Skaggs v. Cullipher
Annotate this Case
Howard SKAGGS v. Charles Edward CULLIPHER
CA 96-258 ___ S.W.2d ___
Court of Appeals of Arkansas
Divisions I & IV
Opinion delivered April 2, 1997
1. Wills -- trial court erred in finding estate was closed --
report required to officially close estate never filed. --
Appellant's argument that the trial court erred in finding the
estate was closed was well taken where the July 1, 1993, order
required the filing of a report of final payments and
distribution to officially close the estate, and it was
undisputed that the report was never filed; further, the
probate court acknowledged that the estate was open in a
memorandum opinion of September 28, 1994, when it directed
appellant to complete the "ministerial duties" of the
administrator and close the estate within thirty days.
2. Wills -- appellant's contention not persuasive -- statute made
no provision for closing estate independent of affirmative
action by probate court. -- Appellee's argument citing Ark.
Code Ann. 28-52-103 (1987) as authority for the proposition
that the estate at some time closed through operation of law
was not persuasive; although 28-52-103 provides that a
probate court may compel an administrator to discharge his or
her lawful duties, nowhere does the statute provide for the
closing of an estate independent of affirmative action by a
probate court.
3. Wills -- estate not deemed closed on equitable doctrines --
neither co-administrator filed final report -- estate may not
be closed except by order of probate court. -- Appellee's
assertion that appellant's failure to timely close the estate
in contravention of Ark. Code Ann. 28-52-102 (a) (1987)
allowed the estate to be deemed closed on equitable doctrines
was unpersuasive; the statute merely states that "a personal
representative shall close the estate as promptly as
practicable"; moreover, his argument ignored the fact that
appellee was a co-administrator of the estate along with
appellant and also did not file the final report required to
close the estate; the probate court need not relieve appellee
of a burden created by his own inaction; an open estate may
not be closed other than by order of the probate court.
4. Action -- ignorance of one's legal rights cannot be asserted
as basis for failure to pursue cause of action. -- Appellant's
argument that he was not aware that the estate had a cause of
action against appellee until he consulted his present
attorney and so signed the family-settlement agreement in
ignorance of this right, was without merit; ignorance of one's
legal rights cannot be asserted as a basis for the failure to
pursue a cause of action.
5. Statutes -- Wrongful Death Statute -- personal representative
conduit that allows proceeds from successful suit to reach
beneficiaries -- such proceeds do not become part of estate. -
- The supreme court has interpreted the role of the personal
representative under the Wrongful Death Statute to be one of
a mere conduit that allows the proceeds from a successful suit
to reach the beneficiaries under the statute; accordingly,
these proceeds do not become part of the estate.
6. Wills -- settlement not signed by all persons with statutory
rights to proceeds -- settlement not binding. -- The family-
settlement agreement was ineffective as a settlement of the
wrongful-death action because it was not signed by all of the
persons with statutory rights to the proceeds; where a
settlement agreement is not signed by all interested parties,
it is not binding even on those who did actually sign the
agreement.
7. Wills -- wrongful-death claim did not fall within purview of
Memorandum Agreement -- trial court erred in finding wrongful-
death action filed against appellee was in contravention of
settlement agreement. -- The trial court erred in finding that
the wrongful-death action filed against appellee was in
contravention of the settlement agreement; there was no
language in the Memorandum Agreement which would have released
appellee from a wrongful-death action; the agreement's purpose
was merely to avoid litigation involving the lost will; it was
a compromise and settlement of all matters involved in the
administration and distribution of the estate of the decedent;
persons with statutory rights to the proceeds were not made
parties to the settlement, and the agreement never purported
to settle all claims between the parties.
8. Wills -- powers and duties of administrator. -- The
administrator of an estate is empowered by statute to make
settlements on behalf of the estate; he may effect a
compromise settlement of any claim, debt, or obligation due or
owing to the estate, whether arising in contract or tort.
9. Wills -- memorandum agreement settled survival action
appellant sought to bring on behalf of estate -- trial court
found that agreement was family-settlement agreement as matter
of law. -- The trial court properly found that the memorandum
agreement settled and released the estate's survival cause of
action against appellee; the plain language of the agreement
stated that it was a "compromise and settlement of all matters
involved in the administration and distribution of the estate
of the decedent"; moreover, the agreement was executed by all
parties designated as beneficiaries under the lost will and by
the sole heir-at-law to the estate; the trial court found that
the memorandum agreement was a family-settlement agreement as
a matter of law; such agreements are afforded a legal status
distinct from typical contracts, and will be enforced without
closely scrutinizing the consideration of the transaction or
the strict legal rights of the parties.
Appeal from Miller Probate Court; Jim Hudson, Probate Judge;
affirmed in part, reversed in part, and remanded.
David J. Potter, for appellant.
Wright, Chaney, Berry & Daniel, P.A., by: William G. Wright
and Edward M. Slaughter, for appellee.
Andree Layton Roaf, Judge.
Appellant Howard Skaggs entered into a compromise settlement
with appellee Charles Cullipher to avert litigation of a will
contest. Skaggs and Cullipher were subsequently appointed co-
administrators of the estate. Skaggs sought to bring wrongful
death and survival actions against Cullipher some nine months after
petitioning that the estate be closed, but prior to completing all
steps necessary to close the estate. Skaggs appeals a probate
court order granting Cullipherþs motion for summary judgment and
motion to dismiss the wrongful death and survival actions. We
reverse the probate court's findings that the estate was closed by
operation of law, and that the settlement agreement precluded the
wrongful death action, and remand.
On October 3, 1992, Sophia Morris Cullipher died a few hours
after being run over by a combine operated by her husband, Charles
Edward Cullipher, the appellee in this case. Mrs. Cullipher had
prepared a Last Will and Testament that could not be found after
her death. On October 8, 1992, Mrs. Cullipherþs brother, Howard
Skaggs, the appellant in this case, filed a petition in Miller
County Probate Court to restore the lost will and appoint him as
executor. Filed with his petition was a hand written draft and a
typed copy of the will, both prepared by Mrs. Cullipherþs attorney.
These documents named Howard Skaggs as executor and primary
beneficiary, and left Charles Cullipher, the decedentþs spouse,
nothing.
On October 23, 1992, Cullipher filed a petition opposing
probate of the alleged lost will. The petition prayed that an
intestacy be declared and that Cullipher be appointed
administrator. Since Mrs. Cullipher had no lineal descendants,
Cullipher was the sole heir at law. On November 5, 1992, the
Miller County Sheriff's Department began an investigation into the
death of Mrs. Cullipher, but ultimately, no criminal charges were
ever filed against Cullipher.
On November 6, 1992, Cullipher joined the devisees of the lost
will in a settlement styled "Memorandum Agreement," that averted
litigation of the will contest, and recited as its purpose to avoid
"the expenses, delay, and uncertainties of outcome in litigation
involving [the] lost will." Accordingly, it purported to be a
"compromise and settlement of all matters involved in the
administration and distribution of the estate of the decedent."
Parties to the Memorandum Agreement included Skaggs, his spouse,
daughter, son-in-law, and two minor grandchildren, one of Mrs.
Cullipherþs three living sisters, and Cullipher. However, several
potential beneficiaries under the Arkansas Wrongful Death Statute,
Ark. Code Ann. 16-62-102 (d) (1987), including Mrs. Cullipher's
mother, two sisters and two brothers, were not made parties to the
settlement. The Memorandum Agreement was filed along with a
petition for approval of the settlement in the Probate Court of
Miller County and was approved by an order which also appointed
Skaggs and Cullipher as co-administrators.
Administration of the estate proceeded to distribution of the
inventoried assets and payment of attorney's fees, and the co-
administrators petitioned to close the estate. An order was
entered on July 1, 1993, approving final distribution and discharge
of the personal representatives and closing of the estate "upon
report of such payments and distribution." No such reports were
ever filed.
On March 10, 1994, after engaging new counsel, Skaggs filed a
wrongful death complaint in Miller County Circuit Court, and moved
in Miller County Probate Court to reopen the estate to pursue a
survival action and wrongful death claim. The motion was granted
on March 14, 1994, by order which reopened the estate, authorized
Skaggs to proceed against Cullipher in his individual capacity, and
barred Cullipher from serving as co-administrator. However, on
October 18, 1994, the Miller County Probate Court granted
Cullipherþs motion to dismiss and for a judgment as a matter of law
and motion for summary judgment to enforce the family settlement
agreement. The order stated that the estate of Mrs. Cullipher was
deemed closed by the July 1, 1993, order and directed Skaggs to
dismiss with prejudice his wrongful death action pending in Miller
County Circuit Court.
Skaggs raises the following four issues in his appeal from the
October 18, 1994, order: (1) the court erred in finding the estate
was closed or that it lacked jurisdiction to reopen the estate;
(2) the court erred in granting summary judgment; (3) the court
erred in finding that the Memorandum Agreement settled and released
Cullipher from the wrongful death cause of action filed on behalf
of the statutory heirs; and (4) the court erred in finding that
the Memorandum Agreement settled and released the estate's survival
cause of action against Cullipher.
1. Closure of the estate
Skaggs first argues that the trial court erred in finding the
estate was closed. He argues alternatively that even if the estate
was closed, the court erred in finding that it lacked jurisdiction
to re-open the estate based upon Ark. R. Civ. P. 60(b), because
Ark. Code Ann. 28-53-119(a)(1) (1987) specifically provides for
reopening a probate estate. We do not reach the issue of whether
the probate court had jurisdiction to reopen the estate because we
agree that the estate was not closed.
In its order granting Cullipherþs motion for summary judgment
and motion to dismiss, the probate court found as a matter of law
that the estate of Mrs. Cullipher was closed by its July 1, 1993,
order even though certain ministerial duties had not been
discharged. Skaggs argues that the estate was never closed,
because the July 1, 1993, order required the filing of a report of
final payments and distribution to officially close the estate. It
is undisputed that the report was never filed. Skaggs further
points to the fact that the probate court acknowledged that the
estate was open in a Memorandum Opinion of September 28, 1994, when
it directed him to complete the "ministerial duties" of the
administrator and close the estate within thirty days. This
language was inexplicably omitted in the October 18, 1994, order.
On the other hand, Cullipher contends that the trial court was
correct in finding the estate closed for either of two reasons:
(1) failure to file the administrator's final report as required by
the plain language of the July 1, 1993, order did not leave the
estate open "for all purposes," and the probate court retained
jurisdiction, if at all, only for the specific and limited purpose
of accepting the filing of the final report; or (2) assuming the
estate remained open for all purposes, the estate was closed by
operation of law due to the failure of Skaggs to timely execute his
duties as co-administrator.
We do not agree with either of Cullipherþs contentions. He
cites no authority to support his contention that the estate
remained open for only a þlimited purpose.þ With regard to his
second contention, Cullipher offers Ark. Code Ann. 28-52-103
(1987) as authority for the proposition that the estate at some
time closed through operation of law; this argument is not
persuasive. Although 28-52-103 provides that a probate court may
compel an administrator to discharge his or her lawful duties,
nowhere does the statute provide for the closing of an estate
independent of affirmative action by a probate court.
Further, Cullipher's assertion that Skaggsþs failure to timely
close the estate in contravention of Ark. Code Ann. 28-52-102 (a)
(1987) allows the estate to be deemed closed on equitable doctrines
is equally unpersuasive. This statute merely states "a personal
representative shall close the estate as promptly as practicable."
Id. Moreover, this argument ignores the fact that Cullipher was a
co-administrator of the estate along with Skaggs, and also did not
file the final report required to close the estate, and does not
explain why justice demands that the probate court relieve
Cullipher of a burden created by his own inaction. Clearly,
Cullipher could have sought closure of the estate by filing the
final report, or the probate court could have compelled completion
of the remaining ministerial duties and then ordered the estate
closed. Neither course of action was taken, and we know of no
authority by which an open estate may be closed other than by order
of the probate court.
2. Summary judgment on disputed issues
Skaggs next argues that the trial court erred in granting a
summary judgment on disputed issues. In a memorandum opinion, the
probate court found that Skaggs was aware, or should have been
aware of the legal claims that allegedly existed for the wrongful
death of Mrs. Cullipher at the time he signed the family settlement
agreement. Skaggs contends that he was not aware that the estate
had a cause of action against Cullipher until he consulted with his
present attorney. We do not find any merit to this argument
because ignorance of oneþs legal rights cannot be asserted as a
basis for the failure to pursue a cause of action. See Wilson v.
G.E. Capital, 311 Ark. 84, 87, 841 S.W.2d 619, 620-21 (1992).
3. Wrongful death action
Skaggsþs third assertion is that the court erred in finding
that the Memorandum Agreement settled and released the cause of
action for wrongful death filed on behalf of the statutory heirs.
In its memorandum opinion, the trial court found that the
Memorandum Agreement that averted litigation of the will contest
was a family settlement agreement as a matter of law. The trial
court also found that the agreement was enforceable and should be
enforced, and that the wrongful death action pending in circuit
court was in contravention of the agreement. In the order granting
defendant's motion for summary judgment and motion to dismiss, the
trial court found that the language of the family settlement
agreement released all claims which the estate of Mrs. Cullipher
and the parties to the agreement could have pursued between
themselves arising from her death, including an alleged wrongful
death suit against Cullipher.
We agree with Skaggs that the wrongful death claim did not
fall under the purview of the Memorandum Agreement. While the
Arkansas Wrongful Death Statute requires that the action be brought
by the personal representative of the deceased person, Ark. Code
Ann. 16-62-102 (b) (Supp. 1995), the statute states further that
"[n]o part of any recovery referred to in this section shall be the
subject of the debts of the deceased or become, in any way, a part
of the assets of the estate of the deceased person.þ Ark. Code
Ann. 16-62-102(e) (Supp. 1995).
The Arkansas Supreme Court has interpreted the role of the
personal representative under the Wrongful Death Statute to be one
of a mere conduit that allows the proceeds from a successful suit
to reach the beneficiaries under the statute. Accordingly, these
proceeds do not become part of the estate. Dukes v. Dukes, 233
Ark. 850, 349 S.W.2d 339 (1961).
Skaggs contends, and we agree, that there is no language in
the Memorandum Agreement which would serve to release Cullipher
from a wrongful death action. The agreement recites as its purpose
to avoid "the expenses, delay, and uncertainties of outcome in
litigation involving [the] lost will," and it purports only to be
a "compromise and settlement of all matters involved in the
administration and distribution of the estate of the decedent."
(Emphasis provided.) We further concur that the agreement is
ineffective as a settlement of the wrongful death action because it
was not signed by all of the persons with statutory rights to the
proceeds. The statute defines the parties in interest in a
wrongful death suit as follows:
The beneficiaries of the action created in this section
are the surviving spouse, children, father and mother,
brothers and sisters of the deceased person, persons
standing in loco parentis to the deceased person, and
persons to whom the deceased person stood in loco
parentis to.
Ark. Code Ann. 16-62-102(d) (Supp. 1995). In this case, several
statutory beneficiaries including Mrs. Cullipher's mother, two of
her sisters, and one of her brothers, were not made parties to the
settlement. If indeed the settlement agreement was intended to
settle the wrongful death claim, and in effect relinquish the
rights of the statutory heirs, then those persons had to be made
parties to the agreement. In Wallace v. King, 205 Ark. 681, 170 S.W.2d 377 (1943), the Arkansas Supreme Court held that where a
settlement agreement was not signed by all interested parties, it
was not binding even on those who did actually sign the agreement.
For the foregoing reasons, we hold that the trial court erred
in finding that the wrongful death action filed against Cullipher
was in contravention of the settlement agreement.
Our holding is primarily premised not on who actually signed
the agreement, as the dissent by Chief Justice Robbins contends,
but upon what the agreement purports to settle -- not þall claims
between the partiesþ but rather all matters involved in the
administration and distribution of Mrs. Cullipherþs estate.
Consequently, the rationale for enforcing the agreement with regard
to claims which would accrue to the estate, i.e., pain and
suffering, medical expenses and funeral expenses, of the decedent,
does not serve to also foreclose a wrongful death claim not due or
owing to the estate, whether the agreement is signed by the
statutory beneficiaries of the wrongful death action or not.
Moreover, the fact that only the beneficiaries named in Mrs.
Cullipherþs will and her sole intestate heir-at-law, her spouse,
signed the settlement agreement supports a finding that the
agreement compromised and settled only matters involved in her
estate.
4. Survival action
We reach a different conclusion with regard to Skaggsþs
argument that the court erred in finding that the agreement settled
and released the estate's survival cause of action against
Cullipher. Skaggs contends that the only intention of the parties
to the Memorandum Agreement was to settle the division of assets
and debts then known to exist in the estate. He suggests that a
careful reading of the agreement and all other documents associated
with the estate will prove that they contained no language that
could reasonably be construed to constitute a release of all claims
against Cullipher.
However, in this action, Skaggs is acting to marshal assets
that will, if the suit succeeds, become part of the estate. The
plain language of the agreement states that it is a "compromise and
settlement of all matters involved in the administration and
distribution of the estate of the decedent." Moreover, the
agreement was executed by all parties designated as beneficiaries
under the lost will and by Cullipher, the sole heir-at-law to the
estate. The administrator is empowered by statute to make
settlements on behalf of the estate. Ark. Code Ann. 28-49-104(a)
(1987) states in pertinent part:
When it appears to be for the best interest of the estate
or in the case of an action for wrongful death or for the
best interest of the estate or widow and next of kin, the
personal representative, upon the authorization of or
approval by the court, may effect a compromise settlement
of any claim, debt, or obligation due or owing
to the estate, whether arising in contract or
tort,. . . .þ
(Emphasis supplied.)
Skaggs argues that the agreement should fail because it does
not contain all of the elements of a contract, however, he does not
dispute the trial courtþs finding that the Memorandum Agreement was
a family settlement agreement as a matter of law. Such agreements
are afforded a legal status distinct from typical contracts, and
will be enforced without closely scrutinizing the consideration of
the transaction or the strict legal rights of the parties. Giers
v. Hudson, 102 Ark. 232, 143 S.W. 916 (1912). See also Shell v.
Sheets, 202 Ark. 708, 152 S.W.2d 301 (1941). Accordingly, we do
not agree that the trial court erred in finding that the Memorandum
Agreement settled the survival action that Skaggs sought to bring
on behalf of the estate of Mrs. Cullipher.
As to Judge Rogersþs concurring and dissenting opinion that
the probate court lacks jurisdiction over torts, the authority upon
which she relies stands only for the proposition that a probate
court may not litigate tort claims or deal with such claims on a
substantive basis. Two of the cases cited, Eddleman v. Estate of
Farmer, 294 Ark. 8, 140 S.W.2d 141 (1987) and In re Morgan, 310
Ark. 220, 833 S.W.2d 776 (1992) involved the attempt to try tort
cases in probate court. The other case, Carpenter v. Logan, 281
Ark. 184, 662 S.W.2d 808 (1984), affirmed the probate courtþs
dismissal of letters of administration for the estate of an unborn
fetus, but contained dicta that a wrongful death action by the
heirs at law would not be precluded. We find that the probate
courtþs exercise of jurisdiction in this case was not an attempt to
litigate the tort claim.
A probate court has constitutionally vested jurisdiction over
the actions of persons appointed to act on behalf of an estate.
Ark. Const. art. 7, 34. The probate court will therefore have
some superintending authority over wrongful death actions because
only a personal representative may bring a survival action if one
has been appointed. Ark. Code Ann. 16-62-102(b) (Supp. 1995);
see, e.g., Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).
Moreover, it is clear that probate courts have jurisdiction with
regard to the settlement of tort claims, pursuant to Ark. Code Ann.
28-49-104(a) (1987). Furthermore, probate courts have the
authority to determine whether there has been a family settlement
agreement in the course of approving distribution of estate assets.
Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). In short, a personal representative has the
authority to settle tort claims due the estate, and the probate
court has the authority to approve such settlements. This is no
more than the probate court did in this instance -- it determined
that a family settlement agreement had been reached which
encompassed such a claim.
Affirmed in part, reversed in part, and remanded.
Robbins, C.J., Crabtree, Rogers, Pittman, and Neal, JJ., agree
as to Part I and II.
Crabtree, J., agrees as to Part III, and Rogers and Pittman,
JJ., concur in the result.
Robbins, C.J., and Neal, J., dissent as to Part III.
Robbins, C.J., Crabtree, and Neal, JJ., agree as to Part IV.
Rogers and Pittman, JJ., dissent as to Part IV.
John B. Robbins, Judge, concurs in part and dissents in part.
While I agree with much of Judge Roaf's opinion, and for that
reason concur in part, I do not believe that the trial court erred
in its finding pertaining to the action filed by Howard Skaggs in
the Miller County Circuit Court. The probate court held that the
family-settlement agreement released all claims that the estate
and the parties to the agreement could have pursued between
themselves arising from the decedent's death, and that the action
filed by Howard Skaggs in the Miller County Circuit Court was in
contravention of this family-settlement agreement. The probate
court could properly so hold.
Judge Roaf's opinion affirmed the probate court's finding
that the family-settlement agreement constituted a release of
any survival action that the estate may have had against appellee.
Her opinion does so because the family-settlement agreement was
executed by appellee, who stood to inherit the decedent's entire
intestate estate as surviving spouse, and all parties designated
as beneficiaries under the decedent's lost will. To paraphrase
her rationale: inasmuch as all persons interested in the estate,
including the beneficiaries under the decedent's lost will and the
decedent's surviving spouse, have joined in the family-settlement
agreement, they should be bound to it because such agreements are
favored at law and will be enforced without scrutinizing the strict
legal rights of the parties. Judge Roaf cites Giers v. Hudson, 102
Ark. 232, 143 S.W. 916 (1912), and Shell v. Sheets, 202 Ark. 708,
152 S.W.2d 301 (1941). I would add Jones v. Balentine, 44 Ark.
App. 62, 866 S.W.2d 829 (1993).
I submit that this same rationale should apply to the issue
addressed in section number three of Judge Roaf's opinion. I
believe that she errs by accepting as relevant the major premise
on which the appellant's argument is based, i.e., that a valid
settlement of a wrongful death action must be signed by all
statutory beneficiaries. This premise is irrelevant, because the
trial court did not find that the family-settlement agreement
settled and released the cause of action against appellee for
wrongful death on behalf of all of the decedent's heirs. Although
appellant refers to "heirs" of the decedent, his brief clarifies
that this reference is meant to refer to the statutory
beneficiaries listed in the wrongful death statute, which includes
"the surviving spouse, children, father and mother, brothers, and
sisters of the deceased person, persons standing in loco parentis
to the deceased person, and persons to whom the deceased stood in
loco parentis." Ark. Code Ann. 16-62-102(d) (Supp. 1995). Judge
Roaf's opinion notes that all of these statutory beneficiaries did
not join in signing the family-settlement agreement and agrees with
appellant that if the settlement agreement intended to settle the
wrongful death claim then all of these statutory beneficiaries had
to be made a party to the agreement. Judge Roaf cites Wallace v.
King, 205 Ark. 681, 170 S.W.2d 377 (1943), as holding that where a
settlement agreement was not signed by all interested parties, it
was not binding even on those who did actually sign the agreement.
I submit, however, that the holding of Wallace is that a contract
prepared for and intended to be signed by all of the parties named
in it does not bind those who sign it if any of those who were to
have signed it refuse to do so. The family-settlement agreement
involved in this case was signed by all persons who were intended
to sign it.
A close reading of the probate court's order reveals that it
did not hold that a statutory beneficiary who was not a party
to the family-settlement agreement could not bring a wrongful
death action. It held that the family-settlement agreement
released all claims between the parties to the agreement arising
from the decedent's death, including a wrongful death suit against
appellee, and that the circuit court action brought by Howard
Skaggs contravened this agreement. Section I of the complaint
filed by Howard Skaggs makes it quite clear that, rather than a
statutory wrongful death action, Mr. Skaggs was seeking recovery
only for and "on behalf of the beneficiaries under the will and
testament of Sophia E. Cullipher." The beneficiaries under the
purported will of Sophia E. Cullipher were Howard Skaggs, Debra
Johnson, Darlene DeLaughter, Emma Lang, Abby Lynn Johnson, and
Emily K. Johnson. All of these beneficiaries joined in and were
parties to the family-settlement agreement. The statutory
beneficiaries under the wrongful death statute include two of the
devisees under the will, but also include the following persons for
whose benefit the circuit action was not brought: the decedent's
mother, Frances Skaggs; the decedent's sisters, Betty Woods and
Annie Dale Cashen; and the decedent's brothers, Lewis Skaggs and
Charles Skaggs. Although denominated a wrongful death action, the
complaint only sought recovery for two of these seven statutory
beneficiaries. Consequently, it was not a statutory wrongful death
action but something else. But whatever it was, all of the persons
for whom recovery was sought in the circuit court action were
signatories to the family-settlement agreement.
I think it inconsistent and illogical to hold that the family-
settlement agreement does not bar a wrongful death action because
only two of seven statutory beneficiaries were parties to
the agreement, yet permit appellant to seek relief for only these
same two statutory beneficiaries in his circuit court action. I
would be inclined to agree with Judge Roaf's opinion on this issue
if the circuit action had been for the benefit of even one of the
wrongful death beneficiaries who had not joined in the family-
settlement agreement. But it was not, and I think it is error to
base a decision on the rights of persons who were not before the
trial court, nor before us on this appeal, and who do not stand to
gain or lose by our decision in this matter.
I would affirm the trial court on all issues, except its
holding that the probate proceeding had been closed by its order of
July 1, 1993.
With respect to the concurring opinion of Judge Rogers, in
which she opines that the probate court lacked subject matter
jurisdiction to address the issues of the survival action and
putative wrongful death action in circuit court, I disagree for
the following reasons. As discussed above, I believe the probate
court's action in finding that the family-settlement agreement
released all claims that the parties to the agreement could have
pursued between or among themselves arising out of the decedent's
death, and that Mr. Skagg's circuit court action violated this
agreement, did not constitute an exercise of tort claim
jurisdiction. The probate court was simply enforcing a family-
settlement agreement in the course of the probate proceeding. Nor
was it an original action to cancel or enforce an alleged family-
settlement agreement where chancery jurisdiction might attach. See
Alexander v. 1st Nat'l. Bk., Ft. Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). A probate court has jurisdiction to interpret and
enforce a family-settlement agreement during the course of the
administration of a decedent's estate. Id.
The cases cited in Judge Rogers's concurring opinion deal with
the issues of whether a probate court could try a tort claim and
whether probate could determine if a tort claim existed that could
be tried. In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992);
Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987);
Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984). Here, the
probate court neither undertook to try a tort claim nor purported
to rule on whether a tort claim existed that could be filed in
circuit court. It simply held that the parties to the family-
settlement agreement could not initiate this action and that
Mr. Skaggs, who had obtained an order from the probate court
authorizing him to file the circuit court action, should dismiss
it because it violated the family-settlement agreement.
Neal, J., joins in this opinion.
Judith Rogers, Judge, concurs in part and dissents in part.
The opinion authored by Judge Roaf more than adequately sets
out the facts of this case as are necessary for an understanding of
the various opinions offered in this matter; therefore, I will not
recite them here. Also, since this court is in agreement that the
probate court erred in ruling that the estate was closed, I will
not revisit that issue in this opinion. Although I concur in the
reversal of the probate court's decision ordering the dismissal of
the wrongful death action, I agree to reverse on a different and
more fundamental ground, which is that the probate court was
without jurisdiction to determine whether the family settlement
agreement operated as a bar to the pending wrongful death action in
circuit court. For this reason, I dissent to an affirmance of the
probate court's decision that the estate's survival action cannot
be maintained.
In its order, the probate court ordered the dismissal of the
wrongful death action based on a finding that the family settlement
agreement released all claims which the parties could have pursued.
In Arkansas, however, the probate court is a court of special and
limited jurisdiction, having only such jurisdiction and powers
conferred by the constitution or by statute, or necessarily
incidental to the exercise of the jurisdiction and powers
specifically granted. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984). It is well settled that a probate court does not have
jurisdiction to render decisions dispensing with tort claims. In
re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992); Eddleman v. Estate
of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987); Carpenter v. Logan,
supra. In Eddleman v. Estate of Farmer, supra, the appellant had
filed a contingent tort claim against the estate in the probate
court. The probate court accepted the appellee's defense and ruled
that the statute of limitations had run on appellant's claim. On
appeal, the supreme court reversed, holding that the probate court
did not have jurisdiction to rule on the tort suit and that its
decision on the statute of limitations issue was void. In the case
of In re Morgan, supra, the supreme court affirmed the probate
court's dismissal of a tort claim based on its ruling in Eddleman
that a probate court is without jurisdiction to decide tort claims.
And, in Carpenter v. Logan, supra, the appellant asked the supreme
court to determine, in an appeal from a probate court, whether an
unborn, viable fetus born dead as a result of trauma caused by
negligence or willful and wanton misconduct has a cause of action
against the tortfeasor for wrongful death. The court declined to
address the issue stating that the action, if any, was a tort
action cognizable in circuit court and that it would not entertain
it on appeal from an ex parte probate proceeding.
It should be clear from these decisions that the probate court
in this instance exceeded its jurisdiction by deciding that the
claim for wrongful death was barred by the family settlement
agreement. By ruling on the appellee's motion for summary
judgment, the court effectively exercised jurisdiction over the
tort claim pending in circuit court. Indeed, the court reached far
beyond the limits of its jurisdiction by ordering the dismissal of
that action. In sum, the court determined what amounts to a
defense to that action which, like the statute of limitations
ruling in Eddleman, is void and thus cannot be sustained on appeal.
Because this portion of the probate court's decision is void, it is
not necessary or even proper for this court to offer any opinion as
to the merits of appellee's motion for summary judgment. This same
jurisdictional impediment applies equally to this court's decision
to affirm the ruling that the release acts as a bar to the estate's
survival action. That decision is also beyond the probate court's
jurisdiction; therefore, I must respectfully dissent to an
affirmance on that point.
In response to the criticism of my view in the other opinions,
I respectfully submit that the pursuit of a wrongful death action
has nothing to do with the administration of an estate.
Furthermore, although Ark. Code Ann. 28-49-104(a) (1987) does
provide for the probate court's approval of an executor's proposed
settlement of a wrongful death claim, there is nothing in the
probate code which requires the executor or any interested party to
seek permission of the probate court before pursuing such an
action. The fact remains that the probate court ordered the
dismissal of the action, which is a decision it was without
jurisdiction to make.
I am authorized to state that Judges Pittman joins in this
opinion.
PER CURIAM OPINION FOLLOWS Howard SKAGGS v. Charles Edward CULLIPHER
CA 96-258 ___ S.W.2d ___
Court of Appeals of Arkansas
Divisions I & IV
Opinion delivered April 2, 1997
Judgment -- companion decision of court of appeals clarified --
will case reversed in part and affirmed in part. -- The
finding of the probate court that the estate was closed was
reversed by unanimous decision; the finding of the probate
court that the family-settlement agreement settled and
released the cause of action for wrongful death was reversed;
the finding of the probate court that the survival action of
the estate could not be maintained was affirmed.
Appeal from Miller Probate Court; Jim Hudson, Probate Judge;
affirmed in part; reversed in part.
David J. Potter, for appellant.
Wright, Chaney, Berry & Daniel, P.A., by: William G. Wright
and Edward M. Slaughter, for appellee.
Per Curiam.
In the case at bar, the decision of this court is as follows.
The finding of the probate court that the estate was closed is
reversed by unanimous decision as expressed in the opinion authored
by Judge Roaf.
The finding of the probate court that the family-settlement
agreement settled and released the cause of action for wrongful
death is reversed upon the opinion authored by Judge Roaf, as
joined by Judge Crabtree, and the opinion authored by Judge Rogers,
as joined by Judge Pittman, with Chief Judge Robbins and Judge Neal
dissenting.
The finding of the probate court that the survival action of
the estate cannot be maintained is affirmed as expressed in the
opinion authored by Judge Roaf, as joined by Chief Judge Robbins
and Judges Neal and Crabtree, with Judges Rogers and Pittman
dissenting.
It is so ordered.
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