Ark. 448", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559448 ], "weight": 2, "year": 1915, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ark/121/0448-01" ] }, { "cite": "303 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882777 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0411-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-25-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(b)(5)" }, { "page": "(b)(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 678, "char_count": 12630, "ocr_confidence": 0.867, "pagerank": { "raw": 1.0294425644758157e-07, "percentile": 0.5476890737645322 }, "sha256": "a3d44c00b0560e0b70c73d80f43bfac446378670e327bc9650811d84e33e8b63", "simhash": "1:8766efe6758e1fac", "word_count": 2134 }, "last_updated": "2023-07-14T15:15:14.712931+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Raymond Dykes CLARK and Florence Elizabeth Sherman v. NATIONAL BANK OF COMMERCE of Pine Bluff and William Edward Pratt" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis appeal comes from an order of the Probate Court of Jefferson County, admitting to probate the will of Ms. Nell N. Willey upon the petition of appellees, National Bank of Commerce and William Edward Pratt. The will is being contested by appellants, Raymond Dykes Clark and Florence Elizabeth Sherman, Ms. Willey\u2019s nephew and niece.\nThe appellants contend that the will should be invalidated and that the estate should pass through intestate succession as the trial court erred in finding (1) that certain language written beneath the attestation clause was not dispositive in nature and that the will was thus signed at the end, as required by Ark. Code Ann. \u00a7 28-25-103(b)(5) (1987), and (2) the will admitted t\u00f3 probate was the last will of the testatrix. We find no error and affirm.\nOn approximately June 14, 1988, Iris Rushing, a trust operations officer employed by the National Bank of Commerce of Pine Bluff, Arkansas, was summoned by Ms. Willey to her condominium in order to discuss Ms. Willey\u2019s wishes for drafting her last will and testament. Ms. Rushing was to relay these wishes to Ms. Willey\u2019s attorney, Louis Ramsay. Mr. Ramsay then drafted a will from Ms. Rushing\u2019s notes of the meeting and from a telephone conference he had with Ms. Willey, Mr. Ramsay gave two identical copies of the proposed will to Ms. Rushing to deliver to Ms. Willey, along with a memorandum indicating that the will was a \u201crough draft\u201d and suggesting that Ms. Willey make any changes or clarifications she felt necessary for a final draft.\nOn Friday, June 17,1988, Ms. Rushing took the documents to Ms. Willey\u2019s home where she was joined by Marilyn Ilg, a friend of Ms> Willey\u2019s. Ms. Willey indicated that she wished to make some additions to the will and, at Ms. Willey\u2019s direction and in the presence of Marilyn Ilg, Ms. Rushing made handwritten additions to one of the two copies, which is now considered to be the will in probate. The only addition now being challenged on appeal appears below Ms. Willey\u2019s signature and the attestation clause to the will. Ms. Rushing testified that she wrote the clause there in order to have more room to write and that it was added before the will was executed. The clause reads as follows:\nI designate my cousins Linda Pratt and Nancy Harkness to dispense with my personal things such as and including furnishings, bric-a-brac, silver, china, crystal and objects of art after bequests and their choices have been made.\nMs. Willey signed both copies which were witnessed and attested to by Ms. Rushing and Ms. Ilg. On Monday, June 20, 1988, Ms. Rushing delivered both documents to Mr. Ramsay with directions to make the additions. Before Mr. Ramsay was able to accomplish a new writing of the will, Ms. Willey died.\nThe will containing Ms. Willey\u2019s additions was offered and admitted to probate, with the exception that the provision written below her signature would be disregarded and stricken, along with a handwritten bequest not at issue on this appeal. From this ruling, appellants take exception.\nWhile we review probate cases de novo on appeal, we will not reverse the findings of the probate judge unless such findings are clearly erroneous. Magnum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).\nThe appellants first claim that the language we quote, written beneath the signatures of the testatrix and the attesting witnesses, was dispositive in nature and that Ms. Willey \u201cclearly intended to make specific bequests to Linda Pratt and Nancy Harkness . . . while empowering them to distribute any items they did not want.. . .\u201d This being so, appellants claim the will is not signed at \u201cthe end\u201d and thus violates Ark. Code Ann. \u00a7 28-25-103(b)(5) (1987) which, in turn, invalidates the will. This section provides as follows:\n(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.\n* * * *\n(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.\nWe have held, and it appears to be the general rule, that non-testamentary, no\u00abdispositive language appearing below the signature of the maker of a will, will not invalidate the instrument. See Owens v. Douglas, 121 Ark. 448, 181 S.W. 896 (1915); Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068 (1922); Weems, Adm\u2019r v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951); 94 C.J.S. Wills, 177(3)(c) (1957).\nIn Owens v. Douglas, supra, we disagreed with the appellants\u2019 contention that the will was not signed at the end because the signature did not directly follow the testamentary or dispositive clauses, but was placed at the very end of the document. We stated that \u201c[t]here were no testamentary clauses following the signature of the testator, and it is certain that it was his intention, by his signature, to authenticate and make his own the testamentary clauses that preceded it.\u201d 121 Ark. at 452, 181 S.W. at 899.\nLikewise, in Musgrove v. Holt, supra, involving a holographic will, this court noted that there was \u201cno testamentary disposition after the signature of Mrs. Porter\u201d (the testatrix) and refused to invalidate the will on the basis of the appellants\u2019 contentions that there were blank spaces between paragraphs and that the signature did not follow immediately after the dispositive clauses.\nWe stated in Weems, Adm\u2019r v. Smith, supra, again involving a holographic will, that \u201cthe purpose of the statute in requiring wills to be signed at the end is to prevent fraud\u201d and that where no fraud was indicated, the will would not be invalidated. In Weems, the last three words (\u201ceverything in it\u201d) of a sentence beginning above the signature were written below the signature, in addition to the words, \u201cDear Sallie you was so sweet and good to me.\u201d We held that the words appearing below the signature were clearly intended to complete the sentence above, and that since the writing was not dispositive, it would not affect the will one way or another.\nSimilarly, we agree with the trial court, here, that the language was nondispositive and there was, therefore, no violation of section 28-25-103(b)(5). The decedent instructed Linda Pratt and Nancy Harkness to \u201cdispense\u201d with the personal property described. This language indicates that the decedent had in mind the administration of her property, rather than the wish to make a bequest.\nAt most, because the clause tells Linda Pratt and Nancy Harkness to dispense with the items \u201cafter bequests and their choices have been made\u201d, (emphasis added), the paragraph could be labeled partially ambiguous. \u201cTheir\u201d could refer to Ms. Pratt and Ms. Harkness or \u201ctheir\u201d could refer to the legatees. However, when a will is subject to a two-fold construction, it is the duty of the court to consider the will as a whole and to reach the real purpose and intention of the testator. Angel v. Angel, 280 Ark. 21, 655 S.W.2d 373 (1983). Also, as stated in Carroll v. Robinson, Ex\u2019r, 248 Ark. 904, 454 S.W.2d 329 (1970), when the expression a testator uses is really ambiguous and is fairly capable of two [2] constructions, only one of which would produce a legal result, it is a fair presumption that the testator meant to create a legal, rather than an illegal, interest.\nOral testimony is admissible for the purpose of showing the meaning of words when they are ambiguous (see Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977)), and the testimony at trial supports our interpretation that the clause was not dispositive.\nMarilyn Ilg testified that Ms. Willey added the language in question because \u201cshe was very concerned about people going through her belongings, and she wanted to be sure it wouldn\u2019t be like an open estate sale where just strangers would be going through her things.\u201d\nLouis Ramsay testified that he considered the language to be surplusage since most of the decedent\u2019s property would be disposed of by bequests and that the disposition of the items in question \u201ccould be done by the executrix, but if they had wanted it in there, if she\u2019s insisted, the next time I would have put it in.. . .\u201d\nFurthermore, as Mr. Ramsay testified, it appears that no estate assets would have remained to be dispensed with or divided since the will contained a residuary bequest section, followed by a contingent residuary bequest to the Salvation Army.\nWe have stated that the paramount principle in the interpretation of wills is that the intention of the testator will govern. Motes/Henes Trust v. Motes, 297 Ark. 380, 761 S.W.2d 938 (1988). Also, in the absence of fraud or deception in the execution of a will, we will avoid strict technical construction of statutory requirements in order to give effect to the testator\u2019s mshes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985). See also Hanel v. Springle, Adm\u2019r, 237 Ark. 356, 372 S.W.2d 822 (1963).\nUnder the circumstances, we hold that the language of the disputed provision, in addition to evidence presented at trial, reflects that the addition was not dispositive but, rather, administrative in nature. To require strict compliance with the statute would, in this instance, defeat Ms. Willey\u2019s will and her apparent intentions with regard to the disposition of her property.\nAs a final point, appellants contend that the proof at trial failed to establish which copy of the will was last executed by Ms. Willey and, thus, the requirements for the admission of a will to probate under Ark. Code Ann. \u00a7 28-40-119(a) (1987) were not met.\nSection 28-40-119(a) requires, among other things, that the court find that the instrument is the testator\u2019s last will. Appellants further argue that since the order of execution cannot be determined, neither will can be probated and that each will revokes the other.\nThe short answer to these arguments is that the evidence presented at trial sufficiently established that the document containing Ms. Rushing\u2019s interlineations was the last will executed and, as such, is Ms. Willey\u2019s last will and testament.\nMr. Ramsay testified, several times, that he understood, from Ms. Rushing, that the will with the interlineations was the second and last will signed. Mr. Ramsay explain\u00e9d to the trial court, \u201cwe checked that a couple of times because that was essential to the research that we were doing about the will that would be probated. My clear understanding was that that was the second will executed; and the first will, the one that does not have the interlineations, was the first will. . . .\u201d Mr. Ramsay stated that both he and his law partner, Dan Harrelson, checked the sequence of execution with Ms. Rushing when she delivered the will to their office.\nThe appellants make much of the fact that Ms. Rushing testified that she could not recall exactly which document was signed first. They claim that Mr. Ramsay\u2019s testimony depended entirely on the credibility of Ms. Rushing, who was too unreliable. Although Ms. Rushing could not recall the order in which Ms. Willey signed the documents, she testified, \u201cAs I said before, it was her intention that the one I had written on would be her last will and testament.\u201d\nAs we stated earlier, the purpose of the law relative to the execution of wills is, and should be, to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. Hanel v. Springle, Adm\u2019r, supra. We cannot say that the trial court was clearly erroneous in holding that the will was valid or in finding that Ms. Willey intended to bequeath her property by a will instrument which contained additions and interlineations she dictated to Ms. Rushing, and which was executed by the testatrix after those additions and interlineations were made.\nLastly, pending before us is the appellees\u2019 motion to strike certain transcript excerpts from the appellants\u2019 reply brief. These portions of the record were not initially abstracted and since an initial abstracting deficiency cannot be cured in the reply brief, the motion is granted and the reply brief is disregarded in this appeal. See Weston v. Ponder, 263 Ark. 370, 565 S.W.2d 31 (1978).\nThe holding of the trial court is affirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Spencer, Spencer, Depper & Guthrie, by: Robert L. Depper, Jr.\\ and Bart Mull\u00eds Law Firm, by: Bart Mull\u00eds, for appellant.", "Brockman, Norton and Taylor, by: E. W. Brockman, Jr. and Zachary Taylor, for appellee." ], "corrections": "", "head_matter": "Raymond Dykes CLARK and Florence Elizabeth Sherman v. NATIONAL BANK OF COMMERCE of Pine Bluff and William Edward Pratt\n90-244\n802 S.W.2d 452\nSupreme Court of Arkansas\nOpinion delivered January 28, 1991\nSpencer, Spencer, Depper & Guthrie, by: Robert L. Depper, Jr.\\ and Bart Mull\u00eds Law Firm, by: Bart Mull\u00eds, for appellant.\nBrockman, Norton and Taylor, by: E. W. Brockman, Jr. and Zachary Taylor, for appellee." }, "file_name": "0352-01", "first_page_order": 390, "last_page_order": 397 }