Leatherwood v. Meisch

Steele Hays, Justice. The only question to be decided is whether appellant Dorene Meisch Leatherwood is a pretermitted child under the will of her late father, Francis F. Meisch. Mrs. Leatherwood is the only child of Francis Meisch and Dorothy Meisch, who divorced in 1953. Francis Meisch died on December 29, 1985, survived by his widow, Inez Meisch, and by Mrs. Leatherwood. Inez Meisch petitioned the probate court for the probate of a will dated February 9, 1973, naming Inez Meisch as executrix with Dorene Leatherwood as alternate. The will provided that if Inez Meisch survived, she would receive the entire estate — if not, then the estate would go to Dorene Leatherwood. Subsequently, Mrs. Leatherwood objected to the 1973 will and offered two later wills — one dated October 29, 1980,1 and the other dated March 14,1984. The petition asked that the 1984 will be probated and that Mrs. Leatherwood be declared to be a pretermitted child under the 1984 will. The 1984 will was admitted to probate as the last known will of Francis Meisch. It provided that Inez Meisch would serve as executrix and, if she survived, would receive the entire estate. If Mrs. Meisch did not survive, the entire estate was to be divided into two equal shares, “one of which shall be distributed to those persons who would constitute my heirs at law on the date of my death, and the other share distributable to those persons who would constitute the heirs at law of my said wife on the date of her death.” The will does not mention Mrs. Leatherwood by name. Mrs. Leatherwood contends here, as she did before the probate court, that she is a pretermitted child within the language of Ark. Code Ann. § 28-39-407(b) (1987): (b) PRETERMITTED CHILDREN: If, at the time of the execution of a will, there is a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will. The probate judge held that Mrs. Leatherwood came within a class mentioned in the will and was not, therefore, pretermitted. Mrs. Leatherwood has appealed and we affirm. Our relevant cases can be summarized succintly — if the word “heir” or “heirs” is used by the testator in a colloquial sense to refer to children, or descendants, as opposed to a technical, legal sense, then the requirements of § 28-39-407(b) (1987) are met. Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946); Powell v. Hayes, 176 Ark. 660, 2 S.W.2d 974 (1928). Thus in Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986), we held the following language was a sufficient mention of children to uphold a will which excluded them: I am mindful of the fact that I have willingly and intentionally omitted to provide for all my heirs or other relatives not specifically mentioned herein. Similarly, in Petty v. Chaney, Ex’x, 281 Ark. 72, 661 S.W.2d 373 (1983), we held that a provision for “my wife and my descendants,” was sufficient. Mrs. Leatherwood relies on the case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), which the concurring opinion finds indistinguishable from the case now before us. But how could it be said the words “heir” or “descendant” are used in a colloquial sense when they do not even appear? The probate judge found the wording in Robinson to be technical and we affirmed. Perhaps the difference is only one of degree, but most differences are, when closely examined. The language in Robinson provides that the estate would: devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution in the State of Missouri. That is the terminology of the technician, the cant of the legal profession, not the words a layman might choose to refer colloquially to a child or to children. While we review probate cases de novo, we cannot say the trial judge’s order was clearly erroneous and, accordingly, we affirm. Holt, C.J., and Newbern, J., concur. Purtle, J., dissents. Footnotes [1] The 1980 will nominated Mrs. Leatherwood to be executrix and recited that if a pending divorce suit was finalized prior to the death of Francis Meisch, Inez would receive nothing, but if the death should occur before finalization, Inez would receive only her statutory interest as widow. The residue of the estate was bequeathed to Dorene Leatherwood.