concurring in part and dissenting in part. While I agree with much of Judge Roafs opinion, and for that reason concur in part, I do not believe that the trial court erred in its finding pertaining to the action filed by-Howard Skaggs in the Miller County Circuit Court. The probate court held that the family-settlement agreement released all claims that the estate and the parties to the agreement could have pursued between themselves arising from the decedent’s death, and that the action filed by Howard Skaggs in the Miller County Circuit Court was in contravention of this family-settlement agreement. The probate court could properly so hold.
Judge Roafs opinion affirmed the probate court’s finding that the family-settlement agreement constituted a release of any survival action that the estate may have had against appellee. Her opinion does so because the family-settlement agreement was executed by appellee, who stood to inherit the decedent’s entire intestate estate as surviving spouse, and all parties designated as beneficiaries under the decedent’s lost will. To paraphrase her rationale: inasmuch as all persons interested in the estate, including the beneficiaries under the decedent’s lost will and the decedent’s surviving spouse, have joined in the family-settlement agreement, they should be bound to it because such agreements are favored at law and will be enforced without scrutinizing the strict legal rights of the parties. Judge Roaf cites Giers v. Hudson, 102 Ark. 232, 143 S.W. 916 (1912), and Shell v. Sheets, 202 Ark. 708, 152 S.W.2d 301 (1941). I would add Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).
I submit that this same rationale should apply to the issue addressed in section number three of Judge Roaf s opinion. I believe that she errs by accepting as relevant the major premise on which the appellant’s argument is based, i.e., that a valid settlement of a wrongful-death action must be signed by all statutory beneficiaries. This premise is irrelevant, because the trial court did not find that the family-settlement agreement settled and released the cause of action against appellee for wrongful death on behalf of all of the decedent’s heirs. Although appellant refers to “heirs” of the decedent, his brief clarifies that this reference is meant to refer to the statutory beneficiaries listed in the wrongful-death statute, which includes “the surviving spouse, children, father and mother, brothers, and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.” Ark. Code Ann. § 16-62-102(d) (Supp. 1995). Judge Roafs opinion notes that all of these statutory beneficiaries did not join in signing the family-settlement agreement and agrees with appellant that if the settlement agreement intended to settle the wrongful-death claim then all of these statutory beneficiaries had to be made a party to the agreement. Judge Roaf cites Wallace v. King, 205 Ark. 681, 170 S.W.2d 377 (1943), as holding that where a settlement agreement was not signed by all interested parties, it was not binding even on those who did actually sign the agreement. I submit, however, that the holding of Wallace is that a contract prepared for and intended to be signed by all of the parties named in it does not bind those who sign it if any of those who were to have signed it refuse to do so. The family-settlement agreement involved in this case was signed by all persons who were intended to sign it.
A close reading of the probate court’s order reveals that it did not hold that a statutory beneficiary who was not a party to the family-settlement agreement could not bring a wrongful-death action. It held that the family-settlement agreement released all claims between the parties to the agreement arising from the decedent’s death, including a wrongful-death suit against appellee, and that the circuit court action brought by Howard Skaggs contravened this agreement. Section I of the complaint filed by Howard Skaggs makes it quite clear that, rather than a statutory wrongful-death action, Mr. Skaggs was seeking recovery only for and “on behalf of the beneficiaries under the will and testament of Sophia E. Cullipher.” The beneficiaries under the purported will of Sophia E. Cullipher were Howard Skaggs, Debra Johnson, Darlene DeLaughter, Emma Lang, Abby Lynn Johnson, and Emily K. Johnson. All of these beneficiaries joined in and were parties to the family-settlement agreement. The statutory beneficiaries under the wrongful-death statute include two of the devi-sees under the will, but also include the following persons for whose benefit the circuit action was not brought: the decedent’s mother, Frances Skaggs; the decedent’s sisters, Betty Woods and Annie Dale Cashen; and the decedent’s brothers, Lewis Skaggs and Charles Skaggs. Although denominated a wrongful-death action, the complaint only sought recovery for two of these seven statutory beneficiaries. Consequently, it was not a statutory wrongful-death action but something else. But whatever it was, all of the persons for whom recovery was sought in the circuit court action were signatories to the family-settlement agreement.
I think it inconsistent and illogical to hold that the family-settlement agreement does not bar a wrongful-death action because only two of seven statutory beneficiaries were parties to the agreement, yet permit appellant to seek relief for only these same two statutory beneficiaries in his circuit court action. I would be inclined to agree with Judge Roaf s opinion on this issue if the circuit action had been for the benefit of even one of the wrongful-death beneficiaries who had not joined in the family-settlement agreement. But it was not, and I think it is error to base a decision on the rights of persons who were not before the trial court, nor before us on this appeal, and who do not stand to gain or lose by our decision in this matter.
I would affirm the trial court on all issues, except its holding that the probate proceeding had been closed by its order of July 1, 1993.
With respect to the concurring opinion of Judge Rogers, in which she opines that the probate court lacked subject matter jurisdiction to address the issues of the survival action and putative wrongful-death action in circuit court, I disagree for the following reasons. As discussed above, I believe the probate court’s action in finding that the family-settlement agreement released all claims that the parties to the agreement could have pursued between or among themselves arising out of the decedent’s death, and that Mr. Skagg’s circuit court action violated this agreement, did not constitute an exercise of tort-claim jurisdiction. The probate court was simply enforcing a family-settlement agreement in the course of the probate proceeding. Nor was it an original action to cancel or enforce an alleged family-settlement agreement where chancery jurisdiction might attach. See Alexander v. First Nat’l Bank of Ft. Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). A probate court has jurisdiction to interpret and enforce a family-settlement agreement during the course of the administration of a decedent’s estate. Id.
The cases cited in Judge Rogers’s concurring opinion deal with the issues of whether a probate court could try a tort claim and whether probate could determine if a tort claim existed that could be tried. In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992); Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987); Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984). Here, the probate court neither undertook to try a tort claim nor purported to rule on whether a tort claim existed that could be filed in circuit court. It simply held that the parties to the family-settlement agreement could not initiate this action and that Mr. Skaggs, who had obtained an order from the probate court authorizing him to file the circuit court action, should dismiss it because it violated the family-setdement agreement.
Neal, J., joins in this opinion.
Judith Rogers, Judge.The opinion authored by Judge Roaf more than adequately sets out the facts of this case as are necessary for an understanding of the various opinions offered in this matter; therefore, I will not recite them here. Also, since this court is in agreement that the probate court erred in ruling that the estate was closed, I will not revisit that issue in this opinion. Although I concur in the reversal of the probate court’s decision ordering the dismissal of the wrongful-death action, I agree to reverse on a different and more fundamental ground, which is that the probate court was without jurisdiction to determine whether the family settlement agreement operated as a bar to the pending wrongful death action in circuit court. For this reason, I dissent to an affirmance of the probate court’s decision that the estate’s survival action cannot be maintained.
In its order, the probate court ordered the dismissal of the wrongful-death action based on a finding that the family settlement agreement released all claims which the parties could have pursued. In Arkansas, however, the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984). It is well settled that a probate court does not have jurisdiction to render decisions dispensing with tort claims. In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992); Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987); Carpenter v. Logan, supra. In Eddleman v. Estate of Farmer, supra, the appellant had filed a contingent tort claim against the estate in the probate court. The probate court accepted the appellee’s defense and ruled that the statute of limitations had run on appellant’s claim. On appeal, the supreme court reversed, holding that the probate court did not have jurisdiction to rule on the tort suit and that its decision on the statute of limitations issue was void. In the case of In re Morgan, supra, the supreme court affirmed the probate court’s dismissal of a tort claim based on its ruling in Eddleman that a probate court is without jurisdiction to decide tort claims. And, in Carpenter v. Logan, supra, the appellant asked the supreme court to determine, in an appeal from a probate court, whether an unborn, viable fetus born dead as a result of trauma caused by negligence or willful and wanton misconduct has a cause of action against the tortfeasor for wrongful death. The court declined to address the issue stating that the action, if any, was a tort action cognizable in circuit court and that it would not entertain it on appeal from an ex parte probate proceeding.
It should be clear from these decisions that the probate court in this instance exceeded its jurisdiction by deciding that the claim for wrongful death was barred by the family settlement agreement. By ruling on the appellee’s motion for summary judgment, the court effectively exercised jurisdiction over the tort claim pending in circuit court. Indeed, the court reached far beyond the limits of its jurisdiction by ordering the dismissal of that action. In sum, the court determined what amounts to a defense to that action which, like the statute of limitations ruling in Eddleman, is void and thus cannot be sustained on appeal. Because this portion of the probate court’s decision is void, it is not necessary or even proper for this court to offer any opinion as to the merits of appel-lee’s motion for summary judgment. This same jurisdictional impediment applies equally to this court’s decision to affirm the ruling that the release acts as a bar to the estate’s survival action. That decision is also beyond the probate court’s jurisdiction; therefore, I must respectfully dissent to an affirmance on that point.
In response to the criticism of my view in the other opinions, I respectfully submit that the pursuit of a wrongful-death action has nothing to do with the administration of an estate. Furthermore, although Ark. Code Ann. § 28-49-104(a) (1987) does provide for the probate court’s approval of an executor’s proposed settlement of a wrongful-death claim, there is nothing in the probate code which requires the executor or any interested party to seek permission of the probate court before pursuing such an action. The fact remains that the probate court ordered the dismissal of the action, which is a decision it was without jurisdiction to make.
I am authorized to state that Judge Pittman joins in this opinion.