Opinion
No. 82-247
Opinion delivered March 7, 1983 [Rehearing denied April 4, 1983.]
1. DEEDS — SIGNATURE NOT FORGED — AMPLE EVIDENCE TO SUPPORT. — The chancellor's finding that the deceased grantee did not forge the signature of her sister to one of the deeds is amply supported by the testimony of a handwriting exert who testified that the signature was genuine. 2. DEEDS — DETERMINATION OF SIGNATOR. — Where the chancellor had signatures available to him for comparison and those exhibits have not been reproduced for the appellate court's examination, it was not clearly erroneous for the chancellor to refuse to accept the unsupported testimony of the apparent grantor that she did not sign the 1975 deed conveying land to the deceased. 3. DEEDS — NO FRAUD IN THE PROCUREMENT OF SIGNATURES. — Where the decedent's mother deeded decedent property in exchange for decedent's promise to take care of her for the rest of her life, the decedent offered to deed the property to any of her sisters who would agree to care for their mother, the sisters did not accept decedent's offer but deeded any claim they had to the property to the decedent, and the decedent cared for her mother for ten years until the decedent died, it was not clearly erroneous for the chancellor to find the decedent did not defraud her mother and sisters by procuring their signatures with no intention of supporting her mother, even though there was testimony by her mother that the decedent had mistreated her and that she had been so afraid of the decedent that she dared not complain. 4. DEEDS — DECEDENT'S DEATH NOT ITSELF BASIS FOR CANCELLATION. — Decedent's death is not in itself a basis for canceling the four deeds because 1) the death of the remainderman does not affect an earlier determination that decedent's mother was a life tenant of the property, entitling her to possession and to the exclusive authority to rent the land, and 2) decedent's promise to take care of her mother was not a promise to her mother or her sisters to personally care for her mother but to see to it that she was cared for, and the decedent's son has offered to do that. 5. DECEDENT'S ESTATE — ACCOUNTABLE FOR RENTS COLLECTED FOR LIFE TENANT. — Where for ten years decedent's mother accepted decedent's performance of her promise to care for her mother but made no conscious waiver of her rights to the rental and the decedent made no change in her position upon which to base a defense of estoppel or laches, there is no injustice in requiring decedent's estate to account for profits she accumulated in looking after her mother's property. 6. LIMITATION OF ACTIONS — OBLIGATION ARISING FROM DEED. — Since the decedent's obligation to account for rent collected arose from the written deeds and not an oral or implied promise, the chancellor was right in applying the five-year statute of limitations, Ark. Stat. Ann. 37-209 (Repl. 1962), instead of the three-year statute, Ark. Stat. Ann. 37-206 (Repl. 1962).
Appeal from Clay Chancery Court, Eastern District; Graham Partlow, Chancellor; affirmed.
Gus R. Camp, for appellants.
Cathey, Goodwin, Hamilton Moore, by: Harry Truman Moore, for appellees.
W. A. Cluck died intestate in 1960, survived by his widow, Blanche Cluck, and by four daughters and two sons. The decedent's property has been the subject of at least four family lawsuits, two of which have previously reached this court. Mack v. Cluck, 262 Ark. 12, 554 S.W.2d 325 (1977); Cluck v. Mack, 264 Ark. 842, 576 S.W.2d 930 (1979). There was also litigation about an insurance policy. Cluck v. Mack, 253 Ark. 769, 489 S.W.2d 8 (1973).
The present suit was brought in 1981 by the widow and three of the daughters to cancel four 1970 deeds by which they had conveyed certain property to the fourth daughter, Margaret Ann Mack, in return for the grantee's promise to take care of the widow for the rest of her life. The grantee was killed in 1980. The four plaintiffs then brought this suit against the estate of the deceased daughter, Margaret Ann Mack, asserting principally that Margaret Ann had been guilty of fraud and forgery in obtaining the deeds, that she had never performed her promise to support her mother, and that she had failed to account for the rents collected upon the farm property conveyed by the four deeds. The chancellor refused to cancel the deeds, but did award the widow a judgment for $44,177.95 for rentals due the widow during the five years preceding the institution of the suit. An appeal and cross appeal bring certain aspects of the case up for review. The Court of Appeals transferred the case under Rule 29 (1) (p).
The issues hinge essentially upon questions of fact, most of which turn upon the credibility of the witnesses. A prolonged discussion would be of no real value as a precedent. Consequently we comment only very briefly upon the various contentions urged by the parties to the appeal.
The chancellor's finding that Margaret Ann did not forge the signature of her sister Doris Swang to one of the deeds is amply supported by the convincing testimony of a handwriting expert, Linton Godown, who testified that the signature was genuine. Blanche Cluck testified that she did not sign a comparatively unimportant deed apparently executed by her in 1975, conveying 1.05 acres to Margaret Ann, but the chancellor evidently did not accept her unsupported testimony, given years later. Moreover, the chancellor had signatures available to him for comparison, but those exhibits have not been reproduced for our examination, as might have been done under Rule 9 (d).
We are not persuaded by the appellants' argument that Margaret Ann defrauded her mother and sister by procuring their signatures with no intention of supporting Mrs. Cluck. Shortly before the sisters' deeds were executed in 1970, Margaret Ann's attorney wrote a letter to them saying that if any of the other three daughters would take over the farm and the personal day-to-day care of Mrs. Cluck for the rest of her life, Margaret Ann would gladly deed her interest in the property to the daughter assuming the responsibility. That offer was not accepted by any of the others, who instead executed deeds to Margaret Ann. She did assume the responsibility for looking after her mother and did so until her own death about ten years later. The chancellor evidently did not give credence to Mrs. Cluck's complaints, after Margaret Ann's death, about her mistreatment. We think it significant that in 1976, while Margaret Ann was living, Mrs. Cluck testified in an earlier case that Margaret Ann had looked after her continuously and that she herself could think of nothing Margaret Ann should be doing that she had not done since the deeds were executed. Quite obviously the chancellor did not accept Mrs. Cluck's testimony that for ten years she was so afraid of Margaret Ann that she dared not complain of mistreatment.
In the circumstances of this case Margaret Ann's death is not in itself a basis for canceling the four deeds. In the first place, in 1971 the chancellor found in an earlier case that Blanche Cluck was in effect a life tenant of the property, entitling her to possession and to the exclusive authority to rent the land. See the 1979 Cluck v. Mack opinion, supra. Margaret Ann's death did not affect that situation. And second, although Mrs. Cluck might argue that she conveyed her interest to Margaret Ann because she relied upon that particular daughter's personal ability to look after her, it is evident that the other three sisters were not similarly motivated. The dedication of the rentals to their mother's support satisfied their expectations, even though someone else must take care of Mrs. Cluck after Margaret Ann's death. Margaret Ann's son and his wife, appellees, have offered to do that.
We have considered the appellants' various arguments for reversal and are unanimously of the opinion that the chancellor's decision was not clearly erroneous.
On cross appeal the administrator of Margaret Ann's estate does not question the accounting by which the chancellor awarded Mrs. Cluck $44,177.95 for past rentals, but he argues that Mrs. Cluck accepted Margaret Ann's performance of her promise for ten years and should now be barred by waiver, estoppel, and laches from seeking an accounting. There was no conscious waiver of Mrs. Cluck's rights, and both laches and estoppel rest upon some change of position detrimental to the person asserting those defenses. We perceive no injustice in requiring Margaret Ann's estate to account for the profits she accumulated in looking after her mother's property. The administrator also argues, without citation of any authority except the three year Statute of limitations, Ark. Stat. Ann. 37-206 (Repl. 1962), that the accounting should have gone back only three years instead of five. Margaret Ann's obligation arose from the written deeds, not from an oral or implied promise; so the chancellor was right in applying the five-year statute. Section 97-209; Parker v. Carter, 91 Ark. 162, 120 S.W. 836, 194 Am. St. Rep. 60 (1909).
Affirmed on direct and cross appeal.