Slavik v. Estate of Slavik , 46 Ark. App. 74 ( 1994 )

John E. Jennings, Chief Judge.

Mike Slavik died testate on August 21, 1991, in Mountain Home. He was survived by five children and two stepchildren. His will left to each 16% of the assets of his estate, except for a stepdaughter who received 4%. The will named a son, Joseph Slavik, and a stepson, Edward Bishop, as co-executors.

When the proceeds of a $15,000.00 life insurance policy were not included in the inventory of the estate assets, the appellant, William Slavik, filed an objection. The probate judge held that the life insurance proceeds passed outside the will to the named beneficiaries, Joseph Slavik and Edward Bishop, and on appeal William Slavik argues that the judge’s decision was clearly erroneous. We find no error and affirm.

The policy in question was taken out in 1979, at which time the decedent designated his then wife, Mary, as the primary beneficiary. His son, Joseph Slavik, and stepson, Edward Bishop, were designated as contingent beneficiaries. Mrs. Slavik died in April, 1991, and on July 12, 1991, Mr. Slavik signed a change of beneficiary form¹ that read:

Name Relationship Date of Birth Address Share

Joseph Slavik Co-Executors of Estate 100% and or, in the alternative,

Edward Bishop The Estate of Insured Rt. 4, Box 263 Mtn. Home, AR 72653

Appellant correctly states the generally governing rules. Provisions in insurance policies as to beneficiaries are construed in accordance with the rules applicable to the construction of wills. American Foundation Life Ins. Co. v. Wampler, 254 Ark. 983, 497 S.W.2d 656 (1973). The cardinal rule in the interpretation of wills or other testamentary documents is that the intent of the testator should be ascertained from the instrument itself and effect given to the intent. See Ware v. Green, 286 Ark. 268, 691 S.W.2d 167 (1985). The testamentary gift to an executor, designated as such, vests in him as a fiduciary and not personally, unless the intention of the testator is plainly otherwise. 95 C.J.S. Wills § 683 (1957).

Appellant argues, as evidence of the decedent’s intent, that had Mr. Slavik wanted the life insurance proceeds to go to Joseph and Edward outright, he need not have executed the change of beneficiary form, because they would have received the proceeds after the death of Mary Slavik anyway. While it is true that this would have been the effect of the 1979 designation, there is no indication that the decedent was doing more than merely “updating” his insurance policy as the result of his wife’s recent death, as opposed to making a substantive change. And while it is true that insurance policies will be generally interpreted pursuant to the rules governing the construction of wills, leaving property to a legatee as “executor” is somewhat different from inserting the word “executor” in a change of beneficiary form requiring a statement of the relationship between the policy holder and the beneficiary.

But the most serious difficulty with appellant’s argument is that the change of beneficiary designation provided that proceeds would go “in the alternative” to the estate of the insured. If possible, a will (or a change of beneficiary form) must be construed to give force and meaning to every clause and provision; it is only if there is an irreconcilable conflict between two clauses that one must give way to the other. In re Estate of Lindsay, 309 Ark. 596, 832 S.W.2d 808 (1992). Had Mr. Slavik intended that his son and stepson take the proceeds of his insurance policy only in a representative capacity, there would obviously be no need for the additional language.

Where, on a fair construction of the entire will, the intention of the testator is clearly manifested that the executor should take personally, he may do so. This is particularly true where the executor is a close blood relative of the testator.

95 C.J.S. Wills § 683. The only case we have found with facts somewhat similar to the case at bar is Carter v. Hochman, 269 Cal. App. 2d 28, 74 Cal. Rptr. 669 (1969). There the decedent executed a designation of beneficiary form naming Mrs. Hochman as beneficiary. Under another heading entitled, “Related to me as,” the form showed, “administrator and executrix of my will.” The appellate court affirmed the trial court’s finding that the decedent intended for the beneficiary to take the proceeds in her own right.

For the reasons stated the decision of the trial court is affirmed.

Robbins and Mayfield, JJ., dissent.

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1 The relevant portion of this form is reproduced at the end of this opinion.