dissenting.
The majority’s characterization of this appeal as “a dispute about assets between the respective descendants of an older couple in a second marriage” reveals the fundamental flaw in the majority’s conception of this case. The |,, descendants are “parties” to this case only in their capacity as representatives of the “older couple.” Neither Troy nor Diane have any legally recognized interest as individuals in this matter. The question before us is whether Thelma Healy’s survivorship interest in the couple’s estates by the entirety in the real property at issue was dissolved by the voluntary action of Thelma Healy and John Healy. The majority finds correctly that nothing in the record can support the conclusion that Thelma’s survivorship interest was dissolved prior to John’s death. Additionally, the record directly contradicts the application of the doctrine of equitable liens. Accordingly, we should reverse.
An estate by the entirety is peculiar to marriage and entails the right of survivor-ship; the right of survivorship to the whole can only be dissolved in a divorce proceeding, by death, or by the voluntary action of both parties. Lowe v. Morrison, 289 Ark. 459, 711 S.W.2d 833 (1986). Troy Butcher is the guardian of Thelma and is her grandson. Diane Beatty is the personal representative of John’s estate and is his daughter. Both Troy and Diane agree that Thelma and John were married at the time of John’s death. The majority correctly states that “[a]s the surviving spouse, Thelma became the sole owner of the two rent houses by operation of law when John died.”
A tenancy by the entirety is not terminated merely by an agreement for the sale of a marital home at a future date. Therefore, Thelma’s survivorship interest in the couple’s estate placed full ownership of the properties in Thelma when John died. The majority’s conception that the dispute is between the heirs, arising from their respective contingent or anticipated inheritances, misleads the majority into finding an equitable lien. However, the doctrine of | ^equitable liens has no application to this case.
As the majority recognizes, the circuit court appointed John and Troy as co-guardians of Thelma’s estate after finding Thelma incapable of caring for her person or estate. The order specifically found that Thelma was “incompetent by reason of being diagnosed with dementia of the Alzheimer’s type with behavioral disturbance and psychosis.” The medical documentation cites that Thelma was subject to hallucinations and violent episodes.
The court appointed Troy as sole guardian of Thelma’s person. In guardianship cases, the court shall appoint as guardian of an incapacitated person “the one most suitable who is willing to serve.” Ark.Code Ann. § 28-65 — 204(b) (Repl.2004). In making its determination, the court shall give due regard to the “relationship by blood or marriage to the person for whom guardianship is sought.” Ark.Code Ann. § 28-65-204(b)(4). Martin v. Decker, 96 Ark.App. 45, 52, 237 S.W.3d 502, 507 (2006). While the circuit court found Troy to be the most suitable individual for the care of Thelma’s person, the circuit court’s appointment of John as the co-guardian of Thelma’s estate recognized John’s continuing legal duty to provide for his spouse’s care through the available resources. John’s appointment as guardian of Thelma’s estate was clearly based upon his relationship to her by marriage and his willingness to protect and preserve Thelma’s estate for her care. John’s duty to Thelma cannot be separated from the balancing of equities that the majority imposes.
Arkansas Code Annotated section 28-65 — 301(b)(1) lists the duties of the guardian of the estate as follows:
It shall be the duty of the guardian of the estate:
hs(A) To exercise due care to protect and preserve it;
(B) To invest it and apply it as provided in this chapter;
(C) To account for it faithfully;
(D) To perform all other duties required of him or her by law; and
(E) At the termination of the guardianship, to deliver the assets of the ward to the persons entitled to them.
Ark.Code Ann. § 28-65-301(b)(l) (Repl. 2004).
Therefore, on January 10, 2007, when the circuit court’s order appointing John as a co-guardian of Thelma’s estate was filed, a specific legal duty was imposed upon John to guard the assets of Thelma’s estate for her continued care. An order entered April 29, 2008, appointed Troy as the sole guardian of the estate of Thelma following John’s death. According to the record, at the time of John’s death, he was still a co-guardian of Thelma’s estate with all the attending duties imposed upon him by law.
In September of 2007, approximately four months prior to John’s death, he filed for a divorce from Thelma. The record is unclear as to the grounds for the divorce or whether Thelma was institutionalized as a result of her mental state. However, when considering the equities of this case, which we must do to apply an equitable lien, we must also take into account the duty of a spouse who seeks to dissolve the marriage because of a permanent mental condition of his or her partner. When a trial court grants a divorce based upon the ground that one spouse is incurably insane, the spouse granted the divorce is required to provide for the care and maintenance of the defendant spouse for so long as he or she may |14Iive. Ark.Code Ann. § 9-12-301(b)(6)(B)(i) (Repl.2008). In addition, the trial court will retain jurisdiction of the parties for the purpose of making such further orders as equity may require to enforce the provisions of the decree requiring the plaintiff to furnish funds for such care and maintenance. Ark.Code Ann. § 9 — 12—301 (b)(6)(B)(ii) (Repl.2008); see Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965) (stating that no question of fault or guilt arises here; thus the primary concern of all involved, including the plaintiff once his or her grounds are proved, is protection of the rights and best interest of the insane spouse). Regardless of the grounds or fault for a divorce, statutory authority recognizes that equity may require an unequal division of property to meet a spouse’s needs. Ark.Code Ann. § 9-12-315 (Repl.2008).
Thelma was judicially decreed unable to care for herself or her affairs. Her condition rendered her vulnerable, and John was judicially charged with the duty to protect and preserve her estate for her future care. Statutory law and equitable principles protect spouses in Thelma’s position because of their inability to care for themselves. In this case, the trial court placed that trust in John, Thelma’s husband of over twenty-five years, and in Thelma’s grandson as co-guardians. The majority’s discussion of monies exchanged from Thelma’s estate to John’s estate or vice versa completely ignores the equitable and legal duties owed by John to Thelma.
Despite John’s equitable and legal duties owed to Thelma, the majority reasons that “Thelma’s estate has been unjustly enriched based upon the happenstance of John’s death and her guardian’s refusal to comply with the agreed order.” The majority claims that Thelma’s Restate is unjustly enriched because John’s death prevented the dissolution of the tenancy by the entirety, and, if the tenancy had been dissolved prior to his death, John’s heirs would have an interest in the disputed assets. In fact and in law, John’s heirs had no legally cognizable interest in John and Thelma’s tenancy by the entirety. At the time John died, he had a duty to protect and preserve Thelma’s tenancy by the entirety for her future care.
In discussing their novel application of the doctrine of equitable liens to these facts, the majority claims that “[tjhis remedy ‘awards a nonpossessory interest in property to a party who has been prevented by fraud, accident or mistake from securing that to which he was equitably entitled’ ” and that John’s death equates to an accident that unjustly enriched his ward’s estate. That premise is untenable when John unquestionably was required to protect and preserve Thelma’s estate, including the tenancy by the entirety, for her benefit. Although the majority agrees that no legal basis exists for a termination of the tenancy by the entirety under these facts, they fail to explain how “general considerations of right and justice,” require the imposition of a lien on Thelma’s estate. If anything, the obligation or duty to be enforced under these circumstances would be John’s duty as co-guardian to protect and preserve Thelma’s estate for her continued care.
The concurring opinion relies upon the probate court’s authority to sell real property held by the entirety “when it shall appear to the court from legal evidence that the interest of the other owner ... would be advanced thereby and that the interest of the incompetent person would not be injuriously affected.” Ark.Code Ann. § 18-60-146 (Repl.2003). The concurring opinion further relies upon Rucks v. Taylor, 282 Ark. 200, 667 S.W.2d 365 (1984), 1 Tfito assert that since “only the ministerial act of paying money was left to be accomplished, the probate court had the authority to order the specific performance to enforce its order.” As discussed above, upon John’s death, title to the property vested in Thelma. Any interest of John’s that could have been advanced by the termination of the tenancy by the entirety was similarly extinguished by his death. The resources available for the continued care of the surviving spouse, Thelma, would be diminished by removal of that asset from her estate. As the court of appeals stated in Rucks v. Taylor, 10 Ark.App. 195, 200, 662 S.W.2d 199, 202 (1983), aff'd, 282 Ark. 200, 667 S.W.2d 365 (1984): “To state the obvious, an estate held by entirety cannot be an estate of inheritance.”
Accordingly, I dissent.
VAUGHT, C.J., PITTMAN and GLADWIN, JJ., agree.