Mary Jane Wilson v. Bobby J. Hatton, Administrator of the Estate of Seldon Gibbs

Cite as 2021 Ark. App. 82
Elizabeth Perry
ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION II
2023.06.22 14:16:53 -05'00' No. CV-20-148
2023.001.20174
Opinion Delivered: February 24, 2021

MARY JANE WILSON APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. 26CV-18-559]
V.

BOBBY J. HATTON, HONORABLE LYNN WILLIAMS,
ADMINISTRATOR OF THE ESTATE JUDGE
OF SELDON GIBBS, DECEASED
APPELLEE
AFFIRMED

BART F. VIRDEN, Judge

Appellant Mary Jane Wilson appeals from the Garland County Circuit Court’s grant

of summary judgment to appellee Bobby J. Hatton, administrator of the estate of Seldon

Gibbs, on his action to cancel a deed. The trial court found that there had been no delivery

of the deed from Gibbs to Wilson and, thus, no gift. Wilson argues that the trial court erred

in granting summary judgment because delivery was not required given that Gibbs retained

an interest in the property. We affirm.

I. Background

Seldon Gibbs had three children: Wilson and two sons. Gibbs executed three wills—

one in 1993, one in 2007, and one in 2010—leaving his estate equally to his three children.

On September 12, 2011, Gibbs signed a warranty deed prepared by his attorney granting

two tracts of land and his residence in Garland County to himself and Wilson as joint tenants
with right of survivorship. On June 16, 2015, Wilson recorded the deed. Gibbs died on July

20, 2015, and his 2010 will was admitted to probate. In April 2018, Hatton filed an action

against Wilson to cancel the deed.

On August 30, 2019, Hatton moved for summary judgment on the basis that there

had been no gift of real estate because Gibbs did not deliver the deed to Wilson. Hatton

attached the following documents to the motion: the deed; a June 2015 letter from a

Louisiana lawyer to Wilson regarding Gibbs’s decline in mental state and the need to protect

his assets; bank records; a power of attorney (POA) dated May 5, 2015, signed by Gibbs in

favor of Wilson; Gibbs’s three wills described above; and a 2014 revocation of an earlier

POA in favor of Wilson.

Wilson filed a response to Hatton’s motion, arguing, in part, that different rules apply

with respect to delivery when the grantor retains an interest in the property. She attached

her affidavit in which she attested that there had been a continuing conflict between Gibbs

and her brothers dating back to the 1970 divorce of their parents; that she had since

apologized to Gibbs for siding with her mother and enjoyed a close relationship with Gibbs

since about 1991; that her brothers remained estranged from Gibbs; that Gibbs had been

able to take care of his affairs until 2014 when his physical and mental health began to

deteriorate; that she became Gibbs’s caretaker and made many trips to Hot Springs from her

home in Louisiana to care for Gibbs; that Gibbs moved to Louisiana in the spring of 2015;

that Gibbs had discussed with her his wishes regarding his money and real estate and had

shown her his past wills; that Gibbs had told her that he intended to give her the Garland

County real estate, which she understood to be a lifetime gift and not part of her inheritance;

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that in June 2015, Gibbs was living in a nursing home near her when she traveled back to

Hot Springs alone to clean Gibbs’s house; that she found the deed on Gibbs’s bedroom floor

among various items, including trash; and that, considering Gibbs’s poor health and his

stated intention with respect to the property, she took the deed to the courthouse and

recorded it. In addition to the affidavit, Wilson attached a nine-page handwritten letter that

Gibbs had sent to his sons in 2004 and three photographs depicting the state of disarray

inside Gibbs’s home when Wilson found the deed.

In reply to Wilson’s response, Hatton argued that there had been no delivery of the

deed because Wilson was not aware of the deed’s existence until she discovered it under

trash and because Gibbs was not aware that Wilson had found and recorded the deed. Hatton

attached three excerpts from Wilson’s oral deposition taken on April 10, 2019, in which

Wilson said that she considered the deed an inter vivos gift from Gibbs, that Gibbs had not

told her about the deed before she found it, and that she had not spoken with Gibbs about

the existence of the deed or the fact that she had found and recorded it.

In its order granting summary judgment, the trial court noted that Gibbs had kept

the 2011 deed in his possession until June 2015 when Wilson found it and that Wilson had

taken the deed from Gibbs’s home and recorded it without Gibbs’s knowledge. The trial

court concluded that there had been no gift given that Gibbs had not delivered the deed to

Wilson. The trial court thus canceled the deed. Wilson filed this appeal.

II. Standard of Review

Summary judgment should be granted only when it is clear that there are no genuine

issues of material fact to be litigated and the moving party is entitled to judgment as a matter

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of law. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003). The purpose of

summary judgment is not to try the issues but to determine whether there are any issues to

be tried. Id. Once the moving party has established a prima facie entitlement to summary

judgment, the opposing party must meet proof with proof and demonstrate the existence of

a material issue of fact. Id. On appellate review, we determine if summary judgment was

appropriate based on whether the evidentiary items presented by the moving party in

support of the motion leave a material fact unanswered. Id. We view the evidence in the

light most favorable to the party against whom the motion was filed, resolving all doubts

and inferences against the moving party. Id. Our review focuses not only on the pleadings,

but also on the affidavits and other documents filed by the parties. Id.

A valid inter vivos gift is effective when the following elements are proved by clear

and convincing evidence: (1) the donor was of sound mind; (2) an actual delivery of the

property took place; (3) the donor clearly intended to make an immediate, present, and final

gift; (4) the donor unconditionally released all future dominion and control over the

property; and (5) the donee accepted the gift. Fletcher v. Fletcher, 2011 Ark. App. 89, 381

S.W.3d 129. The parties appear to agree that the only element at issue is delivery.

Generally, in order to establish delivery, it must be shown that the grantor

relinquished his dominion and control over the instrument. Grimmett v. Estate of Beasley, 29

Ark. App. 88, 777 S.W.2d 588 (1989). Different rules apply, however, where the grantor

reserves a life estate or creates a joint tenancy in himself and another person. Id.; Burmeister

v. Richman, 78 Ark. App. 1, 76 S.W.3d 912 (2002). There is no longer a requirement that

it must be shown that the instrument has passed beyond the grantor’s control and dominion.

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Grimmett, supra. The fact that the deed is found among the effects of the grantor at his death

raises no presumption against delivery when a life estate is reserved, see Johnson v. Young

Men’s Building & Loan Ass’n, 187 Ark. 430, 60 S.W.2d 925 (1933), and under these

circumstances the grantor’s retention of possession and control over the property conveyed

and his failure to record the deed are not inconsistent with delivery. Cribbs v. Walker, 74

Ark. 104, 85 S.W. 244 (1905). Moreover, the rule with respect to delivery of gifts is less

strictly applied to transactions between family members. 1 Bellis v. Bellis, 75 Ark. App. 213,

56 S.W.3d 396 (2001). Nevertheless, delivery must occur for a gift to be effective. Peterson

v. Peck, 2013 Ark. App. 666, 430 S.W.3d 797.

III. Discussion

Wilson argues that a hand-to-hand delivery of the deed was not required because

Gibbs retained a one-half interest in the property. This is correct, although the trial court

did not specifically point this out in its order granting summary judgment to Hatton. Wilson

and Hatton rely on many of the same cases. In Higgins v. Thornton, 2017 Ark. App. 258, 520

S.W.3d 302, a case cited by neither Wilson nor Hatton, this court affirmed a summary

judgment setting aside a deed that had not been delivered to the grantee during the grantor’s

lifetime. In Higgins, after Burnett died in 2001, a 1990 deed was discovered giving 240 acres

to her daughter, Higgins, and her granddaughter, Heffner, as cotenants with a reserved life

estate in Burnett. Thornton, as executor of Burnett’s estate, sought to set aside the deed on

1
Wilson relies, in part, on the rule that the law presumes a gift when legal title is
registered in a family member’s name. Perrin v. Perrin, 9 Ark. App. 170, 656 S.W.2d 245
(1983). Here, however, Wilson recorded the deed herself and without Gibbs’s knowledge,
so the presumption does not arise.

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the basis that it had not been delivered to Higgins and Heffner prior to Burnett’s death.

Testimony revealed that, after Burnett’s death, Higgins had found the deed in an

ammunition box belonging to her father and recorded it in 2009.

Higgins relied on many of the same cases that Wilson relies on. This court

distinguished those cases on the basis that the grantee in each case had been made aware of

the deed at issue by the grantor. In Grimmett, Beasley had shown an original deed conveying

a farm to her brother and his wife, but she took the deed with her when she left their home.

In Cribbs, a husband had shown a deed reserving a life estate to his wife and then placed the

deed in his safe, where it remained until his death. In Johnson, a husband and wife conveyed

their hotel property to their seventeen-year-old son but kept the deed in a hotel safe and

continued to manage the hotel. The son had been told about the deed and had access to the

safe. Higgins also relied on Barker v. Nelson, 306 Ark. 204, 812 S.W.2d 477 (1991), in which

a father had passed the original deed around a table to show to his sons.

In holding that there had been no delivery of the deed in Higgins, we said that Higgins

presented no proof she had been shown the deed by Burnett or knew of its existence. While

Higgins’s attorney argued at a hearing that Higgins and Heffner had gone to the lawyer’s

office with Burnett when the deed was prepared and that Higgins herself had placed the

deed in the ammunition box, Higgins offered no affidavit to that effect.

The Higgins court compared the facts in that case to those in Van Huss v. Wooten,

208 Ark. 332, 186 S.W.2d 174 (1945), in which the supreme court held that there had been

no delivery of a deed from John M. Van Huss granting a small farm to his nephew, J.D.

Van Huss. After John’s death, J.D. and other relatives found the deed in a suitcase belonging

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to John, and J.D. recorded it. There was no indication that J.D. had access to this suitcase

while John was alive. Although J.D. testified that John had told him on his deathbed about

the deed, that testimony was contradicted by a lawyer who testified that J.D. had told him

he did not know of the existence of the deed until after John’s death.

According to Wilson’s own affidavit and subsequent deposition, Gibbs did not make

her aware of the deed even though they had a close relationship up until his death. Gibbs

had shown Wilson his various wills, but he had not shown her, or told her about, the deed.

Further, Gibbs kept the deed in his possession until it was discovered by Wilson. Wilson

admitted that she had not told Gibbs that she found and recorded the deed. Although Wilson

knew of the deed’s existence prior to Gibbs’s death, it was not because of any affirmative

action on the part of Gibbs. 2 Wilson contends that Gibbs repeatedly told her of his intentions

with respect to his property. Intention to give, by itself, is not sufficient; there must be a

delivery to consummate the gift and to pass title. Chalmers v. Chalmers, 327 Ark. 141, 937

S.W.3d 171 (1997). Under this set of facts, we cannot say that the trial court erred in ruling

that there had been no delivery of the deed to Wilson.

Affirmed.

GRUBER and BARRETT, JJ., agree.

Legacy Law Group, by: Bryan Jay Reis, for appellant.

Richard F. Hatfield, P.A., by: Richard F. Hatfield, for appellee.

2
Wilson raises no argument on appeal about her authority pursuant to the May 2015
POA.

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