ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION II
CA00-787
March 28, 2001
IN THE MATTER OF THE ESTATE AN APPEAL FROM MONROE
OF JODIE HILLIARD, Deceased COUNTY PROBATE COURT
[P-99-08]
V. HON. KATHLEEN BELL, JUDGE
ULYSSES McNEAL, Executor
APPELLEE AFFIRMED
The children of Jodie Hilliard, Jr., bring this appeal to challenge the decision of a Monroe County probate court that denied appellants' petition to set aside or vacate an order authorizing and confirming the sale of real property in the estate of Jodie Hilliard, Sr. Appellants argue that the sale was void ab initio. We disagree and affirm.
Jodie Hilliard, Sr., died on December 29, 1997, leaving a will that created a life estate in real property located at 1117 North Main Street, for his widow, Gussie Mae Hilliard, and a remainder interest in his three children, Charles L. Newman, Jodie Hilliard, Jr., and Wyomia Cohns. The will also designated Ulysses McNeal to serve as executor of the estate. McNeal subsequently filed an inventory that listed the overall value of the estate as $63,500, with the homestead valued at $31,000 and a bank account valued at $30,000. In addition,McNeal listed the value of household goods and effects at $2,500.
Although a notice of McNeal's appointment as executor was sent to Hilliard, Jr., in Oklahoma City, the notice was returned as unclaimed. The attorney for the estate later petitioned the court to sell the residence for the purpose of paying administrative expenses. However, the petition did not include the signature of the executor and it was not given under oath.
The court scheduled a hearing on the petition for October 5, 1999, and all interested parties, including Hilliard, Jr., were provided notice. A copy of an affidavit of service was filed with the court on September 13,1999, indicating that Hilliard, Jr., was served with notice on August 24, 1999.1 Although all interested parties were provided with notice of the hearing, the only party to appear at the hearing was the executor and his counsel. No written objections were presented. Following the hearing, the court entered an order authorizing the sale on November 2, 1999. The executor then obtained a non-certified appraisal of the real property at $10,000 that was filed for record on November 19, 1999. The property was sold at public sale by sealed bid to Mt. Olive Missionary Baptist Church for the sum of eight thousand dollars on November 23, 1999, and the court entered an order of confirmation on December 7, 1999.
Approximately two weeks later, counsel for appellants entered his appearance on behalf of the heirs of Hilliard, Jr., and notified the court and opposing counsel of appellants' objection to the sale. Appellants later filed a petition to set aside the sale on January 7, 2000,arguing that the appraisal and petition were deficient. The estate did not dispute the deficiencies. Following a hearing on the petition to set aside or vacate the sale, the court found 1) that the estate petitioned the court to sell the real property, but the petition was not verified as required by law; 2) that an appraisal was obtained and filed for record, but the appraisal was not certified as required; 3) that all interested parties were provided with timely notice of the petition to sell the real estate and that no one, including Hilliard, Jr., objected; 4) that no one appeared at the hearing on the petition to sell property other than the executor and his counsel; 5) that the property was sold pursuant to an order authorizing the sale of the property; 6) that an order of confirmation was entered on December 7, 1999, and a petition to set aside the order was filed on January 7, 2000; 7) that the petition to set aside or vacate was premised on deficiencies in the appraisal and petition; 8) that the estate did not dispute the deficiencies; 9) that Judy Walker, the real estate appraiser who appraised the property, testified at the hearing for the purpose of buttressing the appraisal; 10) that the purchaser of the property paid the purchase price and obtained possession of the real property; 11) that the purchaser's possession could not be affected by the requested modification; 12) that the deficiencies could be addressed in establishing the amount of attorney fees to be awarded in the matter; and 13) that because the inventory reflected a value of $63,500 it would not have been prudent to file an affidavit to collect small estate. The court then denied the petition to set aside or vacate the order. This appeal follows.
Our appellate courts review probate decisions de novo. See White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (2000). Findings of fact by a probate judge are not reversed unless wedetermine that the finding is clearly erroneous. See id. We consider a finding erroneous when, although evidence may support the finding, the record as a whole leaves us convinced that a mistake has occurred. See id.
Appellants argue that appellee's failure to send notice of the hearing by restricted delivery or to verify the petition under oath should result in our determining that the sale of the residence was void ab initio. Second, appellants assert that no order of sale may be made without a properly sworn affidavit of the appraisal. Third, they argue that the trial court should not award administrative costs, executor fees, or attorney fees. Because we hold that the purchase of the property by an innocent third party purchaser for value without notice prevented the probate court from setting aside the order, we need not address appellant's arguments.
Arkansas Code Annotated section 28-1-115 (1987) allows a probate judge to vacate or modify an order for good cause and at any time before the time for appeal has elapsed after the final termination of the estate. However, a decision to vacate or modify an order is precluded from affecting any right previously acquired in reliance on the order. See Ark. Code Ann. § 28-1-115 (1987).
Our law is well settled that the rights of an innocent purchaser without knowledge of or any reason to expect the irregularity of a land sale are protected. See Adamson v. Cummins, 10 Ark. 541, 5 Eng. 541 (1850) (holding that "it is a matter of great public concern that persons disposed to buy property should bid with confidence in the effectiveness of the sale, and should be protected by the law whose interpreters and ministersinvited them to buy.").
We think the weight of the evidence clearly supports the probate judge's decision to deny appellants' petition. Sufficient evidence was presented to support the court's finding that an innocent third party purchaser relied on the order of confirmation. The court noted that the purchaser of the property had paid the purchase price of $8,000 on November 23, 1999, and obtained possession of the real property. Although the order of confirmation was entered on December 7, 1999, the petition to set aside the order was not filed until January 7, 2000. No written objections to the confirmation were filed during the interim period that would have given the probate judge an opportunity to address any complaints of irregularities in the appraisal. Based on the foregoing, the probate judge was not presented with good cause to vacate or modify her order. Accordingly, we affirm.
Affirmed.
Crabtree and Baker, JJ., agree.