{ "id": 1455901, "name": "IN THE MATTER OF the ESTATE of Nora MAYBERRY, Deceased v. Helen MAYBERRY", "name_abbreviation": "Estate of Mayberry v. Mayberry", "decision_date": "1994-11-07", "docket_number": "94-256", "first_page": "588", "last_page": "595", "citations": [ { "type": "official", "cite": "318 Ark. 588" }, { "type": "parallel", "cite": "886 S.W.2d 627" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "276 Ark. 85", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751519 ], "weight": 6, "year": 1982, "pin_cites": [ { "page": "89" }, { "page": "15-16" } ], "opinion_index": 0, "case_paths": [ "/ark/276/0085-01" ] }, { "cite": "270 Ark. 735", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709269 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0735-01" ] }, { "cite": "257 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721069 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/257/0489-01" ] }, { "cite": "237 Ark. 785", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737905 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/237/0785-01" ] }, { "cite": "208 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478537 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ark/208/0478-01" ] }, { "cite": "213 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467001 ], "weight": 5, "year": 1948, "pin_cites": [ { "page": "64" }, { "page": "447" }, { "page": "67" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ark/213/0061-01" ] } ], "analysis": { "cardinality": 562, "char_count": 12997, "ocr_confidence": 0.894, "pagerank": { "raw": 6.72743197525272e-08, "percentile": 0.40828094610921334 }, "sha256": "4b1380d4fa20135cfe83237b0019fcce31e607486c29874aa0963784de4ecd70", "simhash": "1:25d446ef2a918f9f", "word_count": 2236 }, "last_updated": "2023-07-14T18:28:16.788487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hays, J., dissents." ], "parties": [ "IN THE MATTER OF the ESTATE of Nora MAYBERRY, Deceased v. Helen MAYBERRY" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThis appeal is taken by the Estate of Nora Mayberry which urges that the probate court erred in finding that no ademption of Nora Mayberry\u2019s specific bequest to her daughter, appellee Helen Mayberry, occurred. At issue here was a bequest of a savings account at \u201cArkansas Trust Bank\u201d in Hot Springs, held jointly by Nora Mayberry and Helen May-berry, which was bequeathed so that Helen Mayberry could have free access to the account for her life. The joint savings account was closed by Nora Mayberry prior to her death, and three certificates of deposit were purchased by her in her name at Arkansas Bank & Trust Company with money from that savings account and with her individual funds. We conclude that the original bequest in the will to Helen Mayberry was adeemed, and we reverse the probate court\u2019s decision and remand the case.\nOn January 25, 1982, Nora Mayberry executed her will which contained this pertinent language:\nI give, devise and bequeath to Helen Bernice May-berry the following: said Helen Bernice Mayberry is to have a life estate in all my real property; she also is to have and enjoy a life estate in all my personal property other than my banking accounts, Certificates of Deposit, and bonds. As for the savings accounts which I presently have at the Bank of Montgomery County and at the Arkansas Trust Bank in Hot Springs, AR, Helen Bernice Mayberry is to have free access to both of said accounts for any purpose for her life.\nAfter Helen Mayberry\u2019s death, the will provided for an additional life estate in the bank savings accounts in Ernestine Donlon Scarlett and then the grant of a remainder interest in the accounts and other personal property to certain individuals following the deaths of the two life tenants.\nOn October 27, 1986, Nora Mayberry died. Helen Mayberry took the joint savings account at Bank of Montgomery County by right of survivorship. At the time of her death, Nora May-berry had no savings account at Arkansas Bank & Trust Company, though she owned three certificates of deposit at that bank purchased in her own name. Those C.D.\u2019s and the funds used to purchase them are described as follows:\nCertificate of Deposit No. 23614\nThis C.D. was purchased on February 20, 1986, for an amount of $15,000. Of that amount, $5,000 came from the joint Arkansas Bank & Trust Company savings account. Of the remaining purchase price, $9,000 came from the sale of Nora Mayberry\u2019s Series E government bonds, and an additional $1,000 was derived from a cashiers check in the joint names of Nora and Helen Mayberry. The cashiers check was drawn on the joint savings account at Arkansas-Bank & Trust Company. As of March 25, 1992, a new C.D. No. 50370 had been purchased with the funds from C.D. No. 23614 and accrued interest. Its value as of that date was $21,476.18.\nCertificate of Deposit No. 19587\nThis C.D. was purchased on February 25, 1985, for an amount of $5,000. A prior C.D. in the same face amount had been used to purchase it, and the funds to purchase that C.D. were $2,900 from the Arkansas Bank & Trust Company joint savings account and $2,100 from Nora Mayberry\u2019s individual funds. As of March 25, 1992, a new C.D. No. 50371 had been purchased in the amount of $7,587.60, using the face amount of C.D. No. 19587 and its accrued interest.\nCertificate of Deposit No. 19605\nThis C.D. was purchased on February 28, 1985, for $10,000. The entire purchase price came from Nora Mayberry\u2019s individual funds. As of March 25, 1992, a new C.D. No. 50372 had been purchased in an amount of $15,209.77, using the face value of the prior C.D. and accrued interest.\nFollowing the death of Nora Mayberry, Helen Mayberry moved for possession of the three C.D.\u2019s. After a hearing before the probate court, the court found that an ademption of the specific bequest of the Arkansas Bank & Trust Company savings account had not occurred. The court further found:\nIt was the intent of the Decedent to leave these funds to the Petitioner [appellee Helen Mayberry] and the purchase of the Certificates of Deposit constituted only a change in form and not substance.\nThe court then ordered delivery of the C.D.\u2019s to Helen Mayberry plus accrued interest for her use and enjoyment for life.\nThe issue that lies at the heart of this appeal is whether an ademption of the specific bequest to Helen Mayberry of the Arkansas Bank & Trust Company savings account occurred, or whether the three C.D.\u2019s which existed at Nora Mayberry\u2019s death constituted a mere change in form, as the probate court found. We stated the general law of ademption in the case of Mee v. Cusineau, 213 Ark. 61, 64, 209 S.W.2d 445, 447 (1948):\nThe distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator\u2019s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee\u2019s rights are gone. The 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 further said in that case:\nGenerally 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.\nMee, 213 Ark. at 67, 209 S.W.2d at 448; quoting from Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945). In both the Mee case and the Mitchell case we looked not to a mere change in form to decide the issue but rather to the intent of the testator.\nIn 1964, we reiterated that in considering ademption we should not defeat the \u201cevident intent\u201d of the testatrix. Worthen Bank & Trust Co. v. Green, 237 Ark. 785, 376 S.W.2d 275 (1964). In Green, the testatrix devised her \u201chome place\u201d at 1311 Izard Street, Little Rock, to a bank, as trustee, for the benefit of two nephews. Following execution of the will, she sold the Izard Street property, bought a house at 2200 Rice Street, and moved into it. We affirmed the probate court and held that an ademption of the specific devise had occurred. The Rice Street property passed under the residuary clause.\nThe next case of significance which discusses ademption is Williamson v. Merritt, 257 Ark. 489, 519 S.W.2d 767 (1975). In Merritt, we said again that we look to the intent of the testator in ademption matters. We also stated that generally courts look with disfavor on the ademption of a specific legacy. In this case the testatrix had bequeathed her savings and loan account to two grandnephews. She then withdrew $3,000 from that account. In a letter to her savings and loan for the purpose of withdrawing the money, the testatrix stated that the money would be used for her medical expenses. The $3,000 was commingled in a checking account with the testatrix\u2019s other funds, a fact this court noted in particular. At the time of the death of the testatrix, more than $3,000 remained in the checking account. We held that the $3,000 withdrawn from the savings account and deposited in her checking account was adeemed and that the checking account passed through the residuary clause.\nThe Court of Appeals next discussed the ademption question in Jennings v. National Bank of Commerce, 270 Ark. 735, 606 S.W.2d 130 (1980). There, the testatrix made a specific bequest of her interest in Lester Land Company, Inc. to Medora Jennings. This interest was sold during the testatrix\u2019s lifetime for cash. The cash proceeds were then commingled with the testatrix\u2019s other funds for the purchase of a certificate of deposit. The Court of Appeals endorsed what it termed the \u201cModem Rule\u201d for considering ademptions which is to look at whether a mere change in form regarding the specific devise or bequest has occurred or a change in substance, which would constitute an ademption. The suggestion is made in Jennings that focusing on the intent of the testatrix is the more traditional view, and the Court of Appeals cites Williamson v. Merritt, supra, for that view. Though the Court of Appeals admitted that the sale proceeds from the Lester Land Company interest could be traced to the C.D., it concluded that the testatrix had done nothing subsequently to show that she wanted to pass the cash proceeds of the Lester Land Company interest or the C.D. to Jennings. The Court of Appeals held that the change from land to money worked an ademption.\nFinally, in Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982), this court held that an ademption occurred under facts similar to the case at bar. In Kidd, the testator willed to his son and daughter the proceeds from two real estate escrow accounts funded by periodic mortgage payments by third parties. Nine months before the testator\u2019s death, the note secured by one mortgage (the Gardner note) was paid off in the amount of $12,405.65. The testator took that amount and supplemented it with his own personal funds to buy a certificate of deposit in the amount of $15,000. In holding that an ademption had occurred, we made the following comment:\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 (sic) 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.\n276 Ark. at 89, 633 S.W.2d at 15-16.\nThe Kidd case, which is our most recent pronouncement on the ademption issue, differs from the case before us in that the probate court here did not find that an ademption had occurred. We disagree with the probate court, however, and hold to the contrary. The probate court in this case used the form/substance test referred to in Jennings v. National Bank of Commerce, supra, in concluding that no ademption occurred. The court said: \u201cIt was the intent of the decedent to leave these funds to [Helen Mayberry] and the purchase of the Certificates of Deposit constituted only a change in form and not substance.\u201d Surely the original intent was to leave the bank savings account at Arkansas Bank & Trust Company to Helen Mayberry, but we cannot agree that what occurred afterwards amounted only to a change in form. The savings account bequeathed was terminated and certificates of deposit were purchased using several sources of funds, including the savings account in issue. In addition, the value of the purchased C.D.\u2019s is appreciably more than the value of the original savings account \u2014 more than $44,000 \u2014 because considerable personal funds of Nora Mayberry were used to purchase the C.D.\u2019s and considerable interest has accrued. Commingling of funds was a factor we considered to be important in Kidd v. Sparks, supra, in deciding that ademption had occurred, and it is equally important here. Finally, Helen Mayberry\u2019s name was not included on the C.D.\u2019s, which Nora Mayberry easily could have done. Under these circumstances, we conclude that what transpired was a substantive change in what had been bequeathed to Helen Mayberry and not merely a change in form.\nTo eliminate any confusion between our caselaw and that of the Court of Appeals, we reiterate what we stated in Kidd v. Sparks, supra, that in ademption cases our primary aim is to determine and give effect to the testator\u2019s intention. However, in most instances a determination of whether a change in the gift\u2019s form or substance occurred will decide the issue of what the testator intended. Here, there was a change in substance. Also, there is the fact that Nora Mayberry\u2019s will specifically excluded gifts of C.D.\u2019s to Helen Mayberry except as specifically devised and bequeathed, which is further evidence of her intent not to have the C.D.\u2019s go to her daughter.\nWe hold that an ademption of the gift of the savings account at Arkansas Bank & Trust Company occurred, and that the probate court clearly erred in finding that only a change in form took place so as not to work an ademption. We reverse the probate court\u2019s order and remand the matter for entry of an order in accordance with this opinion.\nReversed and remanded.\nHays, J., dissents.\nBoth parties concede that this is the bank known as Arkansas Bank and Trust Company in Hot Springs.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "William H. McKimm, for appellant.", "Gunner Delay, for appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF the ESTATE of Nora MAYBERRY, Deceased v. Helen MAYBERRY\n94-256\n886 S.W.2d 627\nSupreme Court of Arkansas\nOpinion delivered November 7, 1994\nWilliam H. McKimm, for appellant.\nGunner Delay, for appellee." }, "file_name": "0588-01", "first_page_order": 614, "last_page_order": 621 }