In the Matter of the Estate of Julia G. Denton, Deceased and Howard Jones et al. v. W.J. Garrich and Stephen Garrich

ca04-860

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-860

April 6, 2005

IN THE MATTER OF THE ESTATE AN APPEAL FROM THE JACKSON

OF JULIA G. DENTON, DECEASED COUNTY CIRCUIT COURT

AND HOWARD JONES, et al. [PR-03-47]

APPELLANTS

v. HONORABLE PHILLIP G. SMITH,

JUDGE

W.J. GARRICH AND

STEPHEN GARRICH

APPELLEES AFFIRMED

Olly Neal, Judge

This is a will-construction case. On appeal, appellants argue that the trial court erred in refusing to consider extrinsic evidence to construe an ambiguity in the will. We affirm.

Appellants are Howard E. Jones, personal representative for the Estate of Julia G. Denton, deceased, and certain distributees under Mrs. Denton's Last Will and Testament. Appellee W.J. Garrich is Mrs. Denton's brother and a distributee under her will. Appellee Stephen Garrich is Mrs. Denton's nephew and also a distributee under her will.

On November 20, 2003, Mr. Jones filed a petition for construction of Mrs. Denton's will. At issue was the construction of paragraphs III A and B of Mrs. Denton's will. Those paragraphs provide:

A. An undivided one-fifth (1/5th) interest to my beloved brother, W.J. Garrich, of Arlington, Virginia, if he shall survive me. If the said W.J. Garrichshall not survive me, an undivided one-fifth (1/5th) interest to his descendant, per stirpes; provided, however, that this devise and bequest shall not exceed Fifteen Thousand Dollars ($15,000.00).

B. An undivided one-fifth (1/5th) interest to my beloved nephew, Stephen Garrich, the son of my deceased brother, A.A. Garrich, if he shall survive me. If the said Stephen Garrich shall not survive me, an undivided one-fifth (1/5th) interest to the heirs at law of the said Stephen Garrich; provided, however, that this devise and bequest shall not exceed Seven Thousand Five Hundred Dollars ($7,500.00).

Appellants argued that the $15,000 and $7,500 caps applied to the appellees' entire devise, regardless of whether or not they survived Mrs. Denton. In response to the petition for construction, the appellees argued that the caps did not apply and because they had survived Mrs. Denton, they were each entitled to one-fifth of Mrs. Denton's estate.

At the hearing on the petition, appellants argued that the paragraphs were ambiguous. In support of their argument, appellants proffered extrinsic and parol evidence concerning Mrs. Denton's intent. In its ruling from the bench, the trial court found the following: (1) the will was not ambiguous, thereby refusing to consider the parol and extrinsic evidence; and (2) the appellees were each entitled to one-fifth of Mrs. Denton's estate. An order memorializing the trial court's findings was entered on April 19, 2004. From that order comes this appeal.

On appeal, appellants argue that the trial court clearly erred by refusing to consider extrinsic evidence to construe an ambiguity in Mrs. Denton's will. In the interpretation of wills, the paramount principle is that the intent of the testator governs. Harrison v. Harrison, 82 Ark. App. 521, 120 S.W.3d 144 (2003). The testator's intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator's intent if the terms of the will are ambiguous. Id. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression in a written instrument. Id. There are two types of ambiguity, patent and latent. Smith v. Smith, 229 Ark. 579, 317 S.W.2d 275 (1958). Patent ambiguity is that which appears on the face of the instrument and occurs when the expression of an instrument is so defective that a court cannot ascertain the intent of the parties. Id. Latent ambiguity does not appear on the face of the instrument. Id. Latent ambiguity occurs when a word can be applied equally to different things or subject matter. Id.

Appellants argue that paragraphs III A and B, are both patently and latently ambiguous. They argue that the clauses beginning with "provided, however," can be interpreted as applying to the entire paragraph. We disagree. The sentences providing the appellees a one-fifth interest are independent clauses distinct from the clauses that follow each of them in that each is separated from them by a period. The two independent clauses, that follow the first sentence of each paragraph, are separated by a semicolon. A semicolon is used to join two related independent clauses. See Strunk & White, The Elements of Style 5-6 (4th ed. 2000). The sentences giving the appellees their one-fifth interest are not related to the clauses that follow them. Therefore, the clauses beginning with "provided, however" cannot be read to modify the entirety of paragraphs III A and B.

We hold that there was no ambiguity in Mrs. Denton's will, thus, there was no need for extrinsic or parol evidence. Furthermore, we do not allow the admission of extrinsic or parol evidence in order to create an ambiguity. Paragraphs III A and B provide that, if the appellees survive Mrs. Denton, they are each entitled to a one-fifth interest in her estate; if the appellees had failed to survive Mrs. Denton, their heir(s) would receive their interest subject to the caps contained in the devises. Accordingly, we affirm the decision of the trial court.

Affirmed.

Pittman, C.J., and Robbins, J., agree.