                                Cite as 2013 Ark. App. 501

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No.CV-13-49


                                                  Opinion Delivered   September 18, 2013
 LYNDA HAMM
                              APPELLANT APPEAL FROM THE WHITE
                                        COUNTY CIRCUIT COURT
 V.                                     [NO. PR 2006-182-3]

 JERRY HAMM                              HONORABLE CRAIG HANNAH
                                APPELLEE JUDGE

                                                  AFFIRMED


                          BRANDON J. HARRISON, Judge

       After Tommy Hamm died in 2006, his will was probated.                 It named, among

others, his brother Jerry Hamm, and one of his sisters, Lynda Hamm, as beneficiaries.

Lynda, as executrix of the estate and a potential residuary beneficiary, filed a petition to

disinherit her brother Jerry Hamm. The White County Circuit Court denied the petition

in a written order. The court entered two additional orders that distributed real property

to Jerry. Lynda appeals these three orders.

                                  I. The Challenged Orders

       Tommy Hamm died in April 2006; the court probated his will in October of the

same year. Among other things, his will devised Tommy’s house to his sister Lynda; five

acres, a metal shop building, and grain bins were left to Tommy’s brother Jerry.




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       The real legal tussle began when, in early March 2012, Lynda filed a petition to

disinherit Jerry. By March 2012, Lynda had served as the estate’s personal representative

for approximately six years. The petition alleged that Jerry had violated the will’s terms by

failing to file a waiver of inventory and accounting, proffering another will for probate,

and filing a claim against Tommy’s estate. Lynda’s petition asked that Tommy’s interests

pass to her as the estate’s residuary beneficiary.

       Three days after Lynda filed her petition to disinherit him, Jerry filed his waiver of

inventory and accounting and a petition seeking a partial distribution of his deceased

brother’s real and personal property. The petition asserted that six years had passed since

Tommy’s death and that the property was not necessary to administer the estate.

       On 15 August 2012, one day before a hearing was set to occur, Lynda moved to

continue. Having apparently been admitted to a Memphis, Tennessee hospital on August

14, she told the court that she could not attend the hearing but wanted to do so. Jerry

responded that Lynda’s testimony was unnecessary and that the legal issues concerning

whether he should be disinherited had been briefed. Perhaps the most important reason

for Jerry’s resistance was that Lynda had not made a distribution in the almost six years the

estate had been opened. On the day of the hearing, the circuit court denied from the

bench Lynda’s continuance request and her petition to disinherit Jerry.

       About one month later, the court entered three separate written orders on a

number of substantive issues. In its September 20 order denying Lynda’s petition to

disinherit, the circuit court found that Jerry had timely filed a waiver of inventory and

accounting and that no prejudice had resulted in any event.           Despite its expressed

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reservation about whether filing a claim against the estate could trigger the will’s in terrorem

clause, the court found that Jerry had withdrawn an earlier claim he made against the

estate. The court also found that Tommy had left at least two instruments purporting to

be his will—and that Jerry had proffered a will that Tommy had executed in 2000 without

actually knowing about Tommy’s subsequent 2005 will, the latter being the one that was

probated. The court ruled that Jerry’s proffer of a 2000 will was not a contest of the 2005

will. Consequently, the proffer did not trigger the probated will’s in terrorem clause.

       In its order titled “Initial Order Directing Partial Distribution . . . to Jerry Hamm,”

the court found that Lynda had failed to make any significant distributions for

approximately six years. The court then made a partial distribution to Jerry of the metal

shop building and five acres. The order contained a metes-and-bounds description of the

distributed property.

       The court entered a third order (“Final Order Directing Partial Distribution To

Jerry Hamm”) that repeated the court’s prior rulings on the petition to disinherit Jerry and

Lynda’s failure to make distributions for six years.

       Lynda appealed these three orders and argues five points to this court:

      The court erred by not ruling that a requirement in a will that heirs must file
       waivers of inventory and accounting to inherit was valid.


      The court erred in not finding that Jerry’s allegedly tardy waiver violated the will’s
       terms.


      The court mistakenly found that Jerry had not secreted assets.




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       The court erred in allowing an invalid survey (in Lynda’s opinion) to determine
        the shape of the five acres left to Jerry.


       The court should not have deprived Lynda the opportunity to personally appear at
        the August 2012 hearing given her hospitalization.


                                         II. Analysis

       Probate orders, with two exceptions that don’t apply here, are appealable before an

estate has been closed. Ark. Code Ann. § 28–1–116 (Repl. 2012); Sanford v. Murdoch, 374

Ark. 12, 285 S.W.3d 620 (2008). We review probate proceedings de novo on the record

but will not reverse a circuit court’s factual determinations unless they are clearly

erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007). We do not,

however, defer on pure issues of law. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d

496 (1991).

       We begin with Lynda’s points on appeal that relate to the circuit court’s decision to

reject her attempt to disinherit Jerry Hamm.

                      A. Waivers and The Will’s In Terrorem Provisions

       An in terrorem clause in a will is one that voids a gift to a devisee or legatee, if the

legatee or devisee disputes provisions of the will or the gift. See Restatement (Third) of

Property § 8.5 cmt. a (2003); Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962). Our

supreme court has recognized the validity of these clauses. E.g., Seymour v. Biehslich, 371

Ark. 359, 266 S.W.3d 722 (2007).

       Tommy’s will has the following provisions that the parties have consistently called

the in terrorem provisions:


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       If any one of the beneficiaries in this Will, or any person acting for a person
       named herein, shall commence any proceedings or make any attempt to
       cancel change or contest any provision in this Will in any manner, or refuse
       to execute a waiver of inventory and accounting, I hereby revoke any gift,
       legacy, bequest or devise to such beneficiary, and direct that such
       beneficiary’s share of any gift, legacy, bequest or devise be distributed as if
       such beneficiary had predeceased me leaving no lawful descendants.

       I direct if any court shall invalidate the above referenced disinheritance
       provision, said Judge should be removed from any determination regarding
       the interpretation of this Will and its validity and from the probate of my
       Estate.

       Jerry filed his waiver three days after Lynda filed her petition to disinherit, and over

five years after the will was admitted to probate. Lynda argues that the in terrorem clause

was triggered because Jerry did not file his waiver of accounting and inventory until long

after she had filed her inventory and accountings. Relying on Ark. Code Ann. sections

28-49-110(a)(1) and 28-49-103(a)(4), she says that because a personal representative must

file an inventory within two months after being appointed, that Jerry also had two months

from the personal representative’s appointment to file any waiver. Lynda also cites several

nineteenth-century cases to support her contention that a testator has an unfettered right

to dispose of his or her property in any manner that he or she wishes. Lynda overreaches.

       We start where Lynda did not, with the plain words of the will’s in terrorem clause.

They do not impose any express time limitation on when a beneficiary must file a waiver.

In construing a will or testamentary document, we carry out the testator’s intention, as it is

expressed by the instrument’s words. Spencer v. Floyd, 30 Ark. App. 230, 785 S.W.2d 60

(1990). The circuit court denied the petition to disinherit Jerry because it found that his

waiver was in fact filed and no prejudice resulted from any delay in the filing. This leads

us to another fundamental canon of how courts should read a will’s terms: where possible,
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we should strictly construe no-contest clauses because applying them results in a forfeiture.

Restatement (Third) of Property § 8.5 cmt. d. Finally, we have reviewed the statutes that

Lynda relies on, but they do not require us to reverse based on the record, the arguments

made, and the circuit court’s rulings.

       The circuit court did not err in ruling that Jerry’s waiver was timely in this case for

the purpose of deciding whether the will’s in terrorem provision was triggered against him.

                                     B. Secreting Assets

       Lynda argues from Ark. Code Ann. sections 28-40-106, 28-49-101, and 28-49-

105, that Jerry should be disinherited because he absconded with certain estate assets that

Tommy devised to her.         First, the evidence to support this allegation is, at best,

microscopic. In a colloquy between the circuit court and Lynda’s counsel, there is a

statement by counsel that “some estate assets []are missing or [have] been

misappropriated.” But this is not evidence that Jerry actually stole estate assets; counsel’s

statement, standing alone, is not evidence. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271

(2001). More is required.

       Second, Lynda states in her reply brief that Jerry admitted under oath in a

deposition that he took Tommy’s billfold, which allegedly contained $250, the night

Tommy died. But the deposition transcript has not been abstracted. What is worse for

Lynda’s argument here is that the referenced deposition is not in the record on appeal.

Lynda has the burden of bringing up a record sufficient to demonstrate that the circuit

court erred on this point, and she has not done so. Troutt v. Matchett, 305 Ark. 474, 808

S.W.2d 777 (1991).

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                               C. The L-Shaped Five Acres

       Lynda also argues that the circuit court’s first order of partial distribution to Jerry

mistakenly ordered that Jerry take an L-shaped plot of land. Some background on this

issue is helpful. At the August 16 hearing, the court and counsel discussed the issue of the

tract being L-shaped. The initial order of partial distribution gave Jerry the five-acre tract

on which the metal shop building sits. As we pointed out earlier, the order has a metes-

and-bounds description of the property taken from a survey that was not made a part of

the record. But from the order’s legal description it does appear that the tract is L-shaped.

       Lynda says that the metal shop building lies on the same tract of land that was

devised to her and which also contained Tommy’s (the decedent) home. The will gives

Lynda the house and surrounding land, but no one proved how many acres Tommy

owned in the tract on which the house and shop rest. More to the point, Lynda did not

prove that the five acres on which the shop was located could be carved from the larger

tract in some geometric configuration that would keep the shop at some acceptable

distance from Tommy’s former home.

       If Lynda’s argument here is that the court’s written order conflicts with its

statements at the hearing, then her argument stumbles on a group of cases, beginning with

Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), where our supreme court

held that a judicial order is not effective under Ark. R. Civ. P. 58 and Ark. Sup. Ct.

Administrative Order No. 2 until it is filed with the clerk of court. There was nothing to

prevent the circuit court from adopting its initial distribution order though the property

remained L-shaped. We acknowledge that, in an August 24 letter to the circuit court,

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Lynda objected to a proposed order Jerry submitted. But she did not specifically complain

that the order distributed the shop tract in an odd L-shaped form. Nor did she, for

example, request another hearing so that the surveyor could testify about the survey and

whether the tract could have been divided in a more desirable manner.

       The circuit court’s handling of the five acres is affirmed.

                                    D. No Continuance

       Finally, Lynda argues that her hospitalization was a sufficient reason for the court to

continue the August 16 hearing on Jerry’s petition for partial distribution and Lynda’s

petition to disinherit Jerry and that the court abused its discretion in going forward that

day. The grant or denial of a motion for continuance is within the sound discretion of the

circuit court, and we will not disturb a decision unless it is tantamount to a denial of

justice. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001).

       Though Lynda had filed a trial brief arguing the issues taken up during the August

16 hearing, she says she was denied due process because she couldn’t make certain

arguments at the hearing. A party to a civil action ordinarily has a “right” to attend a

trial—and we assume here for simplicity’s sake that a trial and a hearing on a briefed

probate issue are coterminous—the continuance request based on alleged ill health must

ordinarily show that the party had some particular reason to appear, whether as a material

witness or otherwise. McMorella v. Greer, 211 Ark. 417, 200 S.W.2d 974 (1947). It is true

that Lynda submitted to the court a letter from her doctor stating that she was being

treated for “cardiovascular related issues.” But she did not proffer a statement explaining

why she herself had to be present and what she would have contributed to the hearing. A

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circuit court does not abuse its discretion by denying a motion for a continuance based on

the absence of witnesses when no proffer is made of what the witnesses would testify to.

Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992).

      Given the delay in the probate case’s proceedings, that the substantive issues

addressed at the August 16 hearing had been briefed before the hearing began, that

Lynda’s counsel appeared on her behalf, and that Lynda made no proffer showing why a

denial of justice might ensue in her physical absence, we affirm the court’s decision to

hold the hearing when it did.

                                      III. Conclusion

      We affirm the circuit court’s three orders in all respects.

      Affirmed.

      GLADWIN, C.J., and WALMSLEY, J., agree.

      Ralph M. Clifton; and
      Daggett, Donovan and Perry, PLLC, by: Robert J. Donovan, P.A., for appellant.

      Buck C. Gibson, P.A., by: Buck C. Gibson, for appellee.




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