{ "id": 5682993, "name": "Betty HOFFMAN, Jimmy Brown, Molly Brown, John L. Bowen, Christopher Brown, Elizabeth S. Goodwin, Lynn Taylor v. Mary Ann GREGORY, The Revocable Trust of William J. Brown and Ann O. Brown, The Estate of Ann O. Brown, Deceased, Community First Trust Company", "name_abbreviation": "Hoffman v. Gregory", "decision_date": "2005-03-03", "docket_number": "04-934", "first_page": "73", "last_page": "81", "citations": [ { "type": "official", "cite": "361 Ark. 73" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "256 Ark. 834", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725396 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0834-01" ] }, { "cite": "278 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748037 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "supplemental opinion denying rehearing" }, { "parenthetical": "supplemental opinion denying rehearing" } ], "opinion_index": 0, "case_paths": [ "/ark/278/0387-01" ] }, { "cite": "311 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896990 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0460-01" ] }, { "cite": "267 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719781 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0086-01" ] }, { "cite": "267 Ark. 605", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719895 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/267/0605-01" ] }, { "cite": "304 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880857 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0562-01" ] }, { "cite": "306 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900984 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0134-01" ] }, { "cite": "312 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935009 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0302-01" ] }, { "cite": "312 Ark. 423", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935090 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0423-01" ] }, { "cite": "305 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916697 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0556-01" ] }, { "cite": "341 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257809 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0381-01" ] }, { "cite": "339 Ark. 293", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130674 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0293-01" ] }, { "cite": "350 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404487 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0238-01" ] }, { "cite": "59 S.D. 372", "category": "reporters:state", "reporter": "S.D.", "case_ids": [ 5343870 ], "weight": 5, "year": 1932, "opinion_index": 0, "case_paths": [ "/sd/59/0372-01" ] }, { "cite": "84 S.W.2d 104", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1935, "opinion_index": 0 }, { "cite": "169 Tenn. 223", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8532827 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/tenn/169/0223-01" ] }, { "cite": "124 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "256 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574293 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0630-01" ] }, { "cite": "404 So.2d 341", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9565725 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/so2d/404/0341-01" ] }, { "cite": "465 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "251 Va. 116", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 809230 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/va/251/0116-01" ] }, { "cite": "28 A.L.R. 428", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1924, "opinion_index": 0 }, { "cite": "203 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447042 ], "weight": 3, "year": 1941, "pin_cites": [ { "page": "94" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ark/203/0088-01" ] }, { "cite": "54 S.W.2d 290", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1932, "opinion_index": 0 }, { "cite": "186 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723467 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/ark/186/0524-01" ] }, { "cite": "253 Ark. 1052", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627455 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/1052-01" ] }, { "cite": "239 Ark. 169", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730988 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/239/0169-01" ] }, { "cite": "261 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678966 ], "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "citing Midsouth Insurance Company v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965)" }, { "parenthetical": "citing Midsouth Insurance Company v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965)" } ], "opinion_index": 0, "case_paths": [ "/ark/261/0468-01" ] } ], "analysis": { "cardinality": 755, "char_count": 15787, "ocr_confidence": 0.739, "pagerank": { "raw": 9.124785842101933e-08, "percentile": 0.5071504168775863 }, "sha256": "94508a76f5f77fe07abcc7f886319711c1d8867d0f39e56088ba743b27d00927", "simhash": "1:6725ac02a0c64913", "word_count": 2619 }, "last_updated": "2023-07-14T21:38:22.368604+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Betty HOFFMAN, Jimmy Brown, Molly Brown, John L. Bowen, Christopher Brown, Elizabeth S. Goodwin, Lynn Taylor v. Mary Ann GREGORY, The Revocable Trust of William J. Brown and Ann O. Brown, The Estate of Ann O. Brown, Deceased, Community First Trust Company" ], "opinions": [ { "text": "Annabelle Clinton Imber, Justice.\nThis appeal concerns whether a memorandum written by Appellee Mary Ann Gregory constitutes an enforceable release of her expectancy interest in Ann O. Brown\u2019s estate. The circuit court held that the memorandum was not an enforceable release of her expectancy interest. We agree and affirm the circuit court\u2019s decision.\nAppellee Mary Ann Gregory\u2019s grandparents, William J. Brown and Ann O. Brown, created a revocable living trust (\u201cTrust\u201d) that listed Appellants Betty Hoffinan, Jimmy Brown, Molly Brown, John L. Bowen, Christopher Brown, Elizabeth Goodwin, Lynn Crawford Taylor, and Appellee Mary Ann Gregory as the beneficiaries. Mr. Brown died on October 26, 1993, and his wife, Ann O. Brown, died almost ten years later on January 5, 2003. Four years before Mrs. Brown\u2019s death, Mary Ann and her husband moved into the Brown\u2019s home to provide personal care services for her grandmother.\nOn July 3, 2001, Mary Ann signed a memorandum requesting that she be removed from any proceeds left to her upon the passing of her grandmother, Ann O. Brown, or her mother, Betty Jo Hoffman. Later, on August 23, 2001, Mrs. Brown and Mary Ann signed a contract for personal care and indemnity agreement. According to this agreement, Mary Ann agreed to continue providing personal care services for Mrs. Brown, and, in return, Mrs. Brown agreed to pay Mary Ann for those services. The agreement also instructed the trustee of the Trust to defend Mary Ann from any claims made against her by family members for the recovery of any payments Mary Ann received from her grandmother. Subsequently, on September 28, 2001, Mrs. Brown executed her last will and testament. Under the terms of the will, Mrs. Brown devised a portion of the assets of the Trust, including the Browns\u2019 home and furnishings, to Mary Ann. The will also included an in terrorem, or a \u201cno contest,\u201d clause. Shortly after Mrs. Brown\u2019s death on January 5, 2003, the will was admitted to probate as the last will and testament of Ann O. Brown, and Appellee Community First Trust Company was appointed executor of the estate.\nMary Ann then filed a petition in the Garland County Circuit Court for declaratory relief concerning the contract for personal care and indemnity agreement, which petition requested (1) a declaration that the agreement was valid and enforceable, and (2) an order directing the trustee to defend and hold her harmless from all claims asserted against her by other beneficiaries of the Trust. Appellants responded by intervening in the proceeding filed by Mary Ann. They also petitioned for declaratory judgment in a separate action, seeking a declaration that the July 3, 2001 memorandum constituted an enforceable release of Mary Ann\u2019s expectancy interest in Mrs. Brown\u2019s estate. In addition to disputing the merits of Appellants\u2019 petition for declaratory judgment, Mary Ann urged the circuit court to find that Appellants\u2019 filing of the petition constituted a violation of the \u201cno contest\u201d provision of Mrs. Brown\u2019s will such that Appellants should be forever barred from taking any share of her estate.\nFollowing a bench trial on both petitions, the circuit court denied Appellants\u2019 petition for declaratory judgment. In its order entered on June 3, 2004, the court found that the memorandum was nothing more than a request by Mary Ann that her grandmother not bequest anything to her by will or trust. Furthermore, the court stated that Mrs. Brown\u2019s subsequent action of executing a last will and testament that bequeathed a portion of the Trust, including real property, to Mary Ann was evidence that Mrs. Brown \u201cdeclined to concede to [Mary Ann\u2019s] unilateral request.\u201d As to the relief requested by Mary Ann, the circuit court concluded that Appellants\u2019 petition for declaratory judgment did not constitute a \u201cwill contest\u201d but merely represented an attempt to enforce a perceived unilateral agreement. Finally, the court ruled that the contract for personal care and indemnity agreement was ineffective to require the Trust to defend Mary Ann against any claims because Mrs. Brown signed the document in her individual capacity and not in her capacity as trustee. On June 9, 2004, an amended order was entered, which substantively mirrored the previous order but also included a certification pursuant to Ark. R. Civ. P. 54(b) (2004). From this order, Appellants appeal the denial of their petition to enforce the memorandum as a binding release of Mary Ann\u2019s expectancy interest in Mrs. Brown\u2019s estate. Mary Ann argues on cross appeal that the circuit court erred in finding that Appellants did not violate the \u201cno contest\u201d provision of the will and in declining to enforce the contract for personal care and indemnity agreement signed by Mary Ann and Mrs. Brown.\nThis case was assumed by us to balance the docket, which we may do pursuant to Ark. Sup. Ct. R. 1-2(g) (2004). Although the final distribution of Mrs. Brown\u2019s estate is still pending, the circuit court executed a Rule 54(b) certificate to permit an immediate appeal. See Ark. R. Civ. P. 54(b) (2004). We therefore have jurisdiction to consider this appeal.\nA declaratory-judgment proceeding is reviewed in the same manner as any other judgment, and if there is any substantial evidence to support the finding upon which the judgment is based, it will be affirmed. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977) (citing Midsouth Insurance Company v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965)). In determining whether there is any substantial evidence to support the circuit court\u2019s finding, we must view the record in the light most favorable to the appellee. Id. (citing Power v. Howard, 253 Ark. 1052, 490 S.W.2d 435 (1973)). The presumptions on appeal are all in favor of the validity of the judgment of the trial court. Id. (citing Woodman of Union of America v. Henderson, 186 Ark. 524, 54 S.W.2d 290 (1932)).\nFor Appellants\u2019 sole point on appeal, they argue that the circuit court erred when it decided not to treat the July 3 memorandum as an enforceable release of Mary Ann\u2019s expectancy interest in Mrs. Brown\u2019s estate. The memorandum signed by Mary Ann stated:\nI am requesting as of the above date to be removed from any proceeds to be left to me upon the passing of either Ann O. Brown or Betty Jo Hoffman. These funds are meant to compensate any expenses my Grandmother has incurred while I was living with her.\nThis is a decision that I have made on my own accord without my coercion or duress. I would request immediate action on the part of the Trustee, Mr. Wingfield Martin, to finalize my request.\nA release of an expectancy interest is an agreement whereby the prospective heir releases an interest in the ancestor\u2019s estate \u201cin consideration of an advancement or for other valuable consideration.\u201d Leggett v. Martin, 203 Ark. 88, 94, 156 S.W.2d 71, 74 (1941). In the Leggett case, we specifically adopted the majority rule governing the enforceability of a release by an expectant heir in his or her ancestor\u2019s estate:\n[T]he release of an expectant heir to an ancestor, in consideration of an advancement or for other valuable consideration, excludes the heir from participation in the ancestor\u2019s estate at his death, provided, in case part or all the estate is realty, there is such a writing as to satisfy the statute of frauds, and provided further that the person executing the release was at the time competent to contract, and that the release was not obtained by means of fraud or undue influence.\nId. (citing CJ: 18 C.J. Descent and Distribution \u00a7 112 (1919)). See CJS: 26B C.J.S. Descent and Distribution \u00a7 69 (2004). The Leggett court also referred to the majority rule as stated in ALR: Annotation, Release to ancestor by heir expectant, 28 A.L.R. 428 (1924):\nThe weight of authority is that an agreement between a prospective heir and his ancestor by which the former promises, in effect, to accept certain property or other valuable consideration then given him by his ancestor as his full share of the latter\u2019s estate, and to make no further claim as heir, is freely and fairly entered into, and made in such form (according to some of the cases) as to comply with the Statute of Frauds, is valid and will be enforced in the courts against such heir after the ancestor\u2019s death.\nId. This approach adopted in Leggett remains the majority rule used by courts in other jurisdictions. See Ware v. Crowell, 251 Va. 116, 465 S.E.2d 809 (1996); Martin v. Smith, 404 So.2d 341 (Ala. 1981); Stewart v. McDade, 256 N.C. 630, 124 S.E.2d 822 (1962); and Anderson v. Forbes, 169 Tenn. 223, 84 S.W.2d 104 (1935); Henrich v. Newell, 59 S.D. 372, 240 N.W. 327 (1932). See also CJS: 26B C.J.S. Descent and Distribution \u00a7 69 (2004). In general, these courts hold that releases by expectant heirs are enforceable if the agreement to release the expectancy is supported by valuable consideration and is free from fraud. Id. In sum, when a court considers whether an agreement to release an expectancy interest is enforceable, it evaluates the agreement for the same elements as it would in determining the enforceability of any contract: offer, acceptance and consideration. Id. Thus, as with any other agreement, an agreement to release an expectancy interest is not enforceable when it lacks proof that an offer to release the expectancy interest was made, that the offer was accepted, and that consideration of an advancement or other valuable consideration was given in exchange for the release.\nIn the instant case, the record clearly reflects that Mary Ann made a formal offer in the July 3 memorandum to release her expectancy interest in both her grandmother\u2019s estate and her mother\u2019s estate. The record, however, does not reflect that Mrs. Brown accepted Mary Ann\u2019s offer to release her expectancy interest, either through her conduct, her actions, her words, or her signature on the memorandum. In fact, as the circuit court indicated in its order, Mrs. Brown\u2019s conduct after the offer suggests otherwise. Subsequent to the offer, she executed a will that left Mary Ann a portion of the trust assets, including the Browns\u2019 home and its contents. Based on this conduct, the court concluded that \u201cit is clear that Mrs. Brown declined to concede to Ms. Gregory\u2019s unilateral request.\u201d According to the majority rule adopted by this court over sixty years ago in Leggett v. Martin, supra, a release of an expectancy interest will not be enforced unless, without fraud, there is an offer, an acceptance, and consideration of an advancement or other valuable consideration given in exchange for the release. See Ware v. Crowell, supra; Martin v. Smith, supra; Stewart v. McDade. supra; Anderson v. Forbes, supra; and Henrich v. Newell, supra. Because substantial evidence supports the circuit court\u2019s finding that Mary Ann\u2019s one-sided offer was not accepted by Mrs. Brown, we affirm on this point. Consequently, we need not decide whether the July 3 memorandum was supported by adequate consideration.\nAppellants nonetheless suggest that a release agreement may exist between the prospective heir and the ancestor or between the prospective heir and other prospective heirs. In other words, Appellants contend that Mary Ann\u2019s offer to release her expectancy interest also created an agreement between Appellants and Mary Ann. Yet, Appellants offer no authority for the proposition that, before the ancestor\u2019s death, prospective heirs can unilaterally agree on the release of an expectancy interest without the knowledge and consent of the ancestor. This court will not consider an argument without citation to authority, unless the argument is so well established that no additional research is necessary. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002); Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). In any event, such a transfer of a prospective heir\u2019s expectancy interest in an estate without the knowledge of the ancestor could effectively deceive the ancestor \u201cinto leaving his property to one to whom he never intended it should go.\u201d Stewart v. McDade, 256 N.C. 630, 636, 124 S.E.2d 822, 826 (1962).\nAppellee Mary Ann Gregory also raises two points on cross appeal. The record, however, does not contain a notice of cross appeal. In fact, the docket sheets in the record do not indicate that a notice of cross appeal was ever filed.\nOur case law is well settled that when an appellee seeks something more than he or she received in the lower court, a notice of cross appeal is necessary to give us jurisdiction of the cross appeal. Ark. R. App. P. - Civ. 3(d) (2004); Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000); Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991). In other words, a notice of cross appeal is required when the appellee seeks affirmative relief that was not obtained in the lower court. See City of Marion v. Baioni, 312 Ark. 423, 850 S.W.2d 1 (1993); Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993); Pledger v. Illinois Tool Works, Inc., 306 Ark. 134, 812 S.W.2d 101 (1991); Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991); Enclare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).\nIn contrast, a notice of cross appeal is not necessary when the appellee is not seeking affirmative relief on appeal. Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993). For example, despite the absence of a notice of cross appeal, we will address the appellee\u2019s additional points on appeal that explain why the lower court erred in its reasoning but reached the right result. Independence Federal Savings & Loan Ass\u2019n v. Davis, 278 Ark. 387, 646 S.W.2d 336 (1983) (supplemental opinion denying rehearing).\nIn this appeal, Appellee Mary Ann Gregory seeks relief that she failed to obtain in the circuit court. Specifically, the circuit court denied her petition for declaratory relief concerning the contract for personal care and indemnity agreement. Furthermore, she argued in response to Appellants\u2019 petition for declaratory judgment that the petition violated the \u201cno contest\u201d provision of Ann Brown\u2019s will. In rejecting this argument, the circuit court ruled that Appellants\u2019 petition did not constitute a \u201cwill contest.\u201d Now, Appellee Mary Ann Gregory seeks affirmative relief she failed to obtain in the circuit court. She asks this court to hold that: (1) the circuit court erred in finding that Appellants did not violate the \u201cno contest\u201d provision of the will of Ann O. Brown, and (2) the circuit court erred in declining to enforce the contract for personal care and indemnity agreement signed by Mary Ann Gregory and Ann O. Brown. Because the appellee is requesting something more than she received in the lower court, a notice of cross appeal is necessary. As stated earlier, the record does not indicate that a notice of cross appeal was ever filed. Thus, we are without jurisdiction to consider Appellee Mary Ann Gregory\u2019s points on cross appeal.\nAffirmed.\nUpon the death of Mrs. Brown, Appellee Community First Trust Company became the sole trustee of the Trust.\nGannaway v. Godwin,256 Ark. 834, 511 S.W.2d 171 (1974), is inapposite. Inthatcase, the release agreement between the heirs occurred after the ancestor\u2019s death.", "type": "majority", "author": "Annabelle Clinton Imber, Justice." } ], "attorneys": [ "Wright, Lindsey & Jennings, LLP, by: C. Tad Bohannon, for appellants.", "Friday, Eldredge & Clark, LLP, by: R. Christopher Lawson, for appellee." ], "corrections": "", "head_matter": "Betty HOFFMAN, Jimmy Brown, Molly Brown, John L. Bowen, Christopher Brown, Elizabeth S. Goodwin, Lynn Taylor v. Mary Ann GREGORY, The Revocable Trust of William J. Brown and Ann O. Brown, The Estate of Ann O. Brown, Deceased, Community First Trust Company\n04-934\nSupreme Court of Arkansas\nOpinion delivered March 3, 2005\n[Rehearing denied April 7, 2005.]\nWright, Lindsey & Jennings, LLP, by: C. Tad Bohannon, for appellants.\nFriday, Eldredge & Clark, LLP, by: R. Christopher Lawson, for appellee." }, "file_name": "0073-01", "first_page_order": 93, "last_page_order": 101 }