author: Per Curiam.

text:
    Randall Thomas McARTY v. STATE of Arkansas
    CR 93-1071
    983 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      Randall Thomas McArty, pro se.
    No response.
   Per Curiam.

In 1993, Randall Thomas McArty was found guilty of murder in the first degree and sentenced to life imprisonment. We affirmed. McArty v. State, 316 Ark. 35, 871 S.W.2d 346 (1994).

McArty now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, citing United States v. Morgan, 346 U.S. 502, 512 (1954), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). A claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which a notice of appeal must be filed. See A.R.Cr.P. 33.3; Penn, supra.

Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition on the ground that both his trial attorney and the prosecutor were aware of the results of a psychological evaluation which would have been helpful to the defense but chose to withhold it from the jury. He further contends that the jury was given an instruction which was not appropriate and that his trial attorney did not render the effective assistance of counsel guaranteed him by the Sixth Amendment.

The petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis is denied. Petitioner has not demonstrated that there was some fact extrinsic to the record which could not have been known at trial which would warrant issuance of a writ of error coram nobis. Indeed, he has failed to show that there was any evidence, relevant or otherwise, withheld by the prosecution inasmuch as he concedes that his attorney was aware of the psychological evaluation. There is clearly no assertion of fundamental error which requires issuance of the writ.

Before a writ of error coram nobis may issue it must appear that the facts as alleged as grounds for its issuance are such as would have precluded the entry of the judgment had they been available at trial. Larimore, supra. Here, every fact alleged as grounds was known at trial.

With respect to petitioner’s claim that his attorney at trial was ineffective, a claim of ineffective assistance of counsel in itself is not a ground to grant a writ of error coram nobis. Such claims are properly raised in a timely petition pursuant to Criminal Procedure Rule 37. See Williams v. Langston, 285 Ark. 444, 688 S.W.2d 285 (1985).

Petition denied.

Arnold, C.J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny Mark PROPST v. STATE of Arkansas
    CR 96-633
    983 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      J.F. Atkinson, Jr., for appellant.

      Winston Bryant, Att’y Gen., byT Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Johnny Mark Propst, pleaded guilty to first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. He subsequently filed a petition to withdraw his plea pursuant to Arkansas Criminal Procedure Rule 26.1. In the petition, Propst alleged that ineffective assistance of counsel prevented a knowing and intelligent waiver of his right to a jury trial. Specifically, Propst alleged that his attorney failed to make him aware, before he entered his plea, that he would have to serve seventy percent of his sentence before he would be eligible for parole. The Circuit Court treated Propst’s petition as a request for relief under Arkansas Criminal Procedure Rule 37 and denied relief. Propst now appeals that order. We affirm.

On appeal, Propst reiterates his ineffective-assistance-of-counsel argument. He argues that his plea was not voluntary and intelligent because his defense attorney failed to advise him of the existence of Act 1326, now codified at Ark. Code Ann. § 16-93-611 (Supp. 1997), which required that persons who are convicted of first-degree murder, among other serious felonies, serve seventy percent of their sentence before becoming eligible for parole. The Circuit Court denied relief on the basis that the conditions of parole did not play a part in Propst’s decision to plead guilty.

The rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52 (1985). In that case, the Supreme Court held that the “cause and prejudice” test of Strickland v. Washington, 466 U.S. 668 (1984), applied to challenges to guilty pleas based on ineffective assistance of counsel. The Court further held that in order to show prejudice in the context of a guilty plea, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59.

In Hill v. Lockhart, Hill filed a petition for habeas corpus in which he alleged that his guilty plea was not voluntary and intelligent because his attorney misinformed him about the length of time he would have to serve before becoming eligible for parole. Hill’s attorney, and the court that accepted his plea, both informed Hill that he would have to serve one-third of his sentence before becoming eligible for parole. Hill was a “second offender” under Arkansas law, however, and was therefore actually required to serve one-half of his sentence before becoming eligible for parole.

The Supreme Court affirmed the denial of habeas corpus relief on the basis that Hill did not make the required showing of prejudice under Strickland v. Washington, supra. Consequently, the Court did not make any finding as to whether Hill’s counsel, by misinforming him about his parole eligibility, rendered deficient performance.

In the year following the Supreme Court’s decision in Hill v. Lockhart, we had the opportunity to address the issue of counsel’s performance in parole eligibility matters in Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986). In that case, we noted, as the Supreme Court did in Hill v. Lockhart, that the Constitution does not require the State to furnish the defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary. From this premise, we reasoned that a counsel’s erroneous advice on parole eligibility does not automatically render a plea involuntary. Haywood v. State, 288 Ark. at 266.

After our decision in Haywood, the United States Court of Appeals, Eighth Circuit, had the opportunity to decide the issue left open by the Supreme Court’s opinion in Hill v. Lockhart. Hill filed a second habeas petition in which he made a showing of prejudice as required by the Supreme Court opinion. The Court of Appeals, consequently, had to address the issue of the adequacy of his attorney’s performance. The Court held that the advice that Hill received from his attorney about the decision to plead guilty was not within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990), cert. denied, 497 U.S. 1011 (1990).

The Court of Appeals emphasized, however, that not every case will result in a finding of deficient performance. The Court pointed out that in Hill’s case, there was a reasonable probability that the result of the plea process would have been different but for the erroneous information:

Not only had Hill explicidy asked his counsel about the parole system in Arkansas, but he had made clear that the timing of eligibility was the dispositive issue for him in accepting or rejecting a plea bargain. He told his attorney that he considered it no bargain to forego a trial unless his eligibility would be sooner than seven years, which he understood to be the time he could serve wdth commutation of a life sentence .... Given the attorney’s knowledge of his client’s particular concern, a failure to check the applicable law was especially incompatible with the objective standard of reasonable representation in Strickland .... [H]ere the misadvice was of a solid nature, directly affecting Hill’s decision to plead guilty.

Hill v. Lockhart, 894 F.2d at 1010.

In later cases, the Court of Appeals reiterated the narrowness of the Hill decision. “The holding in Hill. . . was narrow, and rested primarily on the district court’s finding that petitioner pleaded guilty as a direct consequence of his counsel’s erroneous advice and that, but for this advice, the outcome of the plea process would have been different.” Hale v. Lockhart, 903 F.2d 545 (8th Cir. 1990).

We think the decisions of the Eighth Circuit are consistent with our reasoning in Haywood: that erroneous advice on parole eligibility does not automatically render a guilty plea involuntary. The Eighth Circuit’s opinion in Hill v. Lockhart, as well as its subsequent opinions, stand for the notion that an attorney’s erroneous advice about parole eligibility would be the basis for a finding of ineffective assistance of counsel only when it is clear that the defendant’s parole eligibility, from the defendant’s point of view, was the “basis of the bargain” with the State.

In the instant case, it is clear that Propst’s decision to plead guilty did not depend on his parole eligibility. During the postconviction hearing, Propst testified that the State made a plea offer of forty years’ imprisonment in exchange for a plea of guilty. Propst also testified that the prosecutor who made the plea offer informed him that, based on additional evidence that had been obtained, capital murder charges would be filed if Propst did not plead guilty to first-degree murder. Propst stated that his attorney never told him how much time he would serve, and that “I never asked him; at the time I was happy to get that under the circumstances.” On cross-examination, Propst further admitted that he did not discuss parole with his attorney.

Propst argues that he thought that he would become eligible for parole in eight to ten years, and that his attorney should have told him about the existence of Act 1326 in order to dispel that impression. In other words, Propst asserts that if his attorney had volunteered accurate information about his parole .eligibility, he would have declined the opportunity to plead guilty and would have insisted on a trial.

We think this case is a far cry from Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990), and its progeny. It is clear that Propst’s decision to plead guilty was motivated by the likelihood that additional evidence would lead to the filing of a capital murder charge. Furthermore, Propst never discussed his parole eligibility with his attorney, and therefore, counsel never had the opportunity to inform, or misinform, Propst about his eligibility for parole. For all of these reasons, we cannot say that the Circuit Court’s denial of relief was clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

Affirmed.


text:
    Antonio WILLIAMS, Kendrick Gillum, and Demarco Wilson v. STATE of Arkansas
    CR 98-256
    983 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      Donald A. Forrest, for appellants.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

At the conclusion of their joint trial in the Crittenden County Circuit Court, CR97-439A-C, appellants Antonio Williams, Kendrick Gillum, and Demarco Wilson were convicted by a jury of the capital murder of Charles Newsome. The Circuit Court filed a judgment and commitment order for each appellant sentencing him to a term of life imprisonment in the Arkansas Department of Correction without the possibility of parole. Each appellant filed a notice of appeal. The record was lodged with this Court on March 4, 1998. Mr. Williams and Mr. Gillum briefed the case jointly, and Mr. Wilson submitted a separate brief. The case was submitted for decision on November 19, 1998. We have not yet rendered a decision.

On November 18, 1998, Mr. Williams filed in this Court a “petition for writ of error coram nobis or petition to reinvest the trial court with jurisdiction to hear a motion for new trial.” Mr. Gillum filed an identical petition here on November 25, 1998. In support of their petitions, they rely on the following: (1) an affidavit from Drexel Person in which Mr. Person avers that he and two other men shot Charles Newsome; and (2) an affidavit from Sylvia Thurman in which Ms. Thurman avers that she witnessed Frederick Tyrone Ellis shoot Mr. Newsome.

If a record of trial has been filed in this Court, an appellant seeking relief by writ of error coram nobis must obtain our permission to pursue the writ in the trial court that rendered the conviction. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984); Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981). We therefore treat each appellant’s petition as one requesting us to (1) grant permission to file a petition for a writ of error coram nobis in the Circuit Court; and (2) reinvest the Circuit Court with jurisdiction to hear the petition.

We grant the petitions based solely upon the affidavit of Mr. Person revealing a “third-party confession.” Brown v. State, 330 Ark. 627, 632, 955 S.W.2d 901, 903 (1997). See also Penn v. State, supra; Smith v. State, 301 Ark. 374, 376, 784 S.W.2d 595, 596 (1990) (stating “a confession by a third party to the crime after trial and before we have decided the case on appeal” is a ground for coram nobis relief). See generally Annotation, Coram Nobis on Ground of Other’s Confession to Crime, 46 A.L.R.4th 468 (1986). As no decision has been rendered affirming the appellants’ convictions, their petitions were timely filed. See Brown v. State, 330 Ark. at 631-32, 955 S.W.2d at 902 (stating that, although certain grounds for coram nobis relief may be asserted after affirmance, a claim based on a third-party confession “must be raised before affirmance of the judgment”).

The Circuit Court must “determine the merits” of the appellants’ coram nobis petitions. Larimore v. State, 327 Ark. 271, 278, 938 S.W.2d 818, 821 (1997). The Circuit Court

has the discretion to grant or deny [the writ]. The petitioner has a heavy burden to meet, especially in a case like this which must be approached with some skepticism for confessions by others are not uncommon. A written confession by another would not, alone, be grounds for relief. Obviously, the complete circumstances surrounding the statement and all the available evidence should be carefully scrutinized before a writ is granted. The trial court is in a good position, as will be the prosecuting attorney, to consider and test the merits of the petition. If it has merit, by all means a writ should be granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted ....

Penn v. State, 282 Ark. at 576-77, 670 S.W.2d at 429.

We note that Mr. Wilson has not sought our permission to proceed by writ of error coram nobis. However, considering that the three appellants were tried jointly and that their appeal has come to us on one record under one docket number, we deem it appropriate, in these unique circumstances, to remand the entire case to the Circuit Court.

Petitions granted.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice, David Newbern, Justice,

text:
    AYCOCK PONTIAC, INC., James H. Aycock III, John Aycock, and Elizabeth Aycock Mohon v. James Hervey AYCOCK Jr.
    98-767
    983 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered December 21, 1998
    [Petition for rehearing denied January 21, 1999.]

      Gregg, Hart & Farris, by: John C. Gregg, for appellants.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Tom D. Womack, for appellee.
   Donald L. Corbin, Justice.

This case involves the construction of a trust. Appellants James H. Aycock III (Chip), John Aycock (John), and Elizabeth Aycock Mohon (Beth) appeal the judgment of the Craighead County Chancery Court dismissing with prejudice their complaint seeking accounting and specific enforcement of a trust established by their father, Appellee Janies Hervey Aycock Jr. (Hervey). Appellants raise four points of error on appeal, which present issues of first impression and substantial public interest. Appellee raises one point on cross-appeal. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b)(1) & (4). We affirm the chancellor’s ruling.

The chancellor’s order reflects the following factual findings. As of December 1, 1971, Hervey was the owner of all the outstanding shares of stock of Aycock Pontiac, Inc., as represented by stock certificates number 1 for sixty shares and number 4 for fifteen shares, a total of seventy-five shares. The trust instrument dated August 1972 was prepared by attorney Donald F. Seay, who was then the corporate secretary of Aycock Pontiac, Inc. Hervey was the settlor and trustee of the trust; Beth, Chip, and John were the sole beneficiaries. The trust was revocable with a right of reversion. The trust agreement provided in pertinent part:

1. TRUST PROPERTY: The Settlor does hereby transfer and deliver to the Trustee, and his successors, nine (9) shares of the capital stock of Aycock Pontiac, Inc., copies of said certificates of stock so issued, are attached hereto, marked Exhibits “A”, and “B”, and “C”, and made a part hereof, the receipt of which is hereby acknowledged by the Trustee, which, together with any other property which may hereafter be transferred by the Settlor or by any other persons to the Trustee, shall be held and administered by the Trustee for the uses and purposes hereinafter set forth, and to be subject to the terms, conditions, powers and agreements hereinafter set forth.
2. NET INCOME: The Trustee shall apply and distribute the net income and the principal of the trust estate as follows:
(a) The Trustee shall pay the net income to Elizabeth Ann Aycock, James Hervey Aycock, III, and John William Aycock, until each of the children have completed their formal education or until they have each attained the age of twenty-five years, respectively, whichever first occurs; thereafter, the Trustee shall deliver the entire remaining principal over to the above named, absolutely, and this trust shall then terminate.
(b) Upon the death of any of the above named before completing his or her formal education, or before attaining the age of twenty-five (25), whichever occurs first, then the principal and any accumulated income of the trust shall revert to the Settlor, and that portion of this trust shall be at an end.
8. SUCCESSOR TRUSTEE: It is not intended nor directed that a successor trustee be named hereunder. In connection therewith, it is the sole intention of Settlor to have this trust revoked upon his death, or at his discretion, and all property belonging to the trust estate shall revert to Settlor or his estate, absolutely, at such time. However, in the event Settlor so desires, he may appoint a successor trustee hereunder by an instrument in writing duly acknowledged. Any successor trustee shall be bound to the terms and conditions as set forth in this instrument as well in any additional duties and obligations imposed upon such successor trustee by Setdor herein.
11. REVOCATION: This trust shall be revokable in the following instances or occurrances [sic]:
(a) At the discretion of Settlor at any time after execution hereof].]
12. PURPOSE: It is the Settlor’s sole intention in creating this trust for his children to have sufficient funds with which to complete their formal education. It is not intended that the beneficiaries hereunder receive their livelihood from this trust. [Emphasis added.]

On August 15, 1972, Aycock Pontiac, Inc., stock certificate number 4 for fifteen shares was canceled and replaced with certificate numbers 5, 6, 7, and 8. Certificate number 5 for three shares was issued to Hervey as trustee for Beth; certificate number 6 for three shares was issued to Hervey as trustee for Chip; certificate number 7 for three shares was issued to Hervey as trustee for John; and certificate number 8 for six shares was issued to Hervey. Hervey still retained certificate number 1 for sixty shares.

On June 17, 1974, stock certificate number 8 for six shares was canceled and replaced with certificate numbers 9, 10, and 11. Certificate number 9 for two shares was issued to Hervey as trustee for Beth; certificate number 10 for two shares was issued to Hervey as trustee for Chip; and certificate number 11 for two shares was issued to Hervey as trustee for John.

On November 7, 1974, stock certificate number 1 for sixty shares was canceled and replaced with certificate numbers 12, 13, and 14. Certificate number 12 for twenty shares was issued to Hervey as trustee for Beth; certificate number 13 for twenty shares was issued to Hervey as trustee for Chip; and certificate number 14 for twenty shares was issued to Hervey as trustee for John. As of November 7, 1974, certificate numbers 5, 6, 7, 9, 10, 11, 12, 13, and 14 were held by Hervey as trustee, in trust, in accordance with the trust agreement and subject to the terms, conditions, powers, and agreements set forth therein. No stock certificate of the corporation was ever issued to any of the individual Appellants.

Sometime after 1978 and most likely in 1986, Hervey reached the decision to revoke the trust agreement. Hervey communicated his decision to revoke the trust to Mr. Seay, the corporate secretary, who was in possession of the corporate stock records, including all of the issued stock certificates. Hervey instructed Mr. Seay to cancel all stock certificates which had been issued to him as trustee for the three children, and Mr. Seay did so. The word “cancelled” was handwritten across the face of certificate numbers 5, 6, 7, 9, 10, 11, 12, 13, and 14. Certificate number 15 for seventy-five shares of stock, the total outstanding shares of the corporation, was dated December 15, 1986, and issued in Hervey’s name. No other certificates have been lawfully issued by the corporation subsequent to certificate number 15.

The chancellor concluded that the express purpose of the trust was to fund the children’s formal education, and not that they should receive their livelihood from the trust. He specifically found that such purpose had been fulfilled, as Beth and Chip completed their formal education in 1981, while John completed his formal education in 1982. The chancellor found that Hervey had financially contributed to the formal education of each of his three children, but that the greater share of their education was contributed by the children’s grandfather, J. Hervey Aycock Sr. The chancellor recognized that some of the terms of the agreement were in conflict, specifically that section 2 was in conflict with sections 8, 11, and 12. Despite those conflicts, the chancellor concluded that the trust must be construed in harmony with the settlor’s intent. The order reflects in pertinent part:

Notwithstanding the finding that revocation of the Trust occurred after March 2, 1985, in construing the Trust as a whole, and in giving effect to the intent of the settlor/trustee, and applying the law to the facts, the Court holds that such purpose of the Trust has been attained; that Defendant did not intend that Plaintiffs receive their livelihood from the Trust; that under the conflicting provision of the Trust and under operation of law, the Trust should cease to exist, and the trust estate (shares of stock) should revert to Defendant, as settlor and sole shareholder of Aycock Pontiac, Inc.
The Court further holds, based on the facts, that it would be inequitable to enforce the terms of Section 2 of the Trust to the exclusion of the other terms of the Trust, including Sections 8, 11, and 12. [Emphasis added.]

Arguments on Appeal

Appellants argue that the chancellor erred in making the following rulings: (1) that Hervey retained the right of revocation of the trust after the trust terminated by its own terms; (2) that the purpose of the trust had been attained, notwithstanding that the revocation of the trust occurred after March 2, 1985, when John turned twenty-five years old; (3) that the trust should cease to exist and the trust estate should revert to Hervey as settlor and sole shareholder of Aycock Pontiac, Inc.; and (4) that it would be inequitable to enforce the terms of section 2 to the exclusion of the other terms of the trust, including sections 8, 11, and 12. For the reasons stated below, we affirm the chancellor’s conclusions.

We try chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987). We defer to the superior position of the chancellor to judge the credibility of witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).

In the absence of a statute to the contrary, a settlor may create a trust for any lawful purpose, and the trust may be created for his own benefit as Weil as the benefit of another. Richards v. Worthen Bank & Trust Co., 261 Ark. 890, 552 S.W.2d 228 (1977). A settlor has the power to reserve the right to revoke the trust in whole or in part. Id. The cardinal rule in construing a trust instrument is that the intention of the settlor must be ascertained. Little Rock University v. Donaghey Found., 252 Ark. 1148, 483 S.W.2d 230 (1972). In construing a trust, we apply the same rules applicable to the construction of wills. See Murphy v. Morris, 200 Ark. 932, 141 S.W.2d 518 (1940).

The paramount principle in the interpretation of wills is that the intention of the testator governs. In re Estate of Lindsey, 309 Ark. 596, 832 S.W.2d 808 (1992). This intention is to be determined from viewing the four corners of the instrument, considering the language used, and giving meaning to all of its provisions, whenever possible. Id.; In re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990). The court may read the language used by the testator in light of the circumstances existing when the will was written, but only if there is uncertainty about the testator’s intentions from looking at the language used in the will. Estate of Lindsey, 309 Ark. 596, 832 S.W.2d 808. See also Wineland v. Security Bank & Trust Co., 238 Ark. 625, 383 S.W.2d 669 (1964) (holding that the terms of a trust may only be construed in light of the settlor’s knowledge at the time he executed the instrument). The court should give force to each clause of the will, and only when there is an irreconcilable conflict between two clauses must one give way to the other. Estate of Lindsey, 309 Ark. 596, 832 S.W.2d 808. “[T]he last clause in the will governs in ascertaining a testator’s intention in case there is any conflict.” Walt v. Bevis, 242 Ark. 644, 654, 414 S.W.2d 863, 869-70 (1967) (citing Stayton v. Stayton, 198 Ark. 1178, 132 S.W.2d 830 (1939); Thomason v. Phillips, 192 Ark. 107, 90 S.W.2d 228 (1936); Bowen v. Frank, 179 Ark. 1004, 18 S.W.2d 1037 (1929); Gist v. Pettus, 115 Ark. 400, 171 S.W. 480 (1914); Little v. McGuire, 113 Ark. 497, 168 S.W. 1084 (1914)).

Appellants first argue that the chancellor erred in ruling that Hervey retained the right of revocation after the trust terminated by its own terms. They assert that Hervey could not have revoked the trust after they had each completed their formal education, as section 2(a) of the trust specifically provided that at such time the trust property was to be turned over to them. Appellants’ argument is without merit because the chancellor made no such finding. Instead, the chancellor concluded that despite Hervey’s failure to timely revoke the trust, the purpose of the trust had been attained and, therefore, the trust should terminate, and the property therein should revert to Hervey.

Appellants’ remaining three arguments pertain to the purpose of the trust and the reversion of the trust property to Hervey. The chancellor’s order reflects that he ascertained the settlor’s intent from the entire trust agreement, viewing the four corners of the document:

Section 2 requires the trustee (also the settlor) to apply and distribute the net income and principal of the trust estate (Aycock Pontiac, Inc. shares of stock) in a particular way. The net income was to pay the beneficiaries’ formal education expenses until they all reached age 25 or until they completed their formal education, whichever occurred first. The youngest child became 25 on March 3, 1985. All received their formal education. Furthermore, after this specified event, the trustee was required to deliver the entire remaining principal to the beneficiaries absolutely, then the Trust was to terminate.
However, under Section 11, the Trust states it was revocable at the discretion of settlor at any time after execution ....
Section 8 contains the reversion clause. It states it is the sole intention of the settlor to have this Trust revoked upon his death, or at his discretion, and all property belonging to the trust estate would revert to settlor or his estate absolutely, at such time. (Emphases added)
In fact, during [another trial], Defendant (settlor/trustee) testified he thought the trust estate reverted to him upon the triggering event in Section 2 of the Trust. Obviously, this written provision did not provide that.
Finally, Section 12 sets forth the express purpose of the Trust: to have sufficient funds for the beneficiaries to complete their “formal education.” It is not intended that the beneficiaries receive their livelihood from this Trust.

The chancellor found that although the foregoing terms of the agreement were contradictory, the settlor’s express intent was to provide sufficient funds for the children’s formal education. The chancellor found further that the purpose of the trust had been accomplished, finding that all three children had completed their formal education. We cannot say that the chancellor’s findings were clearly erroneous.

The aforementioned provisions of the trust were contradictory. Specifically, section 2(a), which provided that the remaining trust property was to be turned over to the individual Appellants upon completion of the formal education or their attainment of age twenty-five, whichever occurred first, was in direct conflict with section 11, which provided that the settlor retained the right to revoke the trust, at his discretion, “at any time after execution hereof[.]” In this respect, section 2(a) was also in conflict with section 8, which also entided the settlor, at his discretion, to revoke the trust and that, at such time, the property of the trust should revert to him. Moreover, and perhaps most significantly, section 2(a) conflicted with the express purpose of the trust provided in section 12, the last section in the trust agreement, that the trust was to fund Appellants’ education, but was not intended to provide them their livelihood. This stated purpose was supported by the testimony given by Hervey and Mr. Seay, the attorney who composed the trust agreement.

Appellants’ argument that the actual purpose of the trust was to prevent Hervey’s future wife from having any claim on the stock is unpersuasive. The purpose of the trust is clearly and unambiguously stated in the terms of the agreement itself. As such, testimony to the contrary should not have been permitted. Oral testimony is admissible only for the purpose of showing the meaning of the words used in the instrument when they are ambiguous, and not to show what the settlor intended, as distinguished from his expressed words. See Estate of Conover, 304 Ark. 268, 801 S.W.2d 299.

In sum, under the decisions rendered by this court, it is the chancellor’s duty to reconcile the conflicting provisions of the trust in an attempt to give meaning to every provision of the trust agreement, with consideration of the paramount principle that the setdor’s intention governs. The chancellor here did exactly that, ruling that because the express purpose of the trust had been accomplished, it would be inequitable to enforce the terms of section 2(a) to the exclusion of the other provisions pertaining to Hervey’s rights of revocation and reversion, as well as the stated purpose of the trust. This ruling is consistent with the general law regarding termination of trusts:

If by the terms of the trust the trust is to continue only until the expiration of a certain period or until the happening of a certain event, the trust will be terminated upon the expiration of the period or the happening of the event.

Restatement (Second) of the Law on Trusts § 334 (2d ed. 1959) (emphasis added). Here, the chancellor found that the specified event was the completion of the children’s formal education, which happened when the youngest child, John, graduated from college in 1982. Accordingly, we conclude that Appellants have failed to show that the chancellor erred in making his decision. Therefore, we affirm.

Cross-Appeal

Appellee cross-appeals on the ground that the chancellor erred in finding that he took no effective action to revoke or cancel the trust until after March 2, 1985. We do not reach the merits of this argument as Appellee, the successful party below, seeks no affirmative relief on this point, only that the chancellor’s final judgment be affirmed.

A cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court. Arkansas Dep’t of Fin. & Admin, v. Pharmacy Assocs., 333 Ark. 451, 970 S.W.2d 217 (1998); Flemings v. Littles, 324 Ark. 112, 918 S.W.2d 718 (1996). A cross-appeal is required only when the appellee seeks some affirmative relief that he or she failed to obtain in the trial court. Arkansas-Oklahoma Gas Corp. v. Lukis Stewart Price Forbes & Co., 306 Ark. 425, 816 S.W.2d 571 (1991); Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560 (1982). A cross-appeal is not necessary, however, when the appellee won the case below and merely asks that the judgment be affirmed on a different basis. Id. Because we affirm on direct appeal, we need not decide if there are additional reasons to affirm the case.

Affirmed on direct appeal and cross-appeal.

Brown, J., concurs.

Newbern and Imber, JJ., dissent.

Robert L. Brown, Justice,

concurring. I concur with much of the reasoning and certainly the result in the majority opinion and write only to emphasize one facet of the opinion. The Trust Agreement sets out what appears to be a conflict between the settlor/trustee’s right to revoke the trust at his discretion at any time, and the termination of the trust by delivery of the stock to the beneficiaries after they have all attained age twenty-five, or completed their education. Thus, under the Trust Agreement either the settlor could terminate the trust, or it is terminated by a transfer of the stock. I conclude that the settlor/ trustee effectively terminated the trust by not delivering the stock to the beneficiaries.

My decision in this case is guided by the termination clause in the Trust Agreement, which reads: “thereafter [after the last child has been educated or reaches age twenty-five], the Trustee shall deliver the entire remaining principal over to the above named absolutely, and this trust shall then terminate.” The settlor/trustee never delivered the trust res to his three children as required. The question then is whether his failure to deliver the stock was a breach of the Trust Agreement or a revocation by the settlor/trustee. I conclude it was a revocation.

Had Hervey Aycock served only as trustee and refused to deliver the property under the trust’s terms, it would certainly have been a breach of trust. But Hervey Aycock was also the creator of the trust, as settlor, with fulsome powers to revoke it at any time at his discretion. Hence, he had the power to terminate the trust on his own. It is axiomatic that the intent of the settlor is an important consideration in enforcing a trust. Richards v. Worthen Bank & Trust Co, 261 Ark. 890, 552 S.W.2d 228 (1977); Anderson v. Ryland, 232 Ark. 335, 336 S.W.2d 52 (1960). By not transferring the stock to his children after they were educated and were age twenty-one or older, Aycock as settlor effectively revoked the trust and terminated it.

I would give deference to the settlor’s intent and powers and affirm the trial court’s decision for that reason.

David Newbern, Justice,

dissenting. When it is possible to so do, we ascribe meaning to each clause of an instrument. Only when there is an irreconcilable conflict between two clauses must one give way to another. See In Re Estate of Lindsey, 309 Ark. 596, 832 S.W.2d 808 (1992). When there is no conflict among the provisions, all provisions should be taken into consideration in determining the intent of the testator. Hughes, Guardian v. Edwards, 198 Ark. 673, 130 S.W.2d 713 (1939). In the trust instrument at issue, there is no irreconcilable conflict among the clauses. The Chancellor erred in failing to give effect to the provision terminating the trust when the youngest beneficiary reached age 25 or when each beneficiary completed his or her formal education, which ever occurred first.

First, the majority permits disregard of the termination provision because the trust instrument allowed the trustee to terminate the trust at any time. I certainly agree with the quotation from the Restatement (Second) of the Law on Trusts § 334 (2d ed. 1959) that appears in the majority opinion as follows: “If by the terms of the trust the trust is to continue only until the expiration of a certain period or until the happening of a certain event, the trust will be terminated upon the expiration of the period or the happening of the event. [Emphasis supplied.]” The event in this case was the completion of formal education or the reaching of age 25 by the beneficiaries. While it could possibly be argued that the language of section 2. of the instrument provided for termination of the trust only upon distribution, such an interpretation files in the face of the requirement that “the Trustee shall deliver the entire remaining principal to the above named [beneficiaries] absolutely, and this trust shall then terminate.” That language leaves little doubt that the settlor-trustee simply failed to do that which he was required to do by the instrument when the trust purpose had been served and the trust was at an end. The majority opinion suggests that the settlor could terminate the trust after it terminated by its own terms. In my view, that is an illogical proposition.

Secondly, the majority holds it was not the intent of the settlor that the proceeds be distributed to the beneficiaries because the trust was not intended to provide for the livelihood of the beneficiaries. There is nothing inconsistent about the expression of that intent and the clear statement that the principal was to be distributed to the beneficiaries at the specified time. Even if the language cited could be said to apply to the trust principal after termination of the trust and distribution of the remaining principal to the beneficiaries, nothing in the record suggests that the beneficiaries needed or intended to use that which had been the trust principal for their livelihood.

The Chancellor’s decision should be reversed and the case remanded for an order requiring distribution of the trust assets to the beneficiaries in accordance with the terms of the trust instrument.

I respectfully dissent.

Imber, J., joins in this opinion.