Barrineau v. Brown

• Citation: 240 Ark. 599,401 S.W.2d 30
• Decision Date: 04 April 1966
• Docket Number: No. 5--3770,5--3770
• Parties: Mrs. Thomas BARRINEAU, Appellant, v. Gordon BROWN, Madrid B. Loftin and Verna B. Eastwood, Appellees.
• Court: Arkansas Supreme Court

Page 30

401 S.W.2d 30

240 Ark. 599

Mrs. Thomas BARRINEAU, Appellant, v. Gordon BROWN, Madrid B. Loftin and Verna B. Eastwood, Appellees.

No. 5--3770.

Supreme Court of Arkansas.

April 4, 1966.

Smith, Williams, Friday & Bowen, by William H. Bowen and Byron M. Eiseman, Jr., Little Rock, for appellant.

Moses, McClellan, Arnold, Owen & McDermott, Little Rock, Milton McLees, E. H. Herrod, N. Little Rock, Catlett & Henderson, Little Rock, for appellees.

HOLT, Justice.

By a declaratory judgment proceeding the appellant seeks to invalidate approximately $60,000.00 in gifts inter vivos allegedly made by Oddie M. Anderson, deceased, to the appellees. From a decree in favor of appellees comes this appeal.

For reversal appellant first contends that the evidence is insufficient to support the chancellor's finding of fact that the appellees have by 'clear and convincing evidence established that the gifts were valid and did not result from the violation of a confidential relationship.' Appellees do not dispute the existence of a confidential relationship. They accept the burden of proof that is required to overcome the presumption of invalidity of a gift when it stems from such a relationship. They assert that the gifts to them were not the product of a confidence betrayed or influence abused and, therefore, are valid gifts.

The appellant, a niece, is the closest living relative and principal beneficiary in the decedent's will which contained numerous bequests including some to appellees. Each of the appellees was a close friend of the decedent for more than thirty years preceding her death. Appellee Brown, a stockbroker, had known Mrs. Anderson since the early 1930's during which time he had sold her securities and advised her on the sale and purchase of securities. Sometimes she followed his recommendations and sometimes she rejected them. Appellee Loftin, a lawyer, performed some of the legal services she required during the thirty-three years he knew her as a close friend and never charged her for his services. These legal services appear to be trivial other than revising her will. Appellee Eastwood, 78 years of age, had been a close friend of Mrs. Anderson's for about fifty years. When they became widows, many years ago, their friendship became closer and Mrs. Eastwood would often come from Warren to Little Rock to visit Mrs. Anderson in her home. Sometimes this visit would extend for a period of two or three weeks during which time they engaged in various social activities.

In November 1961 Mrs. Eastwood and Loftin were given a general power of attorney by Mrs. Anderson and each was properly authorized by her to have access to her safety deposit box in a local bank. In 1963 Mrs. Anderson gave Mrs. Eastwood $5,000.00 in stock as a Christmas present.

The gifts now in question were made by the decedent to the appellees on March 4, 1964 according to their evidence. The gifts were unexpected. Mrs. Eastwood had come to Little Rock for a visit at the written request of the decedent. On the evening of March 2, 1964 one of Mrs. Anderson's nurses called appellee Brown and told him that Mrs. Anderson wanted to see him the following morning. When he arrived about 8:30 A.M. he found Mrs. Eastwood there. Appellee Loftin arrived shortly thereafter in response to a telephone call from Mrs. Anderson. Without knowing why their presence was desired, they waited while the nurse served Mrs. Anderson's breakfast since she was bedfast. She summoned them into her room and said she was sure they were wondering what she wanted to see them about. She then told them it was her desire to give her Arkansas Power and Light Company stock to Mrs. Eastwood and that she wanted Loftin and Brown to have other securities. She then directed Mrs. Eastwood and Brown to take the key to her safety deposit box and get these securities for her. They complied and left in the box a note signed by each of them designating the securities they were taking and by what authority. Appellee Loftin remained at the residence and during this time he inquired of her if she knew what she was doing. When appellees Brown and Eastwood returned he gave Mrs. Anderson three parcels, one containing the Arkansas Power and Light Company stock valued at $17,000.00, one containing $21,000.00 in bonds, and another containing $22,000.00 in bonds. When Mrs. Anderson heard her sister-in-law, Mrs. Risor, in the house she asked them to leave and come back the next morning. Appellee Brown took the three parcels with him and locked them in his office that night. The next morning, on March 4th, the appellees again met at Mrs. Anderson's house. Appellee Loftin asked: 'Now, Oddie, is this what you want? * * * Have you made up your mind? Do you know what you are doing?' To which Mrs. Anderson again reiterated that it was her wish to make these gifts to them. Upon delivery of the gifts, Mrs. Anderson was quoted as saying: 'I want you to take them, get out, and I don't want to hear another word from you or anyone else about it.' Mrs. Anderson signed the Arkansas Power and Light Company certificates. A transfer of the other securities did not require her signature.

The appellant argues that the decedent's age, partial paralysis, faulty vision and invalid condition when combined with appellees' confidential relationship, the secrecy and size of the alleged gifts which are greatly in excess of the small bequests made to the appellees in her will require a finding that the gifts were not free and voluntary and, therefore, they are void. The gifts total approximately 37 1/2% of the estate.

It appears that Mrs. Anderson was 86 years of age. For about two years before her death Mrs. Anderson knew that she suffered from an inoperable and incurable degenerative process in the spinal cord probably due to softening from arteriosclerotic disease. This affected her ability to walk and at the time of the alleged gifts her lower extremities and left side were paralyzed. In December 1962 and January 1963 she spent 41 days in the hospital suffering from vertigo, a speech impairment, and inability to walk. About September 1963 she again was a hospital patient for about 15 days suffering from a cerebral vascular accident or stroke. On March 4, 1964, the date of the alleged gifts, she was bedfast and being partially paralyzed, required the constant attendance of a nurse. On May 28, 1964 she was taken to the hospital suffering from pneumonia and she died there the following October.

To corroborate their version of the validity of the gifts the appellees presented numerous disinterested witnesses. Lewis Block, Sr., a local realtor who had done business with Mrs. Anderson for approximately 35 years, was in her home on the same day the gifts were made. He was there at her request to discuss the sale of some of her property. According to him Mrs. Anderson's mind was as keen as ever and she demonstrated her usual good business judgment. Mr. Block testified: 'Q. Did she tell you anything about her having made a disposition of some of her property recently? A. She did on the 4th of March. She said she had distributed, I believe is the word she used, some securities.' On that day he also observed the presence of the appellees. She asked him to secure certain information for her about the advisability of selling the property they were discussing. He complied and when he conferred with her a few days later she decided to reject the purchase offer.

Perhaps a Mrs. Cleveland was in a better position than anyone to testify concerning the matters involved in this case. She was a nurse in Mrs. Anderson's home from August 1963 until Mrs. Anderson entered the hospital in May 1964 for her terminal illness. She was the nurse on duty at the time of the questioned gifts. She testified that Mrs. Anderson was mentally alert, could read to some extent, watched television, remembered telephone numbers and wrote her property ads. According to her the decedent held the Loftins in deep affection, 'just dearly loved them', and they were attentive to her personal needs. On the day of the alleged gifts Mrs. Anderson asked her to hurry and get her ready because she had asked the appellees to come to her house. Mrs. Anderson told her: 'I planned on giving each one of them a thousand dollars' but 'Tiny, since I thought it over, they have done so much for me that would not be a drop in the bucket as far as what I really owe to them in gratitude.' Mrs. Anderson told her: 'I am going to give them more than that'. But she never told her the amount. The nurse left the room after the appellees came in. After they left Mrs. Anderson told her: 'It is the happiest moment of my life' and she cautioned her not to disclose her actions.

Mrs. Rockenbach, a cousin of Mrs....