ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

GLENDA MEEK,

APPELLANT

V.

DAVID CARTER, ADMINISTRATOR OF THE ESTATE OF CHARLENE K. CARTER,

APPELLEE

CA01-866

FEBRUARY 6, 2002

APPEAL FROM THE POPE COUNTY PROBATE COURT,

NO. P97-220,

HON. RICHARD E. GARDNER, JR., JUDGE

AFFIRMED

Charlene Carter (Charlene) was involved in an automobile accident on September 1, 1997. Her husband filed for divorce the following day. On September 10, 1997, Charlene executed a will and engaged a lawyer to defend her in the divorce and to file a personal injury suit. In her will, she named her mother, Glenda Meek, appellant herein, as executrix. Charlene devised to her husband, David Carter (Carter), the sum of $1.00 and devised the remainder of her estate to their two children. Charlene died on October 18, 1997. On October 20, 1997, the court admitted the will to probate and Meek was appointed executrix of Charlene's estate. The following day, Carter withdrew his divorce petition and also filed the first of several motions to set aside Meek's appointment as executrix. Meek settled against one of the defendants in the personal injury suit and received court approval of the settlement on December 10, 1997. Carter appealed the order approving this settlement, arguing that he had no notice. We affirmed the trial court in Carter v. Meek, No. 98-264,

1998 WL 760240 (Ark. App. Oct. 28, 1998).

On May 24, 1999, the probate court ruled that there was no cause to remove Meek as executrix and refused to grant Carter's motion to set aside the will's admission to probate, though one of the attesting witnesses failed to appear. Carter appealed a second time and we held on June 28, 2000, in Carter v. Meek, 70 Ark. App. 447, 20 S.W.3d 417 (2000), that because of Meek's failure to use reasonable diligence to secure the presence of the second attesting witness at the hearing, and because there was no evidence presented as to whether the second attesting witness was living at a known address in the United States pursuant to Arkansas Code Annotated section 28-40-117 (1987), the will had not been sufficiently proved.

On June 30, 2000, Carter petitioned to be appointed as the administrator of Charlene's estate, and a hearing was conducted on November 17, 2000. The second attesting witness, who had been absent from the earlier hearing, was present at this hearing and was permitted to testify that he witnessed the execution of Charlene's will. However, on January 19, 2001, the probate court ruled that, as a result of our decision in Carter v. Meek, 70 Ark. App. 447, 20 S.W.3d 417 (2000), Charlene's will could not be "revived," and that Carter should be appointed as administrator of Charlene's estate. On March 20, 2001, the order appointing Carter as administrator was filed and Carter accepted the appointment on April 3, 2001. Carter proposed a nunc pro tunc order on April 9, 2001, which granted letters of administration to him. This order, which additionally waived bond, was entered over Meek's objection on May 11, 2001. Meek requested this order be reconsidered, but theprobate judge, by letter opinion filed May 22, 2001, found that Carter had waived fees as administrator, waived any benefit from the personal injury suit, and that he was a proper choice for administrator.

Meek appeals, contending that the trial court's entry of the nunc pro tunc order that appointed Carter as administrator was clearly erroneous. In support of this contention, Meek argues several issues, including (1) Carter failed to follow statutory law to become administrator; (2) it was error for the court to enter the nunc pro tunc order to fix what ought to have been done but was not done; (3) it was error for the trial court to take notice of certain facts that were in error of the law of Arkansas; (4) it was error for the trial court to appoint Carter over the known last wishes of the deceased; (5) Carter has a conflict of interest that makes him unsuitable to act as administrator of the estate; (6) it was error for the trial court to appoint Carter as administrator because the possibility of two contingent fee contracts is harmful to the estate of Charlene Carter and not in the best interest of the intended beneficiaries, her two children; and (7) it was error for the trial court to appoint Carter as administrator since the estate is harmed by the fact that the expert witness who performed all the investigations will not work with the law firm chosen by Carter.

The probate court possesses considerable discretion in the granting of letters of administration, upon a determination that the applicant is qualified and will best manage and improve the estate. Burch v. Griffe, 342 Ark. 615, 29 S.W.3d 726 (2000). Such decision will not be reversed absent an abuse of discretion. See id.

A nunc pro tunc order may not be used to accomplish something that should havebeen done but was not. Colson Co. v. Fields, 20 Ark. App. 187, 726 S.W.2d 296 (1987). The purpose of a nunc pro tunc order is to make the record reflect the transaction that actually occurred. Id. The power to correct a record nunc pro tunc can never be used to make the record speak what it should have spoken, but what it did not in fact speak. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950). A nunc pro tunc order may be entered to make a trial court's record speak the truth or to show what actually occurred, but it may not be used to accomplish something which ought to have been done but which was not done. Nunc pro tunc orders are only properly issued where such orders were properly made but, through clerical misprision, were not entered. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993).

Meek contends that Carter's failure to include a prayer for letters of administration in his petition to be named administrator was an error that cannot be corrected by the nunc pro tunc order, which granted the letters of administration and waived the bond. Carter was appointed as administrator by the order filed March 20, 2001. The order made no reference to the granting of letters of administration or whether a bond was required. Carter filed a petition for the issuance of letters of administration to him on April 26, 2001. The nunc pro tunc order that granted such letters and waived the bond was filed on May 11, 2001.

Meek contends that, to be in compliance with Ark. Code Ann. § 28-40-107(1987), a party seeking to be appointed as the administrator of a decedent's estate must specifically request in his petition that letters of administration be issued to him and that the subject of the bond be addressed. We do not agree. Section 28-40-107 contains a detailed list of itemsthat the petition is required to contain, with which Carter's petition complied, and this list does not contain a requirement that the petitioner state that he or she seeks the issuance of letters of administration nor mention the requirement of a bond.

The court's order of March 20, 2001, that appointed Carter as administrator did not state that it granted letters of administration. However, since the appointment of an administrator necessarily entails the issuance of letters of administration and the imposition or waiver of bond, as that is the only means by which the administrator can effectuate his or her power, the entry of the nunc pro tunc order on May 11, 2001, to grant letters of administration to Carter and to waive the bond was valid because it was entered to make the trial court's record reflect what actually occurred. We hold that the probate court did not abuse its discretion by entering the nunc pro tunc order that issued letters of administration to Carter and waived bond; thus, we affirm.

Meek contends that even if the nunc pro tunc order could be validly entered, Carter's appointment as administrator was an abuse of discretion because he had not petitioned to be named administrator within thirty days after the death of Charlene Carter under Arkansas Code Annotated section 28-48-101(1987). Section 28-48-101 provides, in relevant part:

. . .

Carter argues that he was appointed administrator under section 28-48-101(a)(4) rather than (a)(2). Section (a)(4) allows the court to grant letters to "any other qualified person" and Carter contends that the time limitation imposed on section (a)(2) is inapplicable to (a)(4) even though Carter is the surviving spouse.

The statute, by its plain language, gives priority to the surviving spouse, but the surviving spouse must petition for letters within thirty days in order to receive this priority consideration. The statute does not disqualify a surviving spouse from also being encompassed as an "other qualified person"; it merely provides for a method by which the surviving spouse can receive priority consideration over all other qualified persons. Carter petitioned the court to be named administrator based upon his status as husband, but the court's order does not state that he was appointed on the basis of his status as surviving spouse. The probate judge's letter opinion, upon which the order was entered, states that the appointment was made in the best interest of the children, thus implying that the probate court did not look solely at a statutory priority of surviving spouse.

The trial court could, within its wide discretion, appoint Carter as an "other qualified person," and Meek has presented no record that reflects that the trial court did not appoint Carter on this basis. Thus, we do not decide whether the trial court could have appointed Carter administrator based upon his status as surviving spouse even though he did not comply with the time requirements of section 28-48-101(a)(2).

Meek next contends that the trial court abused its discretion in appointing Carter as administrator because the hearing transcript indicates that the judge based his appointmenton the erroneous legal premise that Carter had to be appointed administrator. We find no evidence in the transcript that the judge believed that Carter had to be appointed administrator. To the contrary, the order appointing Carter is premised upon the court's belief that Carter's appointment would be in the best interests of the children and estate.

Meek next contends that the appointment constituted an abuse of discretion because it was contrary to the known last wishes of the deceased. The parties agreed that the will was invalid based upon our decision in Carter v. Meek, 70 Ark. App. 447, 20 S.W.3d 417 (2000), and that it could not subsequently be proved. Meek argues, however, that even Charlene's invalid will should be considered as an expression of her preference of administrators and should be determinative of the issue, or at least guide the trial court in its appointment of an administrator. Meek cites no authority for looking to an invalid will as guidance for determining whom the court should appoint as administrator. We do not address unconvincing arguments on appeal. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001).

Lastly, Meek contends that the probate court abused its discretion by appointing Carter administrator because Carter has a conflict of interest that makes him unsuitable to act as administrator of the estate, because the possibility of two contingent fee contracts is harmful to the estate of Charlene Carter and not in the best interest of the intended beneficiaries, her two children, and because the estate is harmed by the fact that the expert witness who performed all the investigations will not work with the firm chosen by Carter. These arguments were not presented to the probate court prior to the entry of the nunc protunc order of May 11, 2001; thus, they are not preserved for our review. Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998).

Affirmed.

Pittman and Roaf, JJ., agree.