Perryman v. Hackler

Hubert WHITE and Sharon White v. Evelyn WELSH
as Executrix of the Estate of Martin
Hardcastle, Jr., Deceased

95-1120                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1996


1.   Appeal & error -- probate cases -- standard of review. -- The
     supreme court conducts a de novo review of probate court
     orders; absent clear error, the order is not reversed.

2.   Executors & administrators -- sale of estate property --
     notice to "interetsted persons" -- definition. -- Where a
     personal representative seeks authority to sell the real
     property of an estate, Ark. Code Ann.  28-51-301(c) (1987)
     requires that notice must be given to "such interested persons
     as the court may direct," unless the value of the interest to
     be sold is $1,500 or less; the term "interested persons" is
     defined in Ark. Code Ann.  28-1-102(11) to include "any heir,
     devisee, spouse, creditor, or any other having a property
     right, interest in, or claim against the estate being
     administered, and a fiduciary."

3.   Appeal & error -- appellants not interested persons -- no
     standing to question issuance of probate court's order. --
     Where appellants were neither heirs nor creditors, and their
     petition to set aside a probate-court order that authorized
     the sale of adjacent estate property by appellee executrix did
     not assert any claim against the estate or declare any
     interest in the estate's property or indicate any entitlement
     to proceeds that might be distributed by the estate, but were
     in fact persons against whom the estate had sought relief, the
     supreme court concluded that appellants were not interested
     persons as defined by Ark. Code Ann.  28-1-102(11) (1987) and
     therefore had no standing to question the issuance of the
     court's order.


     Appeal from Marion Probate Court; Roger V. Logan, Judge;
affirmed.
     Hubert L. White and Sharon G. White, pro se.
     Michael E. Kelly, for appellee.

     Bradley D. Jesson, Chief Justice.February 19, 1996 *ADVREP2*






HUBERT WHITE AND SHARON WHITE,
                    APPELLANTS,

V.

EVELYN WELSH AS EXECUTRIX OF
THE ESTATE OF MARTIN
HARDCASTLE, JR., DECEASED,
                    APPELLEE,




95-1120


APPEAL FROM THE MARION COUNTY
PROBATE COURT,
NO. 90-63-1,
HON. ROGER V. LOGAN, JUDGE,




AFFIRMED.




                 CHIEF JUSTICE BRADLEY D. JESSON

     
     The appellants, Hubert and Sharon White, are landowners in
Marion County.  Their land lies adjacent to property owned by the
late Martin Hardcastle, Jr.  On January 20, 1995, the appellants
petitioned the Marion County probate court to set aside an order
which authorized the sale of the Hardcastle land.  The court denied
the petition, and we affirm.  
     On October 24, 1990, appellee Evelyn Welsh filed a petition to
probate the will of her decedent, Martin Hardcastle, Jr.  That part
of the Hardcastle estate which was subject to probate in Arkansas
consisted of one hundred and twenty acres of land in Marion County. 
On October 26, 1990, the court admitted the will to probate and
named Ms. Welsh executrix.  Letters testamentary were issued the
same day.  Four years later, on November 9, 1994, Ms. Welsh
petitioned the court for authority to sell the property for the
appraised value of $37,000 in order to pay claims and make
distribution.  Her petition further requested authority to pursue
litigation against Hubert and Sharon White.  She claimed that the
Whites had blocked a road which served as access to the Hardcastle
property.
     The record reflects that Hardcastle's devisees waived notice
in connection with any hearing on the petition.  On November 11,
1994, the court issued an order authorizing the sale of the
property and finding that, in order to accomplish the sale, it
would be necessary to pursue litigation against Hubert and Sharon
White.  Approximately two months later, the Whites, who had
received no notice of the petition, asked that the order be set
aside.  They alleged that the order, and the probate proceeding as
a whole, contained various procedural deficiencies.   They claimed
standing on the grounds that Welsh's petition and the subsequent
court order referred to them by name, referred to real estate owned
by them, and referred to litigation against them.  The probate
judge, relying on Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627
(1970), found that the Whites were not "interested persons" as
defined by Arkansas law and had no standing to question the
issuance of the order.  The petition to set aside was thus denied. 
It is from that ruling that the Whites appeal.  
     This court conducts a de novo review of probate court orders. 
Absent clear error, the order is not reversed.  In the Matter of
the Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).    
     When a personal representative seeks authority to sell the
real property of an estate, notice must be given to "such
interested persons as the court may direct," unless the value of
the interest to be sold is $1,500 or less.  Ark. Code Ann.  28-51-
301(c) (1987).  The term "interested persons" is defined in Ark.
Code Ann.  28-1-102(11) as follows:  

     "Interested persons" includes 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 Doepke case, a potential tort claimant waited too long
to file his claim against the decedent's estate.  He asked that the
estate be reopened.  Only an interested person may petition to
reopen an estate.  Ark. Code Ann.  28-53-119(a)(1) (1987).  We
held that, since the claimant no longer had an interest in the
property of the estate, he had no standing to petition for a
reopening.   
    In addition to Doepke, we addressed the issue of interested
persons in the more recent case of Pickens v. Black, 316 Ark. 499,
872 S.W.2d 405 (1994).  There, certain of the decedent's children
who were not named in his will wanted to file suit for the wrongful
death of their father.  The executor did not wish to pursue the
litigation, so the children petitioned the court to remove the
executor.  Such a petition must be filed by an interested person. 
Ark. Code Ann.  28-48-105(a)(2) (1987).  The probate court found
that the children had no standing to file the petition.  We agreed,
holding simply that the children were not heirs, were not
creditors, and had no claim against the estate.  
     In this case, the Whites are not heirs or creditors.  Their
petition does not assert any claim against the estate or declare
any interest in the estate's property.  Nowhere do they indicate
any entitlement to proceeds which might be distributed by the
estate.  In fact, the situation is just the opposite.  The Whites
are persons against whom the estate has sought relief. 
     We conclude that the Whites are not interested persons as
defined by Ark. Code Ann.  28-1-102(11) (1987) and therefore have
no standing to question the issuance of the court's order. Because
they have failed to surmount this threshold issue, we do not reach
their arguments regarding procedural irregularities and allegations
of fraud.
     Affirmed.