Queen Levingston v. Felicia Kaye Stovall

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

QUEEN LEVINGSTON

APPELLANT

V.

FELICIA KAYE STOVALL

APPELLEE

CA04-690

March 9, 2005

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[PR-2004-15, DR-2003-408-6]

HON. DAVID F. GUTHRIE, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

This case involves the estate of Gary Wayne Stovall, Jr., who was killed in an automobile accident in January 2004 after a piece of heavy construction equipment illegally entered the roadway directly in his path. He died intestate, survived by his estranged wife, his two minor sons, several siblings, his stepfather, and his mother. The estate's primary asset was an anticipated wrongful-death action against persons and corporations responsible for his death. The court appointed the decedent's estranged wife, Felicia Kaye Stovall, as administratrix of the estate. Queen Levingston, mother of the decedent, petitioned the court to set aside the appointment of Ms. Stovall and to substitute herself as the estate's personal representative.1 She also asked the court to find the appointed administratrix unsuitable to serve. In March 2005, the court denied the petition to remove the administratrix, finding that Ms. Stovall had a "statutory priority to serve as the Personal Representative of the intestate decedent" and that "[n]o grounds exist for removal" despite the friction between her and other statutory beneficiaries of a wrongful-death action. We affirm.

As a starting point, we review probate cases de novo on appeal. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000). However, we will not reverse the judge's findings of fact unless they are clearly erroneous. Id., 13 S.W.3d at 598. A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). Further, the court possesses considerable discretion in the granting of letters of administration, upon a determination that the applicant is qualified and will best manage and improve the estate. Burch v. Griffe, 342 Ark. 615, 29 S.W.3d 726 (2000). Such a decision will not be reversed absent an abuse of discretion. Id., 29 S.W.3d at 726.

As to probate appointments, Arkansas Code Annotated § 28-48-101 (Repl. 2004), designates the priority order of administration, in relevant part, as follows:

(a) Domiciliary letters testamentary or of general administration may be granted to one (1) or more of the natural or corporate persons mentioned in this section who are not disqualified, in the following order of priority:

(1) To the executor or executors nominated in the will;

(2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty (30) days after the death of the decedent;

In this case, decedent died intestate; therefore, the statute, by its plain language, gives priority to the surviving spouse. However, in order to receive this priority consideration, the surviving spouse must petition for letters within thirty days. Here, Ms. Stovall met this threshold requirement because she petitioned the court to be named administratrix-based upon her status as surviving spouse-fifteen days after her husband's death. Therefore, appellants concede, as the facts and law demand, that appellee had a properly exercised statutory priority to serve as the personal representative of her husband's estate. However, appellants claim that the court erred in refusing to remove Ms. Stovall as personal representative of the estate.

Under Arkansas Code Annotated § 28-48-105 (Repl. 2004) a person interested in an estate may petition for removal of a personal representative for cause. The statute provides:

When the personal representative becomes mentally incompetent, disqualified, unsuitable or incapable of discharging his trust, has mismanaged the estate, failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by § 28-48-101(b)(6), then the court may remove him. The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed. The removal of a personal representative after letters have been duly issued to him does not invalidate his official acts performed prior to removal.

Ark. Code. Ann. § 28-48-105.

After the hearing on appellants' removal motion, the court determined that no evidence or testimony was produced to provide any basis for removing Ms. Stovall. Appellants argue that the court erred in its conclusion because they presented sufficient evidence of fraud and conflict-of-interest to warrant Ms. Stovall's removal. Most notably, appellants allege that Ms. Stovall committed fraud in her petition for appointment by failing to list all of the decedent's heirs. However, as correctly noted by appellee, the class of beneficiaries entitled to inherit directly from the estate is composed of the decedent's two minor children and appellee (had she chosen to pursue a dower claim). Appellants are in the class of beneficiaries that stand in a position to take in the pending wrongful-death action, pursuant to Arkansas's wrongful-death statute. While it is true that Ms. Stovall originally omitted appellants' claims from the wrongful-death action, the judge-who is also the circuit judge handling the wrongful-death action-ordered her to properly recognize all potential beneficiaries in that action, and she promptly complied with the court's order.

As to appellants' other claims of unsuitability, they are also without merit. As personal representative of the estate appellee is entitled (and in some instances required) to account for assets of the estate, gather estate property, select counsel to represent the estate in the wrongful-death action, and file a wrongful-death action on behalf of the decedent. Appellants have failed to show specifically how Ms. Stovall has neglected to perform any duty pertaining to the office or how she has mismanaged the estate, so as to require her removal.

It is unfortunate that the Stovalls were near divorce when the decedent was killed; this fact will undoubtably complicate the administration of the estate and the wrongful-death action. However, at the time the decedent was killed, he and Ms. Stovall were legally married, and Ms. Stovall is now solely responsible for the couple's two minor children-the decedent's primary heirs. Because the record contains sufficient evidence to prove that Ms. Stovall has adequately carried out her duties as the priority representative of the estate, we cannot say that the court erred in its decision to retain her service as administratrix.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.

1 Queen Levingston also represents other heirs of the decedent including Robert Earl Levingston, Kendra Villanueava, Valerie Denise Ross, and Robert Jerome Billings. Throughout this opinion, these heirs will be referred to collectively as "appellants."