Farr v. Henson

• Court: Arkansas Court of Appeals
• Writing for the Court: Terry Crabtree
• Citation: Farr v. Henson, 79 Ark. App. 114, 84 S.W.3d 871 (Ark. App. 2002)
• Decision Date: 11 September 2002
• Docket Number: No. CA 01-1236.,CA 01-1236.
• Parties: Eugene FARR, et al., v. James M. HENSON, Jr.

84 S.W.3d 871

79 Ark. App. 114

Eugene FARR, et al., v. James M. HENSON, Jr.

No. CA 01-1236.

Court of Appeals of Arkansas, Division I.

September 11, 2002.

COPYRIGHT MATERIAL OMITTED

Nash Law Firm, P.A., by: J.R. Nash, Little Rock, for appellant.

Jack R. Kearney, Little Rock, for appellee.

TERRY CRABTREE, Judge.

This appeal concerns the validity of an inter vivos trust and deed created by Mary Lula Deadmon, who died in July 1999 at the age of ninety-seven. Mrs. Deadmon had no children. Appellants Eugene Farr, Raymond Farr, and Johnnie Farr are nephews of Mrs. Deadmon, as is appellee, James Henson. Mrs. Deadmon suffered from many physical ailments and was diagnosed with severe dementia in 1996. Eugene lived with her and took care of her daily needs for the last three years of her life. Appellee took Mrs. Deadmon to her doctor appointments. In October 1998, appellee took her to attorney Mark Grobmeyer's office to execute the trust and deed that are at the center of this dispute. (Mrs. Deadmon had worked for Mr. Grobmeyer's family for many years before she retired.) Appellee made the arrangements for the visit with Mr. Grobmeyer and drove her there. According to Eugene, appellee did so in secret. After Mrs. Deadmon died, her family learned of the existence of the trust and deed. Mrs. Deadmon placed all of her property in the trust to be used for her care during her life and appointed appellee as trustee. The trust provided that the residue would go to appellee. In the deed, she conveyed her real property to appellee as trustee. Appellants filed this action to set aside the trust and deed on the grounds that appellee had procured them; that Mrs. Deadmon executed them under undue influence; and that she lacked the mental capacity to validly execute them. They also contended that the trust violated the rule against perpetuities. The trial judge found that appellants failed to establish that appellee procured the trust and deed or that Mrs. Deadmon lacked the requisite mental capacity to execute them. She also held that the trust and deed did not violate the rule against perpetuities. She made no finding on the issue of undue influence.

Arguments

Appellants make the following arguments on appeal: (1) the trial judge erred in holding that the trust and deed do not violate the rule against perpetuities; (2) the trial judge erred in finding that appellee did not procure the trust and deed; (3) the trial judge erred in refusing to permit appellants to fully examine the drafting attorneys (Mr. Grobmeyer and Joe Polk) about Mrs. Deadmon's medical diagnosis of dementia; (4) the trial judge erred in refusing to admit evidence of appellee's actions with regard to another elderly relative and of his allegedly untrue statements in an affidavit; (5) the trial judge erred in refusing to admit evidence of Mrs. Deadmon's attempt to make a will in 1990.

The Rule Against Perpetuities

The trust provides that the property held by the trustee is to be used for Mrs. Deadmon's benefit. After her death, the property is to be used to pay her funeral expenses, debts, and the costs of administration of her estate. Upon Mrs. Deadmon's death, the residue of the trust property shall be distributed to appellee. The trust also contains a "Perpetuities Savings Clause," which states:

Notwithstanding any provision in this Trust to the contrary, every trust or share created herein shall in any and all events terminate within twenty-one (21) years, less one (1) day, after the death of the last survivor among the group composed of the Grantor, and all of the Grantor's descendants. Upon such termination, the income beneficiary or beneficiaries for whom any property is then held in trust pursuant hereto shall receive such property outright and free of trust.

The Constitution of Arkansas forbids "perpetuities" but does not describe them. Ark. Const. art. 2, § 19. Common law prohibits the creation of future interests or estates that by possibility may not become vested within the life or lives in being at the time of the effective date of the instrument and twenty-one years thereafter. See Nash v. Scott, 62 Ark.App. 8, 966 S.W.2d 936 (1998). The interest must vest within the time allowed by the rule; if there is any possibility that the contingent event may happen beyond the limits of the rule, the transaction is void. Otter Creek Dev. Co. v. Friesenhahn, 295 Ark. 318, 748 S.W.2d 344 (1988); Comstock v. Smith, 255 Ark. 564, 501 S.W.2d 617 (1973).

Appellants argue that the following possible scenarios cause the trust to violate the rule against perpetuities:

(1) Appellee dies before Mrs. Deadmon, and Mrs. Deadmon adopts a child not yet born at the time that the trust is created. We disagree. If appellee dies before Mrs. Deadmon, his interest will simply lapse. See Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969). Therefore, no interest would vest outside the time prescribed by the rule against perpetuities.

(2) Mrs. Deadmon's estate might not be administered until a point in time beyond the lives in being at the time of the effective date of the trust plus twenty-one years. Again, we disagree. By the terms of the trust, appellee's interest will vest upon Mrs. Deadmon's death, which is clearly within the required time. The date when her estate might be administered is, therefore, irrelevant.

Accordingly, we affirm the trial judge's decision regarding the rule against perpetuities.

Whether Appellee Procured the Trust and Deed

The trial judge made a preliminary finding that appellee had procured the documents and requested briefs from the parties. In a post-trial brief, appellee's attorney made the following erroneous statement of the law: "The `procurement' which is frowned upon by law is that `undue influence which results from fear and coercion so as to deprive the testatrix of free will.' Matter of the Estate of Davidson [310 Ark. 639, 839 S.W.2d 214 (1992)]." That case, however, does not support appellee's attorney's statement about procurement. Instead, it states: "Undue influence sufficient to void a will must not spring from natural affection but must result from fear and coercion so as to deprive a testatrix of free will and direct the benefits of the will to particular parties." 310 Ark. at 645, 839 S.W.2d at 217. Appellants are, therefore, correct that one does not have to prove undue influence in order to prove procurement.

We disagree, however, with appellants' contention that the trial judge must have adopted appellee's attorney's erroneous interpretation of the law regarding procurement because she changed her mind about whether appellee procured the trust and deed. The judge did not state that she believed that one must prove undue influence in order to establish procurement. The judge also made no finding regarding undue influence. She simply stated that appellee did not procure the documents. Therefore, the controlling issue is whether the judge's finding that appellee did not procure them is clearly erroneous. We will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). Our review of the evidence convinces us that the trial judge clearly erred in finding that appellee did not procure the documents.

It is true that Mrs. Deadmon had a long-standing relationship with Mr. Grobmeyer. However, Mrs. Deadmon, at the age of ninety-seven, had many physical problems and had been diagnosed as having severe dementia. She was completely dependent upon her relatives for every aspect of her life. Appellee arranged for Mrs. Deadmon to visit the attorneys for the purpose of executing the trust and deed and drove her to their office. The attorneys billed appellee for the work. Also, appellee did not inform the attorneys that Mrs. Deadmon had been diagnosed as having severe dementia. Clearly, appellants proved that appellee procured the trust and deed. We therefore reverse on this issue and remand for further proceedings consistent with our decision.

Limitation of Cross-Examination

Appellants also argue that the trial judge improperly limited their cross-examination of Mr. Grobmeyer and Mr. Polk about Mrs. Deadmon's dementia. Appellants point out that the trial judge allowed them to state their personal opinions about her mental capacity but restricted appellants from fully questioning them about the likely impact of her dementia on her ability to execute the trust and deed.

Cross-examination is a leading and searching inquiry of a witness for further disclosure touching particular matters detailed by him in direct examination. Washington Nat'l Ins. Co. v. Meeks, 249 Ark. 73, 458 S.W.2d 135 (1970). Cross-examination serves to sift, modify, or explain what has been said in order to develop facts in a view favorable to the cross-examiner. Id. Its objects include weakening or disproving his adversary's case, breaking down his testimony in chief, testing his veracity, accuracy, and honesty, and exhibiting the improbabilities of his testimony. Id. The general rule is that a judge has wide latitude in imposing reasonable restrictions on...