No execution shall issue upon nor shall any levy be made against any property of the estate under any judgment against a decedent or a personal representative.
However, the provisions of this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.
Although name on estate accounts suggested a fiduciary character, where accounts were used for business purposes, and other purposes not solely fiduciary, trial court did not err in finding this section inapplicable. Adams v. First State Bank, 300 Ark. 235, 778 S.W.2d 611 (1989).
Chapter 51
Transfers Of Property
Research References
ALR.
Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust. 6 A.L.R.4th 786.
Am. Jur.
31 Am. Jur. 2d, Exec. & Ad., §§ 178-181 and § 243 et seq.
Ark. L. Rev.
Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.
Real Property — Dower — Vesting of Title to Realty in Heirs of Intestate, 6 Ark. L. Rev. 67.
C.J.S.
34 C.J.S., Exec. & Ad., § 295 et seq. and § 785 et seq.
Subchapter 1
— General Provisions
Preambles.
Acts 1961, No. 424, contained a preamble which read:
“Whereas, due to the changed nature of the economy of Arkansas, it is no longer true that real property constitutes the sound core of the assets of most estates; and in many instances the estate of a decedent now includes investments represented by personal property more desirable than certain types of real property to be preserved for distribution to the heirs at law or beneficiaries of the will of the decedent; and by the provisions of the Probate Code it was the intention of the General Assembly of Arkansas of 1949 to give suitable recognition to this change; but it now appears that apparently conflicting provisions in that Code have given rise to ambiguity and uncertainty of interpretation thereof;
“Now, therefore….”
Effective Dates.
Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”
Acts 1983, No. 658, § 3: Mar. 22, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law permits the court to allow the personal representative of an estate to extend credit not exceeding one year and for an amount not exceeding seventy-five percent (75%) of the sale price of real and personal property of the estate; that the limitation currently prescribed on the period and amount of the credit that may be allowed on sales of property of an estate are unduly restrictive and make it difficult if not impossible for the personal representative to obtain the best available price for such property; that this Act is designed to authorize the court to permit extension of credit for a period not exceeding ten (10) years and in an amount equal to ninety percent (90%) of the purchase price of the property and should be given effect immediately in order to enable personal representatives to obtain the best available price for real and personal property of an estate. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”
Adams v. First State Bank, Beebe, 778 S.W.2d 611 (Ark. 1989). · cites it 6דThe appellant presents three arguments for reversal: (1) the trial court erred in holding that Ark. Code Ann. § 28-50-114 (1987) is inapplicable to the present case; (2) the trial court erred in finding that it was not obvious to the appellee that the accounts in question were…”
Eddins v. Style Optics, Inc., 35 S.W.3d 315 (Ark. Ct. App. 2000). · cites it 2דWe do not consider, as the personal representative argues, the filing of a claim such as appellees’ in a pending probate action to constitute an attempted execution on the estate’s property in violation of Ark. Code Ann. § 28-50-114 (1987). We do not address appellant’s argument…”
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