McLain v. McLain
In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), the Court held that the wife failed to overcome the presumption of a gift with regard to stocks, bonds, and securities purchased primarily with funds derived from her separate property, but held jointly, with her husband.
The only evidence that the wife offered to rebut the presumption that she intended to make a gift was her testimony that she always thought of the stocks, bonds, and securities as being her property and that her husband was entitled to the income or what it could buy only as long as he was married to her.
In McLain, a chancellor found that certain personal property was not held by the parties as tenants by the entirety, and refused to distribute it between the parties.
The Court reversed, holding that the property was tenancy-by-the-entirety property, and, as such, was required to be divided equally between the parties, absent clear and convincing evidence to the contrary. We said:
Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the truth of the facts related. (McLain, 36 Ark. App. at 199, 820 S.W.2d at 296-97.)