Hansen v. State

IN the MATTER of the ESTATE of Carlie O.
BRUMLEY 

95-972                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1996


1.   Appeal & error -- record on appeal confined to that which is
     abstracted -- failure to abstract critical document precludes
     the court from considering the issues concerning it. -- It is
     fundamental that the record on appeal is confined to that
     which is abstracted; appellant is required to abstract such
     material parts of the pleadings, proceedings, facts,
     documents, and other matters in the record as are necessary to
     an understanding of all questions presented to this Court for
     decision; under Ark. Sup. Ct. Rule 4-2(b)(2) a judgment may be
     affirmed for noncompliance with Rule 4-2(a)(6); the failure to
     abstract a critical document precludes the Court from
     considering issues concerning it.  

2.   Appeal & error -- references to will in briefs not useful --
     record on appeal cannot be supplemented by statements made in
     the argument portion of the briefs. -- Even though in the
     argument sections of their briefs both the appellant and the
     appellee supplied the provision of the will which was
     allegedly in question, the record on appeal is confined to the
     abstract and can not be contradicted or supplemented by
     statements made in the argument portions of the briefs.  


3.   Appeal & error -- will never provided in its entirety -- seven
     justices will not examine a single transcript. -- Where the
     will which was to be construed was never supplied in its
     entirety, it was a practical impossibility for seven justices
     to examine the single transcript filed with the Court. 


     Appeal from Washington Probate Court; John Lineberger, Probate
Judge; affirmed.
     Carol Gillespie, for appellant.
     Robert T. Gladwin, for appellee.

     Andree Layton Roaf, Justice. February 12, 1996 *ADVREP13*








IN THE MATTER OF THE ESTATE OF
CARLIE O. BRUMLEY, DECEASED.





95-972


APPEAL FROM THE WASHINGTON
COUNTY PROBATE COURT,
NO. P-94-502,
HON. JOHN LINEBERGER, PROBATE
JUDGE,




AFFIRMED.


                  Andree Layton Roaf, Justice.


     This case involves the construction of the will of Carlie O.
Brumley.  The probate judge concluded that pursuant to the will of
the decedent, the decedent's estate passed to his surviving
children in equal shares, share and share alike.  In addition, the
probate judge found that the decedent's daughter, Norma Hudson,
predeceased the decedent and her interest in the decedent's estate
did not vest.  On appeal, appellant John A. Hudson submits that the
probate judge (1) erred in finding that the interest of the
decedent's daughter, Norma Hudson, did not vest in her children
upon her death and (2) erred in finding that the decedent's estate
passed only to his surviving children.  We affirm.
     Carlie O. Brumley died on October 3, 1994.  His wife
predeceased him, but he was survived by five children:  Margaret
Daniel, Wanetta Towler, Leland Brumley, Wayne Brumley, and James
Brumley.  In addition, one of the decedent's children, Norma
Hudson, predeceased him; she was survived by four children:  John
A. Hudson, Tommy D. Hudson, Sheila C. Conner, and Rebecca J. Drain.
     On January 25, 1995, appellant John A. Hudson filed a petition
to determine heirship.  On March 17, 1995, the probate judge
entered an order finding that the decedent left as his last will a
written instrument dated January 31, 1989.  The probate judge
further ruled that the instrument should be admitted to probate as
the last will and testament of Carlie O. Brumley, deceased. 
     In an order entered May 19, 1995, the probate judge concluded
that "pursuant to the will of the decedent, the decedent's estate
passed to his surviving children, Margaret Daniel, Wanetta Towler,
Leland Brumley, Wayne Brumley, and James Brumley, in equal shares,
share and share alike."  In addition, the probate judge found that
the decedent's daughter, Norma Hudson, predeceased the decedent and
her interest in the decedent's estate did not vest.  Appellant John
Hudson appeals from that order.
     Although this case involves the construction of a will, the
appellant's abstract does not include the will.  The appellant's
abstract merely consists of statements such as, "[a]ppellant filed
a petition to determine the heirs to the estate of the decedent,"
"[a]ppellant filed a brief to support his position on the petition
to determine the heirs of the decedent's estate in order to aid the
court," and "[t]he Court entered an Order finding that the
decedent's deceased child's interest in the estate did not vest
because she predeceased the decedent and authorizing the sale of
the real property at a private sale."  The appellee did not file a
supplemental abstract.
     It is fundamental that the record on appeal is confined to
that which is abstracted.  Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995).  Appellant is required to abstract such material parts
of the pleadings, proceedings, facts, documents, and other matters
in the record as are necessary to an understanding of all questions
presented to this Court for decision.  Ark. Sup. Ct. R. 4-2(a)(6);
Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 894 S.W.2d 885
(1995).  Under Ark. Sup. Ct. Rule 4-2(b)(2) a judgment may be
affirmed for noncompliance with Rule 4-2(a)(6).  See Clardy v.
Williams, 319 Ark. 275, 890 S.W.2d 276 (1995); Jones v. McCool, 318
Ark. 688, 886 S.W.2d 633 (1994).  The failure to abstract a
critical document precludes this Court from considering issues
concerning it.  Jones, supra.
     In the argument sections of their briefs both the appellant
and the appellee supply the provision of the will which is
allegedly in question; however, the record on appeal is confined to
the abstract and can not be contradicted or supplemented by
statements made in the argument portions of the briefs.  Wynn v.
State, 316 Ark. 414, 871 S.W.2d 593 (1994).  Further, the will
which must be construed is never supplied in its entirety.  It is
a practical impossibility for seven justices to examine the single
transcript filed with this Court, and we will not do so.  J.B. Hunt
Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
     In Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991), we
affirmed a comparable case for failure to adequately abstract a
will.  We commented that the will was a written instrument which
could have been abstracted in words.  Id.  We noted that, rather
than copying the will verbatim in the abstract, "in the argument
portion of their brief, appellants quote selected portions of the
will and then discuss those parts of the will they consider to be
controlling."  We concluded that such a discussion did not comply
with Ark. Sup. Ct. R. 9(d), the predecessor of our current Rule 4-
2.  Id.
     Affirmed.