Chlanda v. Estate of Fuller

Shirley CHLANDA v. ESTATE of Milford G.
FULLER

96-625                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Wills -- ruling of probate court correct -- rules of
     construction come into play only where testator's intent is
     unclear from face of will. -- The probate court's ruling that
     the testator's intent could be gathered from the will itself
     was correct; the language "my wife's mother and father, or the
     survivor thereof," in the ordinary usage of the words, means
     to the survivor of the mother and father; a probate court is
     not required to resort to forced construction and to extend
     the meaning of the language in the will by speculating about
     surrounding circumstances; the rules of construction are used
     to determine the testator's intent when it is not clear from
     the face of the will rather than because the testator knew of
     such rules and principles and adopted them deliberately;  
     extrinsic evidence is not permissible to show intent in
     disregard of the express words used in the will; it is
     presumed that the testator knew the contents of the will that
     he executed. 

2.   Wills -- court's construction led to partial intestacy -- no
     error found. -- Appellant's argument that a holding that the
     language of the will was definite and certain would result in
     partial intestacy and that a court should construe a will to
     avoid partial intestacy was meritless; there is a presumption
     in the rules of construction that "a person who takes the time
     and effort to make a will does not desire partial intestacy";
     however, a probate court should not resort to the rules of
     construction unless the intent of the testator, as shown by
     his expressed words, is in doubt.    

3.   Wills -- extrinsic evidence will not be used unless ambiguity
     exists -- no ambiguity present. -- Appellant's contention that
     extrinsic evidence was admissible to identify a beneficiary
     was meritless; this rule of construction is not used unless
     there is some ambiguity; there was no such ambiguity in this
     case.

4.   Wills -- "survivor" may be subject to interpretation --
     majority of cases clear on meaning of word. -- Appellant was
     correct in stating that in some cases the word "survivor" has
     been interpreted to mean heirs or issue, but in almost all of
     those cases there was something else in the will that
     indicated such an intent; the clear majority of cases hold
     that the term "survivor" refers to the person among the
     designated class who outlives the other. 

5.   Judgment -- summary judgment -- standard of review. -- Summary
     judgment should only be granted when it is clear that there
     are no disputed issues of material fact; it is appropriate,
     however, to sustain a grant of summary judgment if the record
     before the trial court shows that there is no genuine issue of
     material fact and that the moving party is entitled to
     judgment as a matter of law. 

6.   Judgment -- when summary judgment is appropriate -- summary
     judgment was proper. -- As a general matter, questions of
     intent are inappropriate for summary judgment, but where, from
     the face of a written instrument, there is no doubt about the
     meaning of the instrument, summary judgment is appropriate;
     here, because there was no facial ambiguity, there was no
     genuine issue of material fact about whether parol evidence
     could be admitted, and summary judgment was proper.

7.   Appeal & error -- appellant must make a record sufficient to
     demonstrate error -- appellant failed to demonstrate
     prejudice. -- Appellant's argument that the court should
     reverse and remand because the probate court did not allow
     discovery was without merit for either of two reasons: first,
     the abstract did not contain a summary of an order denying
     discovery; it is incumbent upon an appellant to produce a
     record sufficient to demonstrate error, and the record on
     appeal is confined to that which is abstracted; the burden of
     obtaining a ruling is upon the movant and unresolved questions
     and objections are waived and may not be relied upon on
     appeal; second, the discovery request related to extrinsic
     evidence; extrinsic evidence was not considered on the motion
     for summary judgment; thus, even if the probate court had
     ruled, appellant could not have been prejudiced.

8.   Judgment -- summary judgment properly granted -- meaning and
     effect of will clear. -- Where the words narrowed the class
     named to one survivor of the class, "my wife's mother and
     father, or the survivor thereof," there was an unmistakable
     declaration that the two individuals named in the class were
     to enjoy the right of survivorship in the event of the death
     of one of them; as such, the chancellor was correct in the
     granting of summary judgment with respect to the meaning and
     effect of the will.  


     Appeal from Boone Probate Court; Gary Isbell, Probate Judge;
affirmed.
     Ledbetter & Associates, LTD, by:  Thomas D. Ledbetter and
Eichenbaum, Scott, Miller, Liles, & Hester, P.A., by:  Leonard
L.Scott and Peter B. Heister, for appellant.
     Johnny L. Nichols, for appellee.

     Robert H. Dudley, Justice.
     This case involves the construction of a will.  Milford G.
Fuller and Evelyn Coleman were married in 1944 and had no children
during their lengthy marriage.  In 1961, they contemporaneously
executed wills.  Evelyn Coleman Fuller died on December 19, 1994. 
Her will, which was admitted to probate, left all of her estate to
her husband, Milford G. Fuller.  Milford G. Fuller died on January
23, 1995.  His heirs are eleven cousins and an aunt.  Three of the
cousins petitioned the probate court to appoint coadministrators. 
Their petition stated that Milford Fuller died intestate.  The
probate court appointed coadministrators.  Shirley Chlanda, who was
the sister of Evelyn Fuller, subsequently filed a petition to admit
Milford G. Fuller's will to probate.  His will was admitted.
     Paragraph three of Milford G. Fuller's will is set out below
with the contested words highlighted:
In the event my said wife should predecease me or our
deaths should occur so closely one to the other that it
would be impossible to determine which deceased first, I
give, bequeath, devise, and covey unto my mother and
father, Luther Arnold Fuller and Clara Ethel Fuller of
Harrison, Arkansas, and my wife's mother and father,
Thomas S. Coleman and Julia Coleman of Herculaneum,
Missouri, all the property that I die seized of be it
real, personal, equitable or mixed, and wherever located. 
My mother and father, or the survivor thereof, to share
equally with my wife's mother and father, or the survivor
thereof, in said Estate.  [Emphasis supplied.]
     Petitioner Shirley Chlanda is the daughter of the Thomas S.
Coleman and Julia Coleman.  Both her parents and Milford G.
Fuller's parents, Luther Arnold Fuller and Clara Ethel Fuller,
predeceased Milford G. Fuller.  In her petition, she asked the
probate court to construe the words "my wife's mother and father,
or the survivor thereof," to mean the heirs of her mother and
father.  The coadministrators objected on the ground that the will
was definite and certain.  They filed a motion for summary judgment
in which they contended that the will clearly meant that the estate
was to go to the wife's parents or whichever of them survived the
other.  The trial court granted the coadministrator's motion for
summary judgment.  Shirley Chlanda appeals.  We affirm the grant of
summary judgment.
     The primary issue before the probate court was whether the
words "wife's mother and father, or the survivor thereof," are
uncertain or ambiguous.  The trial court ruled:
     When construing a testamentary document to arrive at
the testator's intention, one does not look at the
intention that existed in the testator's mind at the time
of execution, but that which is expressed by the language
of the instrument. . . . Parol evidence is admissible
only for the purpose of showing the meaning of the words
used in the will when they are ambiguous, and not to show
what the testator intended as distinguished from his
expressed words.
     [T]he Court would have to find that the term
"survivor" is ambiguous or uncertain.  The Court cannot,
and in order to realize the desire of the petitioner the
Court would have to change the word from singular to the
plural, and impute words to the documents to create a new
group of beneficiaries not otherwise denominated,
referred to, or implied in any way.  The Court would, in
essence, be called upon to engraft a new document to the
one at bar.  [Citations omitted.]
     On appeal, Shirley Chlanda's first assignment is that the
probate court erred in ruling that the will was definite and
certain and that extraneous evidence could not be admitted to show
the intent of the testator.  She contends that surrounding
circumstances should be considered even in determining whether
there is an uncertainty.  The probate court ruled that the
testator's intent could be gathered from the will itself.  See
Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).  The
ruling was correct.  The language "my wife's mother and father, or
the survivor thereof," in the ordinary usage of the words, means to
the survivor of the mother and father.  This common sense use of
the English language is buttressed by the fact that the will was
drawn by a lawyer, and the word "heirs" could have easily have been
substituted for the word "survivor" if that were the intent of the
testator.  See In re Miner's Estate, 129 Vt. 484, 282 A.2d 827
(1971).  Contrary to Chlanda's argument, a probate court is not
required to resort to forced construction and extend the meaning of
the language in the will by speculating about surrounding
circumstances.  See Acklin v. Riddell, 42 Ark. App. 230, 856 S.W.2d 322 (1993).  The rules of construction are used to determine the
testator's intent when it is not clear from the face of the will
"rather than because the testator knew of such rules and principles
and adopted them deliberately."  William J. Bowe, Page on The Law
of Wills,  30.4 at 14-15 (1961 & Supp. 1996).  Extrinsic evidence
is not permissible to show intent in disregard of the express words
used in the will.  In re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990).  It is presumed that the testator knew the
contents of the will that he executed.  Armstrong v. Butler, 262
Ark. at 39, 553 S.W.2d  at 457.
     Shirley Chlanda next argues that a holding that the language
is definite and certain will result in partial intestacy, and a
court should construe a will to avoid partial intestacy.  It is
correct to state that there is a presumption in the rules of
construction that "a person who takes the time and effort to make
a will does not desire partial intestacy."  Kidd v. Sparks, 276
Ark. 85, 90, 633 S.W.2d 13, 16 (1982).  However, a probate court
should not resort to the rules of construction unless the intent of
the testator, as shown by his expressed words, is in doubt.  Id. at
89-90, 633 S.W.2d  at 16; see also Armstrong v. Butler, 262 Ark. at
39, 553 S.W.2d  at 457.   
     Shirley Chlanda next contends that, in any event, extrinsic
evidence is admissible to identify a beneficiary.  Again, this rule
of construction is not used unless there is some ambiguity.  An
appropriate application of the use of the rule to identify
beneficiaries is found in Jesseph v. Leveridge, 205 Ark. 665, 170 S.W.2d 71 (1943), where the testatrix bequeathed jewelry to "her
niece," but that person was actually her grandniece.  Id. at 666,
170 S.W.2d  at 72.  The chancellor correctly found that "nephews and
nieces," as used in the will, was ambiguous.  Id. at 667, 170 S.W.2d  at 74.  Here, there is no such ambiguity.
     In the next point of appeal Chlanda argues that the word
"survivor" may mean heirs or issue, and this is especially true if
the word "thereof" is added.  We are not aware of any Arkansas
cases addressing the subject, but the meaning of the word
"survivor" has been the subject of litigation in courts across the
United States for many years.  Appellant is correct in stating that
in some cases the word "survivor" has been interpreted to mean
heirs or issue, but in almost all of those cases there is something
else in the will that indicates such an intent.  See A.M.
Swarthout, Annotation, Gift Over to Surviving Members of a Group of
Share of Deceased Member as Creating Absolute Interest in Last
Survivor, 166 A.L.R. 1272, 1291 (1947).  The clear majority of
cases cited in the annotation hold that the term "survivor" refers
to the person among the designated class who outlives the other. 
See, e.g., Estate of Mohr v. Ernst, 7 Cal. App. 3d, 86 Cal. Rptr. 731 (1970).
     Chlanda next contends that the probate court erred in granting
summary judgment.  The standard of review for a grant of summary
judgment is familiar.  Summary judgment should only be granted when
it is clear that there are no disputed issues of material fact. 
Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993).  It is
appropriate, however, to sustain a grant of summary judgment if the
record before the trial court "shows that there is no genuine issue
of material fact and that the moving party is entitled to judgment
as a matter of law."  Tullock v. Eck, 311 Ark. 564, 567, 845 S.W.2d 517, 519 (1993); Ark. R. Civ. P. 56(c).
     Chlanda, citing Ferguson v. The Order of United Commercial
Travelers of America, 35 Ark. App. 100, 814 S.W.2d 267 (1991)
(supplemental opinion on denial of rehearing), notes that questions
of intent are particularly inappropriate for summary judgment.  It
is true that, as a general matter, questions of intent are
inappropriate for summary judgment, but, where, from the face of a
written instrument, there is no doubt about the meaning of the
instrument, summary judgment is appropriate.  Here, because there
was no facial ambiguity, there was no genuine issue of material
fact about whether parol evidence could be admitted, and summary
judgment was proper.
     Chlanda next argues that we should reverse and remand because
the probate court did not allow discovery.  The argument is without
merit for either of two reasons.  First, the abstract does not
contain a summary of an order denying discovery, and we are not
certain that the probate court made a ruling on this issue.  It is
incumbent upon an appellant to produce a record sufficient to
demonstrate error, Mayo v. State, 322 Ark. 383, 920 S.W.2d 659
(1995), and the record on appeal is confined to that which is
abstracted.  Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995).  We have repeatedly held that the burden of
obtaining a ruling is upon the movant and that unresolved questions
and objections are waived and may not be relied upon on appeal. 
Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990).  Second, the
discovery request related to extrinsic evidence.  Extrinsic
evidence was not considered on the motion for summary judgment;
thus, even if the probate court did rule, appellant could not have
been prejudiced.
     Finally, Chlanda asks us to follow the reasoning of the
Supreme Court of Texas in reversing a grant of summary judgment in
White v. Moore, 31 Tex. Sup. Ct. J. 662, 760 S.W.2d 242 (1988).  We
decline to do so, for the language used in that will is materially
different from the language in the will before us.  In that case,
the decedent left her estate "to my six children [naming them] and
to the survivor or survivors of them at the time of my death, share
and share alike."  The Supreme Court of Texas held that summary
judgment should not have been granted because the word "survivors"
was sufficiently ambiguous to require extrinsic proof.  The
majority opinion noted that the word "survivors" might have been
intended to mean "heirs."  There, the words did not narrow the
class named to one survivor of the class, but rather left it to the
survivors (plural) at the time of death of the testator.  Here, the
words used are "my wife's mother and father, or the survivor
thereof."  This is an unmistakable declaration that the two
individuals named in the class are to enjoy the right of
survivorship in the event of the death of one of them.  As such,
the chancellor was correct in the granting of summary judgment as
to the meaning and effect of the will.  
     Affirmed.