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Keywords

probatewill
probatewillobjectionappellee

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Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453

Facts

Anna Elizabeth Love Evans died testate on May 22, 1972, leaving a will dated April 30, 1970, which was admitted to probate without notice. The will named her daughter, Anna Elizabeth Armstrong, as executrix and bequeathed all property to her, omitting mention of Evans' three grandchildren. After a suit by the grandchildren for partition of real estate, the executrix sought to reopen the estate and admit a 1967 holographic will that disinherited the grandchildren. The probate court found the 1970 will valid and the grandchildren as pretermitted heirs.

Anna Elizabeth Love Evans died testate May 22, 1972, leaving surviving her as her heirs at law, her daughter, Anna Elizabeth Armstrong and three grandchildren, Betsy Martindale Butler, Nancy Martindale Tolleson and Jud B. Martindale, Jr., the children of a deceased daughter, Gwendolyn Martindale.

Issue

Did the revocation clause in the 1970 will specifically reference the 1967 holographic will, and were the grandchildren pretermitted heirs entitled to recover under the 1970 will?

Did the revocation clause in the 1970 will specifically reference the 1967 holographic will, and were the grandchildren pretermitted heirs entitled to recover under the 1970 will?

Rule

The court applied the principle that a revocation clause must clearly identify any prior wills to be effective, and that pretermitted children are entitled to inherit unless explicitly disinherited in a valid will.

The intention of a testator is to be gathered from the four corners of the instrument itself, considering the language used and giving meaning to all its provisions, if possible to do so.

Analysis

The court determined that the language in the 1970 will's revocation clause did not specifically reference the 1967 will, thus the grandchildren were considered pretermitted heirs. The court rejected the argument that the 1970 will's revocation indicated an intention to disinherit the grandchildren, emphasizing that the testatrix's intent must be derived from the will's language alone, without extrinsic evidence.

The probate judge, over objections of the appellees, authorized the reopening of the estate, found that the instrument dated March 21, 1967 (both pages) was a holographic testamentary instrument, that it was not newly discovered evidence, that the formal will and the holographic one should not be considered as one instrument, that the later will revoked the earlier one, that appellees were pretermitted heirs, that the doctrine of dependent relative revocation, if accepted in Arkansas at all, was not applicable in this case and that the proffered holographic will came too late.

Conclusion

The court affirmed the probate court's ruling that the grandchildren were pretermitted heirs and entitled to recover under the 1970 will, as the revocation clause did not specifically disinherit them.

The decree is affirmed.

Who won?

The grandchildren prevailed in the case because the court found that they were pretermitted heirs under the 1970 will, which did not explicitly disinherit them.

The grandchildren, who were the children of the deceased daughter, and heirs of the testatrix, were nowhere mentioned in the will, either by name or as a class.

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