dissenting.
I respectfully dissent. The majority fails to follow the testator’s intent. Mary Rodgers’s will reveals no intent regarding timber on Parcels 1 and 2. Inexplicably, the majority concludes that proceeds from the sale of timber that occurred prior to Mary’s death may be conveyed in lieu of timber when there is no bequest regarding “timber.”1 Further, it was the testator’s intent that timber on the land could be 1 usold during her incompetency as evidenced by the specific authority granted in the power of attorney to execute timber deeds. There is simply no merit to the idea that identifiable and unexpended proceeds from the sale must be conveyed in lieu of timber when the testator expressly indicated it could be sold.
With respect to Parcel 1, Mary conveyed “the land and mineral rights,” and with respect to Parcel 2, she conveyed “the land.” The paramount principle in interpreting wills is that the testator’s intent governs, and “the testator’s intent is to be gathered from the four corners of the instrument itself.” Pickens v. Black, 318 Ark. 474, 480, 885 S.W.2d 872, 875 (1994). “A specific legacy is the bequest of a particular thing, as distinguished from all others of the same or similar kind, and must be satisfied only by the delivery of the particular thing.” Kidd v. Sparks, 276 Ark. 85, 87, 633 S.W.2d 13, 15 (1982). The specific legacy regarding Parcels 1 and 2 does not mention timber, but at Mary’s death the land and mineral rights she specified in her will did exist and could be conveyed pursuant to her intent. There was no specific legacy in the timber but only in the land and mineral rights.2 The analysis ends there.
Because there was no specific legacy in the timber, there could be no ademption, and, therefore, there is no reason to consider whether the intention theory should be adopted. The majority’s decision is largely obiter dictum.
Further, the rule in Arkansas was that under the devise of a specific legacy, if “the | ir,identical thing bequeathed is not in existence, or has been disposed of, the legacy is extinguished or adeemed, and the legatee’s rights are gone.” Worthen Bank & Trust Co. v. Green, 237 Ark. 785, 788, 376 S.W.2d 275, 277 (1964) (quoting 28 Ruling Case Law, Wills § 341 (1921)). Now, unexpended and identifiable proceeds from the sale of a specific legacy by an attorney in fact do not adeem, and we can expect much new litigation regarding whether there was a specific legacy and whether there are identifiable and unex-pended proceeds. Given the majority’s broad assumption in this case that timber was a specific legacy when it is not even mentioned in the will, we can anticipate that litigation on the issue of testator intent will blossom and flourish.
I must also note that the will was executed in 1987 and Mary died in 2009. Timber changes a great deal over twenty-two years. This makes the majority’s assumptions about Mary’s intent regarding the timber even more troubling. To find the intent recognized by the majority, Mary would have needed to provide in her will that the land was to be conveyed with stands of timber of the size and type harvested, which, given drought, beetles, fire, other pests, and unforeseen events, would have been a remarkable feat of prognostication. As Mary indicated in her will, the specific legacy was the land, not a specific sort and stand of timber. This court has stated that it will not speculate on a testator’s intent. Edmundson v. Estate of Fountain, 358 Ark. 302, 309, 189 S.W.3d 427, 431 (2004). The majority does more than speculate. It finds facts regarding testator intent where there are none.
The majority’s holding will increase disputes and litigation among legatees and | ]f,attorneys in fact. For example, under the majority’s holding, it appears that an attorney in fact holds proceeds from the sale of the principal’s property in trust for possible future legatees. This is so even though such future legatees hold no interest in the property or proceeds at the time of the sale or at any point prior to the principal’s death. Attorneys in fact will now be sued in attempts to require them to account for proceeds from any transaction transferring the principal’s wealth at any time prior to the principal’s death. At death, whatever proceeds from such transactions remain become part of the residual estate. The majority is altering the law on what becomes part of the residual estate, and attempting to limit recovery under the new law to unexpended and identifiable proceeds will not limit litigation and disputes as the majority apparently hopes. This opinion will force many elderly and infirm individuals to use much costlier and more complicated guardianships. This case will have a chilling effect on those who might be willing to assume the duties of attorney in fact. While some attorneys in fact engage in nefarious and improper conduct, most honorably perform, often at no charge, a service desperately needed by the elderly and infirm among us. There are remedies for acts by attorneys in fact who abuse their position.
There is no specific legacy at issue in this case and I would affirm the circuit court. Therefore, I dissent.
BAKER, J., joins.
. The majority cites Koonce v. Fordyce Lumber Co., 123 Ark. 85, 184 S.W. 440 (1916) for the proposition that when land is conveyed it carries with it whatever timber is standing upon the land. However, Koonce concerns conveyance of a grantor by deed rather than bequest by will which is at issue here. Obviously, when land is sold and deeded by the owner to another, whatever timber is on the land is conveyed as well if no reservation has been made by the grantor. However, Koonce concerning a present conveyance of land by deed is of no application in the present case where a bequest by will and the intent of the testator some twenty years before her death is at issue. Likewise, the cited case of Buford v. Alderson, 61 Ark.App. 156, 965 S.W.2d 802 (1998) concerns the effect of a deed of land where a timber deed had been previously granted on the same land.
. I note that the majority indicates that Charles referred to Parcels 1 and 2 in a motion below as the "timbered tracts.” The majority then uses the terms "[t]wo timbered tracts,” when there is no reference to timber or timbered tracts in the will.