dissenting. I respectfully
dissent because I disagree with the result reached by the prevailing judges.
In the order of dismissal the judge stated:
This case is a good example of the reason for the hearsay rule. Assuming the veracity of the sworn witnesses (which will be discussed later), most gave conflicting testimony regarding statements made by the deceased. In many instances, it appeared to the court that the deceased was less than candid, telling the witnesses whatever was expedient. The hearsay rule assumes that since the declarant is not under oath, he may not be making truthful statements. Therefore, the statements should be excluded. Each side freely allowed testimony about statements given by the deceased. However, the court has not placed much weight on alleged statements made by the deceased to the witnesses.
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It is clear that the deceased’s children were fighting over the property. That fact does not mean the deceased intend [sic] any other result for the property than the conveyance to defendant. Both parties agree that a discussion occurred between the deceased, Paris Sabbs and the defendant [appellee] in 1992. The account is simply different. Neither the plaintiff, Paris Sabbs, nor the defendant, Bernice Cole presented as credible witnesses, and they both had vested interests in the outcome of the trial. The significant thing to the court is that the deceased took no action after his discussion until his death in 1993 to set aside the conveyance. Even if he had intended another result, his failure to act after that discussion, at the very least, indicates an acquiescence to the deposition [disposition]. His failure to act cannot now be transferred to representatives of his estate when he clearly had the opportunity to act and chose not to.
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The deceased deeded the Valentine property to the defendant on September 8, 1972, and filed the deed of record. The plaintiff continually argues that the defendant did not prove that she owned the property. The burden of proof is not on the defendant, since she is the record title holder.
The Arkansas Dead Man’s Statute was repealed when the Revised Uniform Rules of Evidence were adopted in 1976. Since its repeal, courts determine the admissibility and proof of the deceased’s words and dealings on the basis of its relevance and reliability, just as the admissibility of all unprivileged evidence is determined. The chancellor’s comment that the decedent’s statements should be excluded as hearsay is incorrect.
I believe the chancellor’s focus on the 1993 discussion is misplaced. The focus should have been on Sabbs’s intent to make the gift at the time of the grant as the delivery of a deed is not valid unless the grantor intended to pass title immediately. Johnson v. Ramsey, 307 Ark. 4, 817 S.W.2d 200 (1991).
Additional factors that evidence that appellee did not receive the property as a gift are as follows:
After the deed was recorded, it was returned to the residence of James Sabbs. Appellee did not list the property as an asset in a mortgage application for her current residence nor designate the property as an asset in her 1978 divorce. Appellee did not claim any appreciation for the property nor report any rental income from the property on her income tax returns. The property was insured in the names of appellee and her father. Appellee testified that she received the rent from the property; however, the only rental receipts in the record that were signed by the appellee were dated after Mr. Sabbs’s death. Although appellee testified that the rental income was for her personal use, she testified that she never withdrew monies from the joint account in which the rental income was deposited. Appellee could only produce 1991 and 1992 real estate tax receipts and 1989 through 1992 income tax returns showing payment of real estate taxes.
An asserted gift, whether causa mortis or inter vivos, must be established by evidence which is “clear and convincing.” Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979); Smith v. Clark, 219 Ark. 751, 244 S.W.2d 776 (1952); Lehman v. Broyles, 155 Ark. 593, 245 S.W. 24 (1922); Lowe v. Hart, 93 Ark. 548, 125 S.W. 1030 (1910). The required elements for an effective inter vivos gift, which must be proven by clear and convincing evidence, are that the donor knew and understood the effect of his act and intended that effect; that the donor made actual delivery to the donee; that the donor intended to pass title immediately; and the donee accepted the gift. O’Flarity v. O’Flarity, 42 Ark. App. 5, 852 S.W.2d 150 (1993).
In Bennett v. Miles, 212 Ark. 273, 205 S.W.2d 451 (1947), we said:
In the more recent case of Baugh v. Howze, 211 Ark. 222, 199 S.W.2d 940 [(1947)], we said: “To constitute a valid gift inter vivos, certain essential elements must be present, these include actual delivery of the subject-matter of the gift to the donee or to some one as agent or trustee for the donee, with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.”
When these well-settled rules are applied to the facts of this case, I find that two of the essential elements necessary to a valid gift are absent in that Sabbs did not give the deed to appellee with the intention at the time of passing title to her and that appellee did not accept the gift as her own, but only as agent for Sabbs, or as a trustee, and therefore, there was no valid gift inter vivos.
The existence of a confidential relationship between the parties raises a rebuttable presumption that the gift was obtained by undue influence or other improper means. The burden is on the alleged donee to rebut this presumption and to establish that the claimed gift was fairly and properly made to him. Mohr v. Hampton, 238 Ark. 393, 382 S.W.2d 6 (1964); Burns v. Lucich, 6 Ark. App. 37, 638 S.W.2d 263 (1982).
I do not believe the appellee has met the burden of proof necessary to establish the asserted gift inter vivos by the required standard of clear and convincing evidence. I believe that the chancellor’s decision is clearly against the preponderance of the evidence and should be reversed.