Osborn v. Bryant
Annotate this Case
Download PDF
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA 08-589
BRENDA BRYANT OSBORN, OPAL
M. GARFI, ALTHA P. HICKMAN,
NORMA SEXTON, LINDA BLISS,
RITA GILLIAM, GENE BRYANT,
BILLY RAY BRYANT, and BEVERLY
BEEMAN
APPELLANTS
V.
BILLY BRYANT, BETTY HAMBY,
NORMA KNIGHT, MABEL
KIMBERLING, and DORTHA M.
WHITNER
APPELLEES
Opinion Delivered
January 14, 2009
APPEAL FROM THE JACKSON
COUNTY CIRCUIT COURT,
[NO. CV2004-222]
HONORABLE PHILLIP SMITH,
JUDGE
REVERSED
ROBERT GLADWIN, Judge
This is the second appeal from a declaratory judgment rendered by the Jackson County
Circuit Court concerning whether a will that was not admitted to probate could be used as
evidence of a devise of property under Ark. Code Ann. § 28-40-104 (Supp. 2007).1 The
circuit court held that the will could not be used because appellant Brenda Bryant Osborn had
filed an affidavit for collection of small estate and attached the will to that affidavit. Osborn
and the other appellants raise two points on appeal challenging that ruling. We reverse.
1
We dismissed the first for lack of a final order. Osborn v. Bryant, CA06-1131 (Ark. App.
May 16, 2007) (Osborn I).
The facts are largely undisputed. Lacy Bryant died testate on June 15, 1994, survived
by his widow, Naomi Bryant, and eight surviving children.2 In his will, Bryant left his real
property–a twenty-acre tract upon which his home was situated and a sixty-acre tract–to his
wife for the duration of her life and then both tracts to Osborn should she choose to pay $200
per acre to Bryant’s other heirs for the sixty-acre tract. The will further instructed that, should
Osborn elect not to purchase the property, it would be divided equally between Bryant’s
children, per stirpes.
Following Bryant’s death, Osborn filed an affidavit for collection of small estate with
the Jackson County Circuit Court. The affidavit also attached Bryant’s will. The will appears
to be properly executed by Bryant and three witnesses. Two of the attesting witnesses also
executed a “Proof of Will.” Finally, a “Notice of Probate” and proof of publication of that
notice were also filed on October 14, 1994.
On June 21, 1995, Osborn executed an “Administrator’s Deed” to herself. The deed
conveyed the property of Lacy Bryant pursuant to the terms of the will, reflecting that
Bryant’s widow would retain a life estate and the terms by which Osborn could purchase the
property upon her mother’s death. The deed was duly recorded. Naomi Bryant lived on the
property until her death on November 1, 2004.
2
In addition to Osborn, Bryant’s other surviving children are appellant Opal Garfi,
appellant Altha P. Hickman, appellant Gene Bryant, appellee Billy Bryant, appellee Betty Hamby,
appellee Dortha Whitener, and appellee Norma Knight. Appellants Norma Sexton, Linda Bliss,
Rita Gilliam, Billy Ray Bryant, and Beverly Beeman are children of Bryant’s deceased child O.M.
Bryant, as is appellee Mabel Kimberling.
-2-
On December 1, 2004, appellees filed the present declaratory-judgment action against
Osborn and the other appellants, heirs who had accepted her payments, seeking to have the
court declare that Lacy Bryant’s will and the administrator’s deed were invalid, and that Lacy
Bryant’s property should pass in accordance with the laws of intestacy. The complaint also
sought partition of the real estate in the event appellees were successful with their petition for
declaratory judgment. Appellants denied the allegations and asserted that Osborn owned the
property pursuant to the administrator’s deed.
Arguments Made in the Circuit Court
At trial, appellees argued that the will and deed were nullities under section 28-40-104
because the will was never probated. They also asserted that the exceptions in section 28-40104 do not apply because there was a probate proceeding—the affidavit of collection of small
estate. Appellees also cited the five-year statute of limitations for probating a will found in
section 28-40-103 as a further reason why the deed could not be used as evidence of Osborn’s
title to the property. Finally, appellees argued that, because there was no administration of
Lacy Bryant’s estate, Osborn lacked authority to execute the administrator’s deed to herself.
In response, appellants argued that the small estate procedure was excepted from the
reach of section 28-40-104 by the statute’s plain language. Appellants also asserted that section
28-41-102(d) authorized Osborn to execute a deed to herself. At trial, appellants cited the
supreme court’s decision in Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982), for the
proposition that section 28-40-104(b) allows a will not admitted to probate to be effective as
evidence of a devise if the two conditions listed in that section are met.
-3-
The Circuit Court’s Ruling
On June 12, 2006, the circuit court issued a written decision finding that Lacy Bryant’s
will was never admitted to probate but, nevertheless, could not be used as evidence of a devise
because Brenda Osborn’s filing of an affidavit of small estates was “a probate proceeding
concerning the succession . . . of the estate” under Ark. Code Ann. § 28-40-104(b)(1). The
court noted that the small estate procedure was “not intended to provide a means to avoid
probate where there is an elevated likelihood of conflict among heirs, there are out-of-state
heirs not likely to see the published notice, and the will provides conditions precedent to the
transfer of property.” The court concluded that Lacy Bryant effectively died intestate. This
court dismissed Osborn’s appeal in Osborn I for lack of a final order. Following remand, the
circuit court entered a partition decree finding that the property could not be divided in kind
and ordering it sold. This appeal followed.
Arguments on Appeal
Appellants raise two points on appeal: (1) that the distribution of Lacy Bryant’s estate
without administration was properly accomplished and the “Administrator’s Deed” should be
recognized as a valid conveyance of the real property, and (2) that the circuit court improperly
applied Arkansas Code Annotated section 28-40-104 to the facts of this case.
This case involves the interpretation of section 28-40-104, which provides as follows:
(a) No will shall be effectual for the purpose of proving title to or the right to
the possession of any real or personal property disposed of by the will until it has been
admitted to probate.
(b) Except as provided in § 28-41-101, to be effective to prove the transfer of
any property or to nominate an executor, a will must be declared to be valid by an
-4-
order of probate by the circuit court, except that a duly executed and unrevoked will
which has not been probated may be admitted as evidence of a devise if:
(1) No proceeding in circuit court concerning the succession or administration
of the estate has occurred; and
(2) Either the devisee or his or her successors and assigns possessed the property
devised in accordance with the provisions of the will, or the property devised was not
possessed or claimed by anyone by virtue of the decedent's title during the time period
for testacy proceedings.
(c) The provisions of subsections (b) and (c) of this section shall be supplemental
to existing laws relating to the time limit for probate of wills, and the effect of
unprobated wills, and shall not be construed to repeal § 28-40-103 and subsection (a)
of this section or any other law not in direct conflict herewith.
We review issues of statutory interpretation de novo, because it is for this court to
determine the meaning of a statute. See, e.g. Great Lakes Chemical Corp. v. Bruner, 368 Ark.
74, 243 S.W.3d 285 (2006). Regarding our standard of review for statutory construction, our
supreme court has said:
The basic rule of statutory construction is to give effect to the intent of the
legislature. Where the language of a statute is plain and unambiguous, we determine
legislative intent from the ordinary meaning of the language used. In considering the
meaning of a statute, we construe it just as it reads, giving the words their ordinary and
usually accepted meaning in common language. We construe the statute so that no
word is left void, superfluous or insignificant, and we give meaning and effect to every
word in the statute, if possible.
Id. at 82, 243 S.W.3d at 291 (citations omitted).
Appellees and the circuit court focused on the fact that section 28-40-104(b) provides
that, to be effective as evidence of a transfer of property, a will must be declared valid by a
court. Further, they also questioned whether appellants could meet the requirements of
section 28-40-104(b)(1), namely, that there have not been any proceedings concerning the
-5-
“succession or administration of the estate.” However, the circuit court erred in its
interpretation because it failed to give effect to subsection (b)’s provision that exempts smallestate proceedings from the requirement that, to be evidence of a property transfer, a will
must be declared valid by a court. Section 28-40-104(b) provides: “Except as provided in § 2841-101 [the small-estate procedure], to be effective to prove the transfer of any property or
to nominate an executor, a will must be declared to be valid by an order of probate by the
circuit court. . . .” (Emphasis added.) As noted above, we construe the statute so that no
word is left void, superfluous, or insignificant; and meaning and effect are given to every word
in the statute if possible. By excepting small-estate proceedings from the reach of section 2840-104(b), the legislature intended that a will that had not been admitted to probate could still
be used as evidence of a devise of real property in cases where the small-estate procedure is
used without meeting the conditions listed in that section. The two conditions are relevant
in cases where the small-estate procedure is not used. There is no argument that Osborn did
not comply with the procedures for collection of small estates.
This is the first case construing this alternate exception language in subsection (b), and
we hold that the circuit court erred in its application of the law to the undisputed facts. A
plain reading of the statute, giving the words their ordinary and plain meaning, leaves us with
no other reasonable conclusion. This unique situation appears to be just the type of scenario
that the statute was designed to remedy.
Reversed.
P ITTMAN and G LOVER, JJ., agree.
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
