Ann Kidd et al. v. Glada Eoff and Wanda Tomlinson

DIVISION II

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

TERRY CRABTREE, JUDGE

CA00-156

March 14, 2001

ANN KIDD, et al. AN APPEAL FROM THE VAN BUREN

APPELLANTS COUNTY CHANCERY COURT,

No. E97-333

V.

HONORABLE CHARLES E. CLAWSON,

GLADA EOFF and CIRCUIT/CHANCERY JUDGE

WANDA TOMLINSON

APPELLEES AFFIRMED

This appeal involves a family dispute over land. The Van Buren County Chancery Court found that a deed granting property to appellees' parents was not obtained by procurement. We agree with the trial court and affirm.

Appellants are Ann Kidd, her spouse L.J. Kidd, Vesta McClain, Stanley Jackson, Andrew Charles Jackson and his spouse Arlene Jackson, and Rufus Sherman Lindsey. They are the nieces and nephews of Elmer and Beulah Stanley and George and Stella Stanley. Elmer Stanley and George Stanley were brothers who married two sisters, Beulah and Stella. These four parties are referred to hereinafter collectively as "the Stanleys," and they owned the real property which is the subject of this appeal. The Stanleys each had executed identical wills that left the subject property to the survivor of the four of them and thereafterto eight nieces and nephews. George Stanley died in March 1975; Stella Stanley died on February 16, 1977; and Elmer Stanley died on November 11, 1977. Beulah Stanley was the last to survive and inherited all of the subject property. Leister and Virgie Dewey cared for Beulah Stanley prior to her death. Ms. Stanley deeded the Deweys most of her land (approximately 550 acres) on November 18, 1982. Virgie Dewey was one of the nieces who were listed as heirs in the Stanleys' individual wills. Appellees Wanda Tomlinson and Glada Eoff are the daughters of the Deweys. The Deweys deeded the subject property to their daughters, the appellees, as a gift on March 4, 1993, and this deed was filed on May 2, 1994. Appellees filed suit to quiet title and alternatively asked that title be quieted in them based on adverse possession. Appellants answered the quiet-title action and contended that Leister and Virgie Dewey procured the deed from Beulah Stanley using undue influence. The trial court quieted title in appellees. Appellants then brought this appeal, arguing that the trial court erred by refusing to rule that Leister and Virgie Dewey procured the deed from Beulah Stanley for the 550-acre Stanley estate. This is the only issue on appeal.

Appellants contend that the Deweys had the deed prepared by their attorney and then took Mr. Davis, a notary public and long-time acquaintance of the Deweys, to Ms. Stanley's home to notarize her signature on the deed. They contend that Mr. Davis did not know Ms. Stanley and did not ask her any questions. Appellants also argue that no one other than Ms. Stanley, the Deweys, and Mr. Davis was present when the deed was signed and that the deed was kept a secret. Appellants argue that, as a result of these circumstances, Beulah Stanley was unduly influenced into executing the deed to the Deweys.

The appellees assert that Beulah Stanley gave the property to the Deweys because they cared for her on a regular basis, including handling some of her finances, preparing food for her, shopping for her, and maintaining her house.

As a general rule, there must be clear, cogent, and convincing proof before a deed can be set aside on the ground that it was obtained by undue influence, and the trial court's finding will not be reversed unless clearly against a preponderance of the evidence. Lipe v. Thomas, 269 Ark. 827, 600 S.W.2d 921 (1980). When the validity of a deed is attacked on this ground, we apply the same rules as we do when the validity of a will is attacked with allegations of undue influence in the procurement of the instrument. See Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981). Procure means to cause a thing to be done, to bring about. Id.

Appellants argued in their brief as grounds to support a finding of procurement that the Deweys lived near Beulah and did most her shopping, banking, cooking, and paying bills; that Leister Dewey stated he, at Beulah's insistence, went to his own attorney and had a warranty deed prepared wherein Beulah conveyed all of her property to the Deweys. Leister Dewey also got a notary public and took him to Beulah's home to notarize the deed. Appellants further said the notary did not bother to ask Beulah any questions.

A competent grantor may dispose of property as he or she sees fit. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). When a deed is challenged based on fraud, duress, or undue influence, the law requires clear, cogent, and convincing proof before the deed may be set aside. Davidson v. Bell, 247 Ark. 705, 447 S.W.2d 338 (1969). This court recentlyaddressed this issue and held that it simply cannot be the law that, in an ordinary deed transaction, the grantee bears the burden of proving the grantor's mental capacity and his freedom from undue influence merely because the grantee has caused the deed to be prepared. Estate of McKasson v. Hamric, 70 Ark. App. 507, 20 S.W.3d 446 (2000). The burden of proving lack of undue influence does not shift to the grantee unless it is found that the deed was procured. See Rose v. Dunn, supra. Even if there is a finding of procurement, the presumption of undue influence in the case of a beneficiary who procures the making of a will does not shift the burden of proof. Id. A will is a disposition of property that is to take effect upon the death of the maker of the instrument. Estate of McKasson, supra. The supreme court addressed this issue in Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970), where they were asked to hold that where a proposed will is drawn by a beneficiary, the burden of proof will shift. Rose v. Dunn, supra. The supreme court said, this burden, in the sense of the ultimate risk of non-persuasion, never shifts from the contestant. Id. This does not however, conflict with the rule concerning the burden of going forward with the evidence. Id. The result of the presumption of undue influence in the case of a beneficiary who procures the making of a will is merely to shift the burden of going forward with the evidence. Id. The ultimate burden of proving lack of capacity or undue influence by a preponderance of the evidence remains on the party challenging the will. Id.

Undue influence to set aside an instrument is not the legitimate influence which springs from natural affection. Noland v. Noland, supra. It is not enough that the party making the deed was influenced by the beneficiary in the ordinary affairs of life or that theywere in close touch and in a confidential relationship; there must be a malign influence resulting from fear, coercion, or any other cause which deprives the maker of free agency in disposing of property. Gross v. Young, 242 Ark. 604, 414 S.W.2d 624 (1967). Even transfers of property between a grantor and her fiduciary are not set aside on the basis of undue influence when there has been no proof that the grantee-fiduciary said or did anything to put the grantor in a position of fear or to defraud her. Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995). Additionally, when the grantee is present during the execution of a deed, it does not necessarily give rise to a presumption of undue influence. See In re Conservatorship of Kueteman, 309 Ark. 546, 832 S.W.2d 234 (1992). In proving undue influence, something more than suspicions and theories must be shown. See In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992). Allegations of undue influence must be supported by proof. Id.

Appellants argue in their brief that undue influence or lack of mental capacity or freedom of will were used in the execution of the deed at issue because of Ms. Stanley's age at the time the deed was executed, that she was in poor health, that she sold timber rights for a fraction of their value, that the Deweys waited four years to file their deeds, and that Ms. Stanley never changed her will. They also argue that the Deweys acted guilty when questioned about the deed and that Ms. Stanley never told anyone about the deed. Appellees' witnesses testified that it was common knowledge that the Stanley estate would be left to the eight nieces and nephews. Ann Kidd testified that, when she visited with Ms.Stanley in the nursing home in 1989, she asked her about the transfer of the land to the Deweys, Ms. Stanley told her she did it because she had no other choice.

Appellants failed to offer any evidence of malign influence resulting from fear, coercion, or any other cause that deprived Ms. Stanley of free agency in disposing of her property. Leister Dewey testified in his deposition that it was at Beulah Stanley's direction that they have the deed prepared. Mr. Davis, the notary, testified that Ms. Stanley appeared to know what she was doing; that she made sense when she spoke; and that she did not appear to be under any kind of pressure from the Deweys. He further testified that Ms. Stanley mentioned that she and her husband had accumulated quite a bit of property and that she wanted to give the Deweys some property. Mr. Davis also testified that Ms. Stanley and the Deweys talked back and forth like they were friendly with each other. Devaughn (Devon) Lindsey, Beulah Stanley's nephew and Ann Kidd's cousin, testified that he visited his aunt occasionally and had stayed in his camper five to seven days at a time on her property. Mr. Lindsey testified that, during one of these visits during the early 1980s, Ms. Stanley told him that she planned on giving all of her real estate to Virgie and Leister and asked his opinion. Mr. Lindsey said that he told Ms. Stanley that she had the right to do whatever she wanted to do with her property. He further stated that she said that she was going to give it to Virgie and Leister because they were caring for her and doing everything for her that she needed. Mr. Lindsey said that it was his understanding that she was going to give all of the land to them. Of particular interest is the fact that Mr. Lindsey stated that, had the land passed through Ms. Stanley's will, he would have been entitled to part of it.

There was also testimony from Jane Pelzer, a home-care nurse, who provided medical care for Ms. Stanley a certain number of times each day during the mid-1980s. Ms. Pelzer testified that Ms. Stanley appeared to be competent and that she knew what was going on and knew what she was doing. She also testified that Ms. Stanley was not the type of person who is easily manipulated. Appellant Ann Kidd testified that, to her knowledge, the Deweys were never anything but nice, kind, and loving to Ms. Stanley and that, even after the deed was recorded and Ms. Stanley went to live in the nursing home, the Deweys continued to visit her and care for her. When asked what proof she had to support appellants' claims, Ms. Kidd failed to offer any facts and admitted that she did not know whose idea it was for Ms. Stanley to deed the property to the Deweys. Appellants also stated that Ms. Stanley continued to pay the taxes on the property after she deeded it to the Deweys; however, Mr. Dewey testified that Ms. Stanley used oil-lease money for the property to pay the taxes and said that the money technically belonged to him and his wife. Due to the foregoing, we find that the deed was not procured.

Affirmed.

Hart and Jennings, JJ., agree.