Edmundson v. Estate of Fountain , 358 Ark. 302 ( 2004 )

Donald L. Corbin, Justice.

Appellant Sharon Kay Edstiappeals ce. of the Izard County Circuit Court denying her petition to probate a purported holographic will written by her mother Oral W. Fountain. On appeal, she argues that the issue of whether the will contains words of testamentary intent is only one factor to be reviewed in determining if the will is valid. This case is before us on a petition for review from an unpublished court of appeals’ opinion in Edmondston [Edmundson] v. Estate of Oral W. Fountain, No. CA02-842 (Ark. App. Dec. 10, 2003)¹; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(e). We affirm.

The present dispute centers on a hand-written instrument purported to be the last will and testament of Fountain. The instrument, titled “Last Will” and dated January 1, 1997, lists all five of Fountain’s children with certain items listed under their names. According to this document, the majority of Fountain’s estate, consisting of a 160-acre farm, its contents, thirty-seven head of cattle, and a 1972 truck, was left to Appellant. Appellant was Fountain’s youngest child, who lived next door to her mother and helped her mother after the other children moved away. The document was signed by Fountain and witnessed by two acquaintances.

Fountain died on April 23, 1998. Initially, her estate was probated as intestate and Appellant objected to a petition filed by her siblings requesting that Fountain’s personal property be sold, because she claimed that it belonged to her. Despite her objection, the trial court ordered the property to be sold. However, in June 1999, Appellant petitioned the court to admit a holographic instrument that had been discovered. Roger Hall had purchased a roll of upholstery from Appellant’s husband and discovered an envelope containing the document signed by Fountain and titled “Last Will.” He then gave the document to Appellant. Appellant’s four siblings objected to the admission of the instrument, claiming that the document was not in the handwriting of their mother.

A trial was held on the admission of the purported will. During the trial, numerous witnesses testified, including family members, the attesting witnesses, and handwriting experts. Verlin Harris, Fountain’s sister, testified that prior to Fountain’s death, she told her sister that she had a will. The deposition testimony of Ricky Smithson and Justin McAlister, the two individuals who witnessed the will, was admitted during the trial. They each testified that they were at Fountain’s house one day looking for an acquaintance. While there, Fountain asked the two men for a favor. She then produced a document they believed to be her will, which they signed.²

At the conclusion of the trial, the trial court ruled that the instrument was in Fountain’s handwriting. The court refused, however, to admit the instrument to probate as Fountain’s will, finding that it lacked the requisite testamentary intent. Specifically, the trial court found that there was “no testamentary language whatsoever within the instrument.” According to the trial court, this lack of dispositive wording rendered the instrument invalid on its face.

Appellant appealed the order of the trial court to the court of appeals. The court of appeals found that the trial court erred in denying Appellant’s request to probate the instrument. The court of appeals recognized the long-standing case law of this court that testamentary intent is necessary to the validity of a holographic will, but then distinguished our cases analyzing testamentary intent. The court of appeals determined that the deciding issue in this case was whether words of a testamentary nature are absolutely required by our case law. The court then concluded that they are not, agreeing with Appellant that the use of certain dispositive words should not be placed above the clear intent of the decedent. The court then went on to find that the clear intent of Fountain was for this document to be her last will, as evidenced by certain facts, including that it was titled “Last Will,” was signed, was witnessed by two people, and listed all of her children, with certain property listed under each child’s name.

Following the decision by the court of appeals, the Estate petitioned this court for review, arguing that there is a perceived inconsistency in the court of appeals’ decision and this court’s decisions in prior cases. Specifically, the Estate argued that according to this court’s previous case law, where there are no words of a dispositive nature, the will is defective on its face. This court granted review on January 29, 2004.

When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). Moreover, we review probate proceedings de novo, and we will not reverse the decision of the circuit court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001); Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000).

Appellant’s sole point on appeal is that the trial court erred in refusing to admit the purported will to probate, as the evidence demonstrated that Fountain intended for the document to be her will. According to Appellant, the issue of whether there were dispositive words is only one factor to be considered in determining testamentary intent. The Estate argues that this court’s case law requires the document to contain words that express testamentary intent. The Estate is correct.

The law surrounding testamentary intent is well settled. A will is a disposition of property to take effect upon the death of the maker of the instrument. See Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985); Clark v. Rutherford, in Ark. 270, 298 S.W.2d 327 (1957). To be valid as a will, an instrument must be executed with testamentary intent, or animus testandi, which is the intention to dispose of one’s property upon one’s death. Smith v. Nelson, 111 Ark. 512, 299 S.W.2d 645 (1957). This court determines that intent by looking to the four corners of the instrument. McDonald v. Petty, 262 Ark. 517, 559 S.W.2d 1 (1977). It is a question of law for the court to determine from the face of the instrument whether the writer intended to make a testamentary disposition. Id.; Stark v. Stark, 201 Ark. 133, 143 S.W.2d 875 (1940).

In McDonald, 262 Ark. 517, 559 S.W.2d 1, this court was faced with the issue of whether a holographic will contained the requisite testamentary intent. The court stated that there can be no will unless “there exists in the mind of the writer that it was his intent to make a testamentary disposition of his property and that intent must be expressed so that there can be no mistake as to what was intended.” Id. at 519, 559 S.W.2d at 2 (emphasis added). In McDonald, this court concluded that since the document set forth no words of a dispositive nature, it was defective on its face because it lacked the required animus testandi or intent to make a will. Thus, the probate court’s allowance of extrinsic evidence was in error as it was not admissible to prove the necessary intent. In concluding as it did, this court explained:

Here the instrument is merely a sketch or drawing on the back of a used envelope with names in individual squares, directions indicated, and the decedent’s signature and date. There is absolutely nothing indicating an intent that this instrument should serve as a testamentary disposition of his property. No case is cited to us nor has our research revealed one that would uphold this instrument or a similar one as facially sufficient to permit extrinsic evidence to establish it was intended as a will. Certainly, it cannot be said that its expressions are so clearly stated that, without inference, no mistake can be made as to the existence of a testamentary intention.

Id. at 519-20, 559 S.W.2d at 2.

In Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991), the appellant sought to probate her mother’s holographic will as the will of Claude Rogers, an unmarried man who had lived with appellant’s mother. The will had the following notation appended beneath her mother’s signature: “Judee Dunn — Claude & I give you full power to do & take care of all our Business & do as you wish with, with it, with no problems from anyone. You can sell or dispose of all property & monies.” Id. at 474, 803 S.W.2d at 542. Appellant’s mother, Mr. Rogers, and two witnesses signed this notation. This court affirmed the denial of probate, stating:

Further, where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent.

In this case, we find no testamentary intent whatsoever within the passage that Ms. Dunn claims to be the will of Mr. Rogers. Certainly, it cannot be said that this instrument’s expressions are so clearly stated that, without inference, no mistake can be made as to the existence of testamentary intention.

Id. at 475-76, 803 S.W.2d at 543.

In the instant case, we note that the court of appeals in reversing the trial court relied, in part, on this court’s decision in Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966). Specifically, the court of appeals quoted with approval our statement in Chambers that for a document to be a valid will, it need not have a specific title or be couched in technically appropriate language, as long as it discloses the intention of the maker regarding the disposition of property. In Chambers, this court approved the testator writing, “I Boyd Ruff request that all I own in the way of personal or real estate property to be my wife Modene.” Id. at 429, 399 S.W.2d at 656. In finding that this language was sufficient proof of testamentary intent, this court quoted from 94 C.J.S. Wills § 203 and stated that no particular words are necessary to manifest testamentary intent. In other words, this court recognized that while it is not necessary for a testator to use specific terms such as “bequeath” or “devise,” there must be some words indicating an intent on the part of the testator to dispose of property.

Moreover, this court has explained that while we recognized in Chambers that inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt, such a rule only applies where some testamentary intent can be inferred from the four corners of the document itself. See e.g., Faith, 286 Ark. 403, 692 S.W.2d 239; McDonald, 262 Ark. 517, 559 S.W.2d 1. It is axiomatic that use of extrinsic evidence is appropriate only when the instrument contains some words expressing an intent to dispose of property; stated another way, it is inappropriate when the instrument expresses no such words of disposition. See David Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d310 (1984); McDonald, 262 Ark. 517, 559 S.W.2d 1. That is so because the existence of testamentary intent is not a matter of inference; rather, it must be expressed so that no mistake is made as to the existence of that intention. Id. Although the general rule is that a will should be, if possible, construed so as to avoid intestacy, this court will not speculate on a testator’s intent. Id.

The dissenters rely in part on Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991), to support its contention that extrinsic evidence should be allowed in order to determine testamentary intent. In O’Donnell, this court affirmed the trial court’s denial of a motion to admit a holographic instrument to probate. In reaching this conclusion, this court stated that the trial court’s reasoning was within the applicable framework of the law. It is apparent in O’Donnell that the trial court relied on extrinsic evidence in concluding that the instrument lacked testamentary intent. What is not apparent, however, is whether the trial court first determined that some words of testamentary intent to dispose of property could be inferred from the four corners of the proffered instrument. The O’Donnell court cited to this court’s previous opinion in Varnum, 284 Ark. 108, 681 S.W.2d 310, for the proposition that the document itself, along with all the attending circumstances, must overcome all doubts about testamentary intent. In Varnum, however, this court went on to state that extrinsic evidence may only be considered when the instrument uses words expressing testamentary intent. Although the O’Donnell court cited the Varnum and McDonald cases, the court failed to mention the established rules that, when a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent. See also Dunn, 304 Ark. 473, 803 S.W.2d 542 (where the court further said that it is a question of law for the court to determine from the face of the instrument whether the writer intends to make a testamentary disposition).³ Thus, to the extent that O’Donnell conflicts with this ruling, it is hereby overruled.

Turning back to the case now before us, Appellant is asking this court to speculate on the intent of Fountain when she drafted the document titled “Last Will.” That document contains absolutely no words of testamentary intent. The dissent makes much ado about the fact that the document was titled “Last Will.” The title alone, however, does not cure the defective nature of this document. The lack of any language indicating that Fountain intended to give or leave certain property to each of her children rendered the document facially invalid. Our cases make it clear that where testamentary intent cannot be ascertained from the face of the document, extrinsic evidence may not be admitted. Thus, in this case, the only evidence properly considered in order to determine Fountain’s intent is the holographic document itself. The trial court correctly determined that document was facially invalid, as it lacked any dispositive language and was nothing more than a list of Fountain’s children with certain property under each name. In sum, we agree with the trial court that the document’s expressions are not so clearly stated that, without inference, no mistake can be made that Fountain possessed the requisite testamentary intent when she drafted this document. Accordingly, we cannot say that the trial court clearly erred in refusing to probate the holographic document proffered by Appellant.

Circuit court affirmed; court of appeals reversed.

Dickey, C.J., and Brown, J., dissent.

1 There is some apparent confusion over the correct spelling of Appellant’s last name. In its opinion, the court of appeals refers to Edmondston. In documents in the Transcript, Appellant signed her name Edmonston. We, however, adopt the spelling utilized by the Clerk of this court, which is Edmundson.

2 Smithson could not recall if Fountain signed the document in his and McAlister’s presence. McAlister, on the other hand, testified that the document was already written out before they signed it.

3 The dissenters also rely on the Restatement (Third) op Property: Wills & Donative transfers § 3.2, cmt. c (1999) for the proposition that“[t]estamentary intent need not be shown from the face of the will, but can be established by extrinsic evidence.” The Restatement is obviously completely in conflict with this court’s holdings as set out in this opinion. In addition, the Restatement was neither argued to nor ruled on by the court below, nor did either party even argue or mention the Restatement in this appeal. Instead, the idea to apply or adopt the Restatement comes from the fertile minds of the dissenters, not the parties.