¶1concurring.
¶2We love to overlook the boundaries which we do not wish to pass.
¶3—• Samuel Johnson (1709-1784)
¶4I write separately to address the argument that appellants had standing to intervene in the probate proceeding for administration of the decedent’s estate. Our probate code limits the class of “interested persons” to heirs, devisees, spouses, creditors, and others who have a property right, interest in, or claim against the estate being administered. Ark. Code Ann. § 28-l-102(a)(ll) (Repl. 2004). No legislation to expand or otherwise amend the definitions in § 28-1-102 has been enacted since 1949. We presume that the Arkansas General Assembly is familiar with the appellate courts’ interpretations of statutes as well as prior legislation. Estate of Hull v. Union Pac. R. Co., 355 Ark. 547, 141 S.W.3d 356 (2004); Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004). Therefore, it follows that the legislature is fully aware of the Arkansas probate code and its definition of “interested persons.” With the increased focus on medical-malpractice litigation, as evidenced by the passage of the Civil Justice Reform Act of 2003, No. 649, 2003 Ark. Acts 2130 (codified at Ark. Code Ann. § 16-55-201 et seq. (Repl. 2005)), we can also presume that the Arkansas General Assembly is particularly knowledgeable of statutes concerning limitation of actions, medical malpractice, wrongful death, and probate estates. Nevertheless, I am unaware of any attempt to amend the probate code so as to expand the definition of “interested persons” to include potential or target defendants who would assert defenses against threatened or impending litigation that might benefit estates. Apparently, the standing argument advanced by appellants in this appeal is the first attempt to judicially expand the definition of “interested persons” to that end.
¶5Throughout this case, appellants have contended that they have a right to intervene in a probate proceeding to administer a decedent’s estate under Rule 24 of the Arkansas Rules of Civil Procedure. Appellants rely heavily on Helena Regional Medical Center v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005), for the proposition that they need not be within the class of “interested persons” set forth in the probate code if they meet the requirements of Rule 24. To have an absolute right to intervene, a party must “claim an interest relating to the property or transaction which is the subject of the action.” Ark. R. Civ. P. 24(a). To have a permissive right, a party must have a claim or defense in common with the question of law or fact at issue in the main action. Ark. R. Civ. P. 24(b).
¶6In the instant case, the impending medical-malpractice action against appellants clearly did not qualify appellants as “interested persons” so as to create standing for them to appear in the probate court and challenge whether the appellee was fit to serve as administrator of the decedent’s estate. Appellants do not allege that they are heirs, devisees, spouses, creditors, or otherwise claimants against the decedent’s estate. They are target defendants in the medical-malpractice claim that is the sole asset of the estate. While appellants obviously are “interested” in not being sued, and in being successful if they are sued, that objective does not create any ground for them to challenge how the estate is administered and who should administer it.
¶7Appellants’ argument that they have standing in the probate proceeding due to their statute of limitations defense to the estate’s tort claim is facially inviting. According to that argument, because the probate proceeding is where the authority to assert a tort claim on behalf of an estate is determined, appellants (and persons similarly situated) will forfeit their statute of limitations defense if they are prevented from appearing as “interested persons” to challenge untimely appointments of administrators. Defendants may not challenge the validity of a probate appointment in a tort action. If the probate appointment is dispositive on a limitations defense, it would seem logical to grant standing to a tort defendant to challenge the probate appointment in order to assert the limitations defense. Otherwise, appellants argue, the defense would effectively be lost. Thus, appellants rely upon the procedure for intervention prescribed by Rule 24 of the Arkansas Rules of Civil Procedure to gain access to the probate proceeding in order to protect their statute of limitations affirmative defense.
¶8Alas, “the devil is in the details.” Whatever the facts may be surrounding a statute of limitations defense, those facts have nothing to do with determining who should administer an estate or how it should be administered. Moreover, there are sound reasons why a probate judge should not confuse the process for administering an estate with adjudicating a tort claim that is an estate asset. The probate court determines whether and when a person is authorized to prosecute a tort claim on behalf of an estate. That decision is separate from whether the tort claim is meritorious, on whatever grounds. That decision is also separate from whether a likely defendant to a tort claim will assert an affirmative defense, and whether an asserted defense (such as limitations) is valid. Simply put, whether a tort defendant will prevail on a limitations defense should not concern the probate court when it considers a petition to appoint an administrator because the probate proceeding does not function to adjudicate tort claims or decide defenses to them.
¶9Courts and judges should not engage in actions that are essentially legislative in their effect. A decision that expands the class of “interested persons” for purposes of probate administration beyond the individuals named in a statute is legislative action, no matter how it may be asserted. The General Assembly does not adjudicate tort claims. The courts should not legislatively create new members of the class of “interested persons” concerning administration of an estate.
¶10Despite the superficial attractiveness of appellants’ contention regarding standing, neither the procedure for intervention under Rule 24 of the Arkansas Rules of Civil Procedure nor the understandable interest of tort defendants to assert affirmative defenses justifies disregard for the separation-of-powers doctrine upon which our system of government stands. It is neither necessary nor wise for courts and judges to judicially legislate an amendment to the statutory definition of “interested persons” found in the probate code. Rather, appellants should pursue the legislative process to achieve the result they seek.