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Levingston v. Stovall3/9/2005
NOT DESIGNATED FOR PUBLICATION
This case involves the estate of Gary Wayne Stovall, Jr., who was killed in an automobile accident in January 2004 after a piece of heavy construction equipment illegally entered the roadway directly in his path. He died intestate, survived by his estranged wife, his two minor sons, several siblings, his stepfather, and his mother. The estate's primary asset was an anticipated wrongful-death action against persons and corporations responsible for his death. The court appointed the decedent's estranged wife, Felicia Kaye Stovall, as administratrix of the estate. Queen Levingston, mother of the decedent, petitioned the court to set aside the appointment of Ms. Stovall and to substitute herself as the estate's personal representative. She also asked the court to find the appointed administratrix unsuitable to serve. In March 2005, the court denied the petition to remove the administratrix, finding that Ms. Stovall had a "statutory priority to serve as the Personal Representative of the intestate decedent" and that " o grounds exist for removal" despite the friction between her and other statutory beneficiaries of a wrongful-death action. We affirm.
As a starting point, we review probate cases de novo on appeal. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000). However, we will not reverse the judge's findings of fact unless they are clearly erroneous. Id., 13 S.W.3d at 598. A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). Further, the court possesses considerable discretion in the granting of letters of administration, upon a determination that the applicant is qualified and will best manage and improve the estate. Burch v. Griffe, 342 Ark. 615, 29 S.W.3d 726 (2000). Such a decision will not be reversed absent an abuse of discretion. Id., 29 S.W.3d at 726.
As to probate appointments, Arkansas Code Annotated § 28-48-101 (Repl. 2004), designates the priority order of administration, in relevant part, as follows:
(a) Domiciliary letters testamentary or of general administration may be granted to one (1) or more of the natural or corporate persons mentioned in this section who are not disqualified, in the following order of priority:
(1) To the executor or executors nominated in the will;
(2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty (30) days after the death of the decedent;
In this case, decedent died intestate; therefore, the statute, by its plain language, gives priority to the surviving spouse. However, in order to receive this priority consideration, the surviving spouse must petition for letters within thirty days. Here, Ms. Stovall met this threshold requirement because she petitioned the court to be named administratrix-based upon her status as surviving spouse-fifteen days after her husband's death. Therefore, appellants concede, as the facts and law demand, that appellee had a properly exercised statutory priority to serve as the personal representative of her husband's estate. However, appellants claim that the court erred in refusing to remove Ms. Stovall as personal representative of the estate.
Under Arkansas Code Annotated § 28-48-105 (Repl. 2004) a person interested in an estate may petition for removal of a personal representative for cause. The statute provides:
When the personal representative becomes mentally incompetent, disqualified, unsuitable or incapable of discharging his trust, has mismanaged the esta
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