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RAGER v. TURLEY12/1/1999
This appeal is from the Pope County Probate Court's order authorizing a settlement of a wrongful-death action that appellee Chandra Rager Turley filed following the August 1994 death of her father, Thomas Rager, in a vehicular accident that occurred in the scope of his employment with Tyson Foods, Inc. Thomas was also survived by his minor sons, Tommy Joe (age seventeen years) and Cory (age four years); his mother, Marjorie Rager; his brothers, Matthew Rager and Eugene Rager; and a sister, Yolanda Rager Pigeon. After appellee was appointed administratrix of the estate, she brought a wrongful-death action against the other parties involved in the accident.
After mediation with the defendants in the wrongful-death action, appellee filed a petition with the probate court on January 14, 1998, for authorization to settle the wrongful-death action. On March 11, 1998, appellant Joshua Rager, who was born on February 1, 1988, filed a petition to intervene in the probate action, asserting that he is Thomas's illegitimate child and is entitled to participate in the distribution of the proceeds from any settlement of the wrongful-death action. After Joshua's mother died in 1996, Marjorie adopted Joshua. Appellee objected to Joshua's intervention on the grounds that his claim was barred by Arkansas Code Annotated section 28-9-209 (1987) and that he had not established that he was Thomas's child. Appellee asserted that Thomas had denied his paternity of Joshua and that Joshua's mother had lived with one of Thomas's brothers before Joshua was born.
The probate judge held a hearing on whether Joshua should be treated as a beneficiary and whether the wrongful-death settlement was fair but declined to hear evidence of the distribution of the settlement proceeds at that time. On August 5, 1998, the probate judge issued an order denying Joshua's motion to intervene, stating:
he intervention claim of Joshua Rager which seeks to participate in the proceeds of the wrongful death claim is barred by the operation of Ark. Code Ann. Sec. 28-9-209(d) (1987), and its other provisions, and Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988). Therefore, since Joshua Rager filed no claim against the estate nor a paternity action against the decedent within 180 days
of Thomas Howard Rager's death, he would not be entitled to share in the proceeds of this action. . . .
(Emphasis in original.) The probate judge found that, because Joshua could not share in the wrongful-death proceeds, the $450,043 settlement was reasonable and merited approval. Without holding another hearing, he also approved the distribution of the settlement proceeds to which appellee had agreed.
Joshua, Marjorie, Cory, Matthew, and Yolanda have raised three points on appeal. They argue that the probate judge erred in (1) approving the wrongful-death settlement, (2) approving the payment of a fee to the administratrix from the proceeds of the wrongful-death settlement, and (3) ordering a distribution of the proceeds without first conducting an evidentiary hearing. Appellee concedes, and we agree, that the probate court erred in approving the payment of a fee to appellee from the proceeds, because a wrongful-death recovery does not become part of the assets of the deceased person's estate. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1454 (1999); Ark. Code Ann. ยง 16-62-102(e) (Supp. 1999). Accordingly, we reverse the probate court's award of this fee to appellee.
Appellants contend that the probate judge should not have approved the settlement because it did not provide for Joshua and point out that the wrongful-death statute includes the
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