Cobb v. Estate of Keown

Ennie B. COBB v. ESTATE of Bennie C. KEOWN

CA 95-317                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                  Opinion delivered May 1, 1996


1.   Descent & distribution -- when probate court may vacate or
     modify its orders -- good cause must be shown. -- Arkansas
     Code Annotated  28-1-115(a) (1987) allows a probate court to
     vacate or modify its orders at any time before the time for
     appeal has elapsed after the final termination of the estate;
     by its terms, this statute permits such modification or
     vacation upon a showing of "good cause." 

2.   Descent & distribution -- chancellor failed to find good cause
     to vacate order -- no error found. -- The probate judge did
     not err in failing to find good cause to vacate the order
     recognizing paternity where it appeared from the record that
     no satisfactory explanation was offered to show why
     appellant's newly discovered evidence could not have been
     obtained prior to entry of the order that the appellant sought
     to have set aside; the probate judge did not err in failing to
     find good cause for vacation of the order determining the
     woman to be the daughter of the decedent. 

3.   Attorney & client -- denial of motion to disqualify attorney
     proper -- attorney never formerly represented client in the
     same or a substantially related matter. -- Appellant's
     contention that the probate court erred in denying her motion
     to disqualify appellee's attorney as attorney for the estate
     was without merit; the fact that appellee's attorney had
     previously represented the appellant in a highway condemnation
     suit in 1983 was not "the same or substantially related" to
     the determination of heirship at issue in the case at bar; 
     Rule 1.9 of the Model Rules of Professional Conduct precludes
     a lawyer who has formerly represented a client from
     representing another person in "the same or a substantially
     related matter."    


     Appeal from  Pulaski Probate Court; Vann Smith, Judge;
affirmed.
     Tona M. DeMers, for appellant.
     Henry N. Means, III, for appellee.

     James R. Cooper, Judge.*ADVREP*CA1*
                                DIVISION I



                                        CA95-317

                                                          May 1, 1996


ENNIE B. COBB                           APPEAL FROM THE PULASKI COUNTY
          APPELLANT                     PROBATE COURT
                                        [NO. P90-1514 and P90-1519]

VS.                                     HON. VANN SMITH,
                                        PROBATE JUDGE

ESTATE OF BENNIE C. KEOWN               AFFIRMED
          APPELLEE






                          James R. Cooper, Judge.



     The appellant in this probate case was the administratrix of
the estate of her brother, Bennie C. Keown.  Wilma Paton filed a
motion for an order determining her to be the biological daughter
of Bennie C. Keown.  After a hearing, the probate judge entered an
order on August 15, 1991, finding that Bennie C. Keown executed
documents recognizing that Wilma Paton is his natural daughter;
that Wilma Paton was in fact the natural daughter of Bennie C.
Keown; and that Wilma Paton was therefore entitled to inherit from
the estate pursuant to the provisions of Ark. Code Ann.  28-9-
209(d)(2) (1987).  The appellant filed a motion to set aside the
order, alleging that newly discovered evidence existed which tended
to prove Wilma Paton was not the natural daughter of the decedent. 
The appellant also filed a motion to disqualify Henry N. Means III
as attorney for the estate.  After a hearing, the probate judge
denied both motions.  From that decision, comes this appeal.
     For reversal, the appellant contends that the probate judge
abused his discretion in refusing to set aside the order entered on
August 15, 1991, and in denying the motion to disqualify Henry N.
Means III as attorney for the estate.  We affirm.
     Arkansas Code Annotated  28-1-115(a) (1987) allows a probate
court to vacate or modify its orders at any time before the time
for appeal has elapsed after the final termination of the estate. 
White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992).  By its
terms, this statute permits such modification or vacation upon a
showing of "good cause."  Ark. Code Ann.  28-1-115(a), supra.  The
initial question in the case at bar is, therefore, whether the
probate judge erred in failing to find good cause to vacate the
order.  We hold that he did not.  The appellant's present attorney
argues that there is newly discovered evidence consisting of a
burial instruction sheet in which the space to list children was
left blank, and evidence to show that the decedent had a test
revealing a low sperm count several years after Wilma Paton's
birth.  The appellant's new attorney filed a motion to compel Wilma
Paton to submit to a blood test, suggesting to the probate judge
that the decedent's body could be exhumed so that tissue samples
could be obtained for genetic testing.  Although this zeal on
behalf of new counsel is perhaps laudable, it nevertheless appears
from the record that no satisfactory explanation was offered to
show why this evidence could not have been obtained prior to entry
of the order that the appellant seeks to have set aside. 
Accordingly, we hold that the probate judge did not err in failing
to find good cause for vacation of the order determining Wilma
Paton to be the daughter of the decedent.  See Brantley v. Davis,
305 Ark. 68, 805 S.W.2d 75 (1991).
     Next, the appellant contends that the probate court erred in
denying her motion to disqualify Henry N. Means III as attorney for
the estate.  This motion was based on the fact that Mr. Means had
previously represented the appellant in a highway condemnation suit
in 1983.
     Rule 1.9 of the Model Rules of Professional Conduct precludes
a lawyer who has formerly represented a client from representing
another person in "the same or a substantially related matter."  On
this record, we cannot say that the probate judge erred in failing
to find that the highway condemnation suit of 1983 was "the same or
substantially related" to the determination of heirship at issue in
the case at bar and, consequently, we affirm.
     Affirmed.
     Robbins and Stroud, JJ., agree.