CourtListener 3151977•Treat v. Hyde
Gesamter Gesetzestext
Cite as 2015 Ark. App. 628
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-236
IN THE MATTER OF THE ESTATE Opinion Delivered NOVEMBER 4, 2015
OF FREDDIE E. HYDE, DECEASED
APPEAL FROM THE WHITE
MICHELLE TREAT, EXECUTRIX OF COUNTY CIRCUIT COURT
THE ESTATE OF FREDDIE E. HYDE, [NO. PR-2014-66-1]
DECEASED
APPELLANT/CROSS-APPELLEE HONORABLE TOM HUGHES,
JUDGE
V.
JERRY HYDE REVERSED ON DIRECT APPEAL;
APPELLEE/CROSS-APPELLANT AFFIRMED ON CROSS-APPEAL
DAVID M. GLOVER, Judge
This appeal and cross-appeal arise from an October 17, 2014 order entered by the
White County Circuit Court in a pending probate case involving the estate of Freddie Hyde,
who is deceased. Appellant Michelle Treat is the Executrix of his estate. The pertinent
issues before the trial court were whether certain real property located in Pulaski County was
properly part of Mr. Hyde’s estate, and whether Mr. Hyde’s change of beneficiary on his life-
insurance policy to his son, Jason Scott Hyde, was effective, entitling Jason to the life
insurance proceeds. The trial court concluded the real property was not part of the estate
because the trustee’s deed was null and void, thereby leaving the property in a family trust,
but that Jason Hyde was entitled to his father’s life-insurance proceeds as beneficiary of the
policy. In her direct appeal, the executrix contends the trial court erred in ruling that the
September 12, 2013 trustee’s deed was null and void. On cross-appeal, Freddie’s widow,
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Jerry, contends 1) the trial court erred in not finding the change of beneficiary on the life
insurance policy violated the trial court’s restraining order, and 2) the change of beneficiary
violated Mr. Hyde’s duties as trustee of the family trust. We reverse on direct appeal and
affirm on cross-appeal.
Jerry and Freddie Hyde married in 1980. They both had children from other
marriages, but no children were born of their marriage. On June 23, 2008, they executed
the Hyde Family Revocable Trust. At the time, they deeded their marital home to the trust
and placed other marital assets into the trust. The trust was subsequently amended to address
concerns that are not pertinent to this appeal.
On August 19, 2013, Mrs. Hyde filed a complaint for separate maintenance in the
Pulaski County Circuit Court. In contemplation of the divorce action, she transferred
several hundred thousand dollars from joint bank accounts, including at least one account
that was held in the trust, and put those funds in her personal name to the exclusion of
Mr. Hyde. On August 21, 2013, the Pulaski County Circuit Court issued its standard
restraining order. On September 12, 2013, Mr. Hyde executed and filed a trustee’s deed
purporting to convey to himself, as an individual, the marital home then held by the trust.
On September 18, 2013, Mr. Hyde filed for divorce.
On February 23, 2014, Mr. Hyde died while the divorce action was pending.
Mr. Hyde was living in White County at the time, and his will was admitted to probate in
the White County Circuit Court. On March 14, 2014, as part of the probate proceedings,
Mrs. Hyde filed her objection to the appointment of personal representative and several
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motions for relief, asking the court, inter alia, to set aside the trustee’s deed and to set aside
the change-in-beneficiary designation on the New York Life insurance policy.
On July 16, 2014, a hearing was held on Mrs. Hyde’s objections and requests for
relief. At that hearing, the trial court heard testimony from the attorney who had drafted the
trust documents and from Mrs. Hyde. Following the hearing, the trial court entered its
order, portions of which are the subject of this appeal and cross-appeal.
As her sole point on direct appeal, the executrix contends that the trial court erred in
concluding that the September 12, 2013 trustee’s deed, conveying the marital home to
Mr. Hyde, individually, was null and void. We agree.
The cardinal rule in construing a trust instrument is that the intention of the settlor
must be ascertained. Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004).
In construing a trust, we apply the same rules applicable to the construction of wills. Id. The
paramount principle in the interpretation of wills is that the intent of the testator (or the
settlor, in the case of a trust) governs. Id. This intention is to be determined by viewing the
four corners of the instrument, considering the language used, and giving meaning to all of
its provisions, whenever possible. Id. This court will construe the words and sentences used
in a will or trust in their ordinary sense in order to arrive at the testator’s true intention. Id.
In order to determine the intentions of the testator, consideration must be given to every part
of the will. Id. Extrinsic evidence may be received on the issue of the testator’s intent only if
the terms of the will are ambiguous. Id. The determination of whether there is an ambiguity
is a matter of law. Id. Absent a finding of ambiguity by the court, testimony about the
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settlor’s intent should not be considered. Id. Collateral evidence will be considered only
when there is uncertainty about the testator’s intentions from looking at the language of the
instrument. Thinn v. Parks, 79 Ark. App. 20, 83 S.W.3d 430 (2002). Absent a finding of
ambiguity by the court, a witness’s testimony about his or her understanding of the settlor’s
intent, including the attorney who drafted the trust, should not be considered. Id.
In support of her position, the executrix cites Arkansas Code Annotated section 28-
73-815(a)(1) and (a)(2), explaining that under that section, a trustee may exercise all powers
conferred by the trust’s terms over all trust property. She then relies upon pertinent portions
of the trust in arguing that Mr. Hyde had the power under the terms of the trust to execute
the trustee’s deed and convey the marital home to himself.
Trust Provisions
The executrix relies upon the following trust provisions to support her argument:
1.04 Grantor Ownership Interests. Unless noted otherwise on an attached schedule (to
be denoted as Exhibit “A”) with the character ascribed thereto, the property
comprising the original Trust and any other property subsequently transferred
to the Trust will be treated as if each Grantor has an undivided one-half (½)
interest therein. Any interest received by a Grantor that is disproportionate
and received from the other Grantor will be considered a gift from one
Grantor to the other. All trust income payable or principal amount
distributable to either of them will have the same character as the property
producing the income.
(Emphasis added.) Exhibit “A” to the trust—Grantor Ownership Interest Schedule—
provides as follows:
The following property shall be deemed to be owned 100% by Grantor
Freddie E. Hyde’s Separate Share of the Hyde Family Revocable Trust, and upon the
death of Freddie E. Hyde, provided Jerry L. Hyde survives Freddie E. Hyde ( . . . )
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100% of said property shall be distributed in accordance with the terms and conditions
of Section 2.05:
1. Lot 8, Block 1, Chevaux Court, Phase 2, an Addition to the City of
Little Rock, Pulaski County, Arkansas.
The introductory portion of Article II and section 2.01 of the trust provide that:
[t]he Trustee will hold, manage, invest and reinvest the assets of the Trust, collect the
income thereof, and will dispose of the net income and principal pursuant to the
terms and conditions as hereinafter set forth in this Article II.
2.01 Income and Principal Distributions. During the lifetime of each
Grantor, the Trustee shall pay to each Grantor his or her entire
respective share of the annual net income of the Trust on demand. In
addition, during the joint lifetimes of the Grantors, each Grantor may
at any time during his or her lifetime withdraw all or any part of the
income and principal of his or her interest, free of trust, by delivering
an instrument in writing duly signed by him or her to the Trustee
describing the property or portion thereof desired to be withdrawn.
Upon receipt of any such withdrawal request, the Trustee shall
thereupon convey and deliver to the withdrawing Grantor, free of
trust, the property described in the instrument.
The introductory portion of Article III and section 3.03 of the trust provides as
follows:
Except as otherwise provided below, the Trustee(s) will have the following
powers with respect to the Trust and any trust created hereunder, to be exercised as
the Trustee(s), in his/her/its sole discretion, and without approval of any court
determines to be in the best interests of the beneficiaries:
....
3.03 To sell any property of the Trust for cash or on credit at public or
private sale, to exchange any property of the Trust for other property,
to grant options to purchase or acquire any property of the Trust and
to determine the prices and terms of sales, exchanges and options.
Section 5.01 (amended in 2010) provides in pertinent part:
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5.01 Trustees. The Grantors, Freddie E. Hyde and Jerry L. Hyde, shall serve
as the initial Trustees of this Revocable Trust. While Freddie and Jerry
are both able and willing, they shall serve jointly and severally and
either shall have full authority for the Trust without the consent,
notice, or joinder of the other, to act independently in performing
transactions on behalf of the Trust. This authority shall extend to all
powers granted to the Trustees under the Trustees Powers hereof and
shall include the right to contract for and in behalf of the Trust and to
execute, negotiate, and compromise such instruments as may be
necessary to carry out the purposes and intents of the Trust.
The October 17, 2014 Order
In the portion of the order dealing with the trustee’s deed, the trial court summarized
relevant paragraphs, reasoning as follows:
6. Section 1.04 of the trust provided that, unless noted otherwise, property
transferred to the Trust will be treated as if each Grantor had a one-half (½)
interest therein.
7. The Hyde Family Revocable Trust provided that Jerry L. Hyde and Freddie
E. Hyde were collectively the Trustee of the Hyde Family Revocable Trust.
8. Section 2.01 of the Trust provides that during the joint lifetime of the
Grantors, each Grantor may at any time during his or her lifetime withdraw
all or any part of the income and principal of his or her interest, free of Trust,
by delivering an instrument in writing duly signed by him or her to the
Trustee describing the property or portion thereof withdrawn.
9. Section 2.01 of the Trust requires that upon receipt of any such withdrawal
request, the Trustee shall thereupon convey and deliver to the withdrawing
Grantor, free of Trust, the property described in the instrument.
10. Freddie E. Hyde never delivered an instrument in writing duly signed by him
to the Trustee describing the real estate referred to in paragraph 5 hereinabove
nor any interest in said real property as property to be withdrawn from the
Hyde Family Revocable Trust.
11. The Trustee never conveyed any interest in the real property described in
paragraph 5 hereinabove to Freddie E. Hyde.
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12. The deed titled, Trustee’s Deed, dated September 12, 2013, and recorded on
September 12, 2013, was executed not by the Trustee, but only by Freddie E.
Hyde. At the time Freddie E. Hyde executed the deed the real property was
an asset of the Hyde Family Revocable Trust. The deed is null and void. The
real estate is an asset of the Hyde Family Revocable Trust.
The executrix challenges the trial court’s order by arguing that: 1) Section 5.01
contradicts the trial court’s finding that Jerry and Freddie were collectively the Trustee;
2) Section 1.04 and Schedule A support the position that Jerry did not have only a one-half
interest in the house; and 3) the trustee’s deed constitutes the required written instrument
described in Section 2.01 that was delivered from the grantor of the trust (Freddie) to the
trustee (Freddie), requesting 100% withdrawal of the real estate in question. We conclude
that many of her challenges are valid.
It is undisputed the trust was created for estate-planning purposes. However, while
the trial court did not specifically determine that pertinent language within the trust was
ambiguous, we can infer it did because the court allowed testimony both from the attorney
who drafted the document and from Mrs. Hyde concerning the grantors’ intent. Such
extrinsic evidence should not be considered absent a finding of ambiguity. Bailey, supra.
Regardless, our review of the four corners of the trust instrument convinces us that the
trust is ambiguous concerning the Hydes’ intent with respect to pertinent provisions.
Furthermore, our review of the trust instrument and the extrinsic evidence presented to the
trial court convinces us that the trial court erred in concluding that the trustee’s deed was null
and void.
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We begin with paragraph 6 of the October 17, 2014 order in which the trial court
summarized section 1.04 as providing that property transferred to the trust was to be treated
as if each grantor had a one-half (½) interest therein. Although paragraph 6 mentions “unless
noted otherwise,” the order never addresses Exhibit A to the trust. As we have previously
set forth in the pertinent trust provisions, Exhibit A “noted otherwise.” Specifically, Exhibit
A provided the real property at issue here “shall be deemed to be owned 100% by Grantor
Freddie E. Hyde’s Separate Share of the Hyde Family Revocable Trust[.]”
Paragraph 7 of the trial court’s order provides that Mr. and Mrs. Hyde were
“collectively” the Trustee, i.e., they had to act in concert. There is language in the trust that
definitely supports this finding. However, in examining the four corners of the trust
instrument, we have also found language indicating the parties intended for each of them to
be able to act separately and independently. For example, the introductory paragraph
preceding section 3.03 of the trust contains language that the “Trustee(s)” will have powers
to be exercised “as the Trustee(s), in his/her/its sole discretion.” Section 3.03 provides that
one of those powers is to “sell any property of the Trust for cash or on credit at public or
private sale[.]” Similarly, section 5.01 is entitled “Trustees” and provides in part that, while
able, Mr. and Mrs. Hyde
shall serve jointly and severally and either shall have full authority for the Trust
without the consent, notice, or joinder of the other, to act independently in
performing transactions on behalf of the Trust. This authority shall extend to all
powers granted to the Trustees under the Trustees Powers hereof and shall include
the right to contract for and in behalf of the Trust and to execute, negotiate, and
compromise such instruments as may be necessary to carry out the purposes and
intents of the Trust.
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As discussed previously, we conclude, at a minimum, that the trust language is
ambiguous concerning the Hydes’ intent in this regard. Because the language is ambiguous,
we turn to the testimony presented by the drafting attorney and Mrs. Hyde. Mr. Hyde, of
course, is deceased and was not available to testify.
The attorney testified he did not believe the intent of section 5.01 was to allow one
trustee to remove the property from the trust. He considered section 5.01 as specifying
“how a trustee or trustees are to act with primarily ministerial type decisions, whether it
required both signatures, both trustees, or if it just required one signature.” He candidly
acknowledged on cross-examination that the trustee’s powers are addressed in Section 3 of
the trust, and that section 5.01 gives either party the ability to act on behalf of the trust with
regard to the trustee’s powers in Section 3; “[r]eading 3.03 by itself, I guess you could make
the argument that a single trustee has the power to sell property by themselves since 3.03 says
to sell any property of the trust for cash or on credit.” He further explained he would
“disagree that 5.01 deals with all of the powers of the trust, and [he] would not have just one
trustee sign.”
Mrs. Hyde’s testimony is perhaps the most revealing regarding the Hydes’ intent. She,
too, candidly acknowledged that after she had filed her complaint for separate maintenance
and “[i]n contemplation of the divorce action, [she] actually secured hundreds of thousands
of dollars from bank accounts that were jointly owned by [her and her husband, including]
one account that was in the name of the trust, and put them in [her] own personal name,”
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taking them “to the exclusion of [her] husband.” She clearly thought that the terms of the
trust entitled her to do so.
Our review of the trust instrument and the extrinsic evidence presented to the trial
court convinces us that, under section 5.01, Mr. Hyde, severally, had “full authority for the
Trust without the consent, notice, or joinder of the other, to act independently in
performing transactions on behalf of the Trust,” including “the right to contract for and in
behalf of the Trust and to execute, negotiate, and compromise such instruments as may be
necessary to carry out the purposes and intents of the Trust”; that pursuant to section 3.03,
he had the power to “sell any property of the Trust for cash or on credit at public or private
sale . . . .”; and that pursuant to Exhibit A of the trust, he was deemed to own 100% of the
property at issue here.
We also conclude section 2.01 of the trust does not provide an avenue to affirm the
trial court because it provides that “each Grantor may at any time during his or her lifetime
withdraw all or any part of the income and principal of his or her interest, free of trust, by
delivering an instrument in writing duly signed by him or her to the Trustee describing the
property or portion thereof desired to be withdrawn.” This section of the trust does not
provide a right of refusal. The trust language provides, “[u]pon receipt of any such
withdrawal request, the Trustee shall thereupon convey and deliver to the withdrawing
Grantor, free of trust, the property described in the instrument.” Paragraphs 10, 11, and 12
of the October 17, 2014 order are based upon the trial court’s determination that the Hydes
had to act collectively as one trustee. Because we reach a different conclusion based on our
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review of the trust instrument and the testimony, we find error in the trial court’s conclusion
that the trustee’s deed executed by Mr. Hyde was null and void.
We reverse the trial court’s conclusion in that regard, and conclude instead that the
trustee’s deed was valid and transferred the real property out of the trust and to Mr. Hyde,
individually, making that property part of his estate. For the same reason, because we
conclude that the trust instrument authorized Mr. Hyde to execute the trustee’s deed in
the manner that he did, we find no violation of his fiduciary duties under the trust.
Furthermore, we agree with the executrix that a contempt proceeding would have been the
appropriate action to take by Mrs. Hyde if she wanted to rely upon the restraining order in
challenging Mr. Hyde’s actions.
The cross-appeal by Mrs. Hyde challenges the trial court’s ruling with respect to the
life-insurance policy, contending 1) that the trial court erred in not finding the change of
beneficiary to violate the trial court’s restraining order, and 2) that the trial court erred in not
finding the change of beneficiary violated Mr. Hyde’s duties as trustee. We find no error.
The October 17, 2014 order provided in pertinent part:
13. Freddie E. Hyde purchased New York Life Insurance Policy No. . . . on his
life prior to June 23, 2008. He changed the policy beneficiary on June 28,
2008, to the Hyde Family Revocable Trust, Freddie E. Hyde and Jerry L.
Hyde, Co-trustees, or successors. Ownership of this policy was never placed
in the Hyde Family Revocable Trust. Ownership of the policy remained in
Freddie E. Hyde at the time of his death.
14. Freddie E. Hyde and Jerry L. Hyde remained husband and wife until the death
of Freddie E. Hyde on February 23, 2014.
15. Freddie E. Hyde, subsequent to June 23, 2008, designated his son, Jason Scott
Hyde, as beneficiary of the New York Life Insurance policy.
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16. Jason Scott Hyde, as beneficiary of the New York Life Insurance Policy, is
entitled to all policy proceeds of New York Life Insurance Policy No. . . .
The pertinent portion of the restraining order provides that:
[e]ach party is hereby enjoined and restrained from selling, encumbering, mortgaging,
contracting to sell, or otherwise disposing of, or removing from the jurisdiction of this
Court, any of the property belonging to the parties, except in the ordinary course of
business, or except by agreement of the parties, or except by the further Orders of the
Court.
Ownership of the life insurance policy was never placed in the trust; instead, its ownership
remained in Mr. Hyde at the time of his death, and he retained the power to change the
beneficiary of the policy. There was no vested interest in the proceeds of the life insurance
policy as long as Mr. Hyde was alive. Dinwiddie v. Metropolitan Life Ins. Co., 204 Ark. 677,
163 S.W.2d 525 (1942). Consequently, as owner of the policy, he had the power to change
the beneficiary, and, in doing so, he did not dispose of any property belonging “to the
parties,” he did not violate the terms of the restraining order, and he did not violate his
fiduciary duties as trustee.
Reversed on direct appeal; affirmed on cross-appeal.
WHITEAKER and BROWN, JJ., agree.
Rice & Adams, by: Brian K. Woodruff, for appellant.
Williams & Anderson PLC, by: Philip E. Kaplan, for appellee.
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