{
  "id": 1709310,
  "name": "Lavedna GARIS v. James T. MASSEY, his wife Earline MASSEY; Jim KENT, and Jim POOLE, Administrator of the Estate of Lura KENT, deceased; Jim BRINKLEY, and his wife, Effie BRINKLEY",
  "name_abbreviation": "Garis v. Massey",
  "decision_date": "1980-10-08",
  "docket_number": "CA 80-201",
  "first_page": "646",
  "last_page": "652",
  "citations": [
    {
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      "cite": "270 Ark. 646"
    },
    {
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      "cite": "606 S.W.2d 109"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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    "name": "Ark."
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      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
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    {
      "cite": "262 Ark. 735",
      "category": "reporters:state",
      "reporter": "Ark.",
      "year": 1978,
      "opinion_index": 0
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    {
      "cite": "246 S.W. 2d 510",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1923,
      "opinion_index": 0
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    {
      "cite": "156 Ark. 443",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1358420
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      "year": 1923,
      "opinion_index": 0,
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        "/ark/156/0443-01"
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    {
      "cite": "309 S.W. 2d 22",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        8722201
      ],
      "year": 1958,
      "opinion_index": 0,
      "case_paths": [
        "/ark/228/0544-01"
      ]
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    {
      "cite": "228 Ark. 545",
      "category": "reporters:state",
      "reporter": "Ark.",
      "year": 1958,
      "opinion_index": 0
    },
    {
      "cite": "239 Ark. 551",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1730563
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      "weight": 2,
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/ark/239/0551-01"
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  "analysis": {
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  "last_updated": "2023-07-14T16:40:39.197564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Lavedna GARIS v. James T. MASSEY, his wife Earline MASSEY; Jim KENT, and Jim POOLE, Administrator of the Estate of Lura KENT, deceased; Jim BRINKLEY, and his wife, Effie BRINKLEY"
    ],
    "opinions": [
      {
        "text": "Marian F. Penix, Judge.\nLavedna Garis, daughter and sole heir of Lura Kent, sued to set aside a deed from Lura Kent to James Massey. Lura Kent is now deceased. Ms. Garis\u2019 complaint alleged Lura Kent was legally incompetent when she signed the deed, that her husband Jim Kent exercised undue influence and used fraud and duress to induce her to sign the deed, and that the consideration was inadequate. The Chancellor dismissed the complaint and the counterclaim of defendants Massey. Ms Garis appeals.\nMs. Garis amended her complaint to allege Jim Kent had quitclaimed any interest he might have had to Jim and Effle Brinkley, who were added as party defendants. The Brinkleys, by way of affirmative defense, state that Jim Kent would have curtesy right in Lura Kent\u2019s estate, and therefore they would obtain any interest in the property in question that Jim Kent would receive if Ms. Garis prevails.\nThe Court\u2019s findings state there is a presumption in favor of competence and the proof was insufficient to overcome the presumption Lura Kent was competent at the time the deed was executed. The Court further found the standard of proof of fraud or undue influence requires not just a preponderance of evidence, but clear, cogent and convincing evidence of the existence of fraud or undue influence.\nMs. Garis contends Lura Kent was shown to be \u00bfincompetent by a preponderance of the evidence. In reviewing the record we find voluminous testimony from acquaintances, neighbors, relatives as to Lura Kent\u2019s eccentricities, imagination, forgetfulness, and approaching senility. But the essential elements found in incompetency were never proven nor shown. Those being: (a Lura Kent\u2019s inability to appreciate the extent and condition of her property (b her failure to appreciate her disposition of the property and (c her failure to understand the consideration and the (d proof these elements existed at the time she executed the deed.\nSeveral witnesses gave an account of the incident when Lura Kent was found in a disheveled condition in a ditch near her home. This was three days following the execution of the deed. There was no testimony proving she was incapable of understanding a business transaction prior to her signing of the deed. Although we have no actual proof of what occurred just before Lura Kent\u2019s being found in the ditch, we can conjecture she must have experienced something traumatic. Several of the witnesses conjectured there must have been \u201csomething wrong\u201d with Lura Kent because she was frequently seen standing on her property looking at things. The witnesses who testified as to strange incidents also admitted on cross-examination Lura Kent was competent at times. From the testimony there emerges a woman 20 years her husband\u2019s senior, very much in love with her husband, who did bizarre things when her husband was away from home long hours and without explanation. Sterling Bland testified to two incidents of bizarre behavior \u2014 one being when Lura Kent was found in the ditch and the other when she awakened the Blands at 3:00 a.m. frantically looking for Jim Kent, her husband. None of Bland\u2019s testimony related in any way to Lura Kent\u2019s competency in business matters.\nMost of the testimony by relatives concerned Lura Kent\u2019s mental condition after she was brought to Missouri, apart from her husband and friends, placed in a nursing home and was given drugs for her arteriosclerosis and Parkinson\u2019s disease. Lura Kent\u2019s former lawyer finally admitted on cross-examination Lura Kent probably would have been capable of making a contract in February 1976 and he did not testify to anything which would alter this observation prior to July 1976 \u2014 the date of the execution of the deed.\nDr. Creech did not see Lura Kent until October 1976. Dr. Creech thought she might have had a stroke earlier. Dr. Clopton testified no doctor seeing her in October 1976 could have any way of knowing in terms of any reasonable degree of medical certainty her condition in July 1976 \u2014 especially in view of the drugs and treatment she received since July. We can find from the record, no medical evidence going to Lura Kent\u2019s incompetency at the time she conveyed her property to Massey in July 1976.\nHarwell v. Garrett, 239 Ark. 551, 393 S.W. 2d 256 (1965) involved the execution of a will. Chief Justice Harris quotes from Volume 1, Page on Wills, Section 12.37:\nThe fact that the testator was filthy, forgetful, and eccentric, or that he believed in witchcraft, and had dogs and cats at the same table with him, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that the testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.\nWe find no error in the Chancellor\u2019s finding Ms. Garis failed to overcome the presumption that Lura Kent intelligently comprehended the transaction which requires the execution of her deed. See Hunt v.Jones, 228 Ark. 545, 309 S.W. 2d 22, (1958) and Pledger v. Berkhead, 156 Ark. 443, 246 S.W. 2d 510 (1923).\nHaving found the presumption of competency has not been overcome, we need not address Ms. Garis\u2019' allegation in regard to changing the burden of proof to the defendants to show lucid intervals.\nThe question of whether the Attorney Holloway\u2019s impeaching testimony should have been allowed is a difficult one. After the Chancellor sustained the objection to Mr. Holloway\u2019s testimony, his testimony was proffered showing he was familiar with the reputation of the defendants\u2019 witnesses Bill Davis\u2019 and Richard Easely\u2019s truthfulness in the Corning community in which they lived and it is not good. The proffer was that Attorney Holloway had an opinion personally as to their truthfulness and he would not rely on their testimony. The proffer also was that each witness is an ex-convict.\nBoth of these witnesses were important to the defendants\u2019 case. Their credibility was important as they claimed first-hand knowledge of Lura Kent\u2019s competency. Under the Uniform Rules of Evidence, Rules 608 and 609 we find Attorney Holloway\u2019s testimony should have been admitted.\nRule 609(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the appropriate value of admitting this evidence outweighs its prejudicial effect to a party or a witness.\nIn the Federal Rule the words \u201cIf elicited from him or established by public record during cross-examination\u201d appear between \u2018admitted\u2019 and \u2018but\u2019. This intentional deletion by the legislature persuades us they intended such testimony as that proffered should have been admitted. Evidence, I. Judicial Decisions (C) Rehabilitation of Witnesses. 1 UALR Law Journal 191 (1978).\nTestimony in a trial is one means by which we arrive at the truth. The modern trend is that the search of truth demands a liberal application of the Rules of Evidence.\nWe find no error in the Chancellor\u2019s allowing Attorney Manatt to testify as to the value of the Kent property. Attorney Manatt\u2019s experience and personal knowledge of the Kent property qualified him to express an opinion as to its value.\nHowever, we do find error in the Chancellor\u2019s refusal to admit Dan Melton\u2019s testimony. His proiffer showed his land was similar to the Kent property and that he was familiar with land prices in that area and that he sold it about 1976 and the two farms were approximately equal. The proffer was made saying he sold his land for $30,000.00 \u2014 $600.00 per acre \u2014 and the Kent land was better land, more productive and worth more - about $700.00 an acre. We find his testimony not irrelevant and should have been admitted under Rule 701 of the Uniform Rules of Evidence:\nOpinion testimony by lay witnesses. \u2014 If the witness is not tesifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.\nThe Chancellor allowed similar testimony by Attorney Manatt. This Melton testimony should have been considered on the issue of the value of the land.\nEven though we find the Chancellor erred in excluding Attorney Holloway\u2019s testimony and in excluding Dan Melton\u2019s testimony, we find these exclusions to be harmless.\nWe are deciding this case \u201cde novo\u201d. We therefore can consider the excluded evidence. Even after considering the evidence, we are not persuaded the Appellant Ms. Garis has proven her allegations that Lura Kent was incompetent and unduly influenced by fraud and duress at the time she conveyed her property to the defendant. We cannot say the Chancellor\u2019s finding was clearly against the preponderance of the evidence. Newberry v. McClaren, 262 Ark. 735, 575 S.W. 2d 438 (1978).\nWe therefore affirm.",
        "type": "majority",
        "author": "Marian F. Penix, Judge."
      }
    ],
    "attorneys": [
      "Kirby Riff el and David Throesch, for appellant.",
      "Barrett, Wheatley, Smith & Deacon, and Burris & Berry, for appellees."
    ],
    "corrections": "",
    "head_matter": "Lavedna GARIS v. James T. MASSEY, his wife Earline MASSEY; Jim KENT, and Jim POOLE, Administrator of the Estate of Lura KENT, deceased; Jim BRINKLEY, and his wife, Effie BRINKLEY\nCA 80-201\n606 S.W. 2d 109\nCourt of Appeals of Arkansas\nOpinion delivered October 8, 1980\nKirby Riff el and David Throesch, for appellant.\nBarrett, Wheatley, Smith & Deacon, and Burris & Berry, for appellees."
  },
  "file_name": "0646-01",
  "first_page_order": 674,
  "last_page_order": 680
}