Coleman v. Coleman

Brenda COLEMAN, et al. v. Agnes COLEMAN, et
al.

CA 97-11                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered November 19, 1997


1.   Appeal & error -- chancery case -- standard of review. -- The appellate
     court reviews chancery cases de novo on the record and does
     not reverse a chancellorþs finding unless it is clearly
     erroneous; a finding is clearly erroneous if, upon its review,
     the appellate court is left with the firm conviction that a
     mistake has been committed.

2.   Mental health -- act committed while lacking mental capacity --
     ratification possible once capacity regained. -- A person who commits
     an act while lacking the mental capacity to do so may
     nevertheless affirm or ratify that act once he or she regains
     his or her capacity.

3.   Contracts -- ratification -- silence or acquiescence amounts to. --
     Silence or acquiescence in a contract for any considerable
     length of time amounts to ratification.

4.   Mental health -- chancellor's failure to find that decedent had ratified
     his transaction was clearly erroneous -- reversed on direct appeal. --
     Where testimony by an appellee revealed that the decedent had
     regained his mental capacity by the summer of 1988; where the
     chancellor found no lack of capacity in a 1990 transaction;
     where the decedent did not die until May 1995, having lived in
     a competent state between five and seven years without
     removing his sonþs name from his accounts; where the decedent
     transferred other property to his son during that period and
     acknowledged to appellee in 1990 or 1991 his awareness that
     his sonþs name was on the accounts; and where the decedent
     placed a great deal of money into the accounts in 1992, a time
     when, according to appelleeþs testimony, he was aware that his
     sonþs name was on the accounts, the appellate court held that
     the chancellorþs failure to find that the decedent had
     ratified his transaction was clearly erroneous and reversed on
     direct appeal.

5.   Gifts -- inter vivos -- unconditional release of future dominion and
     control required. -- One requirement of an inter vivos gift is
     that the donor must unconditionally release all future
     dominion and control over the property.

6.   Gifts -- inter vivos -- chancellor erred in denying appellants' claim to
     ownership of accounts on grounds that requirements of inter vivos gift were
     not proven. -- Where appellants did not claim their right to
     ownership of certain accounts by virtue of an inter vivos gift
     from the decedent to his son but instead based their claim
     upon the sonþs survivorship right as a joint tenant, the
     appellate court held that the chancellor erred in denying
     appellantsþ claim on the grounds that they did not prove the
     requirements of an inter vivos gift.

7.   Deeds -- no undue influence proven with regard to deeding of house and
     placement of name on car title -- affirmed on cross-appeal. -- Where the
     record supported the chancellorþs finding that no undue
     influence was proven with regard to the decedent's deeding a
     house to his son and placing his son's name on a car title,
     the appellate court affirmed on cross-appeal, rejecting cross-
     appellants' contention that the chancellor erred in failing to
     impose a constructive trust on the house and car.

8.   Appeal & error -- unsupported assignments of error not considered. --
     Assignments of error unsupported by convincing argument or
     authority will not be considered on appeal.


     Appeal from Garland Chancery Court; Vicki Cook, Chancellor;
reversed on direct appeal; affirmed on cross-appeal.
     Charles J. Lincoln, for appellants.
     Willie E. Perkins, Jr., for appellees.

     John F. Stroud, Jr., Judge.
     This case involves a controversy over entitlement to the
property of the late Quincy Coleman.  Appellant/cross-appellee
Brenda Coleman is the widow of Armnee Coleman, one of Quincyþs
sons.  Appellees/cross-appellants are the other eight children of
Quincy Coleman.  During Quincyþs lifetime, he placed Armneeþs name
on his checking and savings accounts and on the title to his
vehicle.  Additionally, he deeded his house to þArmnee Coleman,
Trustee.þ  When Quincy died in 1995, Armnee claimed ownership of
the accounts, the vehicle, and the house.  The other eight children
alleged that Armnee had gained his purported ownership of the
property through deception and coercion.  On November 9, 1995, they
filed a petition in Garland County Chancery Court seeking the
imposition of a constructive trust.  Armnee Coleman died during the
pendency of the action and his wife, Brenda Coleman, was
substituted as a party individually, as next friend of her
daughter, Haley, and as executrix of Armneeþs estate.
     After a hearing, the chancellor found that it was not
necessary to decide whether a constructive trust should be imposed
on the bank accounts because Quincy Coleman lacked the mental
capacity to enter into the depositorþs contract whereby he placed
Armneeþs name on the accounts.  She further found that it had not
been proven that Quincy, in placing Armneeþs name on the accounts,
intended to make a gift to Armnee.  She therefore ordered that the
$72,181.78 in the accounts at the time of Quincyþs death be
returned to Quincyþs estate.  Regarding the house and the vehicle,
the chancellor found that they should be awarded to Armneeþs wife
and daughter on the grounds that appellees/cross-appellants failed
to prove by clear and convincing evidence that a constructive trust
should be imposed.  Appellants/cross-appellees appeal from that
part of the chancellorþs order pertaining to the bank accounts. 
Appellees/cross-appellants appeal from that part of the order
pertaining to the house and the vehicle. We reverse and remand on
direct appeal and affirm on cross-appeal.

Direct Appeal
     Quincy and Lois Coleman were the parents of nine children. 
Lois Coleman died on December 13, 1987.  Shortly after her death,
Quincy Coleman, accompanied by Armnee,  removed Loisþs name from
their checking and savings accounts and changed the accounts to
reflect þQuincy Coleman or Armnee Colemanþ as joint owners.  Within
a few days after this transaction, Quincy was admitted to the
hospital suffering from grief reaction along with probable
malnutrition and associated delirium.  He remained hospitalized
until January 10, 1988. According to various neighbors and
relatives, Quincy was distraught over his wifeþs death and suffered
from depression and confusion.  The youngest of the Coleman
children, Bernard, returned home from college to take care of his
father for several months.  Bernard likened his task to taking care
of a two-year-old.  However, he stated that Quincy was back to
normal by the summer of 1988.
     In 1990 or 1991, Bernard Coleman had a discussion with his
father regarding the bank accounts.  He learned that Armneeþs name
had been placed on the accounts. He told his father that he foresaw
a family fight over the money and that þas far as Iþm concerned I
could care less about the money, they can stick it.þ  According to
Bernard, his father told him not to be that way and that the money
was as much his as anyone elseþs.  On another occasion, Quincy told
Bernard that the only reason he didnþt put his name on the checking
account was that he was still in college.
     In 1992, Quincy inherited over $96,000 from his sister.  He
deposited the money into the checking and savings accounts bearing
his and Armneeþs names.  A few days later, approximately $20,000
was withdrawn from the savings account and used to purchase a new
car. The car was titled in the names of Quincy or Armnee Coleman.
     On appeal, appellants concede that Quincy Coleman was mentally
incompetent at the time he placed Armneeþs name on the bank
accounts.  However, they argue that subsequent events, i.e.,
Quincyþs acknowledgment to Bernard that Armneeþs name was on the
accounts, Quincyþs deposit of the inheritance money into the
accounts, the purchase of the jointly owned vehicle with funds from
the accounts, along with the fact that bank statements bearing both
names were sent monthly to Quincyþs residence, constitute a
ratification of Quincyþs previously invalid action. 
     We review chancery cases de novo on the record and do not
reverse a chancellorþs finding unless it is clearly erroneous. 
Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328 (1993).  A
finding is clearly erroneous if, upon our review, we are left with
the firm conviction that a mistake has been committed.  Id.  Our
review in this case leaves us with the firm conviction that the
chancellor erred in disregarding the appellantþs ratification
argument.  It is well established that a person who commits an act
while lacking the mental capacity to do so may nevertheless affirm
or ratify that act once he regains his capacity.  Heskett v.
Bryant, 247 Ark. 790, 447 S.W.2d 849 (1969); Antrim v. McKelroy,
229 Ark. 870, 319 S.W.2d 209 (1958); Brandon v. Bryeans, 203 Ark.
1117, 160 S.W.2d 205 (1942).  We have also recognized that silence
or acquiescence in a contract for any considerable length of time
amounts to ratification.  Kinkead v. Union Natþl Bank, 51 Ark. App.
4, 907 S.W.2d 154 (1995).  In this case, testimony by one of the
appellees, Bernard Coleman, reveals that Quincy Coleman had
regained his mental capacity by the summer of 1988. Certainly, for
the chancellor to be consistent in her ruling, Quincy was mentally
competent by August of 1990, the date on which he deeded his house
to Armnee.  The chancellor found no lack of capacity in that
transaction.  Quincy did not die until May 1995, which means that
he lived in a competent state between five and seven years without
removing Armneeþs name from his accounts.  Further, he transferred
other property to Armnee during that period and acknowledged to
Bernard in 1990 or 1991 his awareness that Armneeþs name was on the
accounts.  Finally, Quincy placed a great deal of money into the
accounts in 1992, a time when, according to Bernardþs testimony, he
was aware that Armneeþs name was on the accounts.  With this
evidence in mind, we must hold that the chancellorþs failure to
find that Quincy Coleman ratified his transaction was clearly
erroneous.
     The chancellor also erred in finding that appellants were not
entitled to the accounts because Quincy did not intend to make a
gift of the accounts to Armnee.  One requirement of an inter vivos
gift is that the donor must unconditionally release all future
dominion and control over the property.   See Estate of Sabbs v.
Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997).  We recognize that
Brenda Coleman testified that, while Quincy was alive, Armnee never
took money from the accounts without Quincyþs permission. However,
appellants do not claim their right to ownership of the accounts by
virtue of an inter vivos gift from Quincy to Armnee; their claim is
based upon Armneeþs survivorship right as a joint tenant. 
Therefore, the chancellor was wrong in denying appellantsþ claim on
the grounds that they did not prove the requirements of an inter
vivos gift.
     Since we reverse on direct appeal, we do not find it necessary
to reach appellantsþ second argument regarding an award of attorney
fees and calculation of the amount to be paid to the estate of
Quincy Coleman.  

Cross-Appeal
     On cross-appeal, it is argued that the chancellor erred in
failing to impose a constructive trust on the house that Quincy
deeded to Armnee and on the car that was titled in both Quincyþs
and Armneeþs names.  Quincy executed the deed to the house in
August 1990.  According to attorney Richard Wootton, Armnee
contacted him and told him Quincy wanted to transact some business
regarding his real property.  Shortly thereafter, Armnee and Quincy
visited Wootton at his office.  According to Wootton, he was not
sure at first what Quincy wanted to do with the house; Quincy kept
mentioning the word þtrust.þ  Wootton explained to him that a trust
would entail the drafting of a separate trust document.  Quincy did
not want such a document, so Wootton told him he could prepare a
deed conveying the property to þArmnee Coleman, Trustee.þ  However,
he explained to Quincy that the use of the word þtrusteeþ would
have no legal effect; the deed would operate as an outright
conveyance to Armnee.  According to Wootton, he spent an hour to an
hour and a half with Quincy on the matter.  Quincy indicated he
understood that Armnee would have full title to the property.
     There is no evidence in the record regarding the circumstances
surrounding the placement of Armneeþs name on the car title other
than the fact that Quincy paid cash for the car with money
withdrawn from his and Armneeþs joint accounts.
     Again, we acknowledge that our review is de novo and that we
will not reverse a finding by the chancellor unless it is clearly
erroneous.  Smith v. Whitener, supra.  We find no error on cross-
appeal.  Cross-appellants argue that evidence of undue influence
exercised by Armnee mandates imposition of a constructive trust. 
However, the record supports the chancellorþs finding that no undue
influence was proven with regard to either of these transactions. 
Attorney Woottonþs testimony reveals that he fully explained to
Quincy the legal ineffectiveness of the use of the word þtrusteeþ
in the deed and that, as a result, title to the property would pass
to Armnee.  Further, there was testimony by other witnesses that
Quincy wanted Armnee to have the house because Armnee had done so
much to take care of him.  Cross-appellants attack the credibility
of these witnesses, but we defer to the superior position of the
chancellor on credibility questions.  OþFlarity v. OþFlarity, 42
Ark. App. 5, 852 S.W.2d 150 (1993).  Regarding the car title, as we
have already noted, there was virtually no evidence regarding the
placement of Armneeþs name on the title.
     Finally, cross-appellants ask us to þjudicially repealþ Ark.
Code Ann.  18-12-604 (1987), the statute which provides that the
appearance of the word þtrusteeþ in a deed, without other language
showing a trust, shall simply vest title in the grantee.  Cross-
appellants point to no constitutional infirmity in the statute, nor
do they offer any authority for their argument.  Assignments of
error unsupported by convincing argument or authority will not be
considered on appeal.  Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).
     Reversed on direct appeal; affirmed on cross-appeal.
     Bird and Griffen, JJ., agree.