Cleveland v. Estate of Stark

Myrtle CLEVELAND, et al. v. ESTATE of Ezra E.
STARK, Deceased

96-152                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 28, 1996


1.   Appeal & error -- abstract did not reflect that argument was
     made at trial -- issue not reached on appeal. -- Where the
     abstract did not reflect that the appellants' argument was
     made to the probate judge, the appellate court would not reach
     the issue on appeal; the record on appeal is limited to that
     which is abstracted; the abstract must show that the appellant
     has preserved his argument for the purposes of appeal. 

2.   Appeal & error -- abstract did not reflect will in its
     entirety -- on de novo review court must have access to
     precise language used in will. -- Where the abstract of the
     will did not reflect the will in its entirety and the court
     was asked to interpret the language of the will de novo, it
     was critical that the court have been furnished with the
     precise language used in the will; it is a practical
     impossibility for seven justices to examine a single
     transcript filed with the supreme court.


     Appeal from Cross Probate Court; Kathleen Bell, Probate Judge;
affirmed.
     Tiner & Hunter, for appellants.
     Deloss McKnight, for appellee.

     Bradley D. Jesson, Chief Justice.May 28, 1996   *ADVREP*SC1*





MYRTLE CLEVELAND, ET AL.,
                    APPELLANTS,

V.

ESTATE OF EZRA E. STARK,
DECEASED,
                    APPELLEE,




96-152



APPEAL FROM THE CROSS COUNTY
PROBATE COURT,
NO. P93-102,
HON. KATHLEEN BELL, JUDGE,


AFFIRMED.




                 CHIEF JUSTICE BRADLEY D. JESSON

     
     This appeal arises from the probate judge's order distributing
the proceeds of the estate of Ezra Stark.  Mr. Stark died testate
on December 21, 1993.  Due to deficiencies in the appellants'
abstract, we are unable to reach the argument presented on appeal. 
We therefore affirm the probate judge's ruling.
     Ezra Stark executed his will in 1986.  He bequeathed his
property to his wife, Elizabeth Stark.  However, the will provided
that, should Elizabeth predecease him, his property would go to his
heirs and his wife's heirs, "share and share alike."  Mrs. Stark
indeed predeceased her husband thereby activating the alternative
disposition.  On the date of Mr. Stark's death, there were in
existence thirty-six heirs of Mr. Stark and three heirs of Mrs.
Stark.
     The probate judge interpreted the "share and share alike"
provision of the will to mean that one-half of the estate would be
shared among Mrs. Stark's heirs and one-half of the estate would be
shared among Mr. Stark's heirs.  The estate's value at the time of
distribution was approximately $44,000.00.  The practical effect of
the court's ruling is that the thirty-six heirs of Mr. Stark would
divide about $22,000.00 while the three heirs of Mrs. Stark would
divide the same amount.  The heirs of Mr. Stark appeal from the
court's ruling and argue that each individual should have received
an equal share of the estate.
     The abstract does not reflect that the appellants' argument
was made to the probate judge.  The record on appeal is limited to
that which is abstracted.  Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994).  The abstract must show that the appellant has
preserved his argument for the purposes of appeal.  Yates v. State,
301 Ark. 424, 785 S.W.2d 199 (1990).  When an appellant does not
include in his abstract the basis for his argument made at the
trial level, we will not reach the issue on appeal.  Stone v.
State, 321 Ark. 46, 900 S.W.2d 515 (1995);  Williams v. State, 320
Ark. 211, 895 S.W.2d 913 (1995);  Sanson v. Pullum, 273 Ark. 325,
619 S.W.2d 641 (1981).  See generally Kratzke v. Nestle-Beich,
Inc., 307 Ark. 158, 817 S.W.2d 889 (1991);  Whitlock v. Smith, 297
Ark. 399, 762 S.W.2d 782 (1989).
     We are also concerned that the abstract of the will does not
reflect the will in its entirety.  Since we are asked to interpret
the language of the will, and since our review is de novo, it is
critical that we be furnished with the precise language used in the
will.  It is a practical impossibility for seven justices to
examine a single transcript filed with this court, and we will not
do so.  In the Matter of the Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996).
     Affirmed.
     Dudley, J., not participating.