text:
    McWater v. Ebone.
    5-2500
    350 S. W. 2d 905
    Opinion delivered November 20, 1961.

      Mikel & McCormick, by A. A. McCormick, for appellant.

      Warren O. Kimbrough, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee initiated this action by filing his complaint in the Sebastian Circuit Court, Fort Smith District, in which he alleged that the defendant, appellant herein, was indebted to him in the sum of $686.59 for tires, recapping and tire service during a period from February 10, 1959 through February 29,1960. The complaint was duly verified and to the complaint the appellee attached a statement of the account, listing only by numbers twenty-two invoices with four items of credit. This statement was also sworn to by appellee.

To this complaint the appellant filed a motion in which he stated that the appellee had set out the account in such a way that it was impossible for him, because of lack of knowledge or information about the account, to file an answer and asked that appellee itemize the account. Thereafter and before the court had passed on his motion to require the appellee to make his complaint more specific, the appellant filed an answer in which he denied each and every allegation of the complaint and later filed an amended answer in which he specifically denied every allegation in the complaint and pleaded that the complaint was not based on an open account but upon a written instrument and further alleged that the tires sold to him by the appellee were sold under a warranty that if the tires proved unsatisfactory, they were to be replaced or accepted back by appellee at full value and that the tires delivered were not satisfactory and were returned and accepted by the appellee.

This answer was sworn to by the attorney for the appellant who stated in his verification that the defendant was not in the State of Arkansas.

It does not appear that the court passed on the motion to make the complaint more definite and certain but transferred the cause to chancery and stated in the order that it was agreed the court was confronted with a detailed accounting problem. We assume that the court overruled the motion to make more specific, for the appellant filed an answer.

On the 12th day of January, 1961, the appellee filed a motion setting out that his action was based upon a stated verified account which was certified as correct under oath; that the appellant, Lloyd McWater, had failed and neglected to deny under oath the correctness of the account and he prayed judgment upon the pleadings. The appellant filed a response to that motion and stated that he stood willing and ready to testify under oath as to the statements made in his answers and asked that the motion be denied.

On the 2nd day of March, 1961, the chancery court found that the action was based on a verified account, with the plaintiff certifying same to be just and correct, and that the defendant, appellant here, had failed and neglected to deny under oath the correctness of said account and rendered judgment for the appellee on the pleadings.

In this we find the court was in error. The verified account filed with the appellee’s complaint does not measure up to the requirements of an itemized account as set forth in Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486:

“It will be observed that the account filed by appellee did not purport to be an itemized account, but only to show the total amount of bills alleged to have been sold on the dates mentioned without giving a complete inventory of the goods sold.

The word ‘account’ is said to have no inflexible technical meaning and is differently construed according to the connection in which it is used. However, in mercantile transactions it is invariably used in the sense of a detailed or itemized account. Bouvier defines the word as ‘A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.’ Substantially, the same definition is given in 1 Corpus Juris, p. 596, where it is said: ‘To constitute an account, there must be a detailed statement of the various items, and there must be something which will furnish to the person having a right thereto information which will enable him to make some reasonable test of its accuracy and honesty.’

In the Brooks case the word was ‘merchandise’; here the word is ‘groceries.’ Other cases as to itemization are Taylor v. Crouch, 219 Ark. 858, 245 S. W. 2d 217; and Terry v. Little, 179 Ark. 954, 18 S. W. 2d 916. Under these cases it is clear that the defendant was entitled to have the account itemized by the plaintiffs, specifying the particular articles (i.e., ham, cheese, crackers, lard, etc.) covered by the generic word ‘groceries,’ and totalling the amount of the purchases on each day shown. ’ ’

From this it is clear that the motion of the appellant to require the appellee to make his complaint more definite and certain should have been granted. It is true that there appears with the transcript a number of copies of invoices, some trade acceptances, and a ledger sheet but these do not appear to have been filed with the chancery clerk and are not made a part of any of the pleadings herein and we are left to assume that they fall under the heading of the “references to the invoices and exhibits in this case, which were made available to appellant and his counsel,” as stated in appellee’s brief.

When appellant filed his answer denying each and every allegation of the complaint, and further filed his amended answer setting up a valid defense, which amended answer was sworn to by appellant’s counsel, the issues in this case had been joined.

Arkansas Statutes 28-202 relied on by appellee is as follows:

“Affidavit as to correctness of account-sufficiency. —All accounts upon which suits may be brought in any of the courts of this state, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case, the plaintiff shall be held to prove such part of his account as is thus denied, by other evidence.”

This statute is merely a rule of evidence and if the allegations of the plaintiff’s complaint, which was verified, and the items of the exhibit to that complaint, which were also verified, had not been controverted, the statement of account which was sworn to would have been a prima facie showing on which a judgment for the appellee would have been sustained. The verity of the items in the statement may be denied by the defendant by affidavit filed in the ease or by verified answer, Its correctness may also be denied by the defendant under oath when he testifies as a witness in the ease.

The case of Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, cited by appellee, was a case in which the defendant, although given an opportunity to do so, offered no sworn testimony to overcome the prima facie showing of a verified statement of account. Such is not the case here.

In the case of Chicago Crayon Co., v. Choate, 102 Ark. 603, 145 S. W. 197, the import of the statute relied on by appellee is stated as follows:

“* * * The effect of this statute is to make such verified account, when undenied, prima facie proof of its correctness. In event the defendant does not under oath deny the correctness of the verified account which is made the basis of the suit, then it is not incumbent upon the plaintiff to introduce other evidence of its correctness ; and such an account, thus verified, is proof itself of its correctness. Such verified account, however, is only prima facie evidence of its correctness. It may be denied by defendant by an affidavit filed in the case, or by a verified answer. Its correctness may also be denied by the defendant under oath, when he testifies as a witness in the case. When such denial of the correctness of the account is made by the defendant under oath in either of these ways, then the burden rests with the plaintiff to prove by other evidence the correctness of the account thus denied. Boone v. Goodlett, 71 Ark. 577 (76 S. W. 1059); St. Louis, I. M. & S. R. Co., v. Smith, 82 Ark. 105 (100 S. W. 884). ’ ’ [Emphasis ours.]

It therefore becomes clear that the statement filed by the appellee did not comport with the requirements set forth in Griffin v. Young, supra, and that the items of the account were denied under oath in an answer. It is true that the affidavit to the answer was made by the attorney for the appellant. Ark. Stats., 27-1107 is as follows:

“Verification by agents or attorney. — Hereafter, in all of the courts of the State of Arkansas, in all cases in which the affidavit of the plaintiff or defendant is now required to verify a pleading, to obtain a warning order, a provisional remedy, or any other order, or on a motion or proceeding therein, such affidavit may be made by such party, or by the agent or attorney or attorney shall state that the affiant is the agent or attorney of the party.”

Therefore, the affidavit of the attorney for the appellant was sufficient under the circumstances.

The court should have therefore overruled the motion for judgment on the pleadings and have set the cause for trial in which the appellant may present the defenses which were set forth in his answers.

For the reasons herein set forth, the cause is reversed and remanded with directions to the trial court to overrule appellee’s motion for judgment upon the pleadings that further proceedings may be had not inconsistent with this opinion. It is so ordered.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Salzer v. Balkman, Trustee.
    5-2502
    351 S. W. 2d 422
    Opinion delivered November 27, 1961.

      Harclin, Barton $ Hardin, for appellant.

      J. H. Evans, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from the Logan County Chancery Court, Southern (Booneville) District, wherein appellants, Frederick Salzer and Clara Joan Salzer, seek reversal of a decree of that court entered on February 3, 1961, directing appellants to remove a certain fence, which appellees contend was placed in a public road, and restraining the Salzers from constructing any other fence “any closer to the road than a line parallel to the present fence and seven feet to the west thereof.” The evidence reflects that appellants purchased the land, over which the road in question is located, in 1949, and in March, 1960, Salzer replaced an old fence which ran parallel to the road, with a new fence seven feet to the east. For reversal, appellants principally argue that the use by the public of the road involved was permissive, and that no rights were ever acquired by prescription. It is also argued that the seven-foot strip in question is not a part of the road; further, that the county had abandoned any right it had to the road involved.

The road in question was principally used by those traveling to Highway No. 109, or to Ellington Cemetery, a community cemetery near the town of Magazine (though there was also evidence that it was used as a “lover’s lane”); it lay over unenclosed ground, and from the evidence, had apparently been used by the public for a long period of years prior to 1949. In fact, there is no dispute on this point. Salzer, who, as heretofore stated, purchased the property in 1949, contends that the use by the cemetery frequenters and others, over this long period of years, was entirely permissive, and several cases are cited to the effect that the use of unenclosed lands for passage is presumed permissive and not adverse. See Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986; Bridwell v. Arkansas Power & Light Co., 191 Ark. 227, 85 S. W. 2d 712; Brumley v. State, 83 Ark. 236, 103 S. W. 615. It is true that this is the general rule, but even the. cases cited mention exceptions. For instance, in Boullioun, the Court said:

‘ ‘ Cases might, and do, arise where those using a private way over uninclosed lands may, by their conduct, openly and notoriously pursued, apprise the owner that they are claiming the way as of right and thus make their possession adverse, but there were no such circumstances in this case, and therefore the user must be deemed to have been by consent of the owner, and, being permissive, could not ripen into a legal right.”

Also, in the Brumley case, this Court said:

‘ ‘ They were dirt roads leading through unfenced and wild lands, and the mere fact that the public may use such roads leading through the open forest for seven years or over does not as a rule make them public roads. When the public use a road running through open and unfenced lands without any order of the county court making it a public road and without any attempt to work it or exercise authority over it as a public highway, the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent.” The above sentence is italicized because in the case before us, while no order was ever entered establishing this road as a county road, the evidence does establish that the road was maintained over a long period of years by the county. This maintenance apparently was regular and consistent, rather than occasional; in fact, so much so, that appellant Salzer, himself, referred to the road as a county road. From the testimony:
“Q. You knew this county road was there when you received the deeds?
A. Yes. At the time I received the deed there was just one road.
Q. And that road was worked by the county?
A. Yes.
Q. You saw the county work that road?
A. Yes.
Q. Did you know where that road was located with reference to the property you bought?
A. Yes, sir.
Q. You knew that the old county road went across part of the property that you received a deed to ?
A. Yes.”

That a public way by prescription may be established over unenclosed lands is evident by our decision in Martin v. Bond, Trustee, 215 Ark. 146, 219 S. W. 2d 618. There, these same cases were cited that are presently cited by appellee, but this Court held that the presumption of permissiveness is not conclusive, and found that the evidence in that case established the public way by prescription. The facts in Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18, cited by appellants, are far different from those in the case at bar. In that case, those claiming the right to use a road had conferred with Craig relative to whether they had the right to use same; also, we held the evidence did not establish the roadway to be a public road, and it was pointed out that most of the people asserting a right to use the road had not used same for a sufficient period of time to establish their adverse rights. Here, in addition to the county maintenance, it appears that the public asserted a right to use the road in question. Prior to 1949, it would seem that this road was used exclusively for entrance to the cemetery by funeral processions, and those visiting graves of loved ones or friends. Noteworthy evidence that the public had acquired a prescriptive right is contained in the testimony of Salzer himself. Following the last question and answer heretofore quoted, Salzer was asked: “And you recognized the right of the public to use that road?” The answer was, “Yes.”

Nor can we agree that the road had been abandoned. This contention by appellant is based on the fact that a new road was constructed by the county, over which people may also reach the cemetery. This road was built along about the same time Salzer acquired the property in question, and during the same period of time that a new portion was added to the cemetery. This part of the cemetery is north of the old cemetery and is divided by the old road, here in controversy. The proof on the part of appellees reflects that after the new road was built, the public continued to use the old road, much as in the past, and the county continued to maintain it. People still traveled to the cemetery over the old route, and cars parked on each side of the road at funerals, still leaving space for other cars to traverse the disputed way. This newer road was built in 1949 or 1950, but the fence was not moved until 1960. There is nothing in the record to establish that the later road was constructed to be used in lieu of the original road; nor is there evidence that it was constructed pursuant to the application of the public for a new road, made because of a threat to fence off the old one. Of course, Salzer did not move the fence until ten years after the new road had been constructed. In fact, Logan County intervened in this action, asserting:

" That the road described in the complaint of plaintiffs, and which is the subject matter of this action, has been established for at least the past fifty years by prescription and the general public has used said road continuously for said period of time under a claim of right; that during the past fifty years said road has been worked and maintained by the County of Logan, State of Arkansas, as a public county road.”

Further, the fence erected by appellants was “interfering with the right of the public to use said road.” It is apparent that the facts herein are far different from those set out in Holt v. Crawford County, 169 Ark. 1069, 277 S. W. 520, cited by appellants.

Appellants argue that the seven-foot strip involved is not a part of the road; rather, they contend that the seven feet is only a ditch to the west of the road, which was filled with beer cans and debris, and very much needed ' cleaning up. ’ ’ The testimony was in conflict as to the prior use of this seven feet as a road, and the photographs offered as exhibits do not make the matter clear. J. W. Balkman, who testified on behalf of appellees, stated that the new fence “was in the road proper”, and other witnesses testified that the construction of the fence had considerably shortened the width of the road, though this was disputed by witnesses on behalf of appellant. This leaves the matter purely a question of fact, but aside from that, it does appear, at any rate, that the fenced portion served as drainage for the road. Some of appellant’s witnesses concurred in this view. From the testimony of Laddie Hopkins:

“Q. You talked about a ditch on the west side of the road?
A. Yes.
Q. That was not part of the roadway but it was a ditch to carry the water?
A. That was what it was put there for.
Q. Is that the ditch that carried the water off that you are talking about being grown up?
A. Yes. It grew up every year with weeds and biishes and such.
Q. And it carried the water on that side of the road?
A. Yes.”

We think the evidence in this case establishes a prescriptive right to use of the ditch as well as use of the road. Though we need not go so far in this instance, it is interesting to note there is authority that “when a road is established by prescription, the right is not limited by the beaten path used, but may be made to include sufficient land for drainage ditches, repair, and the convenience of the traveling public.” Haby v. Hicks, 61 S. W. 2d 871 (Texas).

Some space is devoted in the briefs to the question of whether the road in question was a county road, but we need not discuss that issue, since the determinative point is whether the public had acquired a right to the road by prescription.

The Chancellor, who heard the witnesses testify, and was thus in a more favorable position to evaluate their testimony, found:

‘ ‘ The old road was never closed or abandoned at the points involved in this action, but was in uninterrupted, continuous service by anyone who cared to use it for access to the cemetery, for parking, for a lover’s lane, or for access to the hayfield gate of the defendants.
* # * #

The Court finds that the semi-circular drive through the cemetery is now and for many years past has been a ‘Public Road’. This road includes the drainage area on each side of the road. Both the road, the drainage area and the fence line have become established and defendants had no right to move the fence at the points in question any nearer to the road than where it had been maintained for more than 50 years past immediately prior to the acquisition of the land by the defendants, that space between the old fence line and the crown of the road being a part of the public road.”

We are unable to say these findings are against the preponderance of the evidence.

Affirmed.

       Point IV asserts that appellees have no right of necessity to the road in question, but appellees make no such contention, and that point is not at issue.

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Worthington v. Worthington.
    5-2474
    352 S. W. 2d 80
    Opinion delivered November 27, 1961.
    [Rehearing denied January 8, 1962.]

      Willis V. Leiois, for appellant.

      O. W. Pete Wiggins, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal challenges a decree which refused to annul a marriage. Appellant, Paul Worthington, and appellee, Judith Worthington (nee Nahlen), were married in Idabel, Oklahoma, on October 24, 1960. On the day following the marriage, Paul filed this suit for annulment, alleging that the marriage was entered into by him under duress, i. e., threats on his life and the lives of his parents made by the appellee’s stepfather, Fred Stratton, who forced Paul to drive to Idabel, Oklahoma, and have the marriage ceremony with appellee, Judith.

The answer denied any duress; and, by cross-complaint, appellee alleged: “That she is now pregnant by the plaintiff and has been so for more than six months, that her child is due to be born soon, and that she is without funds with which to pay her hospital bills, doctor bills, and other lying-in expense and the plaintiff should be required to pay a reasonable sum to be fixed by this Court . . .” Trial in the Chancery Court resulted in a decree reading in part as follows: “The Court finds that the burden of proof was on the plaintiff to prove the allegations of his complaint by clear and convincing and satisfactory evidence, which he failed to do, and it is therefore the order of the Court that the plaintiff’s complaint be and it is hereby dismissed.” The plaintiff ivas required to pay $10.00 per week for defendant’s maintenance and also to pay court costs and attorney’s fee. From the judgment of the Chancery Court, appellant prosecutes this appeal, urging: “That the evidence produced by the plaintiff and appellant herein was more than sufficient to justify a judgment on behalf of said plaintiff and appellant.”

I. The Applicable Law. The law of Oklahoma governs as to the annulment of the marriage because it was solemnized in Oklahoma and the parties never lived together in Arkansas. The law of the forum determines the procedure, but the law of the place of the matrimonial contract (Oklahoma) governs the validity of the contract at the place of its execution. Feingenbaum v. Feigenbaum, 210 Ark. 186, 194 S. W. 2d 1012; Leflar, “Conflict of Laws” § 140; and Leflar, “The Law of Conflict of Laws” § 170. What is the law of Oklahoma? In Oklahoma Statutes, Annotated, Title 12 § 1283, it is stated:

“When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage, the same may be declared void by the district court, in an action brought by the incapable party or by the parent or guardian of such party; but the children of such marriage, begotten before the same is annulled, shall be legitimate. Cohabitation after such incapacity ceases shall be a sufficient defense to any such action.”

This statute was borrowed by Oklahoma from the General Statutes of Kansas of 1889, par. 4761; and the purpose of quoting this statute is to show that Oklahoma recognizes that marriages may he annulled.

The Oklahoma statute does uot specifically mention a marriage contracted under duress, hut in the case of In re Mo-se-che-he’s Estate (1940), 188 Okla. 228, 107 Pac. 2d 999, the Supreme Court of Oklahoma held that a District Court, under its broad equity jurisdiction, had power to annul a marriage entered into while one of the parties thereto was under an inhibition different from any mentioned in the foregoing statute. The Oklahoma Court said that a court of chancery, by virtue of its ordinary equity powers, possesses jurisdiction in a suit brought for the purpose of annulling a marriage, and the Court mentioned a number of grounds in addition to those listed in the foregoing statute.

In 55 C. J. S. 929, ‘ ‘ Marriage ” § 52, in discussing the general jurisdiction of a court of equity to annul a marriage, cases from many jurisdictions are cited to sustain this text: . . where no statutory limitation has been imposed on the jurisdiction of a court having general equity powers to entertain such suits, a court of equity may take jurisdiction of a suit to annul a marriage where the ground alleged is one on which equity gives relief in respect of contracts generally, namely, in the case of fraud, error, duress, mental incapacity, or want of consent generally.”

II. The Quantum Of Evidence Required. The law of Oklahoma and the law of Arkansas coincide on the necessity of the person seeking to annul the marriage to offer strong, clear, and convincing proof before annulment will be decreed. In Phillips v. Phillips, 182 Ark. 206, 31 S. W. 2d 134, in discussing the quantum of evidence necessary to support a decree for marriage annulment, we quoted from an earlier case:

‘ ‘ ‘ Every intendment of the law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proof, the law raises a strong presumption of its legality; not only casting the burden of the proof on the party objecting, but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. So that it cannot he applied like ordinary questions of fact, which are independent of this sort of presumption.’ ”

The Oklahoma Supreme Court held in Blunt v. Blunt (1947), 198 Okla. 138, 176 Pac. 2d 471, that the marriage relationship is of such public concern as to require courts to scrutinize actions to annul marriages to discern their probable effect on the public as well as on the individual parties. Likewise, in Stone v. Stone (1944), 193 Okla. 458, 145 Pac. 2d 212, the Oklahoma Supreme Court held that the evidence in an action to annul a marriage had to be strong and conclusive. The general rule is stated in 55 C.J.S. 938, “Marriage” § 58: “The Courts will not grant a decree of nullity except on the production of clear, satisfactory, and convincing evidence.” We have several cases in Arkansas, in each of which marriage annulment was sought on the claim of duress. Some of these cases are Honnett v. Honnett, 33 Ark. 156, 34 Am. Rep. 39; Marvin v. Marvin, 52 Ark. 425, 12 S. W. 875, 20 Am. St. Rep. 191; Lee v. Lee, 176 Ark. 636, 3 S. W. 2d 672; Killer v. Killer, 180 Ark. 1152, 24 S. W. 2d 867; Phillips v. Phillips, supra; and Feigenbaum v. Feigenbaum, supra.

III. The Insufficiency Of The Evidence. Measuring the evidence herein by the applicable rules heretofore mentioned, we conclude — as did the Chancery Court— that the plaintiff failed to establish his case. Paul Worthington was no novice in matrimonial matters. He had a divorced wife and a child at the time he contracted the marriage here involved. He was twenty-two years of age, and Judith Nahlen was nineteen years of age. To recite all of the evidence would serve no useful purpose. Paul Worthington admitted his intimacies with Judith; and his ardent love letters were introduced in evidence; but he claimed that his ardor cooled when Judith told him — which she vigorously denied — that it was doubtful that he was the father of the child to be born. At all events, Judith returned to Little Rock and called Paul on the night of October 23, 1960, and he went in his car to see her. Then Paul says the duress began when Judith’s stepfather threatened to kill him unless he married the girl. Judith, her mother, and her stepfather drove with Paul in his car to Texarkana to have the marriage ceremony in Texas. Paul says all of this was against his will, and that he went only because Judith’s stepfather threatened to kill him, but while Paul was in Texarkana, he was away from the others and called his parents over long distance and could have avoided the marriage if he had so desired. He was away from any alleged duress and could have stayed away. Instead, when it was learned that a waiting period was required before a marriage could be performed in Texas, Paul, Judith, her mother, and the stepfather drove to Idabel, Oklahoma. There Paul again eluded the stepfather and appealed to a police officer for protection. Pull protection was given him. The Chief of Police of Idabel, called by Paul to substantiate his story, testified:

“I told the boy he didn’t have to marry the girl and that was strictly up to him. I said that I didn’t know what the Arkansas Statutes were but that I could tell him what they are in Oklahoma and I said, ‘you do as you please, you don’t have to marry her.’
Q. And you advised him further it was entirely up to him, you would see that he had safe transportation ¿ack?
A. Yes, sir.”

While thus under police protection, Paul called his mother in Little Rock, and the Police Chief testified:

“Q. He talked to his mother and after he talked to her he decided he was going ahead with it?
A. Yes, sir, he decided to marry her.”

And again the officer testified:

“A. I didn’t try to stop it after they agreed to go through with it.
Q. Did he apparently agree to it of his own accord and own will?
A. Yes, sir.”

Paul Worthington claimed that the reason he agreed to the marriage was because Judith’s stepfather said that if Paul didn’t marry Judith, then the stepfather would come back to Little Rock and kill Paul’s parents. This, he claimed, was the real duress. But the evidence is in dispute as to whether this alleged threat of the stepfather was before or after the telephone conversations that Paul had with his parent, as previously mentioned. Here is what the Police Chief — called by Paul Worthington- — testified on this point:

“The Court: I am trying to get from the Chief, if he recalls, but he doesn’t recall, which occurred first.
A. I told you a while ago I don’t know which one of the conversations came up first, but I did say I believe the conversation over the telephone was first.”

Judith, as well as her mother and her stepfather, strongly dispute Paul’s testimony as to all matters of duress; and with Paul’s testimony unsupported on the vital matter of duress through threats, we cannot say that the Chancery Decree is against the preponderance of the evidence. There may have been some duress exerted originally by Judith’s stepfather, but the evidence seems rather clear that Paul ultimately acquiesced and voluntarily applied for the marriage license and had the wedding ceremony performed by the County Judge at Idabel, Oklahoma; and it was only after he returned to Little Rock and consulted his parents that he decided to claim continuing duress.

The decree of the Chancery Court is affirmed; the appellee is awarded $150.00 additional attorney’s fee in this Court; and the Chancery Court has continuing jurisdiction to consider the petition of appellee for maintenance allowance and other expenses for herself and child.

       Published by the West Publishing Company in 1951.

       The Arkansas statutes regarding annulment of marriage are found in § 55-106 et seq., Ark. Stats.


author: George Rose Smith, J.

text:
    Robinson v. Shivley, Admr.
    5-2527
    351 S. W. 2d 449
    Opinion delivered November 27, 1961.

      Bon McCourtney & Associates, by Claude B. Brinton, for appellant.

      Harry L. Ponder, Patrick O. Freeman, Jr., Thayer, Mo., for appellee.
   George Rose Smith, J.

This is an application by the appellant, as the widow of Thomas J. Robinson, for an award of statutory allowances from her husband’s estate. Ark. Stats. 1947, § 62-2501. The administrator contested the petition on the ground that Mrs. Robinson had joined with her prospective husband in an antenuptial contract by which she relinquished all claims to “dower, homestead, widow’s award, or other right” in her husband’s estate. The probate judge held the contract to be valid and accordingly denied the widow’s application for statutory allowances.

The controlling question is whether the antenuptial contract was valid under the law of Missouri, where Robinson was living before the marriage and where the contract was executed in 1957. The agreement recites that it is to be governed by Missouri law, and in any event that law would be controlling, since the contract was signed in that state. Simpson v. Weatherman, 216 Ark. 684, 227 S. W. 2d 148, 18 A. L. R. 2d 755.

The parties were in their late fifties when they were married in August of 1957. On the morning of their wedding day they executed the antenuptial agreement, in the office of Robinson’s Missouri attorney. In substance the agreement provided (a) that Robinson would provide reasonable support for his wife while the two were living together as husband and wife, and (b) that each spouse relinquished any claim whatever to an interest in the other’s estate. The appellant received no transfer of any property under the contract.

It cannot be doubted that the appellant’s attempt to release her rights as Robinson’s widow would have been void under the law of Missouri as it existed before the enactment of a new probate code in 1955. From 1825 until 1955 Missouri had a statute that read in part as follows: “If any woman prior to and in contemplation of marriage shall, in agreement or marriage contract with her intended husband, or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid, and a bar to dower in the estate of her husband.” Mo. Rev. Stats. Anno. (1939), § 334.

This statute was construed by the Missouri courts to mean that a woman’s antenuptial release of dower in her prospective husband’s estate was valid only if she received under the agreement a conveyance of property as a provision for her support during life. As the court said in the leading case of Mowser v. Mowser, 87 Mo. 437: “Even if a parol agreement can be allowed to defeat dower, the widow must receive under it, real or personal property as a provision for her support during life; it is against public policy to allow a man, by an agreement before marriage, which does not secure to the wife a provision for her support during life after his death, to bar her right to dower. The statutes sanction no such agreement.” Later cases include King v. King, 184 Mo. 99, 82 S. W. 101, and Reger v. Reger, 316 Mo. 1310, 293 S. W. 414.

Despite these cases the appellee insists' that the ancient Missouri rule was abrogated by the 1955 probate code, which revised the former statute to read as follows: “If any person prior to and in contemplation of marriage in agreement or marriage contract with his intended spouse, or other person, receives any estate either real or personal to take effect after the death of his spouse, or any other time, as a provision for his support during life, and expressed to be in full discharge of all his rights of inheritance or any other statutory rights in the estate of his spouse, such estate shall be valid, and a bar to his rights of inheritance and other statutory rights in the estate of his spouse.” Mo. Rev. Stats. (1959), § 474.120.

We are not convinced that the legislature intended the suggested change in the law. The appellee relies largely upon a treatise by Almon H. Maus on Missouri Probate Law and Practice, published in 1960. In § 1241 of that work the author discusses the possibility that the settled Missouri rule may have been changed by the probate code. To support this view it is pointed out that the Missouri statute now applies to both spouses instead of to the woman alone. It is also pointed out that under the probate code a woman may, before or after marriage, waive her right to take against her husband’s will if she receives for the waiver “a fair consideration under all the circumstances.” Mo. Rev. Stats. (1959), § 474.220.

Neither of the two provisions mentioned lends persuasive support to the appellee’s argument. The probate code abolished dower and curtesy, § 474.110, and provided instead that a surviving husband or wife should have identical statutory interests in the other’s estate. § 474.010. The law governing antenuptial contracts was apparently amended to conform to this policy of treating the two spouses exactly alike. And, in permitting a woman to waive her right to take against her husband’s will, the legislature was careful to insert a requirement that she receive a fair consideration for the waiver. This is essentially similar to the protection long afforded her by the antenuptial contract statute.

The Missouri probate code of 1955 was a comprehensive statute that necessarily required careful draftsmanship. It must he assumed, and really cannot he doubted, that the framers of the code were familiar with the settled judicial construction of the statute controlling antenuptial agreements. That law was rewritten to make it harmonize with other provisions in the code, but there is no sound basis- for saying that the legislature meant to change what had been the state’s declared policy for a hundred and thirty years. The vital clause in the older law was that the woman receive “a provision for her support during life.” This clause was carried forward almost verbatim in the section as rewritten in 1955. When we consider how simple it would have been for the lawmakers to have expressly made a change in the law if that had been their desire we are not convinced that they intended to achieve the same result by indirection.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Ledford v. State.
    5019
    351 S. W. 2d 425
    Opinion delivered November 27, 1961.

      W. W. Shepherd, for appellant.

      Frank Holt, Attorney General, by Dennis W. Horton, Asst. Attorney General, for appellee.
   Paul Ward, Associate Justice.

Appellants, Rex and Yiola Ledford, were convicted and sentenced to one year in the State Penitentiary for the crime of arson. They were charged with wilfully, feloniously and maliciously setting fire to their own home located three miles east of Atkins on Highway No. 64. The Ledfords, who are grandparents, owned their home and also a small cafe building close (60 feet) by. Living with them were three children, including a married daughter. Appellants were convicted on circumstantial evidence. Appellants set forth six points upon which they rely for a reversal but they can all be included, and will be discussed, under the following groupings: One, no substantial evidence to support the jury’s verdict. Two, they were deprived of the right to testify in their own behalf.

One. The fire, which damaged but did not destroy the house, apparently originated a short time before 6:30 p.m. on Saturday, January 14, 1961. The fire was first discovered at the time above mentioned, when it was beginning to grow dark. Testimony in behalf of appellants placed them in Little Rock at 6 p.m. visiting the sister of Mrs. Ledford. This sister testified that it was fifty-two miles from Little Rock to Morrilton and that it took sixty to ninety minutes to make the trip. We note that appellants’ home is some ten miles beyond Morrilton from Little Rock. There was also other testimony by a witness, who lives at Morrilton, to the effect that she saw appellants in that city at a time which made it unlikely appellants could have set the fire to their home.

The state’s theory of the case: The Ledfords made two attempts to burn down their house. The first fire was set by appellants in the dining room and kitchen area before they left for Mississippi on the previous Thursday. Contrary to their plan, this first fire died out after burning through one or more joists in the ceiling. When the Ledfords returned on Saturday afternoon they found that their first attempt to burn the house had failed. They then set a second fire in the bedroom area and left hurriedly for Little Rock, where they spent the night in the home of Mrs. Ledford’s sister. The second fire was discovered and extinguished before it spread beyond the bedroom area.

In our opinion there is substantial evidence to support the above theory and consequently the jury’s finding of guilt.

The fire in the bedroom area was discovered by two passers-by between six thirty and seven o ’clock on Saturday evening. The fire department at Atkins, three miles away, was called and arrived in time to confine the damage to the one bedroom where the fire originated. There can be no doubt that both fires were of deliberate origin. Mr. Ledford admitted this, and circumstances are also convincing. There is no indication that the house was broken into; so the jury doubtless concluded that the fires were set by some one who had a key to the house. As far as the record shows, no one except the Ledfords meets this requirement.

The house was examined on Saturday night, after the fire, by the Atkins fire chief, his assistant, and a state policeman with special training in such matters. They found that separate fires had been set in the dining room and the kitchen, and that the sheetrock had been removed to hasten combustion in each area. The first fire (in the kitchen) had burned a large hole in the ceiling, from which sheetrock was hanging down, and had burned through the ceiling joists. The state police officer explained that the first fire would have continued to burn except for the lack of oxygen in the closed house. When the fire in the dining room was discovered and extinguished the ashes from the fire in the kitchen were already white and completely cold. This fact, together with the fact that the house was locked when appellants left it on Thursday, strongly indicates the first fire was set before they left. In the attic the officers found a strip of wallpaper that had been laid so that it extended from a point above the kitchen to a point above the bedroom where the later fire took place. This strip of paper was burned at the kitchen end, but the fire had gone out before reaching the far end of the strip, indicating that whoever set the first fire had expected it to travel along the Avallpaper to the bedroom area.

The circumstances were so suspicious that the Led-fords were questioned more than once. It developed that they had left by car for Mississippi on Thursday afternoon. The trip was not planned in advance and was not made for any pressing reason. The only excuse ever given for the journey was that Mrs. Ledford’s daughter wanted to visit her husband, but the party stayed only two or three hours before driving on to Louisiana. The travellers got back to Atkins at some time on Saturday afternoon, between one and four o’clock. When first questioned Ledford denied that he visited the house that afternoon, but eventually it was admitted that both he and Mrs. Ledford had gone to the house and spent from thirty minutes to two hours there. It cannot be doubted that during that visit the damage caused by the first fire was too obvious to be overlooked. There was a gaping hole in the ceiling; sheetrock was hanging down; ashes were on the floor. But Ledford told the officers that he and his wife stayed in the house for some time and “noticed nothing unusual.” These facts and circumstances lead most convincingly to but one conclusion: that the Ledfords ignited the second fire during that visit to the house.

Upon leaving the premises on Saturday afternoon the Ledfords arranged for their children to spend the night with Mrs. Ledford’s aunt. The plan was devised so hurriedly that the children were not supplied with sleeping garments. Mr. and Mrs. Ledford then drove to Little Bock and spent the night with Mrs. Ledford’s sister. There is no explanation for this trip; indeed, the sister testified that she did not know that the Ledfords were coming. Whether the Ledfords were in Little Bock at six o’clock is a disputed question of fact, upon which they are supported only by the testimony of Mrs. Led-ford’s sister. Another of the defense witnesses said that the Ledfords were in Morrilton between five and six o ’clock.

There were other circumstances to support the view that the Ledfords had planned the fires. The closets appeared to have been stripped of clothing. There were many coat hangers in each closet, but only two or three garments. When Ledford was first questioned about this he insisted that he owned only one suit and an extra pair of pants, but it was later found that many boxes and suitcases containing clothing had been placed in a storeroom behind the house. Ledford originally denied ownership of this clothing, but eventually he admitted that part of it belonged to his family. The family television set had also been removed from the house. There was also evidence indicating the house and its contents were greatly overinsured.

Appellants offered no testimony to explain away many of the above incriminating facts and circumstances which, we think, constitute substantial evidence to support the jury’s verdict. The jury, of course, must be convinced of guilt beyond a reasonable doubt, and its verdict cannot stand if it rests solely upon speculation and conjecture. However, as stated in Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23, “. . . circumstantial testimony is legal and proper, and, when properly connected, furnishes a substantial basis and support for a jury’s verdict.” Moreover, as was said in Morgan v. State, 189 Ark. 981, 76 S. W. 2d 79, “In testing the sufficiency of the evidence to support the verdict, we must view the evidence for the State in the light most favorable to it. . . .”

Two. Appellants do not argue the point, but they ask for a reversal because they say they were denied the right to testify in their own behalf. This point was raised in a Motion for a New Trial, supported by appellants’ affidavits. The trial court denied the motion, and we think he was justified in doing so. The substance of appellants’ affidavits is that they asked their attorney to let them testify but he would not let them, with the attorney giving as his reason that they would ‘ ‘ just mess up the trial and cause more damage,” Appellants admit that the matter was not called to the attention of the Court.

We feel that it would be mere speculation for us to judge the wisdom of the trial attorney in taking the position he did. Appellants are mature people and they were free and qualified to select an attorney of their choice. A similar situation was presented to us in the case of Jones v. State, 224 Ark. 134, 273 S. W. 2d 534, where it said:

“We can see no possible error based on the fact that appellant was not placed on the witness stand by his counsel. It is not contended that any request was made to the court by either appellant or his attorney for appellant to testify ... we cannot say that it was not for his best interest to refuse to take the stand and refuse' to submit himself to cross-examination.”

The court in this same case went further and saidt

“Here, it must be rememberd, appellant is a mature man and should bear some responsibility for selecting an attorney of his own choice.”

It is our conclusion therefore, based on what we have heretofore said, that the judgment of the trial court should be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Ham v. State.
    5018
    351 S. W. 2d 428
    Opinion delivered November 27, 1961.

      John Luther Ilami, pro se, for appellant.

      Franlc W. Wynne, Prosecuting Attorney, for appellee,
   Sam Robinson, Associate Justice.

Petitioner, John Lutber Ham, bas filed a petition in tbis Court for a writ of error coram nobis. He alleges that in December, 1955, he was coerced into signing a confession to the crime of forgery and further coerced into pleading guilty to that offense in the Dallas County, Arkansas, Circuit Court. He alleges that he was sentenced to three years in the Arkansas Penitentiary and after serving one year he was paroled hut that his parole has now been revoked. It appears that he is at this time in a penitentiary at Springfield, Missouri, and that after completing his sentence there he will be turned over to Arkansas authorities to finish serving his sentence in the Arkansas penitentiary.

The issue of whether a defendant has been coerced into pleading guilty to an offense may be raised by a petition for a writ of error coram nobis. State v. Hudspeth, 191 Ark. 963, 88 S. W. 2d 858. But that case points out that a writ of error eoram nobis lies for the purpose of obtaining a review and correction of a judgment by the same court which rendered it, unless, however, the judgment has been affirmed by this Court, in which event petitioner must have the consent of this Court before he can file the petition in the trial court. Ham did not appeal from the judgment rendered by the Dallas Circuit Court and therefore, of course, the judgment has not been affirmed here and we have no record from which we can reach a conclusion as to the facts.

Petition denied.

Johnson, J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Armstrong v. Lloyd.
    5-2560
    352 S. W. 2d 84
    Opinion delivered November 27, 1961.
    [Rehearing denied January 8, 1962.]

      Bernard Whetstone, for appellant.

      Mahon-y cB Yocum, for appellee.
   Jim Johnson, Associate Justice.

This case is before us for the second time. On the first appeal, Armstrong v. Lloyd, 230 Ark. 226, 321 S. W. 2d 380, we reversed the trial court for having sustained a demurrer to appellants’ 'Complaint. After that reversal, the ease was tried to a jury resulting in a verdict for the defendant.

Appellant prosecutes the present appeal contending that the trial court erred in: 1. Befusing to excuse the juror Alpuente for cause; and 2. In refusing to require-defense counsel to disclose the name of any liability insurance company which had issued any indemnity policy to the defendants.

The record reveals that the juror Alpuente stated that he was acquainted with some of the defendants and members of their families. He further stated that he had previously done business with one of the defendants and that in view of these circumstances he would find it embarrassing to return a verdict against the defendants. This statement was subsequently modified by the tales-man when he stated that he could disregard his previous association in dealings with the defendant and try the case wholly and solely upon the evidence adduced from the witness stand and the law as charged by the court and render a fair and impartial verdict. In this state of the record, the trial court in the exercise of its sound discretion held the juror to be qualified. The trial court had an opportunity not given to us, i. e., to see and hear the talesman, to observe his manner and demeanor and thereby was enabled to form a much more intelligent opinion about the impartiality of the juror than we can form by relying upon the cold printed page. While acknowledging it to be the better practice to excuse all talesmen who give any hint or intimation that they ever entertained any preconceived feelings or opinion which would cause them to lean one way or the other, we cannot say in the instant case that the trial court abused its discretion. Hence, appellants’ first point must be rejected.

Point number 2 has given us most serious concern. It is a question which has never been presented to this Court. There are many cases deciding questions which were closely akin to the one in the case at bar but none of such cases may be said to be a precedent on the precise question here. It has long been'the rule that plaintiff’s counsel is entitled to certain information with reference to the connections of prospective jurors with liability-carriers who would bear the ultimate brunt of any verdict adverse to the defendants. However, in the enunciation of this rule, this Court has steadfastly stated that unless the matter of insurance coverage was relevant to some issue in the case on trial, it should not be gratuitously injected for the purpose of unnecessarily advising the jury of the fact of such coverage thereby possibly prejudicing them in their determination of the case. In the application of the foregoing rules, we have said that the connection of the talesman with particular carriers should be developed by general questions not calculated to advise the jurors that any particular company had issued coverage in the case on trial. Delong v. Green, 229 Ark. 100, 313 S. W. 2d 370. In the Delong case, supra, it was plainly implied that counsel might require a prospective juror to answer as to the names of any and all liability carriers with which he might be connected. It is immediately obvious that such an inquiry would be futile if plaintiff’s counsel did not know the name of the carrier involved for it would make no difference what information he might receive from the prospective juror unless he could weigh such information in the light of known facts as to the identify of the carrier involved. Therefore, it would seem that it is proper for the trial judge, out of the hearing of the jury, to order defense counsel to identify by name any liability or casualty carrier having any ultimate responsibility in connection with the case. The only alternative to this rule would be to allow plaintiff’s counsel to inquire of any talesman who answered that he was connected with liability carriers as to whether or not such talesman represented a company who wrote the liability coverage in the case on trial. Of course, such an inquiry would immediately advise the jury that there was liability coverage in the case. It would seem more consonant with our previous holdings to require defense counsel to give this information out of the hearing of the jury than to nullify the salutary safeguards presently surrounding insurance carriers in these cases by allowing direct questions which necessarily and by their very terms advise of the existence of liability coverage.

While this question is new to this jurisdiction, it has been before the court of our sister State of Missouri on at least two previous occasions in the cases of: Hill v. Jackson, Mo. App., 272 S. W. 105; White v. Teague, 353 Mo. 247, 182 S. W. 2d 288. The holding of these cases has been summarized in 21 Ins. Law and Practice, Appleman, § 12815, P. 499, wherein it is said:

“Missouri has stated in this connection that it is the defendant’s duty to state the true facts to the court, so that such interrogation can be made. Thus the court may require the defendant’s attorneys, out of the presence of the jury, to give the name of the liability insuror, and permit the plaintiff’s attorneys to ask the jurors concerning their connection with such company.” (Emphasis supplied.)

While our case of Delong v. Green, supra, would preclude an interrogation of the talesman as to their connection with a particular company, as previously observed herein, the same result could he obtained by compelling the disclosure of the name of the carrier out of the presence of the jury and then allowing counsel to require the talesman to give the names of all carriers with whom they might be connected. With this information, counsel could then intelligently exercise the challenges to which the plaintiff is entitled under the law. Without all of this information, it would be impossible to make an intelligent determination as to the exercise of these challenges. It should be borne in mind that the right of the plaintiff to information enabling an intelligent exercise of challenge is equal to and on the same plane with the right of the defendant to prevent a gratuitous injection of the issue of insurance. The rule herein-above announced seems to us to protect and preserve the rights of plaintiff and defendant alike. It is no answer to the question to say that an attorney should not be compelled to disclose the name of his insurance-carrier client on the ground of attorney-client privilege. This is made abundantly clear by the following statement from 58 Am. Jur., Witnesses § 507, P. 285:

‘' The rule making communications between attorney and client privileged from disclosure does not ordinarily apply where the inquiry is confined to the fact of the attorney’s employment, the name of the person employing him, and the terms of the employment. The privilege presupposes the relationship of client and attorney and therefore does not attach to its creation.” (Emphasis supplied.)

For the reasons stated, the case must be reversed and the cause remanded for a new trial.


author: Neill Bohlinger, Associate Justice.

text:
    Calmese v. Weinstein, Admr.
    5-2506
    351 S. W. 2d 437
    Opinion delivered November 27, 1961.

      William R. Fre.eman, Los Angeles, Calif., Thad D. .Williams, for appellant.

      Frances D. Holtsendorff, for Eugene R. Weinstein, Admr., Charles L. Carpenter, for Block Realty Company, for appellee.
   Neill Bohlinger, Associate Justice.

Alice Connolly Ousley died intestate in Pulaski County Arkansas seized and possessed of an interest in several pieces of real estate and the following are her surviving children and heirs. Sarah O. Cálmese, Dorothy O. Akins, Helen Ousley Parker, Myra Ousley Goodwin, Evelyn Ousley Sloan, Fred Ousley, Lloyd O. Batiste, Donald C. Batiste, Kenneth Batiste, Jack Ousley, Tyrleese Ousley Freeman, and Raymond Ousley.

Sometime after the death of Alice Connolly Ousley two of her daughters, Sarah O. Cálmese and Dorothy O. Akins, were appointed co-administratrices of her estate. The administratrices filed their inventory listing ten (10) pieces of real property to which they attached a value of $2,530.00. No personal property of any kind was found and no claims have been filed against the estate.

The co-administratrices thereafter applied to the Probate Court of Pulaski County praying authority to sell the real estate of which Alice Connolly Ousley died seized and possessed. The court found there were no funds on hand belonging to the estate to pay costs of administration or attorney’s fees and that the property should be sold at private sale and after the payment of the expenses of the sale, together with the costs of the administration, the proceeds of the sale should be divided between the heirs.

It appears from the record that about this time the administratrices contacted the Block Realty Company, a real estate concern, which ordered an abstract, as had been requested, and secured purchasers for the property. The abstract revealed that instead of owning all the property, Alice Connolly Ousley had only a 1/7 interest therein, the other 6/7 being in her several children and grandchildren.

At this point the co-administratrices appear to have dropped ont of the proceedings and Engene R. Weinstein, who is designated in the record as administrator in succession of the estate of Alice Connolly Ousley, deceased, filed in the Pulaski Chancery Court a partition suit in which he states that the land involved in this case descended from Jack Ousley, deceased, who was the husband of Alice Connolly Ousley to whom, by will, he devised a 1/7 interest in the land, 1/7 to his daughter, Edna Ousley Batiste, 1/7 to Sarah O. Cálmese, 1/7 to Dorothy O. Akins, 1/7 to Helen Ousley Parker, 1/7 to Myra Ousley Goodwin, and 1/7 to Evelyn Ousley Sloan. In his complaint the administrator states that the heirs of Jack Ousley had been unable to agree on an equitable division of the lands and it would be to the best interest of all parties that the same be sold and the proceeds divided according to their several interests.

To this complaint the children and grandchildren who acquired an interest in the property from Jack Ousley filed an answer in which they admitted that they were tenants in common but denied that a sale of the lands were advisable or necessary. The Block Realty Company, a partnership, filed an intervention in which it was set forth that the firm had inventoried the lands involved at the request of Sarah O. Cálmese and Dorothy O. Adkins; had procured abstracts of the property at a cost of $310.00, and had obtained purchasers for the property who were ready, willing and able to buy the same at the appraised value. The intervenors prayed that if the court ordered the property sold, that the intervenors be paid the cost of the abstract and the real estate commission amounting in all to $775.00 from the gross proceeds of the sale.

The heirs of Jack Ousley filed a motion to dismiss the intervention of the Block Realty Company on the grounds that the intervenors were not entitled to judgment and that if the intervenors had a cause of action it was for a breach of contract against only a part of the defendants and that it was an improper joinder of parties.

The motion was presented to the chancellor who overruled the motion to dismiss the intervention. The heirs then filed an answer alleging, as had been done in the motion to dismiss, that the intervenors and attorney were not entitled to judgment and that the property should not be ordered sold.

The issues being thus joined, on December 12, 1960 the case was heard by the chancellor who found that there Avas due the Block Realty Company the sum of $775.00 for services and expenses they had incurred which should be paid from proceeds of the sale of the involved real estate; that the attorney for the plaintiff was allowed the sum of $600.00 to be paid as costs from the proceeds of the sale, and that if the heirs did not pay the above awards within thirty (30) days, a commissioner was appointed to sell the lands at public sale. From the proceeds of such sale there Avould be paid the costs, including the award for the attorney’s fees and the judgment in favor of the intervenors, Block, with the balance of the sale money to be paid into the registry of the court pending further proceedings to determine the owners.

From this judgment and order comes this appeal. To reverse this judgment, the appellants list three points but it being apparent that the case must be reversed and dismissed on other grounds than those relied on, we pass over appellants ’ cited points in order not to unduly prolong this opinion.

This suit was improperly brought by an administrator, being primarily and solely a suit for partition. When Alice Connolly Ousley died intestate possessed of some interest in the property involved, be that interest much or little, her title at that moment was vested in her heirs, subject to the payment of her debts. Title to the property never did vest in any of the administrators to this estate. As we said in the case of Graham v. Quarles, 206 Ark. 542, 176 S.W. 2d 703, p. 545-46:

‘ ‘ The rule announced by this court appears to be in conformity with the rule adopted by all courts which have had occasion to consider the question. At 47 Corpus Juris, p. 300, we find the following statement: ‘Title, legal or equitable, in the person or persons seeking partition is essential to the maintenance of the suit. Where the record in a partition suit fails to show a good title in the parties to the property involved, partition will not be decreed notwithstanding the allegation of title by one party and its admission by the other.’ [See also 68 C. J. S. § 35, p. 50.]

Many cases supporting, but none contrary to, the text appear in the footnotes.

If then only those having interest in the property may bring a suit for partition, it logically follows that it is necessary that the plaintiff allege that he holds title to an interest in the property, and such we find to be the universal rule, which is stated at 47 Corpus Juris, p. 403, as follows: ‘ Since only those having title are entitled to partition either in a court of law or equity and the title must be to an undivided interest in the land, it is necessary for the bill, complaint, or petition to allege title in plaintiff, and that such title is to an undivided interest in the lands sought to be partitioned.’ ” [See also 68 C. J. S. § 91 a.(l) p. 141.]

In the case of Sutton v. McClain, 193 Ark. 49, on a rehearing, at page 61, the court used this language:

“The trial court had no jurisdiction to make the order of partition. It is only where lands are held in joint tenancy, in common, or in coparcenary that partition may be had and not then where it appears the partition will result in prejudice to the owner. In that state of case, the proper method is to order a sale of the property with division of the proceeds to those entitled thereto. Section 8091, Crawford & Moses’ Digest. This is but a restatement of the common-law rule. 47 C. J. 295, § 73 [68 C. J. S. § 56 a., p. 81]; London v. Overby, 40 Ark. 155. The judgment in favor of the several creditors did not create any interest in the lands in their favor so that it may be said they held in joint tenancy, in common, or in coparcenary, but created a lien only against the lands for the payment of their several judgments. Therefore, théy had no interest which would entitle them to partition. Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A. L. R. 101; Fullerton v. Stortz Bros., 190 Ark. 198, 77 S. W. 2d 966. ”

In Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623, this court said:

“Our statute provides that immediately upon the intestate’s death, the title to real estate descends to the heirs at law, subject to the widow’s dower and the payment of debts. See § 61-101 Ark. Stats. 1947. The two sections (§ 62-411 and § 62-911, Ark. Stats. 1947), concerning lands as assets in the hands of the administrator, have been uniformly construed to mean that the title to the lands passes direct to the heirs on the death of the intestate, subject to the rights of the administrator to have the Probate Court sell the lands if such be necessary to pay the debts of the deceased.” [Footnote and citations omitted. Emphasis added.]

In the recent case of Cranna, Administrator v. Long, 225 Ark. 153, 279 S. W. 2d 828, at page 155, there is found the following:

“II. Sufficiency of the Complaint to Cancel the Deed. The administrator was the only plaintiff; the deceased had died intestate; and there was no allegation that the land was necessary to pay debts or expenses of administration. Prior to Act 140 of 1949 (the Probate Code), § 66 of Pope’s Digest was the governing Statute and said: ‘Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts.’ § 94 of the Probate Code (as now found in § 62-2401, Ark. Stats.) says: * * real property shall be an asset in the hands of the personal representative when so directed by the will, or when and if necessary for the payment of debts, or expenses of administration.’ The quoted language of the Probate Code was not designed to make the administrator automatically entitled to the real estate of a deceased intestate. The quoted language of the Probate Code continues the rationale of our cases decided under § 66 of Pope’s Digest; and these cases hold that the legal title of an intestate’s land, upon his death, descends and vests in his heirs at law, subject to the widow’s dower and the payment of debts through his administrator. See Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117; and Mayo v. Bank of Marvell, 188 Ark. 330, 65 S. W. 2d 549. Sec 62-2701, Ark. Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of our cases, as above cited.”

Not only is this the holding in the various decisions on this point in this state, but it seems to be held generally that the executor or administrator of an estate, aside from statute, has not such an interest in the real estate of the deceased as will entitle him to institute and maintain partition proceedings. In holding partition proceedings to be void, the Missouri Court, in Throckmorton v. Pence, 121 Mo. 50, 25 S. W. 843, not only said that an administrator has no interest in the lands of his intestate which would authorize him to prosecute such a suit, but further referred to a statute which authorized tenants in common to petition for partition and declared that no where in that statute could be found any point for making an administrator either plaintiff or defendant in such a suit.

In the case of Phillips v. Dorris, 56 Neb. 293, 76 N. W. 555, the Nebraska Court held that giving an administrator right of possession to real estate until the estate is settled was not investing him with any interest in the realty.

The dictum that an action for partition could not be maintained by an administrator, since he had no possession of the land, nor any interest therein except in connection with possible liens for the payment of decedent’s debts, and that his affirmative remedy in case of necessity was by proceedings to sell for debts, was expressed in Barton v. Reynolds, 142 N. Y. Supp. 895, where the court declared that an action for partition was essentially one between joint owners for division of their property between them. In the case of Romero v. Rader, 146 La. 964, 84 So. 221, a partition of land was annulled upon the ground that the administrator of a succession had no right to demand a partition since such a suit could only be maintained by one or some of the owners of the land.

It thus appears clear that the administrator was without right or authority to bring or maintain this suit and had this matter been brought to the attention of the learned Chancellor, he would have no doubt dismissed this action.

This cause, therefore, is reversed and dismissed at the cost of the appellee. It appears, however, from the record before us that the intervention of Block against some of the heirs states a cause of action against them. This dismissal does not prejudice the bringing of an appropriate action by this intervenor and if there be others who have claims for services in behalf of the heirs, such claims may be prosecuted in other actions. It is so ordered.

       The section reierenees herein are to those in the Cumulative Pocket Supplement to Ark. Stats.


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    Holt v. Moody.
    5-2507
    352 S. W. 2d 87
    Opinion delivered December 4, 1961.
    [Rehearing denied January 8, 1962.]

      James R. Hale and Nashem & Dobbs, Yakima, Washington, for appellant.

      Jeff Duty, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from an order of the Benton Probate Court, wherein the court sustained a demurrer filed by appellee, Amna Y. Moody, to a petition filed by appellants, Howard P. Holt, and Damon Runyan Memorial Fund for Cancer Research, Inc., seeking to reopen administration of the estate of Robert Edward Keith. Appellants were given ten days to plead further, but elected to stand on the original pleading. The facts, as shown by the pleadings, stipulation, and responses to Requests for Admission of Facts, are as follows:

Robert Edward Keith died in Benton County on August 31, 1955. On September 8th of the same year, Amna Y. Moody, a niece of the deceased, filed a petition for appointment as administratrix in the Probate Court of Benton County, alleging that Robert Edward Keith died intestate on the heretofore mentioned date. The petition for appointment does not list any real estate belonging to the estate, and under “personal property,” a figure inserted has been scratched out and the words written in longhand, “joint acct.”; underneath, “legal cause of action of presently undetermined value.” On the same date, an order was entered by the Probate Court naming Mrs. Moody administratrix. The order does not reflect the requirement of a bond, nor does any bond or inventory appear in the record. Subsequently, it developed that Mr. Keith, while a resident of Yakima, Washington, had executed a will, in which he devised all of his property to his wife, and further provided:

“But if my said wife shall not survive me, I give and bequeath to Howard P. Holt, of Yakima, the sum of Two Hundred Dollars ($200.00), in appreciation of his services as my said wife’s physician for several years last past; and I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, or mixed, of whatever nature and wheresoever situate, which I may own or have the right to dispose of at the time of my death to Damon Eunyan Memorial Fund for Cancer Research, Inc., with offices at 1507 Broadway, New York 18, New York.”

Mr. Keith’s wife did not survive him, and appellants are thereby claiming to be the sole beneficiaries of the estate.

On September 13, 1955, counsel for appellee directed a letter to Donald C. Keith, who had been named executor of Eobert Keith’s will, requesting that the will he forwarded, asking that the deceased’s bank account in Yakima be changed to the administration account, and suggesting that the bank mail Mrs. Moody a signature card in order that she might transfer the account to the administration. In response to this letter, Donald Keith advised that the sum of $2,320 had been placed in the hands of one Ealph W. Scott by the deceased for safekeeping, rather than placing it in the bank. On October 14th, appellee’s counsel directed a letter to Mr. Keith, as follows:

“The Court has directed that the Administratrix collect all of the assets of the above estate and make an Inventory to file here in the Probate Court. I am enclosing authenticated copy of Letters of Administration which I would appreciate if you would hand to Mr. Scott. This, of course, is an official request by the Administratrix that he remit the cash in his hands to Amna V. Moody, Administratrix, as set out in the Letters of Administration.”

Subsequently, in compliance with this request, a draft for $2,320 was sent to Mrs. Moody via counsel. On June 20, 1957. Mrs. Moody filed a petition for probate of the will, and set out in the petition that Donald C. Keith, named executor in the instrument, had asked that a formal waiver of appointment be sent to him, since he resided in Yakima, and felt unable to administer the estate. Here, the record becomes quite confusing. No waiver by Keith is shown, nor is there any order admitting; the will to probate at that time. According to a stipulation entered into on February 16, 1960:

“Proof of execution of said will was made, signed, executed and sworn to by Lloyd A. Porter, Della Styhl and A. V. Styhl, the attesting witnesses to said will, all in the form and manner provided by Arkansas law, and said will and the proofs of execution thereof were filed for probate in the office of the County and Probate Clerk of Benton County, Arkansas, on January 17, 1957, and said will was admitted to probate as the Last Will and Testament of the said Robert E. Keith, deceased, by an order of the Probate Court of Benton County, Arkansas, made and entered on the 20th day of June, 1957, but said will and the proofs of execution thereof have become lost or destroyed and have never been recorded as the Last Will and Testament of the said Robert E. Keith, as provided by law and said order, and said will should be restored and recorded in the will records of Benton County, Arkansas, as and for the Last Will and Testament of said deceased.
3. Under the terms and provisions of said will Donald C. Keith of Yakima, Washington, was appointed executor of said will, to serve without bond, and the said Donald C. Keith is above the age of 21 years and in all other respects qualified to serve as executor of said will and he should be appointed as such without being required to file any bond.”

This appointment of Keith apparently only became effective in February, 1960, since the docket sheet does not reflect that he was originally appointed; rather, the docket shows that on June 20, 1957, the will was “probated ’ ’ and an administratrix with the will annexed was appointed. While no name is given, the reference undoubtedly was to appellee. Further notation reads: “letters to issue upon filing and approval of bond.” According to the record, no bond was filed, nor letters of administration issued to Mrs. Moody as administratrix with the will annexed.

On November 13, 1958, Mrs. Moody filed her accounting as administratrix of the estate from September 8, 1955, until November 8, 1958, pertinent portions of such appearing as follows:

“$500.00 received from judgment against Farmers Produce Company on account of death of Robert Edward Keith.

(note)

Robert Edward Keith during his lifetime contracted with this accountant to live with her and that she, his niece, would look after him and take care of him. In return, Robert Edward Keith made, as consideration for this transaction, a gift or transfer of his property to this accountant. Said property consisting wholly of money in the sum of $3,920.00. This agreement occurred prior to the death of Robert Edward Keith, and, at the time of his death, he was residing with this accountant. This accountant has therefore held, as her own, the money contracted for as consideration for her contract with the deceased, her uncle, and has not charged herself with it.

This accountant has paid all the known debts of the deceased filed as claims with her from the money contracted with her by the deceased, and has divided the above $500.00 with the other heirs of deceased. At the time of the death of Robert Edward Keith there was $2,320.00 in Yakima, Washington, of the property involved in the contract between the parties. Said money having been transferred to Amna Moody and paid to her which she has held as her own under the agreement between her and her uncle. Said money, therefore not being charged in this accounting. The deceased left a will, executed some years ago, which was filed, but is not probated, to completion, letters not issued, bond not executed.

Total charges to accountant......$500.00

Accountant is entitled to credit for money paid and assets delivered to distributees, as follows:

. . . $500.00 paid to Ruby Pennington, Yerna Quinlan and Cliee Daily. $166.66 paid to each of the above.

Total ............................................................$500.00”

The court continued the settlement for publication and hearing, and on February 19,1959, found that the settlement should be approved and the administratrix discharged. Thereafter, on July 27th, appellants filed their “Petition to Reopen Administration and for Probate of Will,” and alleged, inter alia-.

“On or about November 13, 1958, the said Amna Y. Moody, purporting to act as the personal representative of this estate, filed herein a purported accounting, which accounting shows on its face that the said Robert Edward Keith died testate, but the said Amna Y. Moody wrongfully, unlawfully, and fraudulently stated in said accounting that said will had not been admitted to probate. No notice as to the filing of said purported accounting or as to the time or place of any hearing thereon was ever given to the petitioners, and, in fact, no notices whatever have ever been given to or served upon the petitioners herein.
5. No bond was ever filed herein by the said Amna V. Moody, as administratrix of this estate, and, by reason thereof, the order purportedly appointing her as administratrix of this estate was void and of no force or effect and all other orders purportedly entered herein were and are void and of no force or effect.
6. No inventory was ever filed by the said Amna V. Moody, and no notice to creditors or notice as to the probate of said will was ever published.
7. The said Amna V. Moody wrongfully, unlawfully, and fraudulently led the petitioners herien to believe that said will had been duly recorded and that the terms and provisions thereof would be carried out and performed, and that on due time the petitioners ¿erein would receive their respective bequests under said will. ’ ’

Before discussing the issue raised by the pleadings, we deem it well to pass on appellee’s contention that the case should be affirmed because of appellants’ failure to properly abstract the record. It is true that the abstract is not in proper form, and is somewhat difficult to follow. However, the abstract does contain all pertinent information, and is sufficient to acquaint the members o£ this Court with the .issue involved. Of course, if appellee considered the appellants’ abstract to be defective, she could have, at her option, submitted a supplemental abstract with her own brief. See Rule 9, subsection (e), Procedural Rules of the Supreme Court.

We are of the opinion that, the court erred in sustaining the demurrer, i. e., we feel the allegations of the petition to reopen the administration are sufficient to require the taking of proof. Several questions' are raised. It is noted that the settlement was filed under authority granted Mrs. Moody by the original letters of administration. Appellants question the legality of her appointment. If the will was admitted to probate in June, 1957, it would seem that the appointment of Mrs. Moody thereunder would be in lieu of the original appointment. The record reflects that the will was admitted to probate, but that Mrs. Moody did not qualify for letters testamentary. There is nothing in the transcript to show why she did not qualify. It is possible this failure occurred because Mr. Donald Keith did not send the waiver, and Mrs. Moody was unwilling for someone else to administer the estate. Of course, the will being admitted, and no attack having been made upon this instrument, its provisions were due prima facie to be observed. We do not know the meaning of the statement, “the deceased left a will, executed some years ago, which was filed but is not probated, to completion.”

Appellants allege that they received no notice of the filing of the accounting or any hearing thereon, and under the provisions of the Probate Code, they were clearly entitled to same. Actually, Mrs. Moody, under the circumstance of claiming all of the proceeds under a contract, should not have served as administratrix. A personal representative should not serve if his personal interests conflict with his official duties. C. J. S., Yol. 33, § 90(e), p. 1036. An administrator or administratrix acts in a fiduciary capacity. § 62-2030, Ark. Stats. (1959 Supp.). Under chapter 28 of the Probate Code, entitled “Accounting,” § 62-2801 (Supp.), provides inter alia, that self dealing is a breach of duty, and a personal representative shall be liable and chargeable in his accounts from any loss resulting therefrom. Black’s Law Dictionary, 4th Edition, p. 1525, states that self dealing “basically relates to transactions wherein a trustee, acting for himself and also as ‘trustee,’ a relation which demands strict fidelity to others, seeks to consummate a deal wherein self interest is opposed to duty.” Certainly, here the personal interests of the administratrix conflicted with the interests of those claiming under the will. Of course, Donald Keith has now been named executor, but this appointment comes at a time when, if the settlement is permitted to stand, there are no assets to administer. During the period in controversy, the duties of the personal representative were handled exclusively by appellee.

The court sustained the demurrer because it held itself to be without jurisdiction to determine the issue of ownership, i. e., as argued by appellee, the Probate Court has no jurisdiction to determine title to contested property. This is not a contest of title to property — this is purely a matter of determining whether the estate should be reopened and the settlement set aside. Under the pleadings, stipulation, and response to Requests for Admissions, at least $2,320 of the $3,920 was money belonging to the estate. This amount, as reflected by the letters heretofore quoted, was turned over to Mrs. Moody as administratrix of the estate of Robert E. Keith. It remained assets of the estate until proper claims were filed and allowed by the administratrix, and approved by the court. The transcript does not reflect that any claims were filed against the estate; more specifically, it does not reflect that Mrs. Moody ever filed a claim. Section 62-2607 (Supp.) provides:

“A personal representative may establish a claim he may have against the estate by filing the same with the court, and the court, upon a hearing after such notice as it shall direct, if satisfied as to the validity of the claim, shall enter an order alloAving it.”

Actually, the record does not reflect whether Mrs. Moody is claiming under a written or oral contract, when the contract was made, Avhere it was made, or what is meant by “a gift or transfer of his property to this accountant.” Of course, in seeking to reopen the estate, appellants have pursued the only remedy which is afforded them, for Section 62-2902(d) provides:

‘ ‘ The order of final distribution shall be a conclusive determination of the persons who are the successors in interest to that part of the estate of the decedent passing through the hands of the personal representative and of the extent and character of their interests therein, subject only to the right of appeal and the right to reopen the order.”

Any suit in Chancery by appellants would therefore be met with the argument that the matter had already been determined by the Probate Court. Under the provisions of Section 62-2912, an order of discharge entered under Section 62-2902(b), shall be final “except, upon a petition being filed within three years of the entry thereof, it may be set aside for fraud in the settlement of the account of the personal representative.”

¥e think clearly the court should have heard evidence, for if the allegations are correct, it would not appear that the settlement should stand. The Probate Court would indeed be impotent, if a personal representative could, merely by asserting that she was the sole owner of property turned over to an estate, take from the court jurisdiction to determine what property belongs to such estate.

For the reasons herein set out, the order of the Probate Court sustaining the demurrer is reversed, and the cause remanded with directions to overrule the demurrer and proceed in a manner not inconsistent with this opinion.

       Emphasis supplied.


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    Nicholas v. Nicholas.
    5-2509
    351 S. W. 2d 445
    Opinion delivered December 4, 1961.

      Robert E. Irwin and Jeff Duty, for appellant.

      Edward II. Patterson and Robert J. White, foxappellee.
   Ed. F. McFaddin, Associate Justice.

The Chancery Court reduced the amounts previously fixed for alimony and child support; and Mrs. Nicholas has appealed.

In April, 1959, the Johnson Chancery Court awarded Mrs. Nicholas a divorce and also the care and custody of Dennis Nicholas, the 12-year-old son of the parties. Mr. Nicholas was ordered to pay $50.00 per month alimony and $65.00 per month for child support. As to Mr. Nicholas’ right for visitation, the decree stated: “The Plaintiff (Mrs. Nicholas) is granted custody of the minor child of the parties subject to reasonable visitation with said minor child by the Defendant” (Mr. Nicholas). No objection was voiced by Mr. Nicholas when Mrs. Nicholas and the boy moved from Clarksville to Rogers, where she would be near her parents and have employment in a bank. The distance from Clarksville to Rogers is approximately 115 miles.

Because of his arrearage in monthly payments, a citation was issued against Mr. Nicholas; and he countered with a petition to reduce the amount of the payments. There was’ a hearing; and the Court, after giving Mr. Nicholas sixty days to make current all past due items, reduced the future payments that Mr. Nicholas should make to $45.00 per month for alimony and $45.00 per. month for child support. It is from this order of reduction (from the original sum of $50.00 per month alimony and $65.00 per month child support) that Mrs. Nicholas prosecutes this appeal.

Mr. Nicholas did not claim any financial inability to make the monthly payments. Rather, he claims that the payments should be reduced because his son had not visited him in Clarksville as regularly as Mr. Nicholas thought proper.

We have held that where one parent takes a child outside of the jurisdiction of the court and secretes the child and keeps the other parent from having any right of visitation, then support payments may be suspended during such period. Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609. But the facts in the case at bar are far different from the facts in the cited case. Mr. Nicholas raised no objection to Mrs. Nicholas taking the child to Rogers where she could gain employment. That was in the spring of 1959. In the summer of 1959, the boy visited Mr. Nicholas for some time. There is no showing that Mrs. Nicholas, or anyone else, secreted the boy. or tried to keep Mr. Nicholas from seeing him. Rather, the evidence is to the contrary. When Dennis was playing on the football team for Rogers, Mrs. Nicholas’ father telephoned Mr. Nicholas and urged him to come to Rogers to see the boy play. Mr. Nicholas was too busy to go. The boy wrote his father three letters in the winter of 1959-60, and received no reply. The boy admitted he did not visit his father in the summer of 1960; the father had fixed no definite time for the visit; the boy had written three letters and received no answer; and Mr. Nicholas had remarried and there is nothing to show that the present wife wanted the boy to visit in the home. There is absolutely no evidence of spite on the part of Mrs. Nicholas, or stubbornness on the part of the boy; and there has been no effort to turn the boy against his father. In Carnahan v. Carnahan, 232 Ark. 201, 335 S. W. 2d 295, the father was not relieved of making support payments when the child was moved with the father’s knowledge. See also Sindle v. Sindle, 229 Ark. 209, 315 S. W. 2d 893.

That the father wanted his son to visit him is admitted; but the father failed to put his heart’s desire into action even to the extent of writing or phoning his son and setting a definite date for the desired visit. A boy cannot be a pal with his father until the father shows the boy that he wants him for a pal. If Mr. Nicholas wants a definite time of visitation fixed, he can either arrange it with the boy or Mrs. Nicholas by mutual consent, or he can ask the Court to fix a definite time for visitation. Eeducing the monthly support for the boy will not cause the situation to improve. There is no claim that $65.00 per month is too much. The only reason advanced for reduction is the failure of the boy to go — on his own initiative' — to visit his father. We see no change in conditions that would support the reduction order made by the Chancery Court, either as to alimony or child support.

The decree of the Chancery Court is reversed and the cause remanded with directions to set aside the reduction order and reinstate the original payment schedule the same as if it had never been reduced, and to award appellant an attorney’s fee of $100.00 in addition to the amount already awarded.


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    Kirby v. Manies.
    5-2410
    351 S. W. 2d 429
    Opinion delivered December 4, 1961.

      Gus B. Gamp, for appellant.

      Trantham & Knauts, by Hugh W. Trantham, for appellee.
   George Rose Smith, J.

This is a will contest in which the appellant, Charles Kirby, seeks to set aside the will of his mother, Dora Wallace, for undue influence assertedly exercised by the appellee, the principal beneficiary of the will. The appellee is the testatrix’s step-grandson, being the grandson of her second husband. This appeal is from a judgment holding the will to be valid.

The testatrix lived for fifty years upon a forty-acre farm near Rector, in Clay county. She died in 1960 at about the age of 77. Her will had been executed in 1955 in the office of her attorney, Verlin Upton, who testified that the testatrix acted upon her own volition and appeared to be in her normal condition at the time.

Mrs. Wallace left a bequest of $100 to the appellant, her only child. He was 57 years old when the case was tried. He testified that he left his mother’s home when he was 21 and had been living at Elaine, in Phillips county, for 17 years. The rest of the testatrix’s estate, consisting principally of a farm inventoried at a value of $5,000, was left to the appellee. He was 38 when the case was heard. He had been brought up by Mrs. Wallace and had lived in her home from the time he was 20 months old until her death 36 years later. For the last 24 years of that period Mrs. "Wallace was a widow.

The principal charge relied upon by the appellant is that upon several occasions the appellee threatened to leave Mrs. Wallace’s home if she did not make a will in his favor. Such statements, standing alone, would not constitute undue influence, which must deprive the testator of his free agency in the disposition of his property. Parette v. Ivy, 209 Ark. 364, 190 S. W. 2d 441. It is not suggested that Mrs. Wallace was in any way helpless or especially dependent upon the appellee, so that his so-called threats amounted to the taking of an unfair advantage. To the contrary, the statements really amounted to a declaration that he would remain in the home and assist in the operation of the farm only if Mrs. Wallace would leave the property to him upon her death. That conduct falls decidedly short of being undue influence.

There is also testimony that the appellee kept the testatrix in a state of fear, principally by threatening to kill her son, the appellant. This testimony was given by the appellant and members of his immediate family and appears, to say the least, to be greatly exaggerated. It is directly contradicted by the appellee and indirectly contradicted by several of the testatrix’s neighbors and friends, who believed that Mrs. Wallace was very fond of the appellee. We agree with the trial judge in finding it impossible to believe, as the appellant’s proof indicates, that Mrs. Wallace lived in a state of fear and dread for fifteen years or more without her friends and neighbors having any suspicion that such a situation exited.

Affirmed.