{ "id": 6137058, "name": "Joyce MILLER, Executrix in the Matter of the Estate of Otha Farris Tackett, Deceased v. Mike COTHRAN, Personal Representative for the Estate of Judean Tackett, Deceased", "name_abbreviation": "Miller v. Cothran", "decision_date": "2008-03-19", "docket_number": "CA 07-869", "first_page": "61", "last_page": "65", "citations": [ { "type": "official", "cite": "102 Ark. App. 61" }, { "type": "parallel", "cite": "280 S.W.3d 580" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "100 Ark. App. 141", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138156 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "145-46" }, { "page": "153-54" } ], "opinion_index": 0, "case_paths": [ "/ark-app/100/0141-01" ] }, { "cite": "12 Harv. L. Rev. 443", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1899, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "229 Or. 609", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4884956 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/or/229/0609-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-81-116", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "242 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721321 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "520-21" }, { "page": "392-93" } ], "opinion_index": 0, "case_paths": [ "/ark/242/0518-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 23-32-207", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "271 Ark. 948", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756142 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "950-52" }, { "page": "784-85" } ], "opinion_index": 0, "case_paths": [ "/ark/271/0948-01" ] }, { "cite": "80 S.W. 150", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1904, "opinion_index": 0 }, { "cite": "72 Ark. 307", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505630 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/ark/72/0307-01" ] }, { "cite": "211 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1473268 ], "weight": 4, "year": 1947, "pin_cites": [ { "page": "225-28" }, { "page": "941-43" } ], "opinion_index": 0, "case_paths": [ "/ark/211/0222-01" ] }, { "cite": "235 Ark. 942", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684898 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0942-01" ] }, { "cite": "235 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684741 ], "weight": 7, "year": 1962, "pin_cites": [ { "page": "217-18" }, { "page": "531" }, { "page": "529-30" }, { "page": "530" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ark/235/0215-01" ] }, { "cite": "371 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3490871 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "65" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ark/371/0060-01" ] } ], "analysis": { "cardinality": 597, "char_count": 8795, "ocr_confidence": 0.771, "pagerank": { "raw": 6.284616430089508e-08, "percentile": 0.387293429076367 }, "sha256": "e8d414bf3959ca21ea6ae8fdd5e649dd99365c996e8ef078ae74060789082151", "simhash": "1:1f3da7c30b484c55", "word_count": 1475 }, "last_updated": "2023-07-14T21:30:35.503442+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Heffley and Baker, JJ., agree." ], "parties": [ "Joyce MILLER, Executrix in the Matter of the Estate of Otha Farris Tackett, Deceased v. Mike COTHRAN, Personal Representative for the Estate of Judean Tackett, Deceased" ], "opinions": [ { "text": "D.P. Marshall Jr., Judge.\nOtha Tackett leased his salvage yard in 2002 to Doyle, Tommy, and Bruce Meadors for $800.00 a month for ten years. The lease provided that:\nThe terms and provisions of this lease shall inure to the benefit of the heirs and devises of the parties and, in particular, it is agreed that in the event of lessors death, the moneys due and payable hereunder shall be paid to the lessors wife, Judeane Tackett.\nThis appeal is a dispute between Otha\u2019s estate and Judean\u2019s estate about the enforceability of this contract provision.\nI.\nFamily circumstances frame the dispute. Both Otha and Judean had been married before and had children from those marriages. The year before they married each other in 1975, Otha executed a will leaving his entire estate to his four children. Otha and Judean made a prenuptial agreement, each renouncing any claim to the property that the other brought into their marriage. Their attached property schedules reflect that, while Otha owned several tracts of real estate and had money in the bank, Judean owned nothing.\nStarting in 2002, the Meadors paid the monthly rent to Otha for the salvage yard. Otha died in July 2006. The Meadors then started paying Judean the rent. Judean and Otha\u2019s estate \u2014 being administered by one of his children for the benefit of herself and her siblings pursuant to the pre-marriage will \u2014 disagreed about who was entitled to the rent paid after Otha\u2019s death. Starting in December 2006, the rent went into the registry of the circuit court. Then Judean died in March 2007. Her estate took her place in this litigation.\nThe circuit court agreed with Judean\u2019s estate that \u201cthe provision is clear. It is directing Meadors, Mr. Tackett says, if I die you pay that money to my spouse. There is not any way to interpret it other than that.\u201d The court ruled further that \u201cthat provision goes to the estate ofMrs. Tackett, now, she\u2019s deceased.\u201d The court eventually filed an order reflecting its bench ruling. Otha\u2019s estate appeals. We review the question of law presented in this probate case de novo. Devine v. Martens, 371 Ark. 60, 65, 263 S.W.3d 515, 520 (2007).\nII.\nWe agree with the circuit court that the lease is clear about Otha\u2019s intentions for any rent due after his death. We must reverse nonetheless because precedent makes this clear provision unenforceable. E.g., Coley v. English, 235 Ark. 215, 357 S.W.2d 529 (1962); Levine v. Newlander, 235 Ark. 942, 362 S.W.2d 698 (1962); Baugh v. Howze, 211 Ark. 222, 199 S.W.2d 940 (1947); Ragan v. Hill, 72 Ark. 307, 80 S.W. 150 (1904). These cases arise on varying facts: Ragan involved a note; Baugh involved cash; Coley involved a real-estate contract; and Levine involved a deed. But in each case, like Otha, the owner intended and attempted to make an inter vivos gift of a future interest. In each case, that effort failed as a matter oflaw because no present interest was conveyed. Otha\u2019s attempt in this lease to provide Judean monthly income after his death likewise fails.\nThere is reason behind the rule. To avoid the opportunities for fraud and evidentiary difficulties, a gift inter vivos must be consummated by actual delivery to the donee, with the donor releasing all dominion in the property beyond recall. Baugh, 211 Ark. at 225-28, 199 S.W.2d at 941-43. Alternatively, to give a future interest, the owner must make a valid will with all testamentary formalities, thereby conveying the interest at the owner\u2019s death. Coley, 235 Ark. at 217-18, 357 S.W.2d at 531. In this case, Otha neither consummated an inter vivos gift nor followed the testamentary formalities necessary to amend his will by codicil.\nColey is the closest precedent. Ann Coley sold real estate on terms. She and the buyers agreed that, if she died before they paid the entire purchase price, then they should pay her husband\u2019s nephew the balance in her stead. 235 Ark. at 215, 357 S.W.2d at 529-30. As Judean\u2019s estate does in this case, the nephew contended that he was a third-party beneficiary and the fact that his benefit under the contract was postponed until the death of one party to the contract should not make any legal difference. 235 Ark. at 216, 357 S.W.2d at 530.\nThe supreme court squarely rejected the nephew\u2019s argument. The court\u2019s holding binds us, and its words explain the decision in Coley and in this case.\nIn the case before us now, [Otha] retained full control over the contract and, had [he] lived, [he] would have been the sole beneficiary or recipient of the full consideration due on the contract. At no point does [Judean] show an actual or constmctive intent on the part of [Otha] to relinquish such control of the contract as would cause a presumption that [Judean] was entitled to anything until [Otha\u2019s] death. The terms of the contract clearly state that [Judean] was to receive nothing until the death of [Otha], and then only such amount (if any) as might be remaining due upon the contract. This provision of the contract clearly shows an intent on the part of [Otha] to make a testamentary disposition of property contrary to the solemn requirements of a will. From the clear language of the contract there is no inference of an intent on the part of [Otha] to convey a present interest in the contract to [Judean] as would constitute a valid gift inter vivos.\n235 Ark. at 217-18, 357 S.W.2d at 531.\nPointing to more recent Arkansas cases, Judean\u2019s estate argues that we should affirm the circuit court\u2019s decision. These cases, however, arise in areas where statutes have supplanted the common law. A depositor can give a current or future interest in her bank account by designating a joint tenant or by making a POD \u2014 \u201cpay on death\u201d \u2014 designation. Baker v. Bank of Northeast Arkansas, 271 Ark. 948, 950-52, 611 S.W.2d 783, 784-85 (Ark. App. 1981); Ark. Code Ann. \u00a7\u00a7 23-32-207 & 23-37-502 (Repl. 2000). If a joint tenancy is created, the gift has been completed; if a POD designation is made, the gift would not be valid under the common law but is valid under the statute. Likewise, a person entitled to insurance proceeds may, instead of taking a lump sum, accept periodic payments and designate another individual to receive any balance unpaid at the recipient\u2019s death. Wasson v. Pyron, 242 Ark. 518, 520-21, 414 S.W.2d 391, 392-93 (1967); Ark. Code Ann. \u00a7 23-81-116 (Repl. 2004). These statute-based precedents do not undermine Coley and similar cases.\nJudean\u2019s estate also argues from out-of-state decisions and learned treatises that support enforcing the disputed provision of the salvage yard lease. E.g., Roberts v. Ellis, 229 Or. 609, 368 P.2d 342 (1962); 13 Williston on Contracts \u00a7\u00a7 37:7-37:10 (4th ed. 2000). The Restatement (Second) of Contracts \u00a7 302(l)(b) (1981) adds further support. Under these authorities, Judean was Otha\u2019s intended third-party beneficiary of rent due after his death, and the law should recognize and enforce her right notwithstanding the postponed vesting. We recognize the wisdom of this law. But we are bound by Coley and like precedents. Only our supreme court can say whether the now-ready availability of POD designations, insurance products, and other legally effective transfers of future and contingent interests in property has so eroded the line of cases exemplified by Coley that our common law has changed.\nOtha\u2019s estate makes other arguments for reversal, but we do not reach them because we reverse and remand on the authority of Coley.\nHeffley and Baker, JJ., agree.\nThough Otha\u2019s estate cast its main argument for reversal in its opening brief in terms of a failed assignment, the substance of that argument was that Otha made no immediate and complete delivery to Judean of the right to rent from the lease. Judean\u2019s estate recognized the core issue \u25a0\u2014 the enforceability of the right to any rent due after Otha\u2019s death. Judean\u2019s estate responded with a full counter-argument about inter vivos gifts and third-party beneficiaries, citing Coley and other relevant authorities. And Otha\u2019s estate replied on those terms. The doctrinal labels are not controlling; the substance of the argument made is. \u201cWe must think things not words[.]\u201d OHver Wendell Holmes Jr., Law in Science and Science in Law, 12 Harv. L. Rev. 443,460 (1899). All the parties having fully briefed the dispositive issue, we may and do decide it. Compare Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark. App. 141, 145-46, 265 S.W.3d 151, 153-54 (2007).", "type": "majority", "author": "D.P. Marshall Jr., Judge." } ], "attorneys": [ "T. David Carruth, for appellant.", "Davis & Associates, P.A., by: Charles E. Davis, for appellee." ], "corrections": "", "head_matter": "Joyce MILLER, Executrix in the Matter of the Estate of Otha Farris Tackett, Deceased v. Mike COTHRAN, Personal Representative for the Estate of Judean Tackett, Deceased\nCA 07-869\n280 S.W.3d 580\nCourt of Appeals of Arkansas\nOpinion delivered March 19, 2008\nT. David Carruth, for appellant.\nDavis & Associates, P.A., by: Charles E. Davis, for appellee." }, "file_name": "0061-01", "first_page_order": 89, "last_page_order": 93 }