Spicer v. Estate of Spicer

Charles Gregory SPICER v. ESTATE of Charles
Nelson SPICER

CA 95-941                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
               Opinion delivered December 18, 1996


Wills -- appellant was interested person under law -- case reversed
     and remanded. -- Where the probate court erroneously
     overlooked the portion of Ark. Code Ann.  28-1-
     102(a)(11)(1987), which defines "interested persons" as those
     having an interest in the estate, the fact that appellant was
     a beneficiary of the trust and that the second codicil
     affected his beneficial interest clearly established that
     appellant has an interest in the estate; the probate court's
     decision that appellant did not have standing to contest the
     will was reversed and remanded.


     Appeal from Arkansas Probate Court; Russell Rogers, Probate
Judge; reversed and remanded.
     Plastiras, Hyden, & Miron, for appellant.
     Green, Henry, & Green, by:  J. W. Green, Jr., for appellee.

     John Mauzy Pittman, Judge.
     This appeal arises from a will contest brought by appellant. 
The probate court found that appellant did not have standing to
contest the will of Charles Nelson Spicer, appellant's grandfather,
because he was not an "interested person" as defined in Ark. Code
Ann.  28-1-102 (1987).  On appeal, appellant argues that the
probate court's decision is clearly erroneous because he has a
legal interest in the estate.  We agree and reverse and remand.
     Charles Nelson Spicer left a holographic will, holographic
codicil, and typewritten codicil.  Charles Spicer bequeathed to his
surviving son, Don Charles Spicer, his personal residence and to
his surviving daughter, Donna Sue Spicer Meredith, properties of
equal value.  The will also created a trust for the benefit of
Charles Spicer's grandchildren.  Appellant was listed as one of
four grandchildren entitled to one-eighth of the distribution of
the trust, and three other grandchildren were also listed and
entitled to one-sixth of the distribution of the estate.  Appellant
was to receive $750 per month.  Charles Spicer's first codicil
amended his will to create out of his properties a memorial
foundation in the memory of his parents.  In his second codicil,
Charles Spicer added his daughter, Sue Meredith, as a beneficiary
of the trust.  This change reduced appellant's share in the trust
to $600 per month.  
     The issue before us is whether appellant is an "interested
person" as defined at Ark. Code Ann.  28-1-102(a)(11) (1987), thus
having standing to contest Charles Spicer's will.  Arkansas Code
Annotated  28-1-102(a)(11) defines "interested persons" as "any
heir, devisee, spouse, creditor, or any other having a property
right, interest in, or claim against the estate being administered,
and a fiduciary."  An interested person may contest the probate of
a will, or any part thereof, by stating in writing the grounds of
his objection and filing them in the court.  Ark. Code Ann.  28-
40-113(a) (1987).  The probate court reasoned that appellant had no
standing to contest the will because he would not take as an heir
if no will existed.  However, the court erroneously overlooked the
portion of Ark. Code Ann.  28-1-102(a)(11) which defines
"interested persons" as those having an interest in the estate. 
The evidence is undisputed that appellant is specifically named in
Charles Spicer's will as a beneficiary of a trust which would have
distributed $750 per month to appellant.  The second codicil
affected appellant's interest in the trust by reducing his share to
$600 per month.   The facts that appellant was a beneficiary of the
trust and that the second codicil affected his beneficial interest
clearly establish that appellant has an interest in the estate of
Charles Spicer.  Therefore, we reverse the probate court's decision
that appellant does not have standing to contest Charles Spicer's
will.
     Reversed and remanded.
     Stroud and Griffen, JJ., agree.
     Robbins, J., concurs.
     Mayfield and Neal, JJ., dissent.

=================================================================

                John B. Robbins, Judge, concurs.

     I agree to reverse and remand because, as noted in the
majority opinion, appellant has an interest in the estate and is,
therefore, an "interested person" who has standing to contest the
decedent's will.  I do not, however, believe it is significant that
the extent of the appellant's interest in the testamentary trust
was reduced by the second codicil.  Insofar as the majority opinion
relies on the change made by the second codicil in holding that
appellant has standing, I must disagree, but concur in the result.

=================================================================

                Melvin Mayfield, Judge, dissents.


     I respectfully dissent from the opinion of the majority in
this case.  The majority has reversed the probate court's finding
that the appellant did not have standing to contest the will of his
grandfather because he was not an "interested person" as defined in
Ark. Code Ann.  28-1-102(a)(11) (1987).  In doing so, the
majority, without any citation to authority, has simply held that
appellant has an interest in the estate because he is named in the
will as a beneficiary of a trust and the second codicil affected
his beneficial interest.  The probate judge did not think that was
sufficient to make appellant an interested party and neither do I.
     Arkansas Code Annotated  28-1-102(a)(11) defines "interested
person" as any "heir, devisee, spouse, creditor, or any other
having a property right, interest in, or claim against the estate
being administered, and a fiduciary." 
     In the case at bar, the decedent did not leave a surviving
spouse, and was survived by his only two children, Don Spicer and
Donna Meredith.  Therefore, the appellant, who is Don Spicer's son
and the decedent's grandson, will take nothing if the will is
denied probate.  See Ark. Code Ann.  28-9-214(l) (heritable estate
passes first to the children of the intestate).  Thus, the
appellant's claim to the estate arises solely as a result of the
will under which the trust is created and depends entirely upon the
validity of the will.  Without the will, the appellant gets
nothing, and has no property right, interest in, or claim against
the estate.  Neither is he an heir, devisee, spouse, or creditor. 
     In 3 Bowe & Parker, Page On The Law of Wills,  26.57 at 129
(Revised Treatise 1961), it is said that "one who is not benefitted
by having the will set aside, either as heir or next of kin, or by
asserting a right to administer in case of intestacy, cannot
contest the will."  Citation to cases from many states are given to
support that statement.  One citation is to the Arkansas case of
Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951).  In that
case the Arkansas Supreme Court held that the appellants were not
interested parties under the same provision of the 1949 Probate
Code that is involved in this case.  There, the appellants were the
brothers and sisters of the deceased who had made a will leaving
one dollar to an adopted son and the remainder of his property to
his wife.  His brothers and sisters filed a petition to set aside
the probate of the will on the grounds of lack of mental capacity
on the part of the deceased and that the will was invalid because
of undue influence.  The trial court held that the appellants did
not establish either lack of mental capacity or undue influence;
therefore, it was not necessary to decide the question of whether
the appellants were "interested" persons eligible to contest the
probate of the will.
     On appeal, the Arkansas Supreme Court did decide the question
of whether the appellants were interested persons.  It found that
the adopted son, even though he was later adopted again by other
adoptive parents, was still the adopted son of the deceased.  The
court said that having come to the conclusion that the son was an
heir to the estate of the deceased "as if he were a natural son it
must naturally follow that appellants, who are the brothers and
sisters of the [deceased], cannot be interested persons in the
sense that they can maintain a suit to contest the validity of [the
deceased's] will." 218 Ark. at 427, 236 S.W.2d  at 735.
     The above case seems to settle the issue in this case.  The
grandson who is attempting to contest the will in this case is in
the same legal position as were the brothers and sisters of the
deceased in the Hawkins case.
     In the 1996 cumulative supplement to 26.57, Page On the Law
of Wills, the treatise cites the case of Hardie v. Hardie, 312 Ark.
189, 848 S.W.2d 417 (1993), for support of the same proposition. 
In Hardie the court said:
          The central issue in this case is whether the remote
     heirs have the power to attack a court-approved
     settlement agreement.  It should be noted that at the
     time the settlement agreement was executed, these remote
     heirs were not "interested persons" entitled to contest
     a will under Ark. Code Ann.  28-40-113(a) (1987) because
     they would not have taken by intestate succession at that
     time since Mrs. Davis' two daughters were still living. 
     See Mabry v. Mabry, 259 Ark. 622,535 S.W.2d 824 (1976)
     (brothers and sisters of testator were not interested
     persons where testator had adopted son living); Hawkins
     v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951) (just any
     collateral heir is not necessarily an "interested person"
     with a right to contest the probate of a will under Ark.
     Code Ann.  28-40-113 (1987)).
 
312 Ark. at 196, 848 S.W.2d  at 420.
     It is also interesting to note that the very first citation in
the 1996 supplement to  26.57 of Page On the Law of Wills is to
the Alabama case of Ames v. Parker, 553 So.2d. 570 (Ala. 1989). 
The summary describes the holding of the case as follows:
          [W]here grandchild of testatrix had only an
     expectancy interest under prior will and could have
     received nothing under that will, but had a vested
     interest in estate under final will, grandchild had no
     real, beneficial interest under prior will that could be
     harmed by establishment of later will, and therefore
     grandchild had no standing to contest later will as an
     "interested person".

     There is no question in my mind about the issue in the instant
case.  Under the law, the grandson of the deceased grandfather is
not an "interested" person who can contest the will in this case. 
There also seems to be no logical reason to reach a contrary
result.  If one is allowed to dispose of property by will, why
should someone who has no claim to an interest in that property if
the will is set aside be allowed to contest the will?  If there is
a rational reason to allow this, it escapes me.  And if the
grandchild does not want what he is given by the will in this case,
he certainly does not have to take it.
     I would affirm the trial court; therefore, I dissent from the
majority opinion.
     Neal, J., joins in this dissent.