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Higgins v. Thornton

Court of Appeals of Arkansas, Division I

April 26, 2017

BRENDA HIGGINS APPELLANT
v.
BOB THORNTON, TRUSTEE OF THE TONYA MERRITT HEFFNER TRUST, AND ARKANSAS CHILDREN'S HOSPITAL APPELLEES

         APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43CV-14-600] HONORABLE JASON ASHLEY PARKER, JUDGE

          Alexander Law Firm, by: Hubert W. Alexander, for appellant.

          Stuart Law Firm, P.A., by: J. Michael Stuart and Ginger M. Stuart, for appellee Bob Thornton, Trustee of the Tonya Merritt Heffner Trust.

          DAVID M. GLOVER, Judge

         Appellant Brenda Higgins appeals the Lonoke County Circuit Court's grant of summary judgment in a quiet-title action to appellees Bob Thornton, as trustee of the Tonya Merritt Heffner Trust, and Arkansas Children's Hospital. Higgins contends the trial court erred in granting summary judgment to the appellees because material facts were in dispute concerning whether a deed to 240 acres of land had been delivered. We affirm the grant of summary judgment.

         Alpha Burnett, Brenda Higgins's mother and Tonya Merritt Heffner's grandmother, owned 240 acres in Lonoke County. In June 1994, Burnett signed a warranty deed to Heffner, deeding her

[t]he North Half of the Northeast Quarter (N1/2 NE1/4) of Section 11, Township 4 North, Range 8 West and reserving a life estate in that 80 acres for herself. At the same time, Burnett executed a warranty deed to Higgins, deeding her
[t]he West Half of the Southwest Quarter (W1/2 SW1/4) of Section 13, Township 4 North, Range 8 West and reserving a life estate in that 80 acres for herself as well. Both of these deeds were recorded in October 1994.

         On August 18, 2000, Burnett executed her last will and testament. In the will, she specifically left Higgins nothing, but made gifts totaling $26, 500 to her sister, a cemetery, and a church; Burnett left the rest, residue, and remainder of her property in trust for her granddaughter, Heffner-the Tonya Merritt Heffner Trust (the "Trust"). Burnett's will provided that should Heffner die without leaving issue surviving, then all the rest, residue, and remainder of Burnett's estate shall be given to Children's Hospital "absolutely and in fee simple." Bob Thornton was appointed by Burnett as the trustee. Thornton was directed in Burnett's will to make distributions of $1400 monthly to Heffner for her support, maintenance, and education; however, Thornton was given the discretion to increase or decrease the monthly allowance as deemed necessary.

         Burnett died January 9, 2001. Probate was opened on her estate; her will was filed January 29, 2001. A first and final accounting of Burnett's estate was filed February 7, 2003. Included in this accounting was Burnett's house and 80 acres, valued at $225, 000.

         On December 15, 2014, Thornton filed a petition to quiet title and to set aside a warranty deed that, although dated May 1, 1990, was not recorded until November 5, 2009, and purportedly transferred all 240 acres originally owned by Burnett from Burnett to Higgins and Heffner (identified in the deed as Tonya Merritt), as co-tenants, and reserved a life estate in Burnett. The 1990 deed purported to convey the following real property:

East Half (E1/2) of the Southeast Quarter (SE1/4), Section 14, Township Four North (T-4-N), Range Eight West (R-8-W); West one-half (W1/2) Southwest Quarter (SW1/4), Section 13, Township Four North (T-4-N), Range Eight West (R-8-W); and the North one-half (N1/2) of the Northeast Quarter (NE1/4) of Section 11; Township Four North (T-4-N), Range Eight West (R-8-W).

         In the petition, Thornton pointed out two 80-acre tracts of the land had already been deeded by Burnett, one to Higgins and one to Heffner, in June 1994; he sought to quiet title to the remaining real property in the Trust and to set aside the 1990 warranty deed. Thornton stated in his petition that not only was he the trustee of the Trust, he was also executor of Burnett's estate, and as such, he had filed his first and final accounting February 7, 2003, listing real estate consisting of a house and 80 acres, cash, and personal property as assets of the estate, and no objection was made to the final accounting. A fiduciary deed transferring the 80 acres was executed and recorded May 6, 2003, by Thornton, as executor of Burnett's estate, to the Trust.

         Thornton alleged in the petition that he had administered the Trust from May 6, 2003, to the present, making cash disbursements to Heffner, paying property taxes, and maintaining the property out of the Trust assets until the time of the filing of this petition; that substantially all of the Trust's cash had been expended for Heffner's benefit; and that the only remaining asset was the real estate. Thornton stated he had exercised his power under the Trust and entered into an offer and acceptance to sell the real property in order to raise cash to continue to fund the Trust; however, a title search revealed the 1990 warranty deed from Burnett to Higgins and Tonya Merritt Heffner. Thornton asked the ...


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