Irene Hockersmith v. Glen Hockersmith

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

IRENE HOCKERSMITH

APPELLANT

V.

GLEN HOCKERSMITH

APPELLEE

CA 00-889

MARCH 21, 2001

APPEAL FROM THE SALINE COUNTY PROBATE COURT

[NO. 98-319-3]

HONORABLE GARY M. ARNOLD,

PROBATE JUDGE

AFFIRMED

This probate matter involves the validity of a holographic will. Appellant Irene Hockersmith, the wife of the decedent, James Harvey Hockersmith, filed a petition to probate her husband's estate in the Saline County Probate Court. After a hearing, the probate court ruled that the instrument introduced by appellant was not a valid holographic will because the decedent lacked the requisite intent at the time he wrote the document. On appeal, appellant maintains that the probate judge clearly erred in disregarding the plain language of the holographic will and in considering the testimony of appellant as a factual basis to find that the holographic will was invalid. We affirm.

The decedent died on August 25, 1998. At the time of his death, the decedent had been married to appellant for less than three years. The decedent was also survived by his brother, Glen Hockersmith, the appellee herein. The document, which purported to be aholographic will, was admitted to probate on September 28, 1998. In a letter dated October

26, 1999, the probate court found the holographic will to be valid on its face, but granted appellee a hearing on the testamentary capacity of the decedent. A hearing was held on March 7, 2000, wherein the probate court found in favor of appellee; amended its earlier letter ruling; and found that the holographic will was invalid.

On appeal, appellant argues that the probate judge clearly erred in disregarding the plain language of the holographic will and in considering the testimony of appellant as a factual basis to find that the decedent lacked the requisite testamentary intent. We review probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999). The document introduced by appellant consisted of two handwritten paragraphs, which stated:

To whom it may concerne (sic)-

I James Harvey Hockersmith Jr. do herby (sic) will all of my possessins (sic) to Irene Hockersmith Healey. I share these things with my brother -(Glen Hockersmith) on a 50-50 split according to our father's will and probate.

Anything else I own shall be Irene's. 1985 Caddalic (sic) Sedan Devile (sic). 85 or 86 party barge & mercury motor, guns, 410 shotgun, 2 twenty-two rifles, 32 calaber (sic) pistol (new) & various other hunting & fishing equipment.

Initially, via a letter, the probate court found the holographic will to be valid on its face. But after listening to witnesses testify during a hearing, the probate court found thatthe decedent lacked the requisite intent to execute a holographic will. Now, appellant claims that the probate court should not have based its finding upon testimony presented at the hearing. However, the issue of whether the probate court could go beyond the four corners of the holographic will to ascertain the decedent's intent should have been raised at trial. At no time did appellant's counsel object to the probate judge considering extrinsic evidence of the decedent's testamentary intent. A question not raised in the court below by the pleadings or arguments of counsel cannot be considered for the first time on appeal. Robinson v. Winston, 64 Ark. App. 170, 984 S.W.2d 38 (1998). Questions left unresolved are waived and may not be relied upon on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Because appellant's argument was not raised at trial, we do not consider it on appeal.

Next in her brief, appellant argues that in any event, the instrument she presented to the probate court met all of the requirements for a holographic will. We need not further address whether the written instrument was a valid holographic will because we have already concluded that the instrument fails as the decedent lacked the requisite testamentary intent. Based on the evidence that was produced in the hearing before the probate court, we do not think the probate judge clearly erred.

Affirmed.

Griffen and Baker, JJ., agree.