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Christian v. McVesting, LLC

Court of Appeals of Arkansas, Division II

October 1, 2014

RACHEL CHRISTIAN ET AL., APPELLANTS
v.
McVESTING, LLC, ET AL., APPELLEES

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT. NO. CV-2009-395. HONORABLE MICHAEL A. MAGGIO, JUDGE.

Chad J. Brown; and Tester Law Firm, by: Kent Tester for appellants.

Gammill & Gammill, by: Randall L. Gammill; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.

GEORGE FRANK CARDER, C. MICHAEL DAILY.

JOHN MAUZY PITTMAN, Judge. WALMSLEY and HIXSON, JJ., agree.

OPINION

JOHN MAUZY PITTMAN, Judge

This is an appeal after remand of McVesting, LLC v. McGoon, 2012 Ark.App. 541. In that case, we reversed the probate court's determination that McVesting lacked standing to petition for a determination of heirship of a one-half share of the reserved mineral rights in certain real property in Van Buren County. The question presented in the current appeal is whether the present appellants' motion to intervene as of right was erroneously denied on the ground that their interest in the property was terminated as a matter of law by a deed filed in 2009. We reverse and remand.

The property at issue had been owned by Cecil R. Curren Sr., who died in Florida in 1991. Curren Sr. left a will devising his interest in the property to his grandchildren, the appellants. However, the will was not admitted to probate in Florida until 2004, and was not admitted to probate in Arkansas until 2012. In the

Page 579

interim, on June 24, 2009, the decedent's son, Cecil R. Curren Jr., quitclaimed his interest in the property to McVesting, LLC, for nominal consideration. The validity of that deed is the crux of this case. It is alleged by appellants (as it previously was alleged by Curren Jr.) that the deed had been procured by fraud and was thus void. The fraud alleged is that McVesting knew that a will existed but nevertheless purchased the land from Curren Jr. The trial court declared that this argument was unavailing because appellants failed to assert their claims to the land within five years of the death of Curren Sr., i.e., by 1996.

Arkansas Code Annotated § 28-40-103 (Repl. 2012) governs time limitations on bringing a will to probate, and provides that:

(a) No will shall be admitted to probate and no administration shall be granted unless application is made to the court for admission to probate within five (5) years from the death of the decedent, subject only to the exceptions stated in this section.
(b) This section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.
(c)(1) Insofar only as it relates to real property in Arkansas, or any interest in real property, the will of a nonresident which has been admitted to probate in another appropriate jurisdiction may be admitted to probate in this ...

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