John C. GARRETT, as Heir and Nominated Personal Representative of Nancy Lee Garretts Estate, Appellant
George Webb NEECE, Appellee
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCV-16-779], HONORABLE STEPHEN TABOR, JUDGE
Estill, Hardwick, Gable, Golden & Nelson, P.C., by: Curtis E.
Hogue and M. Scott Hall, Fayetteville, for appellant.
Jesson & Terry, PLC, Fort Smith, by: Robert M. Honea and J.
Leslie Evitts III, for appellee.
Appellant John C. Garrett, as heir and nominated personal
representative of Nancy Lee Garretts estate, appeals from
the Sebastian County Circuit Courts order that granted
summary judgment to appellee George Webb Neece and denied
judgment to Nancy Lee Garrett. In its order, the trial
court determined that trust documents executed by Eva Lee
Neece, the now deceased mother of George and Nancy, evidenced
her intent to give Tract A, consisting of 39.07 acres, to
George and Tract B, consisting of 38.49 acres, to Nancy.
Garrett argues that the trust (1982 Revocable Trust) created
by Eva to hold the previously undivided eighty-acre tract was
not revoked and that the eighty-acre tract remains in the
1982 Revocable Trust. We affirm and remand with instructions.
Background and Procedural History
March 1982, Eva, a widow at the time, established the 1982
Revocable Trust holding property, including approximately
eighty acres in Sebastian County. Eva identified herself as
both settlor and trustee. She named George and Nancy as
successor trustees. The trust provided that the settlor
reserved the right to revoke the trust at any time but did
not specify a manner for revocation. It further provided
that, in the absence of revocation, the trust would remain in
effect until the death of the settlor, at which time the
successor trustees would distribute one-half of the assets to
George and the other one-half to Nancy. The 1982 Revocable
Trust also provided,
Generally, and without limitation by any specific enumeration
herein, the Trustees shall have the power to manage, control,
operate, convert, reconvert, invest, reinvest, sell,
exchange, lease, mortgage, create a security interest in,
pledge, pool, utilize or otherwise encumber and deal with the
property of this Trust, for and in behalf of this Trust and
the beneficiaries thereof, as any individual would have in
respect of his own property and funds.
5, 2009, Eva executed a quitclaim deed from herself,
individually, to George, conveying 39.07 acres of the
eighty-acre tract from the 1982 Revocable Trust. The deed was
filed August 15, 2011. This portion is referred to as Tract
A. On July 28, 2009, Eva executed an amendment to the 1982
Revocable Trust in which she excepted from the trusts
property 39.07 acres (Tract A); the amendment provided that
the remaining property, 38.49 acres (referred to as Tract B),
would be distributed to Nancy upon termination of the trust.
January 22, 2010, Eva executed another revocable trust (2010
Revocable Trust) and specifically revoked the 1982 Revocable
Trust and all subsequent amendments to it. She again
identified herself as settlor and trustee and named George as
successor trustee. Eva then purported to transfer property,
including Tract B, into the 2010 Revocable Trust. No mention
was made of Tract A. Eva again reserved the right as settlor
to revoke the trust at any time. Further, the trust provided
that, in the absence of revocation, the trust shall remain in
effect until the death of the settlor, and at that time the
successor trustee shall initiate a sale of Tract B and
distribute the proceeds in one-third shares to three members
of the Garrett family.
August 22, 2011, Eva did two things: she executed an
amendment to the 2010 Revocable Trust and executed her last
will and testament. The amendment to the 2010 Revocable Trust