First Security Bank v. Estate of Paul C. Leonard
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SUPREME COURT OF ARKANSAS
No.
06-1025
Opinion Delivered March
FIRST SECURITY BANK,
15, 2007
APPELLANT,
VS.
ESTATE OF PAUL C. LEONARD,
APPELLEE,
APPEAL FROM THE JOH N SO N
COUNTY CIRCUIT COURT,
NO. PR2004-105,
HON. GORDON WILLIAM MCCAIN, JR,
JUDGE,
AFFIRMED.
JIM HANNAH, Chief Justice
First Security Bank appeals a decision of the Johnson County Circuit Court, Probate
Division, dismissing a will contest filed by First Security as guardian of the estate of Elna
Leonard. The will contest was dismissed for failure to comply with Ark. Code Ann. § 16-62105 (Repl. 2005) and Ark. Code Ann. § 16-62-109 (Repl. 2005). We affirm the circuit
court’s decision that the will contest must be dismissed but do so based on a failure to
comply with Ark. Code Ann. § 28-65-323 (1987). Our jurisdiction is pursuant to Ark. Sup.
Ct. R. 1-2(b)(6).
Facts
On February 5, 2004, Patricia Kay Harden filed a petition to probate the will of Paul
C. Leonard. She also sought to be appointed as personal representative of the estate. On
March 24, 2004, First Security filed a will contest as guardian of the estate of Elna Leonard.1
On July 26, 2004, the circuit court entered an order appointing Community First Trust
Company as Administrator CTA,2 admitting Paul’s will to probate, and provided in the order
that “the validity of the instrument offered for probate is being contested and the validity of
the will shall be determined at a later date.” Elna passed away on September 12, 2004.
Community First Trust filed a motion to dismiss the will contest asserting that Elna’s death
terminated First Security’s authority to act on behalf of Elna’s estate, and that First Security
failed to timely revive the will contest. On April 18, 2006, the circuit court entered an order
dismissing First Security’s will contest for failure to comply with Ark. Code Ann. § 16-62105 and Ark. Code Ann. § 16-62-109. This appeal followed.
Ark. Code Ann. § 28-65-323
First Security was prosecuting the will contest as the guardian of Elna’s estate when
her death on September 12, 2004, terminated First Security’s guardianship. Ark. Code Ann.
§ 28-65-401(a)(2) (1987). Therefore, First Security could no longer act on behalf of the
estate. Under the probate code, First Security could have had letters of administration issued
to grant it authority to administer the estate of its deceased ward. Ark. Code Ann. § 28-65-
1
Paul and Elna were husband and wife. A guardian of Paul and Elna’s estate was
appointed on September 25, 2002.
2
CTA is an acronym for the Latin phrase cum testamento annexo, meaning an
administration granted when no executor of the will is appointed, or where the executor declines
to act, is incompetent to act, or is not permitted to act. See, e.g., McEachin v. People’s Nat’l
Bank, 191 Ark. 544, 87 S.W.2d 12 (1935).
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06-1025
323 (1987). First Security did not timely seek that authority. Arkansas Code Annotated
section 28-65-323(a) (1987) provides as follows:
Upon the death of a ward, the guardian of his or her estate is authorized, as
such, subject to the direction of the court, to administer the estate of the
deceased ward after further letters are issued to him or her, after a hearing,
pursuant to a petition for letters, testamentary or of administration, which has
been filed not later than forty (40) days after the death of the ward, subject,
however, to the provisions of § 28-40-116.
First Security did not file a petition for letters of administration until January 11, 2005, more
than forty days after Elna’s death.3 Thus, First Security lost authority to act when it failed
to timely obtain letters of administration as allowed under Ark. Code Ann. § 28-65-323.
Special Proceeding
The parties argue about whether the will contest could be revived under Ark. R. Civ.
P. 25. Rule 25 is a rule of civil procedure providing for substitution of parties. The rules of
civil procedure apply to civil actions.4 Sosebee v. County Line Sch. Dist., 320 Ark. 412, 415,
897 S.W.2d 556, 558 (1995); Ark. R. Civ. P. 2. “A will contest is not a civil action, but is
a special proceeding.” Coleman v. Coleman, 257 Ark. 404, 408, 520 S.W.2d 239, 242 (1974)
(citing Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936)); see also Weidrick
3
The period within which to seek the letters of administration ended on Monday, October
24, 2004, because the forty days ran on Saturday, October 22, 2004. Letters of administration
were not issued until January 26, 2005.
4
“Since the advent of our original Civil Code, there have been two types of proceedings
in Arkansas law. One is a civil action; the other is a special proceeding.” Sosebee v. County
Line Sch. Dist., 320 Ark. 412, 415, 897 S.W.2d 556, 558 (1995).
-3-
06-1025
v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). Special proceedings are governed by
statute. In Re: Adoption of Baby Boy Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997).
Where a statute “creates a right, remedy or proceeding [that] specifically provides a different
procedure . . . the procedure so specified shall apply.” Ark. R. Civ. P. 81(a).
Section 28-65-323 provides a specific statutory procedure granting a guardian of the
estate forty days from the date of the ward’s death within which to file a petition for
testamentary or administrative letters. If the requirements of the statute are met, the guardian
may continue to serve after the death of the ward. First Security argues that it is seeking to
“continue” its representation of the estate; “the court authorized the Bank to continue to
pursue the will contest . . . when the court authorized the Bank, as guardian, to administer the
estate of the deceased ward, Elna V. Leonard, pursuant to Ark. Code Ann. § 28-65-323.”
However, as already noted, First Security failed to comply with section 28-65-323 and
obtained no such authority.
In any event, First Security correctly asserts that it was
attempting to “continue” its representation of Elna’s estate. No substitution of parties was
at issue; therefore, Rule 25 was inapplicable.
5
While the will contest should have been
dismissed for failure to comply with section 28-65-323, we affirm because the circuit court
reached the right result even if for the wrong reason.
See Office of Child Support
5
The circuit court decided the case based on a failure to comply with Ark. Code Ann. §
16-62-105 and Ark. Code Ann. § 16-62-109. However, section 16-62-105 concerned civil
actions and was superceded by Ark. R. Civ. P. 25. See Deaver v. Faucon Props., Inc. , 367 Ark.
288, ___ S.W.3d ___ (2006); In re Statutes Deemed Supreceded by the Arkansas Rules of Civil
Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986). Section 16-62-109 concerns time for revivor
of a civil action and is likewise inapplicable in this special proceeding.
-4-
06-1025
Enforcement v. Pyron, 363 Ark. 521, ___ S.W.3d ___ (2005).
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06-1025
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