Edgar H. White v. Harold White, Administrator of the Estate of Thomas E. White

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ca03-540

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

EDGAR H. WHITE

APPELLANT

V.

HAROLD WHITE, ADMINISTRATOR OF THE ESTATE OF THOMAS E. WHITE

APPELLEE

CA 03-540

February 11, 2004

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT

[NO. CV-2001-125]

HONORABLE JOHN A. THOMAS,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Edgar White brings this appeal from an order setting aside a deed that created a joint tenancy with right of survivorship in him and his brother, Thomas White, deceased. On appeal, Edgar contends that the trial court's finding that Thomas White, the grantor, lacked the mental capacity to execute the deed is clearly erroneous. We affirm.

The record reflects that Thomas White was diagnosed with lung cancer in 1994. Over the course of time, he underwent extensive treatment for this illness, which included chemotherapy. In July 1999, it was discovered that the cancer had spread to his brain, where five tumors had developed. On August 3, 1999, he completed a round of radiotherapy. On August 9, he was admitted to the hospital for treatment of a large tumor protruding from his neck. He was readmitted to the hospital on August 31 with congestive heart failure and placed on a respirator. Thomas executed the deed in question at the hospital the next day, September 1. He was later released from the hospital to hospice care, there being nothing more, medically, that could be done. Thomas died at home on October 16, 1999.

Harold White, Thomas and appellant's brother, was appointed as the administrator of Thomas's estate. Thomas was not married and had no children. He died intestate, leaving nine heirs, including Harold and Edgar. In his capacity as administrator, Harold filed the present lawsuit to set aside the

September 1, 1999, deed. The deed covered Thomas's home place, which was adjacent to land that was leased by a hunting club, whose members included Edgar and the husband of Mae Faulkner, among others.

The trial court had the benefit of hearing the testimony of a number of witnesses. Dr. Billy Lynn Tranum, Thomas's oncologist, saw Thomas at the hospital on September 1, 1999. He said that Thomas had an obvious tumor on the side of his neck and that he looked wasted and ill. Thomas was fairly quiet and did not talk a great deal. Although he responded appropriately to questions, he had a flat effect and did not voluntarily speak out. Dr. Tranum testified that Thomas was having small seizures, probably due to the tumor in his chest, for which he was being treated with Dilantin. He said that Thomas was also taking Librax, a medication that contained Librium, an anti-anxiety drug. Thomas had also been prescribed Darvocet for pain, and he had been given a small dose of Valium that morning. In addition, Thomas was taking Phenegran for nausea, which also had a sedative effect. Dr. Tranum testified that the effect of drugs, that are normally mild, might be exaggerated in someone who had brain tumors and had undergone radiation therapy. He was not sure whether Thomas had the ability to read, given the tumors and the high doses of steroids he was taking. Dr. Tranum's notes described Thomas as being "clear," but he said that this only meant that Thomas was able to respond appropriately to questions, such as whether or not he was in pain. He said that Thomas was not as alert and clear as he normally was, but he could not offer an opinion as to whether Thomas was mentally competent. He said, however, that Thomas's thought processes would be affected by his impending death, by the tumors, the radiation, medications, and the wasting effect and that the combination of these things would alter his ability to use good judgment. He said that if the deed had been presented to him in a way that was not totally clear, Thomas would not have been able to appreciate the nuances of the presentation.

Thelma White, Harold's wife, testified that she had visited Thomas on his birthday, August 17. She said that Thomas had always been a good storyteller and that he had tried, but had been unable, to tell a story about a runaway team of horses that happened when the brothers were teenagers. She felt that Thomas was trying to please her by telling the story, since Harold had been the hero of the tale. She said that he apologized by saying, "I'm sorry, I just can't think anymore." Ms. White saw Thomas again on September 16. She said that he had his eyes closed when she got there, making her think that he was asleep, but she said he opened his eyes and smiled a bit and said, "I'm not feeling so good right now, but I'm going to get better." She said that he was very weak and that he was sitting in a chair, but she said that he looked as if he wished he were lying down. She saw him again on October 1. At that time, he was in bed with oxygen and his stomach was swollen. She said that he spoke very little and that they stayed only a few minutes.

Viola Kuhn, a hospice caretaker, looked after Thomas for a short time in September after he had gotten out of the hospital. She said that Thomas was very sick and in a lot of pain and that he needed help getting up and down. She said that he was often confused and did not always know what day it was. Thomas once asked her what would happen to the money in his bank account when he died. She supposed that the money would go to his brothers, and she said that Thomas replied that, "Well, that would open up a can of worms." He told her that he wanted the money to go to Harold and the children of his deceased brothers. From what she observed, Thomas and Edgar got along, but she said that there was friction between them sometimes. She testified that the two exchanged words one time when Edgar wanted Thomas to put his name on Thomas's checking account. She recalled another discussion that involved "something over the house [being] signed over," in which Thomas had thrown some kind of document at Edgar and said, "This is what you wanted, now leave me alone." She said that Thomas was quite upset on this occasion. Ms. Kuhn further testified that Edgar had contacted her after Thomas's death. In this conversation, Edgar told her that he would make it worth her while to testify that Thomas was in his right mind and that he knew what he was doing.

Linda Welch, another hospice worker, attended to Thomas the last week of his life. She said that Thomas was not coherent and that he spoke very little. She saw Edgar at the house. She said that one time Edgar had tried to get Thomas to sign a check but that Thomas had refused. Edgar also contacted Ms. Welch after Thomas's death and asked her to testify on his behalf.

Oneida Kelly had dated Thomas in the past and had known him since 1987. They had remained friendly, but she had not seen him very often during the last three months of his life. She said that Thomas and Edgar "interacted fine" but that Thomas and Harold did not get along well. She explained that there had been a personal problem between Thomas and Harold because Harold had once had an affair with Thomas's ex-wife. During their relationship, Thomas had discussed with her what he wanted to do with his property. She said that at one time he contemplated leaving it to Kim Harper, a neighbor's daughter who had been close to him. Then he thought he might leave it to Ashley. She said that he never mentioned leaving the land to either Edgar or Harold. Ms. Kelly saw Thomas sometime in October. She said that he was very sleepy, and she could not tell whether he was incoherent or just medicated.

Mary Young had known Thomas since she was a child and had been his housekeeper since 1995 or 1996. She said that, after he got out of the hospital in September, Thomas told her that he wanted her to have the property. She said that Thomas had said nothing to her about having deeded it over to Edgar, and she said that he did not act as if he had already disposed of the property. Ms. Young testified that Thomas told her in September that he did not want Edgar to have it and that he told her several times that Edgar was the last person in the world that he wanted to leave it to. She said that Thomas was also put out with Mae Faulkner. When he got out of the hospital, he told her that he was tired of Ms. Faulkner meddling in his business. She testified that she had bought Thomas's 1988 Chevy Caprice for $1,150 at the estate auction.

Harold testified that this was not the first action that had been prosecuted against Edgar, as Edgar had been convicted of theft of property for taking $24,000 from Thomas's bank account by forging a signature card. He said that he visited Thomas in the hospital on September 2. He said that Thomas said nothing to him about deeding the property to Edgar, but that he brought it up and was angry about an event that had occurred fifty years ago when Edgar supposedly helped their father cheat their mother out of some property. He said that Thomas was alert off and on that day and that he did not speak very much. Harold testified that Edgar told him about the deed at Thomas's funeral when Edgar advised that Thomas had given him the property because Thomas did not like Harold and because Thomas wanted to keep the hunting club going. Harold did not believe that Thomas would give the land to Edgar just to keep the hunting club going, since it was not necessary, because the hunting club lease was on other land. He also said that his relationship with Thomas had improved as evidenced by a letter Thomas had recently written him. Harold suspected that the deed had been forged, and he had hired a handwriting expert. He said, however, that the expert would not offer an opinion without the original deed, which had turned up missing, although Edgar was known to have been in possession of the original deed. Harold said, however, that he did not believe that the signature on the deed was Thomas's because Thomas could not write that well in his condition.

Edgar testified that Thomas first mentioned transferring title to him in June 1999. He said that Thomas wanted him to have the place to keep the hunting club going and that he did not want Harold to have anything to do with it because he would "mess it up." Edgar said that he had offered to have a deed prepared at that time but that Thomas said that he did not want Edgar to "fool with it" and that he would have a lawyer take care of it. He said that he did not know that Thomas was going to make the deed until Mae Faulkner told him about it and asked him to "fix it up" because she was not able to. He "got it fixed up" at an abstract company and gave it to Mae to take to Thomas for his signature. Edgar said that he was downstairs at the hospital when she took it to Thomas and that she came downstairs to ask him to find a notary. He said that a notary was found at the hospital but that he did not go up to Thomas's room because the conveyance was supposed to have been a surprise for him. He said that Thomas told him about it the next day. Mae gave Edgar the original deed, which he recorded on September 2. According to Thomas, the original was given back to Thomas and was kept in a chest of drawers in his bedroom. After Thomas died, Edgar looked at it, made copies, and put it back in the drawer, but Edgar said that it was gone the next time he went to retrieve it. Edgar did not personally visit Thomas the day the deed was executed, so he could not say whether Edgar was mentally competent at that time. He said, however, that Thomas was competent when he got out of the hospital. Edgar further testified that he was familiar with Thomas's handwriting and that the signature on the deed was Thomas's.

Mae Faulkner testified that Thomas once wanted to give the land to her and her husband but that they had declined the offer. She said that, about a year before his death, Thomas asked her to get a deed "fixed up over in Edgar's name for me." She said that Thomas told her that he wanted Edgar to have it because he wanted the place to remain active. She agreed to get the deed prepared, but she said that she did not have time to do it. She said that Thomas mentioned the deed again in August 1999 and that Thomas wanted it to be a surprise for Edgar. She said, however, that she was unable to get it done because she worked ten hours a day, so she contacted Edgar and asked him to have the deed prepared. She said that she took the deed to Thomas, that Thomas read the deed, and then told her that they would need a notary. She said that she did not know how to do that, so she called Edgar for help. A notary was located in the hospital, and Mae said that the notary read the deed and visited with Thomas about hunting, fishing and cooking for forty-five minutes to an hour before the deed was signed. Mae testified that the notary asked her to leave while the deed was being executed and that the notary stayed and chatted with Thomas a little while afterwards. Mae said that Thomas knew that she had enlisted Edgar's help, and thus he knew that it was no longer a surprise. Mae testified that Thomas was not quiet and reserved in the hospital and that he seemed jolly just as he had always been.

Sue Todd Smith was the notary public at the hospital who acknowledged the deed. She did not specifically recall the occasion. She said, however, that she always followed certain procedures. She said that the patient must know who and where they are, and a little bit about the paper the patient is signing. She said that she does inquire as to whether the patient is aware of what they are doing. She said that she would have followed this procedure when the deed was acknowledged. She further testified that she usually speaks with a patient about five minutes and that she had never talked with someone for forty-five minutes to an hour, because she would have remembered that. She also said that she would not have known what kind of medications Thomas had been taking. She recalled speaking to a private investigator about this matter, but she did not recall what they had discussed.

Ray Sorrows, a private investigator, interviewed Ms. Smith on November 15, 1999. She told him that a man named Gary Odom had brought a lady into her office who needed a notary. He said that she also told him that their policies had changed because of this controversy and that she no longer notarized signatures. She implied that she did not want to be involved in this matter.

Kim Harper had lived next door to Thomas with her parents when she was a child. She said that Thomas was one of the best friends she had ever had and that he had taught her how to garden and can vegetables. She said that she could carry on a conversation with Thomas in September and October, but that he was very weak the last time she saw him. She did not believe that Thomas would have executed a deed because that would have amounted to an admission that he was dying. She said that Thomas got along well with Edgar but that he did not have a good relationship with Harold. Ms. Harper also said that Mary Young had told her that Harold had given a car to her so she would testify for him.

Everett Orren was Thomas's cousin, who visited Thomas three times a week the last month of his life. Orren's testimony was that Thomas had told him that he had placed Edgar's name on the deed to the property.

The law regarding mental capacity in the execution of a will is also applicable to the execution of a deed. Estate of McKasson v. Hamric, 70 Ark. App. 507, 20 S.W.3d 446 (2000). If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Rose v. Dunn, 284 Ark. 42, 567 S.W.2d 180 (1984). Complete sanity in the medical sense is not required if the power to think rationally existed at the time the will was made. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). The time to look at a testator's mental capacity is at the time the will was executed. Id. However, evidence of a grantor's mental condition, both before and after the execution of the deed, is relevant to show his mental condition at the time he executed the deed. Estate of McKasson v. Hamric, supra.

In a typical case, the party contesting the validity of a deed has the burden of proving by a preponderance of the evidence that the grantor lacked mental capacity at the time it was executed or that the grantor acted under undue influence. See In re Estate of Garrett v. Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003). It is often stated that the questions of mental capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together, for in one case where the mind of the testator is strong and alert, the facts constituting undue influence would be required to be felt stronger than in another case, where the mind of the testator was impaired either by some inherent defect or by the consequences of disease or advancing age. See Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001).

Cases of this kind are reviewed de novo on appeal and are not reversed unless the trial court clearly erred. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). We defer to the superior position of the trial court to determine the credibility of witnesses and the weight to be accorded their testimony. Id.

Turning to the facts of this case, the evidence portrays Thomas as a man who on the day in question was frail and weak from prolonged illness, who had difficulty breathing, who was in pain and suffering from seizures, and who was heavily medicated. He had five tumors in his brain. His physician's testimony demonstrates that Thomas's judgment was likely impaired and that he was susceptible to overreaching. The doctor doubted that Thomas could even read. The only other testimony as to Thomas's condition that day came from Mae Faulkner, who testified in stark contrast that Thomas was "jolly." However, the trial court could discount her testimony in that regard as lacking credibility. There was also testimony that Thomas later spoke of giving the property to someone else, indicating a lack of awareness that he had already disposed of the land. In addition, there was testimony that Edgar attempted to bribe a witness in order to gain favorable testimony, which indicates Edgar's awareness of the weakness of his cause. Accord Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995) ( witness tampering evidence of consciousness of guilt). It should also be noted that Edgar had fraudulently obtained the proceeds from Thomas's checking account. All things considered, we cannot say that the trial court's decision to invalidate the deed is clearly erroneous.

Affirmed.

Bird and Griffen, JJ., agree.