dissenting. This is a clear case involving only two issues: first, did the trial court commit reversible error by not permitting a neighbor to testify that the decedent intended to give an acre of land to appellant; and second, did the trial court erroneously conclude that the quitclaim deed given by appellant to herself was invalid due to overreaching? In a remarkable opinion, the majority holds that the trial court did err on both counts. I would affirm.
A more detailed exposition of the facts is necessary to fully understand the issues. Appellant Emilia Duke is the stepdaughter of the decedent, Calvin Leeroy Shinpaugh. Appellant had spent the previous eight years living in the home shared by her mother and decedent in order to save money on rent. During that time she cared for her mother and, later, her stepfather, as their health deteriorated. By the time appellant’s mother died in May 2005, Mr. Shinpaugh was wheelchair-bound and in great pain. Physically helpless, he had by this time become completely dependent on appellant for all the necessities of life. By her own admission, appellant was very worried because her mother had died intestate and she did not know whether she would be allowed to remain in the Shinpaugh residence. Her anxiety was exacerbated when, following her mother’s funeral, Mr. Shinpaugh spent four hours with his children outside her presence, and Mr. Shinpaugh’s attorney told her that she “was nothing after he died.”
So, a few days after the death of a wife to whom Mr. Shinpaugh was utterly devoted, appellant, after querying an attorney acquaintance concerning the best method of doing so, “sought to legitimize [her] presence in the house through . . . the agreement.” The “agreement” was obtained by appellant while Mr. Shinpaugh was hospitalized for congestive heart failure. It was composed at appellant’s behest, with her active assistance with respect to the contents, and was typed by appellant’s nephew. It read as follows:
AGREEMENT
I, Calvin Leroy [sic] Shinpaugh, residing at 3275 N. Wagner Road, Fayetteville, AR 72704, Being of sound mind and competent this 24th day of May 2005 date [sic]; I give to Emilia Duke one acre of land adjacent to the north of the one acre at the corner of Wagner Road and Weir Road. I also bequeath the household objects belonging to her mother and her father, fames Duke, which consists [sic] of; two rocking chairs, a Black gum desk, a Monacan [sic] tray, and various other objects of furniture and plants. Not included is an Acrosonicpiano. I also give to her the contents of the bank box located in the Bank of Elkins, Elkins, AR, which belonged to Francis Shinpaugh, her mother. In the box are items such as; a seventeen hundreds [sic] coin, an ivory Buddha, a diamond ring and other items.
Emilia has lived at 3275 N. Wagner Road for eight years. We invited her to live here. In the duration she was a caregiver for my wife Francis for four to six years at six to eight hours a day with no holidays. She has cleaned, maintained three acres, did [sic] landscaping and gardening and various othetr [sic] tasks.
Emilia, at the time of this will, was a twenty-four hour caregiver to Francis, an eighty five year old stroke patient. Emilia changed her diaper, spoon-fed her, lifted her, changed her clothes, gave her sponge baths and all personal hygiene. She is also doing the yard work, running errands, cooking, washing dishes and at the time of this writing, taking us to doctors appointments.
In the duration of the time that Emilia has been living with us, she has supported herself by building furniture and selling it to local businesses. Supplementary to this, she helped support Calvin Duke, our grandson and parented him. Calvin Duke was present part-time for eighteen years.
This is my only will to date. This document is not revocable. I, Calvin Leroy [sic] Shinpaugh, am a primary beneficiary.
This document under contest will not be my will as is made clear and concise what I wanted at signing.
[Signature] Calvin Leroy [sic] Shinpaugh
_ Witness
_ Witness
[Signature] Notary
What are we to make of this document? Clearly, it fails to meet the requirements of a will or a deed. It is not a contract, because it contains no mutual obligations and because past consideration will not support a current promise,1 and it is not an inter vivos gift, because there was no delivery of a deed to the property before Mr. Shinpaugh’s demise.2 In sum, this document is precisely what it appears to be — an unschooled attempt to secure Mr. Shinpaugh’s property that nevertheless failed to transfer any legal right to the property to appellant. Could Mr. Shinpaugh have procured the assistance of an attorney in this matter? Of course he could have, just as he did the very next day when, still hospitalized, he executed the power of attorney under the authority of which appellant deeded the property to herself. It is crystal-clear that the “agreement” is ineffective because the drafter lacked the legal knowledge necessary to make a will, deed, contract, or gift inter vivos, and that the reason no attorney was involved was because appellant did not want her helpless stepfather to have the independent advice that an attorney would provide him.
It would be difficult to imagine a more clear-cut case of undue influence and overreaching, yet the majority reverses the trial court’s finding to this effect because of an asserted error in refusing to admit the testimony of Mr. Shinpaugh’s neighbor that he believed Mr. Shinpaugh intended to give an acre of land to appellant before his death. What possible prejudice could appellant have suffered because the neighbor’s opinion regarding Mr. Shin-paugh’s intent was excluded? This point was not contested. Ap-pellee Ogle herself admitted that her father intended to give one acre of land to appellant. His neighbor’s opinion regarding this intent is of no relevance. The question, instead, is what Mr. Shinpaugh Hi do: did he effectively complete an inter vivos transfer of land by the document titled “agreement”? Clearly, in the absence of delivery, he did not, and I cannot agree that a failed inter vivos gift of land can be completed by the intended beneficiary pursuant to a general power of attorney.
The crux of this case is the validity and legal effect of the “agreement.” Not only does it fail as a will, deed, contract, or inter vivos gift, it was quite clearly procured by appellant’s overreaching. Regardless of whether the power of attorney was otherwise legitimate, it gave appellant no authority to grant herself a deed based on the strength of a document of no legal effect procured by undue influence from a bereaved and hospitalized elderly stepparent. The majority’s opinion to the contrary leaves me frankly astonished.
I respectfully dissent.
Gladwin, Robbins, and Baker, JJ., join in this dissent.
See, e.g., Simmons v. Simmons, 98 Ark. App. 12, 249 S.W.3d 843 (2007), and cases cited therein.
The majority opinion cites O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000), for the proposition that “the intent of the donor can negate the fact that actual tide was not transferred.” This is specious, because in that case the donee of the auto was too young to hold tide, and it was undisputed that there was actual delivery of the automobile. Actual delivery is an indispensable requisite without which a gift fails, and mere intention cannot supply it regardless of the consequences. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992); Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997). In the case of realty, the requirement of actual delivery must, at a minimum, include delivery of a deed to the property. See Smith v. Van Dusen, 235 Ark. 79, 357 S.W.2d 22 (1962).