                                Cite as 2013 Ark. App. 666

                 ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CV-13-100


CAPI PECK PETERSON                               Opinion Delivered   November 13, 2013
                               APPELLANT
                                                 APPEAL FROM THE PULASKI
V.                                               COUNTY CIRCUIT COURT,
                                                 FIFTH DIVISION
                                                 [NO. 60CV-10-6105]
HANNAH PECK a/k/a HANNAH
FINLEY, INDIVIDUALLY AND AS                      HONORABLE WENDELL GRIFFEN,
TRUSTEE OF THE PECK FAMILY                       JUDGE
TRUST U/D JUNE 15, 2001
                        APPELLEE                 AFFIRMED



                              BILL H. WALMSLEY, Judge

       This appeal involves a dispute over the ownership of a piece of artwork created by

Alexander Calder. Robert Peck was the owner of the artwork before his death in 2006.

Appellant Capi Peterson is Robert Peck’s daughter. Appellee Hannah Peck is Robert Peck’s

widow. After a bench trial, the Pulaski County Circuit Court found that the artwork was not

the subject of an inter vivos gift to Peterson from Robert Peck and that it was not given to

Peterson through Peck’s trust. The court also found that Peterson had forfeited her interest

as a trust beneficiary by questioning the actions of the trustee, Hannah Peck. Peterson argues

three points challenging those rulings. We affirm.

       Peterson’s grandparents purchased a mobile by Alexander Calder known as “Autumn

Leaves” (“the Calder”) in the 1950s. Robert Peck had possession of the Calder after the

deaths of his parents. Peck created the Peck Family Trust, a revocable trust, on May 8, 2001.
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The purpose of the trust was to provide for the support, education, maintenance, and

preservation of the health of Hannah Peck during her lifetime. Robert Peck was to be the

trustee during his lifetime, with Hannah Peck named as trustee upon his death.

       On June 15, 2001, Robert Peck created another Peck Family Trust that appears to

be identical to the May 8, 2001 trust. Also on June 15, 2001, Peck executed a Declaration

of Trust Ownership conveying “[a]ll tangible articles of a household or personal nature . .

. , including . . . works of art” to the trust. The declaration also stated that it was intended

to revoke all prior declarations of ownership.

       In January 2005, Robert Peck amended and restated the May 2001 trust. He also

executed a will that left all artwork and most of his other personal property to Hannah Peck

if she should survive him. The rest of Robert Peck’s property was to pour over into the trust.

The will specifically referenced the May 2001 trust and incorporated it by reference.

       Robert Peck passed away in 2006 while living in Hawaii and married to Hannah

Peck. Hannah Peck maintained that she received the Calder mobile under her husband’s will

and sold it for $3.7 million.

       On October 25, 2010, Peterson filed suit against Hannah Peck, as trustee, alleging that

she was the owner of the Calder mobile and that Hannah Peck wrongfully sold it to a third

party and was liable to Peterson for its value. Peterson sought an accounting for the Peck

Family Trust and damages for the sale of the mobile.

       Hannah Peck answered the complaint and counterclaimed for a declaratory judgment

to determine (1) that ownership of the Calder was in the Peck Family Trust, (2) that Peterson


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had violated the terms of Paragraph 4.9 of the trust, and (3) for her attorney’s fees and costs.

She contended that, in June 2001, Robert Peck transferred his tangible personal property to

the trust and, upon Robert Peck’s death, the trust was to be distributed per memorandum

signed by Robert Peck, and if no memorandum, by her as trustee with proceeds distributed

as residue of the trust. Hannah Peck acknowledged that she sold the mobile and invested the

proceeds in what turned out to be Allen Stanford’s offshore Ponzi scheme. She also stated

that the trust was a party in a class-action suit against Stanford.

       On October 25, 2011, Peterson filed an amended and substituted complaint, again

asserting ownership of the Calder mobile, asking for an accounting, and seeking to replenish

the trust for damages caused by Hannah Peck’s investments with Stanford. She also alleged

that Hannah Peck used trust funds to purchase a luxury automobile at no benefit to the trust.

The purpose of the amendment was to make Hannah Peck, as an individual, a defendant.

       The case proceeded to trial on March 4, 2012. At trial, Peterson asserted that she was

the owner of the mobile by virtue of an inter vivos gift from her father. This assertion was

based on an April 2001 letter Robert Peck wrote to Peterson, stating that he gave Peterson

the Calder artwork, although he retained the right to display it during his lifetime. In the

letter, Peck characterized it as “an attachment to, and pursuant to Section 3.3 of the Peck

Family Trust created in April of 2001.”

       In the alternative, Peterson asserted that she received the artwork under the June 2001

trust. In doing so, she relied on another letter from her father, written in July 2004 to

attorney Joe Polk in which he reaffirmed that he had given the Calder to Peterson. The letter


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also suggested changes to Peck’s trust and will.

       At the close of the evidence, the parties asked that they be allowed to submit posttrial

briefs. On September 13, 2012, the circuit court entered its order dismissing Peterson’s

complaint. The court found that there was no valid inter vivos gift of the Calder mobile and

that it was not given to Peterson through the trust. The court further found that there was

no evidentiary support that Hannah Peck acted in bad faith or reckless indifference with

regard to her trust duties, and thus Peterson forfeited her interests in the trust through the

share-cancellation provision. As a result, Peterson lacked standing to sue as a beneficiary of

the trust. This appeal followed.1

       The exclusive jurisdiction in cases involving trusts, and the construction,

interpretation, and operation of trusts lies with courts of equity, In re Ruby G. Owen Trust,

2012 Ark. App. 381, ___ S.W.3d ___, and courts of equity have inherent and exclusive

jurisdiction of all kinds of trusts and trustees. Id. Our appellate courts have traditionally

reviewed matters that sounded in equity de novo on the record with respect to factual and

legal questions. Id. We have stated repeatedly that we will not reverse a finding by a trial

court in an equity case unless it is clearly erroneous. Id. We have also stated that a finding of

fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting

evidence in the record, the appellate court viewing all of the evidence is left with a definite

and firm conviction that a mistake has been committed. Id.



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        On November 28, 2012, the court ordered Peterson to pay attorney’s fees of $38,515
to the trust. Peterson does not develop an argument challenging the fee award.

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       Peterson’s first two points are argued in the alternative. In those points, she contends

that she is the owner of the artwork as a result of an inter vivos gift from her father or, that

she received the artwork under the June 15, 2001 trust.

       Under Arkansas law, 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. O’Fallon v. O’Fallon, 341 Ark. 138,

14 S.W.3d 506 (2000). The rule with respect to delivery of gifts is less strictly applied to

transactions between family members. Chalmers v. Chalmers, 327 Ark. 141, 937 S.W.2d 171

(1997). Even so, delivery must occur for a gift to be effective. Id. Our supreme court further

explained in Chalmers that the gravamen of delivery is a showing of an act or acts on the part

of the putative donor displaying an intention or purpose to part with dominion over the

object of the gift and to confer it on some other person. Id. Express words or particular

conduct are not required when reasonable minds would conclude from attending

circumstances that the purpose was present. Id.; Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d

542 (1954). An inter vivos gift may be delivered in a constructive manner. See Carlson, supra;

Gross v. Hoback, 187 Ark. 20, 58 S.W.2d 202 (1933).

       The circuit court found that the facts fell short of satisfying two of the inter vivos gift

elements, specifically, that Peck lacked the intent to make an immediate, present, and final

gift, and that by retaining the right to display the Calder mobile, Peck did not


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unconditionally release all future dominion and control over the property.

       Citing Bellis v. Bellis, 75 Ark. App. 213, 56 S.W.3d 396 (2001), and Gruen v. Gruen,

496 N.E.2d 869 (N.Y. 1986), Peterson argues that one may make a present inter vivos gift

of personal property while retaining a life estate in the property. Neither Bellis nor Gruen

helps Peterson.

       In Bellis, a father gave a music box to his son. The son decided that, for safekeeping

purposes and his mother’s enjoyment, the music box would be best left temporarily with his

parents. The circuit court distinguished the present case from Bellis by noting that, in Bellis,

it was the donee who decided to leave the music box with his parents, while here, the donor

decided he would retain possession of the Calder for display purposes. Gruen is not persuasive

because New York does not require proof of the same inter vivos gift elements as Arkansas

law requires.

       Peterson testified that she never had possession of the Calder itself, just the April 2001

letter purporting to give her the artwork. She acknowledged that her father had possession

of the piece. Peterson also testified about a conversation with her father where her father told

her that he wanted her to have the Calder after his death. Peterson’s argument focuses on

evidence of Robert Peck’s intent to give her the Calder; however, that is only one of the

elements necessary to establish an inter vivos gift. A gift inter vivos cannot be made to take

effect in the future, as such a transaction would only be a promise or an agreement to make

a gift. Howard v. Weathers, 55 Ark. App. 121, 932 S.W.2d 349 (1996). Peterson’s own

testimony showed that Robert Peck had not unconditionally released all future dominion


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and control over the Calder. She testified in her deposition that Peck could have transferred

possession of the Calder to anyone. Based on our standard of review, we cannot say that the

circuit court was clearly erroneous in determining that the elements of an inter vivos gift of

the Calder had not been established.

       In the alternative, Peterson argues that she received the Calder under the June 2001

trust. In making this argument, Peterson relies on a July 2004 letter her father wrote to

attorney Joe Polk about changes he wanted to make to his will and trust. The letter provided,

in pertinent part:

       After Hannah’s death, I want to divide the trust into two equal parts. One part is to
       be equally divided by my children – Capi Peck Peterson, Ashley O’Dell, Alison
       Bisno, Tony Peck. The second half is to be divided into equal parts among Hannah’s
       children – Christy Schmidt, Michael Lasiter, and Holly Woprice.

       I have not allocated where I want various pieces of furniture and artwork to go with
       the exception of the Calder Mobile which I have given my daughter Capi in a letter
       as an attachment to section 3.3 of the Peck Family Trust. In the letter I state that I
       give her the Calder but retain the right to display it during my lifetime. As to other
       works of art and furniture, I plan to photograph them and write on the back of the
       photograph the name of the individual who will receive that particular object. What
       is not photographed, I want all of these objects to receive a number and the seven
       children will draw for them. Since I have left all of these things to Hannah, I guess
       this is something that should be stated in her will but am not sure. Should it also be
       written in my Will or in the Trust ? Let me know. I will send you Hannah’s Will later
       on this week as it needs revising and would like for you to handle that for us.

Peterson contends that the provisions of the June 2001 trust permit such a letter to make an

effective disposition of personal property. Section 3.3 of the June 2001 trust provides as

follows:

             3.3 Specific Gifts. I reserve the right pursuant to Section 4 of the Act 814 of
       the Acts of the General Assembly of the State of Arkansas for 1979 Ark. Code Ann.
       § 27-25-107 (1987) to make disposition of tangible personal property by attaching or

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       associating with this trust subsequent to its execution a written, dated statement and
       list signed by me or in my handwriting designating the devisees of items of tangible
       personal property.

       Peterson does not argue that the July 14, 2004 letter was attached to the June 15, 2001

trust instrument. Nor does she argue that the April 2001 letter was effective under the

provisions of the June 15, 2001 trust because it clearly predated the establishment of any of

the trusts. Her argument is that the July 2004 letter postdated and was associated with the

June 2001 trust. The circuit court found that the July 2004 letter was not attached to, nor

did it reference, the June 15, 2001 Peck Family Trust. Instead, the court found that Peck

referenced the April 16, 2001 letter in which he attempted to gift the Calder to Peterson.

Due to our holding on Peterson’s next point on appeal, it is unnecessary to determine if the

July 2004 letter was effective under Section 3.3 of the trust.

       Peterson’s third and final point is that she did not forfeit her interest in the trust. The

circuit court found that Peterson lacked standing to sue as a beneficiary of the trust because

of the share-cancellation provisions of the trust.

       The June 15, 2001 trust instrument contains the following provision:

               4.8. Share Cancellation. Should any of my children, or their issue, institute any
       action to challenge the provisions of the trusts established by this document, or to
       attack the validity of such trusts, or to remove HANNAH KAY PECK as Trustee,
       or question her actions as Trustee, then, and in that event, the share to which such
       child (or his or her issue) would otherwise be entitled shall be forfeited and added to
       the shares of the remaining children and grandchildren.

The May 8, 2001 trust instrument as amended and restated in January 2005 contained a

similar provision:



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               4.9. Share Cancellation. Should any of Grantor’s children, or their issue,
       institute any action to challenge the provisions of the trusts established by this
       document, or to attack the validity of such trusts, or to remove Hannah Kay Peck as
       Trustee, or question her actions as Trustee, then, and in that event, the share to which
       such child (or his or her issue) would otherwise be entitled, shall be forfeited and
       added to the shares of the remaining beneficiaries.

The circuit court found no evidence that Hannah Peck acted in bad faith or with reckless

indifference with regard to her trust duties and that, as a result, the share-cancellation

provisions remained in effect and Peterson had forfeited her interest in the trust.

       Our supreme court has recognized the validity of no-contest clauses since at least 1937.

E.g., Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007); Jackson v. Braden, 290 Ark.

117, 717 S.W.2d 206 (1986); Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962); Ellsworth

v. Ark. Nat’l Bank, 194 Ark. 1032, 109 S.W.2d 1258 (1937). However, because such clauses

work a forfeiture, they are strictly construed. Restatement (Third) of Property (Wills & Don.

Trans.) § 8.5 cmt. d (2003); Hamm v. Hamm, 2013 Ark. App. 501, ___ S.W.3d ___.

       Courts in other jurisdictions have determined that no-contest clauses are not triggered

by proceedings brought by beneficiaries to assert claims outside of a will or trust, i.e., based

on a source of right independent of the will or trust. Jacobs-Zorne v. Superior Court, 54 Cal.

Rptr. 2d 385 (Cal. Ct. App. 1996); Wright v. Cummins, 196 P. 246 (Kan. 1921); In re Estate

of Friedman, 549 N.Y.S.2d 353 (Surr. Ct. 1989); Haley v. Pickelsimer, 134 S.E.2d 697 (N.C.

1964); Doelle v. Bradley, 784 P.2d 1176 (Utah 1989); Boettcher v. Busse, 277 P.2d 368 (Wash.

1954). Peterson’s claim of ownership of the Calder by inter vivos gift is independent of the

trust and would not trigger the share-cancellation provisions. There are, however, other

allegations in her complaint that do trigger the share-cancellation provisions of the trusts.

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       Peterson argues that her actions in filing her complaint did not attack the validity of

the trust. Citing Jackson, supra, she further contends that questioning the actions of the trustee

is not a violation of the no-contest clause. While Jackson did hold that questioning the acts

of the executor in selling assets was not an attack on the validity of the will that would trigger

the no-contest clause, the specific provision at issue only prohibited attacks upon the will.

Peterson’s argument ignores the specific language of the share-cancellation provisions set out

above. Those provisions are triggered if the grantor’s children, including Peterson, question

Hannah Peck’s actions as trustee. Here, Peterson’s amended complaint asserts that Hannah

Peck failed to provide proper accountings; that she used trust funds to purchase herself a

luxury automobile for $100,000; and that she depleted trust funds by investing in a fraudulent

Ponzi scheme. The complaint sought to have Hannah Peck provide accountings and to pay

damages to replenish the trust. Clearly, these allegations questioned Hannah Peck’s actions

as trustee and asked the court to control her actions as trustee, triggering the share-

cancellation provision.

       Peterson also argues that her complaint was aimed at the June 2001 trust, not the

January 2005 trust, and that she should remain a beneficiary of the January 2005 trust.

However, both trusts (June 2001 and January 2005) contain share-cancellation provisions that

are triggered if anyone questions Hannah Peck’s actions as trustee. The circuit court’s finding

that Peterson forfeited her interest was not clearly erroneous. Because Peterson forfeited her

interest in the trust, she cannot take the Calder or its proceeds through the trust.

       Affirmed.


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HIXSON and BROWN , JJ., agree.

Southern & Jordan, by: Byron S. Southern, for appellant.

Hatfield & Sayre, by: Richard F. Hatfield, for appellee.




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