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
Rehearing Denied May 15, 2019
[Copyrighted Material Omitted]
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47BCV-15-313], HONORABLE RANDY F. PHILHOURS,
H. Jones, Jonesboro, for appellant.
Law Firm, P.A., Lake City, by: Arlon L. Woodruff, for
case concerns the interest of the estate of Wanda
Boling-Fisher in her grandfatherâs 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 trustâs terms dictated that
Wandaâs interest reverted to him (Eric) because he was the
sole remaining child of their father and the intended
beneficiary. Wandaâs 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 Ericâs favor, and
Wandaâs estate appeals. We affirm as modified.
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 settlorâs 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 settlorâs 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).
Ordinarily, 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
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 Euniceâs 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
grandfatherâs will and the residuary trust, contending that
the trustâs 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. Wandaâs 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.âs 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 wifeâs 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 wifeâs 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 stirpes .
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, ...