Ark. Code Ann. § 28-26-101 (2026)
Construction of will
- The court in which a will is probated or to which the administration proceeding may have been transferred shall have jurisdiction to construe it at any time during the administration.
- The construction may be made on the petition of the personal representative or of any other person interested in the will, or if a construction of the will is necessary to the determination of an issue properly before the court, the court may construe the will in connection with the determination of the issue.
- When a petition for the construction of a will is filed, notice of the hearing shall be given to persons interested in the construction of the will.
History. Acts 1949, No. 140, § 32; A.S.A. 1947, § 60-416.
Case Notes
Children as Class.
Where a will bequeathed money to five grandchildren, children of his predeceased daughter, the six children of the daughter took as a class, as the testator expressed his intention to include all the children of his daughter and the number “five” was disregarded. Walker v. Case, 211 Ark. 1091, 204 S.W.2d 543, 173 A.L.R. 1009 (1947) (decision under prior law).
Joint Will.
There can be no such thing as a joint will to take effect upon the death of the survivor. Hershy v. Clark, 35 Ark. 17 (1879) (decision under prior law).
Jurisdiction of Probate Court.
Where a will provided for a trust under supervision of the chancery court which assumed administration of the trust, the probate court had jurisdiction to determine whether a bequest under the will was payable, since it was concerned with administration of the estate, but it did not have jurisdiction to determine whether a petitioner had the right to rents and possession of trust lands, since that involved administration of the trust under supervision of the chancery court. Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956 (1954).
Where a widow elected to take against the will, posing the question of whether such action accelerated the vesting of the estates of the remaindermen, the probate court had jurisdiction to construe the will. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).
Life Estate.
Where testator gave his wife a life interest in his real property with the remainder in his children, with the condition she could sell the property as necessary to be maintained and supported in the standard of living to which she was accustomed, she had the right to sell the real property to obtain sufficient funds to continue that standard, assuming she first gave the testator's children the option to purchase the property, as also required by the will. Green v. Ware, 305 Ark. 224, 807 S.W.2d 24 (1991).
Limitation Over After Granting of Fee Simple.
Where testator devised his residuary estate to his widow “in fee simple forever” and in the next sentence of his will attempted to provide for the distribution of any other property that the widow had not disposed of during her lifetime or by her will, the limitation over was void, being inconsistent with the fee simple devise to the widow, but even so the court was not called upon to determine the validity of the latter paragraph, for a decision of that issue was not essential to a distribution of the estate, the distribution order contemplating the conclusive settlement in adversary proceeding, and the only issue that could be determined upon the filing of the final account was a proper physical distribution; even if the latter paragraph had been valid, it could not have been known at that time what property would be left undisposed of or what persons would then prove to be heirs later on. Therefore, the widow correctly interpreted the law in stating that she was the sole beneficiary of the estate. Collie v. Tucker, 229 Ark. 606, 317 S.W.2d 137 (1958).
Person Interested in the Will.
A co-executor cannot request a construction of the will solely in his capacity as an executor because his status as a fiduciary is wholly dependent upon his position as co-executor, and, as such, he would not be an “interested person” as used in this section. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997).
Reversionary Interests.
Where statute provides that testator may devise realty and all his interest therein, he thus may also devise his possibility of reverter. Fletcher v. Ferrill, 216 Ark. 583, 227 S.W.2d 448, 16 A.L.R.2d 1240 (1950) (decision under prior law).
Where a deed reserved a life estate in grantor and contained reverter clause “to the heirs of the said” grantor, these words were words of limitation and not of purchase; therefore, upon lapse of condition after death of grantor, the real estate reverted to the estate of the grantor, to be distributed according to the will. Fletcher v. Ferrill, 216 Ark. 583, 227 S.W.2d 448, 16 A.L.R.2d 1240 (1950) (decision under prior law).
Third Persons.
A clause added by third person may be disregarded. Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068 (1922) (decision under prior law).
Cited: Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).