CHARLES FISHER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF WANDA FAYE BOLING-FISHER APPELLANT
ERIC BOLING, AND ERIC BOLING AND WILMA LEOLA EAST AS CO-SUCCESSOR TRUSTEES OF THE H.E. BOLING TESTAMENTARY TRUST APPELLEES
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47BCV-15-313] HONORABLE RANDY F. PHILHOURS,
H. Jones, for appellant.
Woodruff Law Firm, P.A., by: Arlon L. Woodruff, for
MARK KLAPPENBACH, Judge.
case concerns the interest of the estate of Wanda
Boling-Fisher in her grandfather's trust. In summary,
Wanda and her brother Eric Boling had evenly divided an
annual income distribution generated by the trust. The trust
would not be terminated and the assets distributed until
certain contingencies had occurred; Wanda died before those
contingencies occurred. Wanda had no children but was
married, and her widower became the administrator of her
estate. Eric asserted that the trust's terms dictated
that Wanda's interest reverted to him (Eric) because he
was the sole remaining child of their father and the intended
beneficiary. Wanda's estate asserted that her interest
had vested during her lifetime and became an asset of her
estate. The Mississippi County Circuit Court considered
cross-motions for summary judgment, entered an order in
Eric's favor, and Wanda's estate appeals. We affirm
standard of review is well settled, as are the general
principles of law used to construe trusts. The courts of
equity have exclusive jurisdiction in cases involving matters
of the construction, interpretation, and operation of trusts.
Roberson v. Roberson, 2018 Ark.App. 423, 561 S.W.3d
737. We conduct a de novo review on the record of matters
that sound in equity and will not reverse a finding by a
circuit court in an equity case unless it is clearly
erroneous. Id. A finding is clearly erroneous when,
even though there is some evidence to support it, the
appellate court is left with the definite and firm conviction
that a mistake has been made. Id. A court construing
a trust applies the same rules applicable to the construction
of a will, and the paramount principle in the interpretation
of wills is that the intention of the testator, or trust
settlor, governs. Id. The settlor's intention is
to be determined from viewing the four corners of the
instrument considering the language used and giving meaning
to all its provisions whenever possible. Id.
Further, the court should give force to each clause of the
trust, and only when there is irreconcilable conflict between
two clauses must one give way to the other. Id. The
court may read the language used by the settlor in light of
the circumstances existing when the trust was written but
only if there is uncertainty about the settlor's
intentions from looking at the language used in the trust.
Id. When the purpose of a trust is ascertained, that
purpose will take precedence over all other canons of
construction. Wisener v. Burns, 345 Ark. 84, 44
S.W.3d 289 (2001); Carmody v. Betts, 104 Ark.App.
84, 289 S.W.3d 174 (2008).
on appeal from a summary-judgment disposition, we view the
evidence in the light most favorable to the party resisting
the motion, and any doubts and inferences are resolved
against the moving party. Mississippi Cty. v. City of
Blytheville, 2018 Ark. 50, 538 S.W.3d 822. However, when
the parties agree on the facts, we simply determine whether
the appellee was entitled to judgment as a matter of law.
Id. When parties file cross-motions for summary
judgment, as in this case, they essentially agree that there
are no material facts remaining and that summary judgment is
an appropriate means of resolving the case. Id. As
to issues of law presented, our review is de novo.
facts leading to this litigation are these. In 1967, H.E.
Boling, the grandfather of Wanda and Eric, executed a will
that included a residuary trust. H.E. died in 1977, and his
wife Eunice was the recipient of the annual income
distribution of the trust until her death in 1999.
Thereafter, the yearly distributions from the trust were
directed to be given 75 percent to their son Charles and 25
percent to Eunice's daughter Wilma. Charles died in
2001; thereafter, his 75 percent distribution was evenly
divided between his two then-adult children, Wanda and Eric.
Wanda died in 2014.
2015, Eric petitioned the circuit court to construe their
grandfather's will and the residuary trust, contending
that the trust's terms directed Eric to be the recipient
of the entire 75% income distribution, and seeking an order
directing the trustee to distribute his portion of the corpus
of the trust because Wanda died before the trust had
terminated. Wanda's estate contended that when she died,
her interest became an asset of her estate. Both sides filed
motions for summary judgment.
circuit court considered the terms of H.E.'s 1967 trust,
which reads in pertinent part:
Section 2. This Residuary Trust is for the benefit of my
wife, Eunice Boling; of our son, Charles Fred Boling and of
his two children, Wanda Fay Boling, age 5, and Eric Ray
Boling, age 2; and my wife's daughter, Wilma Leola East
and of her two children, David Michael East, age 10, and Lisa
Annette East, age 7.
Section 3. The Residuary Trust will be operated for their
benefit during the periods stated. At the end of each year of
the operation of this Trust, the Trustee shall determine the
net income of the Trust, after he has paid all current
obligations. . . . In other words, the Trustee in his sole
discretion shall decide if any income is available to be
distributed to the beneficiaries of this Trust for each year
of the operation of the Trust. . . . .
. . . .
Section 4. During the lifetime of my wife, Eunice Boling, the
trustee shall pay all income which is distributed annually to
my wife, Eunice Boling, and upon her death, it will be
distributed as follows: 75% of the income to my son, Charles
Fred Boling, and 25% to my step-daughter, Wilma Leola East.
The Trustee shall divide the Trust property into two
portions, 75% in one portion and 25% in the other portion.
This division may consist of undivided interest in the land
and may also be operated jointly with each other.
Section 5. After my wife's death, and after the death of
both Charles Fred Boling and Wilma Leola East, and after the
four grandchildren have all become 21 years of age, the
Trustee shall terminate the Trusts. In such event the
property in the Charles Fred Boling Trust shall be divided
and delivered to his children share and share alike, per
stirpes. The property in the Wilma Leola East Trust
shall also be distributed to her children, per
Section 6. In any event, after the death of my wife and after
the death of either my son, Charles Fred Boling, or my
step-daughter, Wilma Leola East, or both of them, the Trustee
shall operate and manage the Trust for the benefit of the
children or descendants of my son Charles and my
step-daughter Wilma with each Trust being a separate Trust as
(a) While any child of Charles and/or Wilma is under the age
of twenty-one years, the Trustee shall use so much of the
income of his fund for his reasonable support, comfort and
education as the Trustee determines to be required for those
purposes. After he attains that age, the Trustee shall pay
all the current net income of his fund to him.
(b) Notwithstanding anything in this instrument to the
contrary, if any descendant of a deceased child of Charles
and/or Wilma is under the age of twenty-one years when the
Trustee is directed to distribute to him any portion of the
principal of the Trust property, his portion shall
immediately vest in the interest in him indefeasibly, but the
Trustee may in its discretion withhold possession of it and
hold it in trust for his benefit until he attains that age.
In the meantime, the Trustee shall use so much of the income
and principal for his reasonable support, comfort and
education as the Trustee determines to be required for those
(c) If at any time before these Trusts for Charles'
and/or Wilma's children terminate, all other children die
and leave no descendants surviving, the Trusts or Trust
automatically terminate and title to all such Trust property
shall vest at that time in my heirs at law according to laws
of descent and distribution in Arkansas relating to
non-ancestral real property. (Sec. 61-101 et.
seq. Ark. Stats. 1947 Amended.)
pointed out that Wilma was still living, so under the terms
of Section 5, the trust was not yet at the point of
termination. Eric recited what he considered to be H.E.'s
unambiguous intent expressed in Section 2 that he established
this trust to benefit very specific individuals: his wife
Eunice, his son Charles and "his two children"
Wanda and Eric, and his stepdaughter Wilma and her two
children. Eric reasoned that this trust was operating to
provide income and ultimately assets that were to be
distributed only to Charles's and Wilma's direct
descendants. Eric asserted that because Wanda died without
having had any children, at that point he was Charles's
only remaining child or descendant; thus, Wanda's
interest reverted back to him. In contrast, Wanda's
estate argued that her interest in her grandfather's
trust vested when her grandfather died, she began to receive
her interest in the 75 percent following her father's
death, and nothing in the trust language required that she be
alive to continue to be entitled to her portion as one of
Charles's children. Thus, Wanda's estate argued that
it should continue to receive Wanda's income distribution
and be given her part when the trust terminates.
circuit court relied on the wording of the trust and found in
favor of Eric. On appeal, Wanda's estate argues that
Wanda's interest vested when her grandfather died, that
Arkansas's statute on lapses of testamentary provisions,
Ark. Code Ann. § 28-26-104 (Repl. 2012), does not apply,
and that proper interpretation of the trust requires a
finding that Wanda's portion of the trust is now an asset
of her estate. Distilled to its essence, Wanda's estate
argues that Wanda was not required to live until the
termination of the trust in order for her interest to
continue. Eric contends that the ...