Dunklin v. Ramsay
Annotate this Case
George H. DUNKLIN Jr., Co-Executor of the
Estate of Hattie Boone Black, Deceased v.
Louis L. RAMSAY Jr., Lester Asher McKinley,
Warren A Jennings Jr., and Georgea Boone
McKinley Greaves, as Co-Executors of the
Estate of Hattie Boone Black, Deceased
96-471 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered April 28, 1997
1. Appeal & error -- appeal from probate court -- standard of review. -- As
provided in Ark. Code Ann. 28-1-116 (1987), a right to
review by the supreme court lies from all probate court
orders, with a few exceptions; the supreme court reviews
probate matters de novo but will not reverse the findings of
the probate judge unless they are clearly erroneous.
2. Judgment -- summary judgment -- standard of review. -- In an appeal
from the grant of summary judgment, all of the facts and
circumstances are viewed in a light most favorable to the
party against whom judgment was entered.
3. Statutes -- construction -- words given ordinary and usually accepted
meaning. -- The first rule in considering the meaning and effect
of a statute is to construe it just as it reads, giving the
words their ordinary and usually accepted meaning in common
language; when the language of a statute is plain and
unambiguous, there is no need to resort to rules of statutory
construction.
4. Executors & administrators -- statute mandates that powers given to more
than two executors be exercised only by joint action of majority. -- The
supreme court concluded that the plain language of Ark. Code
Ann. 28-48-104 (1987) clearly mandates that in situations
where there are more than two executors of a decedent's
estate, the powers given to them may be exercised only by the
joint action of a majority of them, unless otherwise provided
by the will; the language on the face of the statute was
clear, and thus there was no need for further interpretation.
5. Wills -- in terrorem clauses held valid. -- Where appellant contended
that he was deprived of any meaningful opportunity to seek
interpretation or construction of the will due to the harsh
repercussions of its in terrorem clause, the supreme court
concluded that any such deprivation was arranged by the
decedent herself, not the probate judge; the court has
previously reviewed such in terrorem clauses and has
consistently held them valid.
6. Executors & administrators -- appellant co-executor lacked standing to
oppose majority's action and interpretation of will. -- The supreme
court affirmed the probate court's order finding that
appellant, in his capacity as co-executor, lacked standing to
oppose the action of the majority of the executors and the
majority's interpretation or construction of the decedent's
will.
Appeal from Arkansas Probate Court, Southern District; Russell
Rogers, Probate Judge; affirmed.
Malcolm R. Smith and Friday, Eldredge & Clark, by: William A.
Waddell, Jr., and J. Lee Brown, for appellant.
Russell D. Berry and Eichenbaum, Scott, Miller, Liles &
Heister, P.A., for appellees.
Donald L. Corbin, Justice.
This appeal is from an order of the Arkansas County Probate
Court, Southern District, holding that Appellant George H. Dunklin
Jr., co-executor, did not have standing to challenge the petition
for partial distribution of the estate of Hattie Boone Black, filed
by the majority of the co-executors of the decedent's estate. This
court has jurisdiction to hear the appeal on the basis that it
presents an issue of first impression requiring us to interpret an
act of the General Assembly. Ark. Sup. Ct. R. 1-2(a)(17)(i) and
(vi) (as amended by per curiam order July 15, 1996). We find no
error and affirm the judgment of the probate court.
The pertinent facts of this case are not in dispute. Miss
Hattie Boone Black died on February 5, 1993, and left as her last
will and testament an instrument dated July 22, 1988, which
nominated and appointed Appellant and all four Appellees, Louis L.
Ramsay Jr., Lester Asher McKinley, Warren A. Jennings Jr., and
Georgea Boone McKinley Greaves, as executors of the estate. The
will also listed the surviving heirs and devisees of the decedent
as Georgea Oliver McKinley and Elisabeth Black Dunklin, both
sisters of the decedent, and the Hattie Boone Black Testamentary
Trust. All five of the executors named in the will were
additionally named as trustees of the foregoing testamentary trust,
with three of the five, namely Appellant and Lester Asher McKinley,
both nephews of the decedent, and Georgea Boone McKinley Greaves,
niece of the decedent, being beneficiaries of the trust. The will
provided that the powers granted to the trustees were to be
exercised by a majority of the trustees entitled to vote with
respect to the particular issue involved. Additionally, subsection
(h) of Article III of the will included an in terrorem clause,
which provided that any named beneficiary who contested or disputed
the probate of the will would forfeit his or her interest in the
estate.
On February 8, 1993, the executors filed a petition for
probate of the will, which was granted that same date. On
November 30, 1994, Appellees filed a petition for partial
distribution of the estate. Appellant responded to the petition
with an objection to the Appellees' interpretation of Article II of
the decedent's will, which provided in pertinent part:
I give and bequeath all of my personal property,
whether tangible or intangible (with the sole exception
of all common stock in Black, Inc., and in all other
corporations, owned by me at the time of my death), to my
sister, Georgea Oliver McKinley.
In their petition for partial distribution, Appellees stated
that a majority of the co-executors had agreed that this bequest
should be construed to include all tangible and intangible personal
property belonging to the decedent at the time of her death except
for the decedent's stock in Black, Inc., since that was the only
corporation that was owned by the decedent at the time of her
death. Appellant was the sole dissenter, asserting that the
parenthetical clause included all common stock in Black, Inc., as
well as any other corporations in which the decedent had an
ownership interest. In other words, the dispute here centers
around the question of whether the reference to the decedent's
ownership in the parenthetical clause applies to her ownership of
any common stock or her ownership in whole of any corporation.
Appellees filed a motion for summary judgment requesting the
probate court to dismiss Appellant's response on the ground that he
had no standing as a co-executor to contest or resist the
construction agreed upon and sought by the majority of the
executors. Appellees included in their motion a portion of the
interrogatories posed to Appellant in which Appellant indicated
that he was seeking an interpretation or construction of the will
solely in his capacity as co-executor.
Appellant responded to the motion by stating that he had
standing to request a construction of the will, as provided in Ark.
Code Ann. 28-26-101(b) (1987), as an "interested person" due to
his status as a fiduciary. Appellant cites as authority Ark. Code
Ann. 28-1-102(a)(11) (1987), which defines "interested persons"
as including "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 their reply, Appellees asserted that Appellant was not
acting as an "interested person," but rather as a co-executor.
Appellees further argued that as a dissenting co-executor,
Appellant had no power to act contrary to the will of the majority
of the executors pursuant to Ark. Code Ann. 28-48-104(a) (1987),
which provides:
Unless otherwise provided by will, the powers given
to two (2) personal representatives may by exercised only
by their joint action, and powers given to more than two
(2) personal representatives may be exercised only by the
joint action of a majority of them. [Emphasis added.]
A hearing was held on the motion, and the probate court ruled
that Appellant's objection to the majority's interpretation of the
will was overruled on the basis that a dissenting co-executor has
no standing to object to the majority's actions under existing law.
This appeal followed.
As provided in Ark. Code Ann. 28-1-116 (1987), a right to
review by this court lies from all probate court orders, with a few
exceptions not applicable to this case. Section 28-1-116(a), (b);
In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).
We review probate matters de novo on appeal, but we will not
reverse the findings of the probate judge unless they are clearly
erroneous. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715
(1996); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996). In an
appeal from the grant of summary judgment, all of the facts and
circumstances are viewed in a light most favorable to the party
against whom judgment was entered. Mangum v. Estate of Fuller, 303
Ark. 411, 797 S.W.2d 452 (1990).
The first rule in considering the meaning and effect of a
statute is to construe it just as it reads, giving the words their
ordinary and usually accepted meaning in common language. Bill
Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 922 S.W.2d 718
(1996). When the language of a statute is plain and unambiguous,
there is no need to resort to rules of statutory construction.
Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997).
In support of his argument on appeal, Appellant asserts that:
(1) He is a fiduciary, by way of his status as a co-executor, and
as such he may petition the probate court to construe the will as
provided in section 28-26-101 and (2) the probate judge's ruling
deprived him of any meaningful right to seek a construction of the
will or to contest Appellees' petition in that any attempt by him
to contest the petition as a legatee or beneficiary would subject
him to the repercussions of the in terrorem clause of the will.
Appellees contend that it is plainly evident from the language
of section 28-48-104 that power may only be exercised by the joint
action of a majority of an estate's "personal representatives,"
which is defined in section 28-1-102(a)(19) as executors or
administrators. In support of their position, Appellees cite us to
the case of In re Greenberg's Estate, 146 N.E.2d 404 (Ill. App.
1957). The issue in that case was whether a single co-executor had
the right to hire independent counsel in his capacity as co-
executor contrary to the express opposition of a majority of the
co-executors. The Illinois appeals court held that although the
dissenting co-executor was free as an individual to seek
independent counsel at his own expense, he did not have the power
to obtain his own counsel at the expense of the estate. The court
went on to hold:
Apart from the directive of the will providing for
majority control, the salutary principle of law as
enunciated in Dingman v. Boyle, 285 Ill. 144, 120 N.E. 487, Coleman v. Connolly, 242 Ill. 574, 90 N.E. 278, and
Wilson v. Mason, 158 Ill. 304, 42 N.E. 134, is that co-
executors and co-trustees must act as an entity in
matters pertaining to the administration of the estate;
any other rule would lead to confusion and chaos and
create unnecessary charges against estate funds. . . .
If each co-executor were to be allowed independent
counsel, it could well be that in the approach to every
decision there would be as many opinions as co-executors.
Id. at 408. Although the present case does not involve an
identical issue, the analysis provided by the Illinois appeals
court against such individual power is clearly applicable to the
question presented here.
Appellees contend further that, for purposes of seeking a
construction of the decedent's will, Appellant is not an
"interested person" as contemplated by section 28-26-101, because
his status as a fiduciary is wholly dependent upon his status as a
co-executor. Appellees do not dispute that Appellant has the right
to petition the probate court for a construction of the decedent's
will in his capacity of legatee or beneficiary, although he must do
so at the risk of losing his interest in the proceeds of the will.
Appellees contend, however, that if Appellant has been deprived of
any meaningful right for construction of the will by the in
terrorem clause, as he claims, it is the result of the decedent's
wishes, as opposed to the ruling by the probate court.
We conclude that the plain language in section 28-48-104
clearly mandates that in situations where there are more than two
executors of a decedent's estate, the powers given to them may be
exercised only by the joint action of a majority of them, unless
otherwise provided by the will. The language on the face of the
statute is clear and, thus, there is no need for further
interpretation of the statute. Additionally, we are not persuaded
by Appellant's argument that he may nonetheless petition for
construction of the will in his capacity of fiduciary, as we
conclude that his status as fiduciary is wholly dependent upon his
status as co-executor.
As for Appellant's contention that he is deprived of any
meaningful opportunity to seek interpretation or construction of
the will due to the harsh repercussions of the in terrorem clause,
we agree with Appellees' assertion that any such deprivation was
arranged by the decedent herself, not the probate judge. This
court has previously reviewed such in terrorem clauses and has
consistently held that such clauses are valid. See, e.g., Jackson
v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986); Lytle v. Zebold,
235 Ark. 17, 357 S.W.2d 20 (1962); Ellsworth v. Arkansas Nat'l
Bank, 194 Ark. 1032, 109 S.W.2d 1258 (1937).
Based upon the foregoing analysis, we affirm the order of the
probate court holding that Appellant, in his capacity as co-
executor, lacked standing to oppose the action of the majority of
the executors and the majority's interpretation or construction of
the decedent's will.
Affirmed.
G. William Lavender, Richard Lusby, and Walter L. Skelton, Sp.JJ., join
in this opinion.
John Harris Jones, Sp.C.J., and Richard C. Kalkbrenner, Sp.J.,
dissent.
Arnold, C.J., Newbern, Glaze, Brown, and Thornton, JJ., not
participating.
John H. Jones, Special Chief Justice, dissents.
This appeal relates to construction of the Will of Hattie
Boone Black, primarily Article II:
I give and bequeath all of my personal property,
whether tangible or intangible (with the sole exception
of all common stock in Black, Inc., and in all other
corporations, owned by me at the time of my death), to my
sister, Georgea Oliver McKinley.
Article III willed the residue to a Trust of which the life
beneficiaries were decedent's nieces, Mary McKinley Jennings,
Georgea Boone McKinley Greaves, and Deborah Boone Dunklin Tipton,
and her nephews, Lester Asher McKinley and George H. Dunklin, Jr.,
with remainder over to their descendants.
The parties to this action are the Appellant, George H.
Dunklin, Jr., and the Appellees, Louis L. Ramsay, Jr., Lester Asher
McKinley, Warren A. Jennings, Jr., and Georgea Boone McKinley
Greaves, all of whom are Co-Executors of the Will as well as Co-
Trustees of the Trust under the Will.
The issue on appeal is whether the Probate Court erred in
ruling that Dunklin in his capacity as one of the five Co-Executors
had no standing to ask the court to construe the Will.
Contentions of the parties and their supporting arguments,
recurring in the appellate briefs, were set forth in the pleadings
and memoranda, hereinafter summarized. Agreement on some points
was reached during hearing on a Motion for Summary Judgment filed
by Appellees and later granted by the Probate Court, dismissing
Appellant's Response to the Petition for Partial Distribution.
Appellees as Co-Executors petitioned the Probate Court for
partial distribution reciting that a majority of the Co-Executors
had agreed that the bequest under Article II should be construed to
include all tangible and intangible property of decedent except for
her stock in Black, Inc., further stating that the fifth Co-
Executor, the Appellant, "has expressed some doubt regarding the
proper construction of this provision."
The Petition also asserted, "All persons interested in the
decedent's estate and the designated beneficiaries of the trust
described in Article III have received notice of the filing of this
Petition or have filed herein their written Waivers of Notice
thereto[.]"
Attached was Exhibit A indicating the specific properties to
be distributed and their valuations on the Estate Tax Return.
Appellant as one of the Co-Executors responded to the Petition
asserting his belief the Will is clear on its face that all common
stock owned by decedent in Black, Inc., and all other corporations
should be distributed to the Trust rather than to Mrs. McKinley.
Appellees then filed Motion for Summary Judgment that the four
executors "have construed the Will of decedent herein to bequeath
to Georgea Oliver McKinley all of decedent's tangible and
intangible personal property except her stock in Black, Inc.,
. . . . Respondent herein has no standing as co-executor to
contest or resist the construction agreed upon or sought by the
other four executors." Under Ark. Code Ann. 28-48-104 (1987)
powers of the personal representatives "may be exercised only by
the joint action of a majority[.]" Prayer was for summary judgment
dismissing Appellant's Response.
In responding to the Motion, Appellant asserted that under
Ark. Code Ann. 28-26-101 (1987) construction of a will is made by
the court, although petition for construction may be filed by
executors as done in this case. Powers under Ark. Code Ann. 28-
69-304 (1987) and under the Will do not include construction of a
will.
Appellees replied, "Petitioners do not claim that they have
the power to construe the Will. . . . [T]hey do have the power,
as co-executors, to file a petition asking the Court to construe it
as the majority construes it. George H. Dunklin, Jr., . . . as a
dissenting co-executor, has no power to the contrary." A
supporting memorandum cited authority including "when
administration of a trust is vested in co-trustees, they form but
one collective trustee and must exercise their powers jointly
. . . 76 A.L.R.2d Trusts 348, p. 325. See also Restatement 2d,
Trusts, 194." The memorandum continued:
All we do here is question the authority of George
H. Dunklin, Jr. as a dissenting co-executor. He may not
act contrary to the other co-executors in filing a
petition, whether it be for construction of the Will,
. . . or whatever. . . . He has full rights individually
and every other individual legatee under the Will has
such rights, but he has no more rights as co-executor
than any other stranger to the estate.
Appellant in a memorandum responded: The court under Ark.
Code Ann. 28-26-101 has authority to construe the will; a
construction is necessary before the petition may be determined.
Under 28-26-101 the Court may construe a will on petition of an
interested party, defined under 28-1-102(a)(11) to include a
fiduciary. As a fiduciary Appellant has the right to disagree with
the construction urged by Appellees and present his construction to
the Court. Served with the petition he had standing to respond.
Hearing was held upon the Motion for Summary Judgment, at
which the arguments of counsel reiterated the positions summarized
above from the pleadings and memoranda with some additional
agreement on issues. Mr. Berry made the principal statements on
the contentions of Appellees while Mr. Waddell spoke for Appellant.
During the proceedings the Trial Judge gave "an advisory opinion
that on my first reading, and second, and third, I guess, it says
that all common stock, to me, of any kind, goes to--is included in
the exception. That's what it seems to say to me."
The Trial Judge later asked "[D]o Executors ever construe a
Will?" Counsel for both sides agreed, Executors do not construe a
Will.
THE COURT: . . . And there is . . . a question as
to whether one of the Executors can force a construction?
MR. BERRY: Uh-huh.
. . . .
THE COURT: Well, there is no doubt that the legatee
can, but the legatee would be caught in the catch twenty-
two of the anti-contest clause. So, it is strictly
whether an Executor can.
MR. BERRY: Yes, sir.
THE COURT: . . . If we decide that question---
. . . .
THE COURT: . . . [I]f a dissenting Executor can't
force it, then there is no question---
MR. BERRY: No, sir.
THE COURT: Because the majority can go ahead and do
whatever they want to, regardless of what the Court feels
about constructing of the Will---
. . . .
THE COURT: ---and that would be up to an heir who
is aggrieved to come in and complain about it.
MR. BERRY: A beneficiary in some form or fashion.
. . . .
MR. WADDELL: It's--it's your province to construe
the Will. They have asked you to construe it in a
certain way. . . .
THE COURT: . . . [T]he only question, is whether I
should ever be involved in construing of this Will . . .
or just go ahead with whatever the Executors want to do.
. . . .
MR. BERRY: We are saying . . . the personal
representative is asking for distribution or whatever
that involves construction of the Will that the personal
representative, if it's more than one; then the majority
are the ones that control . . . . [I]n his capacity as
a Co-executor, Mr. Dunklin has no authority as a
dissenting Co-Executor.
After the discussion with the Court, Mr. Berry later added:
In order for there to be a pending matter, Mr. Dunklin is going to
have to come in in his individual capacity. If he as Co-Executor
does not have authority to bring it before the Court, and the Court
rules in our favor on the summary judgment motion, then he is going
to have to decide if he is going to file that response in his
individual capacity. If he files in his individual capacity and
that kicks in the forfeiture clause, he's out the window.
After the hearing, Appellees' counsel filed a Supplemental
Memorandum quoting the in terrorem clause of the Will which
provides in part:
(h) If any beneficiary . . . shall directly or
indirectly . . . institute or become a party to any
proceeding, suit or action for the purposes of . . .
changing the effect of his will, wholly or in part . . .
such contestant shall thereupon forfeit . . . any right,
title or interest in or to any portion of my estate[.]
Thereafter, the Probate Court entered its Order on the basis
that a dissenting Co-Executor has no standing to object to the
majority's action.
Construction of the Will is not now before this court. The
Probate Court has made no final ruling as to the decedent's intent
as expressed in Article II. However, my view of the merits of the
appeal may be affected by my agreement with the Trial Judge's
"advisory opinion" that the language of Article II of the Will is
not ambiguous but means that all of the common stock owned by
decedent goes into the Trust.
If the "advisory opinion" is correct, the construction by
Appellees would divert assets from the Trust to Mrs. McKinley. It
is Appellant's duty as a Co-Executor to exercise due care to
prevent his Co-Executors from diverting assets of the Trust.
As stated in Appellees' brief, "The very essence of probate is
to see that the decedent's intentions as expressed in the will are
carried out."
When its jurisdiction is invoked, the Probate Court on its own
motion may compel the co-trustees to perform their duties under the
Trust. Restatement (Second) of Trusts 200 cmt. h; 76 Am. Jur. 2d
Trusts 329 (1992).
Contrary to Appellees' contention and as Appellant urges, our
Probate Code provides for the Probate Court's construction of a
will:
on the petition of the personal representative or of any
other person interested in the will, or if a construction
of the will is necessary to the determination of an issue
properly before the court, the court may construe the
will in connection with the determination of the issue.
Section 28-26-101(b) (emphasis added).
Appellees' Petition necessitated a construction of the Will
which the Probate Court could not delegate or resign to a majority
of the Co-Executors.
The powers given to the Co-Executors under the Will do not
include construction of the Will contrary to its plain language nor
where the construction may be in doubt. Neither a majority nor all
of the executors may rewrite a portion of the Will.
Among the authorities cited by Appellees is Restatement
(Second) of Trusts 194 (1959) which gives a cross-reference: "As
to the duties and liabilities of trustees with respect to co-
trustees, see 184, 224."
If there are several trustees, each trustee is under a
duty to the beneficiary to participate in the
administration of the trust and to use reasonable care to
prevent a co-trustee from committing a breach of trust or
to compel a co-trustee to redress a breach of trust.
Restatement (Second) of Trusts 184 (1959).
The term, "breach of trust" has such derogatory connotations
that the Restatement's definition should be consulted. Section 201
defines "breach of trust" as a "violation by the trustee of any
duty which as trustee he owes to the beneficiary." We are not
privy to the amount of the value of the stock involved, only as
Mr. Waddell observed at the hearing, without dissent, "[I]t's such
a big dollar amount. . . . that's why everybody fights this." To
divert from the Trust assets of significant value is clearly in
violation of the duty which the Co-Executors owe to the lifetime
beneficiaries as well as to the remaindermen, if the Will is
construed in accordance with the Trial Judge's "advisory opinion."
Section 224 of the Restatement declares, in part:
(2) A trustee is liable to the beneficiary, if he
(d) by his failure to exercise
reasonable care in the
administration of the trust has
enabled his co-trustee to commit a
breach of trust[.]
Again assuming the correctness of the Trial Judge's reading of
the Will, the Petition for Partial Distribution, if granted, would
deliver to Mrs. McKinley stock which the Will bequeathed to the
Trust. Restatement (Second) of Trusts 226 (1959) states:
If by the terms of the trust it is the duty of the
trustee to pay or convey the trust property or any part
thereof to a beneficiary, he is liable if he pays or
conveys to a person who is neither the beneficiary nor
one to whom the beneficiary or the court has authorized
him to make such payment or conveyance.
Comment b to the Section adds:
Mistake of law or fact. The trustee is liable
although he makes the payment or conveyance under a
reasonable mistake of law or of fact. If he is in doubt
as to the proper person to whom a payment or conveyance
should be made, he can apply to the court for
instructions and will be protected by the order of the
court against claims of all persons who were made parties
to the proceeding.
The trustee is liable although he reasonably
believes that the person to whom he pays or conveys is
the beneficiary or that the payment or conveyance is
authorized or directed by the beneficiary or by the terms
of the trust.
Comment e to Restatement 200 reads:
e. Co-trustee. If there are several trustees, one
or more of them can maintain a suit against another to
compel him to perform his duties under the trust, or to
enjoin him from committing a breach of trust . . . .
American Jurisprudence is in full accord with the Restatement.
A trustee is under a duty to exercise due care,
diligence, and skill with respect to watching cotrustees
and guarding the trust estate against their defaults and
breaches of trust, and if a trustee fails in this duty
the trustee is liable for all ensuing losses to the trust
estate. . . . A trustee fails to perform the required
duty in this respect where he or she hears of any fact
tending to call his or her attention to the mismanagement
or misapplication of trust funds by the cotrustee and
fails to take any steps to safeguard the trust estate.
76 Am. Jur. 2d Trusts 395 (1992) (footnotes omitted).
Appellees further argue that the in terrorem clause in the
Will limits Appellant's right individually to seek a construction
of the Will. Such a clause works both ways. The issue of whether
the actions of Appellees McKinley, Jennings and Greaves as Co-
Executors in their Petition for Partial Distribution instituted a
proceeding for the purpose of changing the effect of the Will,
wholly or in part, worked a forfeiture of their rights as
beneficiaries is not now in issue. It is clear that the actions of
Appellant in this proceeding have not jeopardized his rights under
the Will.
Appellees' basic position was that Appellant is not an
"interested person" entitled to be heard on construction of the
Will; although "interested persons" as defined in the Probate Code
Ark. Code Ann. 28-1-102(a)(11) (1987) includes a fiduciary. As
a Co-Executor, Appellees contend, Appellant has no power to act
contrary to the will of the majority of the Executors, citing Ark.
Code Ann. 28-48-104(a) which provides, "powers given to more than
two (2) personal representatives may be exercised only by the joint
action of a majority of them."
The fallacy of this argument is that construction of a will is
not a power of the executors, and counsel for Appellees so
acknowledged in their Reply and at the hearing on summary judgment,
quoted above. The Will granted the Executors all of the powers
vested in executors as outlined in Act 153 of the 1961 Acts, (Ark.
Code Ann. 28-69-304), which does not include will construction
among its numerous specific powers. Construction of disputed terms
of a will falls within the jurisdiction of the courts, not a
majority vote of the executors, nor may a majority vote of the
executors preclude one of their number from asking the Court to
assume such jurisdiction.
Appellant's actions herein have been to preserve assets of the
Trust and to obtain court instructions for a proper construction of
the Will; his costs including reasonable attorneys' fees should be
paid from the Trust estate. Wineland v. The Security Bank & Trust,
238 Ark. 625, 383 S.W.2d 669 (1964); Restatement (Second) of Trusts
259 (1959).
My conclusion is that the trial court erred in dismissing
Appellant's Response and the case should be reversed and remanded
with directions to reinstate the Response and to proceed with the
Petition for Partial Distribution in a manner consistent with this
opinion.
I respectfully dissent.
Richard C. Kalkbrenner, Sp.J., joins in this dissent.
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