ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION IV

IN THE MATTER OF THE ESTATE OF J. I. SEAY, SR. and JAMES IRBY SEAY, JR. and GEORGE L. SEAY, SR.

APPELLANTS

V.

HELEN S. QUINN and FIRST UNITED BANK CO-EXECUTORS OF THE ESTATE OF JAMES IRBY SEAY, SR.

APPELLEES

CA00-1143

MAY 2, 2001

APPEAL FROM THE ARKANSAS COUNTY PROBATE COURT

[NO. P-81-49]

HONORABLE DAVID B. SWITZER,

PROBATE JUDGE

DISMISSED

Appellants, James Irby Seay, Jr. and George L. Seay, Sr., appeal from an order of the Arkansas County Probate Court denying their petition for partial distribution of assets. Appellants have three points on appeal. First, appellants argue that the co-trustees of Wildlife Farms, Inc. Liquidating Trust ("Trust") have no standing and are strangers to the Estate of J.I. Seay, Sr. ("Estate"). Second, appellants argue that an inherent conflict of interest exists between the co-trustees of the Trust and the co-executors of the Estate, not withstanding they are identical persons. Third, appellants argue no impediment now exists to the distribution from the assets of the Estate of an amount equal to one-fifth each to James Irby Seay, Jr. and George L. Seay, Sr. and this matter should be remanded to the trial court with instructions to so distribute. We, however, do not reach the merits of these arguments

because the order of the probate court is not a final order, and the issues are moot.

James Irby Seay, Sr. died testate in 1981. His Last Will and Testament was admitted for probate in Arkansas County, Arkansas on September 10, 1981. He was survived by a widow, Hilma R. Seay, and five children, James Irby Seay, Jr., George L. Seay, Sr., Mildred Seay, Hilma Hightower, and Helen S. Quinn. His widow, Hilma R. Seay and First National Bank in Stuttgart (now First United Bank) were appointed co-executors of the Estate. In December 1988, Hilma R. Seay died, and Helen S. Quinn succeeded her as co-executor of the Estate.

At the time of his death in 1981, J.I. Seay, Sr. owned eighty-five percent of stock in Wildlife Farms, Inc. A majority of the assets of J.I. Seay, Sr. were in the corporation. The remaining fifteen percent of the corporate shares were held by family members. On December 29, 1988, a majority of the Wildlife Farms, Inc. shareholders formed the Trust for tax purposes and to liquidate the realty. The Trust agreement contained a provision that the Trust would terminate in three years after the date of its adoption, which was December 29, 1988. Helen S. Quinn and the Bank were designated co-trustees of the Trust, in addition to their duty as co-executors of the Estate. More than three years after the date the Trust was to end, the co-trustees sold hunting property consisting of 1,400 acres that appraised in excess of $1,200,00 for $700,000 to Wildlife Farms, Inc.

Appellants filed an action in the Chancery Court of Arkansas County to void the sale of realty and to recover the property. A summary judgment was granted in favor of Wildlife Farms, Inc., which appellants appealed in George L. Seay and James Irby Seay, Jr. v.Wildlife Farms, Inc. 342 Ark. 503, 29 S.W.3d 711 (2000). Meanwhile, appellants petitioned the probate court to distribute the assets of the Estate. After a hearing on the motions to distribute before the probate court, the judge denied the distribution of assets pending resolution of the appeal from the chancery court's order. On November 2, 2000, after the issuance of the order by the probate court, the Arkansas Supreme Court dismissed the appeal by appellants, along with another appeal by appellants in CA-00-0780. The Order denying distribution by the probate judge is the subject of this appeal.

Appellee argues that the probate court's order is not a final appealable order and that these issues are moot. We agree and do not reach the merits of appellants' arguments.

For an order to be appealable, it must in some way determine or discontinue the action. Toney v. White, 31 Ark. App. 34, 787 S.W.2d 246 (1990) (citing Ark. R. App. P. 2). In Toney, this court held that a trial court order, staying probate proceedings pending decision of a Louisiana court as to whether two certificates of deposit were to be included in the inventory of the estate, was not a final appealable order because the order did not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. An order must be of such a nature as to not only decide the rights of the parties, but also to put the court's directive into execution, ending the litigation or a separable part of it. Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987).

Furthermore, it is the inherent power of the court to command an orderly, efficient, and effective administration of justice. Clements v. State, 306 Ark. 596, 817 S.W.2d 194(1991) (citing Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989)). The probate judge was exercising his inherent power in this case by denying the petition to distribute assets at the time the petition was brought before him and while the appeal was taking place.

Although the probate judge's order in this case indicated the direction in which he may rule in the future on the distribution of the assets of the Estate, it did not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Instead, the order denied the distribution of assets on the grounds of the appellants' pending appeal. The court specifically stated:

that if there is disbursement and the appeal is successful against the sale of the property to Wildlife Farms, Inc., the issue of the sale which is the source of monies for distribution is back before the Court, and the source of funds then distributed are not available depending on the outcome of the trial regarding the sale.

The order, therefore, was not a final order, and the issues on appeal are moot.

Dismissed.

Hart and Neal, JJ., agree.