# Brown v. Hawkins > Supreme Court of Arkansas · July 2, 1951 · 219 Ark. 239 URL: https://www.frixlaw.com/law-library/cases/7813610 ## Case - **Full name:** Brown v. Hawkins - **Court:** Supreme Court of Arkansas - **Decided:** July 2, 1951 - **Citations:** 219 Ark. 239; 240 S.W.2d 863; 1951 Ark. LEXIS 499 - **Precedential status:** Published - **Opinion:** Dissent by Ward - **Judges:** Holt, McFaddin, Smith, Ward - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7813610 ## Opinion text Paul Ward, J., dissenting. The majority opinion, as well as appellee’s brief, assumes that appellant was given proper notice of the original petition to probate the will of Jacob B. Hawkins and then a conclusion is reached on the ground that there is no savings clause for minors in the Probate Code. I would agree with the conclusion reached by the majority except for the fact that it is my opinion that appellant was not given the notice required by the Probate Code which is Act 140 of 1949. Let us examine certain sections of the Gode and for convenience all references will be made to sections of said Act 140. Let us at all times keep in mind that the only notice relied on by appellee is that of publication in a newspaper. Section 45 sets forth the required contents of a petition to probate. It states that the petition must contain the “names, ages, relationship to the decedent and residence addresses of the heirs and devisees, if any, so far as known or can with reasonable diligence be ascertained. ” It is conceded that when the widow of the deceased filed her petition for probate she omitted, to include the name (and of course the residence) of appellant. It cannot be said that the petitioner did not know of the existence of appellant because his name was mentioned in the will and also he was a devisee in the will which was being probated. Let us now examine Section 53 which deals with the time within which a contest must be filed. Sub-paragraph (2) is the portion that must be relied on in the majority opinion in order to limit appellant to six months’ time in which to contest the will. By referring back to sub-paragraph (1) immediately above we find that it refers to Section 49 for the kind of notice that must be given where we find the following: “Notice thereof shall be given by one or more of the methods set out in Section 12 to each heir and devisee whose name and address is given, including notice other than by publication to each person who has filed demand for notice. ’ ’ Section 12 describes four different kinds of notices. The one relied on here by the majority opinion is sub-section (4) of said Section 12 which deals with newspaper publication and where we find the following language: . . when service by publication only is employed, all persons whose names and addresses appear in the petition shall be served by ordinary mail bearing on the envelope the return address of the clerk, in the same time and manner as provided in subsection (3) with respect to notice by registered mail, except that no registration shall be required.” It is obvious that this portion of sub-section (4) was not complied with in respect to appellant for the reason that his name did not appear on the petition to probate. It was omitted through no fault of his but solely by the careless or willful act of the petitioner. It must follow then that under sub-section (3) of Section 53 appellant has five years in which to contest the will if he so desires and unless he is hereafter given proper notice. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7813610. Public record. Not legal advice.