author: Sam Robinson, Associate Justice.

text:
    Black v. Morton.
    5-2516
    352 S. W. 2d 177
    Opinion delivered December 18, 1961.
    [Rehearing denied January 15, 1962.]

      Alston Jennings, Sol J. Russell, G. Byron Smith, Jr., and Reed W. Thompson, for appellant.

      Carl Langston, W. J. Walker and L. A. Hardin, for appellee.
   Sam Robinson, Associate Justice.

Ward M. Black, who operated a drug store on Asher Avenue in Little Rock, died on the 19th day of November, 1958. On the first day of October, 1959, there was offered for probate in the Pulaski Probate Court what purported to be Black’s will, dated October 29, 1958. The appellants herein contested the validity of the will, alleging that it is a forgery and not Black’s genuine will. After a rather extensive trial, the probate court held the will to be valid and admitted it to probate. There was an appeal to this Court and here a minority of three members of the Court thought the preponderance of the evidence proved the alleged will to be a forgery, and at that time voted to reverse the judgment with directions to find against the will. But the majority of four members of the Court felt that the cause should be sent back for further development. Black v. Morton, 233 Ark. 197, 343 S. W. 2d 437.

On remand, additional evidence was introduced and again the probate court upheld the validity of the will. The case is here on appeal for the second time. We have again carefully examined the entire record, including the new evidence, and it is our opinion that the preponderance of the evidence proves that the will is a forgery. The following is a copy of the will:

I will devise and bequeath to Cecil. C. Morton my drugg store and it’s contents and the land on which it is located said property being located at 4200 asher avenue Little Bock Ark. and money in store Worthen Bank and at home or house.

second I devise and bequeath to Olive Persiqian and Clio Thompson my home contents and land which it is located also the rent house at 4208 west 29th st. and land which it is located also the land on corner 29th. and lewis L.B Ark. to be equally divided share and share alike.

third I devise and bequeath to my brother Walter L Black all my land near Clarksville in Johnson County and to his son Walter L Black Jr. I devise and bequeath my security,s purchased from L. J. MacKool

fourth I devise and bequeath to Lois Hardcastle My sister in law and Marry Pet ers 1000 dollars each to be paid out of the drug store by C.C. Morton with in six months if possible

fifth I direct that the insurance policy with National Life and Accident be used for funeral expense,s I also direct if any Medical expence occur this I want and direct C.C.Morton to pay this out of the store or his own money 'subscribing my name this the 29th day of October 1958

/%/ W. M. Black
/s/ M. M. Hodge
/s/ W. F. Hardester

Appellants contend that the will is an outright forgery; that Ward M. Black did not write, dictate or sign it. On the other hand, appellees contend that Mr. Black borrowed a typewriter from Mrs. C. C. Morton, ex-wife of the principal beneficiary under the will, and typed the will at his home, making a carbon copy; that he then brought the original and a copy to his drug store on Asher Avenue and there signed the original copy, at the same time making a carbon copy of his signature on the carbon copy of the will, and asked M. M. Hodge and W. F. Hardester to sign the will as witnesses, which they did in a like manner, that is, signing the original but causing a carbon copy of the signature to appear on the carbon copy of the will. Proponents of the will further contend that Black then thought the carbon copy was clearer than the original and therefore destroyed the original, keeping the carbon copy as his genuine will and turning it over to Hodge with instructions to keep it for some length of time, “six or eight months or a year” after his death, and then to turn it over to Miss Clio Thompson, Black’s cousin and one of the beneficiaries under the alleged will. A few weeks after the date of the purported will, Mr. Black died. Appellees claim Mr. Hodge kept the will for about ten months thereafter and then got in touch with Miss Thompson and turned it over to her.

At the time of his death Mr. Black was 71 years of age. His wife had died in 1949. He had no children, but was survived by a brother, Walter L. Black, Sr.; a nephew, Walter L. Black, Jr.; an aunt, Mrs. Roxie Thompson; and two cousins, Miss Clio Thompson and Mrs. Olive Perzigian. Miss Thompson filed the petition to admit the will to probate on October 1, 1959, a,nd notice of offering the will for probate was signed by her attorneys, Howell. Priee & Worsham. On October 8th, seven days later, the court granted a petition filed by Miss Thompson requesting that she be allowed to withdraw the will for the purpose of having it examined by a handwriting expert.

On October 20th Walter L. Black, Jr., individually and as administrator of the estate, and Walter L. Black, Sr., filed contests of the will, alleging it to be a.forgery. Notice of the filing of the contests was given to all those named as beneficiaries in the questioned will, and to Howell, Price & Worsham, attorneys for Miss Clio Thompson. On November 5, 1959, Miss Thompson filed a petition asking that a co-administrator be appointed. Howell, Price & Worsham, the attorneys who filed the will for probate and who were attorneys for Miss-Thompson at the time the will was withdrawn to be examined by a handwriting expert, no longer represented her.

The value of the estate is a little over $100,000. Of this sum C. C. Morton, the principal beneficiary under the purported will, would receive property of the value of more than $75,000. In 1944, Morton had been convicted in Saline County of the crime of robbery and sentenced to 12 years in the penitentiary, but he had worked for Mr. Black about nine years at the time of Black’s-death. There is a strange relationship between Morton and witnesses to the purported will that is not likely to-be just coincidental. Morton was by far the principal beneficiary under the purported will; Hodge and Hardester claim to have witnessed the will; Hodge denies that he knew Morton, although Hodge’s stepdaughter worked at a store owned by Morton and his then wife; and Hodge claims to have been in Black’s drug store, where Morton worked, many times. In addition, Hodge had been to Morton’s variety store, where his stepdaughter worked for the Mortons. It was only a block from his home. Hardester worked for Hodge, and Morton’s ex-wife produced the typewriter on which the will was written.

The will is not an original typewritten and signed instrument; both the typing and the alleged signature of the purported testator and the signatures of the witnesses are carbon copies. All the circumstantial evidence indicates that the will is a forgery and there is the direct testimony of Mr. Charles Andrew Appel of Washington, D. C., a highly qualified examiner of documents who has been doing such work since 1930 and who worked in that capacity for the F. B. I. from that time until 1948, when he retired from Government work. He has since been a private examiner of documents. Mr. Appel testified that in his opinion the purported will is a forgery; that it is not signed by W. M. Black. Mr. Appel went into great detail as to how he arrived at that conclusion, and his testimony is convincing.

On the other hand, the proponents of the will produced as a witness Dr. Orlando W. Stephenson, Sr., of Morrilton, Arkansas, who testified as an expert and gave his opinion that the alleged signature of Mr. Black is genuine. But we are not impressed by the testimony of Dr. Stephenson. He testified that he has studied questioned documents in Cairo, Egypt; Athens, Greece; Naples, Italy; Borne, Paris and London; that he has the degrees of Bachelor of Science, Master of Arts and Doctor of Philosophy, but that he is now a deputy sheriff in Conway County, Arkansas. In our opinion the testimony of Mr. Appel far outweighs the testimony of Dr. Stephenson.

In support of their theory of the will, proponents produced Mr. Hodge as a witness. He testified he lives at 1900 Bice Street, Little Bock, which is a considerable distance from the Black drug store; that he operates a service station at 28th and Arch Streets and formerly had a service station at Geyer Springs.

It is not shown that Mr. Black’s acquaintance with Hodge was such that Black as a reasonable man would deliver to Hodge for safekeeping Black’s will disposing of an estate valued at more than $100,000. In fact, from the evidence it is inconceivable that such a thing happened. At the most, Hodge had only a passing acquaintance with Black. Hodge was asked:

“Q. Did you trade at his [Black’s] drug store?
A. Well, sometimes; yes, sir.”

Hodge never visited in Black’s home and there is no showing that there was any social contact between them whatever, and no showing that Black even knew where Hodge lived, and in all probability he did not know Hodge’s address. Although Hodge claims he had borrowed money from Black, we give no more credence to his statement in that respect than we do to his testimony that Mr. Black asked him to sign his will. There is absolutely no reasonable explanation of why Mr. Black would deliver such an important document as his will to Hodge with instructions to keep it some six or eight months or a year after his death before divulging the fact that a will existed. There was a genuine will of Mr. Black’s, dated March 29,1949, in his safe at his drugstore, where one would expect to find such an instrument, but the sole beneficiary in that will was Mr. Black’s wife, who predeceased him.

In regard to his assertion that Mr. Black delivered to him the purported will involved here, Hodge testified:

Q. He didn’t fold it [the will] up and hand it to you?

“A. He didn’t fold it. He handed it to me just like that and he said, ‘How does that look’ and I said, ‘I don’t see any ink spots on it.’ ”

Of course, Mr. Black did not need to hand the will to Hodge to determine if there were any ink spots on it, and there certainly is no showing that Hodge is capable of making any determination as to the validity of the will.

If Black and Hodge had been such close friends that Mr. Black would give him his will for safekeeping, the chances are that Hodge would have gone to Mr. Black’s funeral. He did not go to the funeral. Moreover, according to Hodge’s testimony, lie never went in the drug store again after Mr. Black died, • although he claims he had the will, and the principal beneficiary, Morton, was working in the drug store. According to Hodge’s testimony, after months had passed he worried about the situation and talked to the pastor of his church about it and then took the will to an attorney before he ever called Miss Thompson.

Hodge is not a beneficiary under the alleged will, and has no interest in it, according to his testimony. In these circumstances it is hard to understand why the will would cause him so much trouble that he would go and talk to his pastor about it and go to see a lawyer about it, if Mr. Black had simply instructed him to deliver the will to Miss Thompson some six or eight months or a year after Black’s death. Although Hardester claims he also signed the instrument as a witness, Hodge never told Hardester that he had possession of the will.

Hodge claims that he was such a frequent customer at the drug store that Mr. Black entrusted to his care the important will, but he says that he did not know Cecil Morton, although Morton worked right in the store for Mr. Black. Hodge further testified that he never met Cecil Morton until he met him with Miss Thompson after the will had been delivered to Miss Thompson. He testified that he did not even know what Morton did. Hodge testified:

“Q. Was — Now, that was the first time you had ever seen Clio Thompson or Cecil Morton?
“A. No, no, I had seen Cecil Morton a number of times, but I never had personally been made acquainted with him. I never personally met him until that particular morning.
“Q. Did you know who he was and what he did?
“A. No.
“Q. Didn’t have any idea?
“A. No.”

Later, he says that he knew that Morton worked at the drug store. His testimony in this regard is so contradictory that it is beyond belief. According to his testimony, although Hodge knew of Black’s death, he did not discuss the will at all with anyone until about ten months later. All in all, Hodge’s testimony is so contradictory, unsatisfactory and unbelievable that it carries no weight at all.

The testimony of Hardester deserves no more credit than the testimony of Hodge. Hardester worked for Hodge. He claims that he went to the drug store with Hodge and while there Hodge asked him to come to the rear of the store, where Mr. Black asked him to sign his will. It will be recalled that Hodge testified that the original of the will was not nearly as clear as the carbon copy and therefore the original was destroyed at the time it was signed and the copy was kept as a genuine will. It is agreed by the parties that the will involved here is a carbon copy. Hardester testified on cross examination:

“Q. Now, Mr, Hardester, that is not your signature, but it is a carbon copy of your signature, is that right?
“A. That’s my signature. I wrote that.
“Q. You mean that’s the mark you made with the pen?
“A. Yes, sir, I wrote that. That’s my signature. I wrote it myself.
“Q. Now, please understand my question, Mr. Hardester. Is this the piece of paper that you wrote on or is this the paper that was under the —
“A. That’s the paper I wrote on.
“Q. Oh, this is the piece of paper that you wrote on?
“A. Yes, sir, right there.
“Q. You are positive of that?
“A. Yes, sir, I know it.
“Q. So this is not a carbon copy of what you wrote on?
“A. That’s the one I wrote on.
“Q. You actually wrote that yourself on that piece of paper?
“A. That’s right.
“Q. You didn’t write it on another piece of paper through carbon?
“A. No, sir, that’s the one I wrote it on myself.
“Q. That’s the one you wrote it on yourself?
“A. That’s right.
“Q. And then this piece of paper is a piece of paper that you were looking at at the time you wrote your name, is that correct?
“A. Yes, sir, I wrote that name and wasn’t no carbon over it. That’s the piece of paper I wrote.
“Q. That’s the top piece of paper on which you wrote your name?
“A. That’s right.
“Q. You are sure of that?
“A. I know it is. Yes, sir, I am sure of that.
“Q. No question about that?
“A. No, sir, that’s the —
* ‘ The Court: Do you know the difference between a carbon and original?
“Mr. Jennings: I will let him look at it.
“A. This is the original I wrote on, on top, right there.”

Later, Hardester testified that Miss Clio Thompson brought a piece of paper out for him to sign; that he did not know what the writing was on the paper; that he had never seen Miss Thompson before in his life; and without reading the paper at all he signed it.

“Q. You paid no attention whatever to what it was she was asking you to sign?

"A. No, I was busy.

" Q. Handwritten or typewritten?

"A. I won’t say.

“Q. Was there anything on it?

"A. Yes, there was writing. I don’t know whether it was typewriting.

"Q. You just don’t know, is that right?

"A. I don’t know. I didn’t read it.”

Later he testified that he did not think he had told Miss Thompson that he signed the will. He stated: "I don’t think I told her I had signed it. I might did. I don’t remember what I told.”

The record in this case is voluminous and of course it is impractical to put all of the evidence into this opinion. But there are many things in the record that when put together are thoroughly convincing that the will is a forgery. Mrs. Hardeastle, a sister of Mr. Black’s deceased wife, had worked for Mr. Black for years as his bookkeeper. She worked in this capacity one day a week and the work was done at Mr. Black’s home. Sometimes she would take with her to his home her portable typewriter. Mr. Black did not mention to her that he had recently made a will. Under the terms of the alleged will, Mary Peters, a sister of Mrs. Hard-castle, was left a small amount. In the will her name was spelled "Marry.” Mrs. Hardeastle testified that definitely Mr. Black knew her sister’s name was spelled "Mary.”

James Pearrow woi'ked in the drug store every week day from 4 to 7 o’clock and on Saturdays and Sundays from 9 to 7, and lie could not say that he had ever seen Hodge or Hardester before Mr. Black’s death.

It will be recalled that the purported will was dated October 29, 1958. L. J. MacKool, who is in the insurance business in Little Rock and who had known Mr. Black for many years, testified that in November, 1958, Mr. Black told him that he didn’t have a will and didn’t need one. This must have been only a few days after the purported will is alleged to have been executed.

Mr. E. W. Hardcastle had made Mr. Black’s bank deposits for him every week over a period of many years, and Mr. Hardcastle was asked by Mr. Black to look after the drug store while Black was ill. Cecil Morton, who was working in the drug store, and who was named the principal beneficiary under the terms of the alleged will, was not asked to look after the store.

Mrs. Lorene Elrod, who worked for Mr. Black six days a week for three years, testified that Mr. Black did not trust Morton. Mary Butler worked for Mr. Black two years; she stated that Mr. Black showed no particular liking for Morton. About two months before his death Mr. Black told a Mrs. Ripley that he did not intend to make a will.

Following Mr. Black’s death, Walter L. Black, Jr., was appointed administrator of the estate and as such continued to operate the drug store. He testified that he fired Morton for stealing, and as Morton went out the door he stated “You’ll be sorry.”

When the purported will was offered for probate, of course it was easily determined that it was not written on the typewriter owned by Mr. Black and located in the drug store; nor was it written on Mrs. Hardcastle’s portable typewriter which she sometimes carried to the Black home to do her work as a bookkeeper. Of course, if the will was not written on the typewriter at the store, and was not written on the typewriter known to be at the home on some occasions, it might give rise to an inference that Mr. Black did not write the will at all. There is not a scintilla of evidence that he ever did any of his work at any other place.

To explain away this inference, Mrs. C. C. Morton, the divorced wife of C. C. Morton, the principal beneficiary named in the will, testified that in July or August, 1958, she had a portable typewriter belonging to her married daughter, Mrs. Marvin K. Cook, and that at Mr. Black’s request she loaned him this typewriter, and that he kept it until November, 1958. Although she says that Black borrowed the typewriter in July or August, 1958, the purported will is not dated until October 29, 1958. She produced the typewriter in question and it was shown to be the typewriter on which the purported will was written.

One of the attorneys for the contestants immediately got in touch by phone with Mrs. Cook at Fort Worth and asked her about the typewriter. Mrs. Cook told Mr. Reed Thompson, attorney for the contestants, that her father had given her the typewriter in 1947 or 1948; that she had lived at Blytheville, Arkansas, for a year and a half, moving from there on September 7, 1958; that she had the typewriter with her at Blythe-ville during the whole time she lived there, and that it was moved to Texas along with the other family belongings. It will be borne in mind that Mrs. Morton had just testified that she loaned the typewriter to Mr. Black in July or August, 1958. It appears that Mrs. Morton visited with Mrs. Cook in Texas from December, 1958, to February, 1959.

Mrs. Cook’s testimony was not available at the first trial. This case was reversed by this Court the first time it was here, for the purpose of letting in the testimony regarding the whereabouts of the typewriter. When the case was tried on remand, attorneys for appellants had ascertained from Government records (Mr. Cook was in the Air Force) that when the Cooks moved from Blythe-ville to Fort Worth, a typewriter was among their belongings. At tbe second trial, Mrs. Cook and her husband appeared as witnesses for the proponents of the will in support of the testimony of Mrs. Cook’s mother, Mrs. Morton. The substance of their testimony given at that time is that the typewriter they had at Blytheville was an old one belonging to Mr. Cook and it was not the portable typewriter which Mrs. Cook had told Mr. Thompson that her father had given her and that she had with her during their entire stay at Blytheville. In her phone conversation Mrs. Cook had said nothing whatever to Mr. Thompson about the Cooks ’ having two typewriters.

It would not have been strange for Mr. Black to have left the bulk of his estate to his cousin, Miss Clio Thompson, according to her testimony. She testified that Black despised his brother, and yet the purported will leaves more to his brother than it does to Miss Thompson. Mr. Black thought a great deal of his aunt, Mrs. Boxie Thompson. She was an elderly lady, and it can be inferred that a little money would have eased to some extent her condition in life, and yet the purported will leaves her nothing. Miss Thompson testified that Mr. Black told her, “Aunt Boxie will understand,” apparently meaning that she would understand why he had left her nothing in his will, and only about 25% of his estate to his family and about 75% to a man who for good reason he did not trust. We are convinced that the purported will is a forgery. The judgment is therefore reversed with directions to find against the will.


source: Caselaw Access Project

license: Public Domain

text:
    Rooker v. City of Little Rock.
    5-2547
    352 S. W. 2d 172
    Opinion delivered December 18, 1961.
    [Rehearing denied January 15, 1962.]

      Martin, Dodds <& Kidd, for appellant.

      Joseph C. Kemp, City Attorney, by Wm. M. Stoclcs, Asst. City Attorney, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal by W. S. Rooker and others from an order of the Pulaski Circuit Court entered on February 2, 1961, annexing 17.8 square miles to the City of Little Bock.

The annexation proceeding was instituted pursuant to Ark. Stats. § 19-101. An ordinance was passed by the City whereby the question of annexation was submitted to the qualified legal voters at the general election of 1959. The measure called for an addition to the City of 22.2 square miles, specifically excluding three small plots of land completely surrounded, thus creating enclaves of unincorporated land within that sought to be added to the municipality. The reason for the exclusion of these plots was to permit the location thereon of branch banks without offending Ark. Stats. § 67-319. A majority of the qualified voters of the City approved the measure, and the City on November 12,1959, filed with the Pulaski County Court its petition of annexation.

A public hearing on the matter was set by the county court for December 15, 1959, and on that day a number of persons, including the appellants herein, appeared and filed written objections to the annexation. Subsequently the City, with the permission of the court, filed an amendment to their petition which created two additional exclusions or enclaves, added a small amount of territory to the extreme northwest corner of the land sought to be annexed by the original petition, and reduced the territory to be added to the City from 22.2 to 17.8 square miles. A hearing on the amended petition was had on February 12, 1960, and on that date the county court entered an order approving the petition as amended.

The appellants duly perfected an appeal of the county court’s order to the Circuit Court of Pulaski County, Second Division. While the matter was pending in the circuit court the City made amendments two and three to their original petition. The second amendment was identical to the first made in the county court, except that the small acreage in the northwest corner added by the first amendment was deleted. The third amendment was made for the purpose of clarifying a possible ambiguity in the description of the land contained in the original petition. The third amendment, however, neither added to nor reduced the territory set forth by the original petition as modified by amendment two. On February 2, 1961, the circuit court entered an order approving the petition of annexation as amended.

First, the appellants claim that the ordinance passed by the City submitting the question of annexation to the voters is void as violating Ark. Stats. § 19-2402, prohibiting an ordinance from containing more than one subject, which shall be clearly expressed in its title. The reasoning employed by the appellants is that the ordinance had a dual purpose, the first being to annex land to the City and the second to exclude certain land from the annexation in order to favor local banks which might maintain branch offices on the excluded land. It is true that the description of the land placed on the ballot and proposed to be annexed by the City contained three small enclaves, completely surrounded by land of the proposed annexation. However, the record reflects that the parties stipulated in the circuit court that the ordinance “was legally submitted to a vote of the qualified electors of the City of Little Bock . . .” The appellants cannot in one breath stipulate that the ordinance is valid and in the next assert that it is invalid. They are bound by their stipulation that the ordinance is valid and cannot now assert its invalidity.

Appellants contend that the ordinance passed by the City which proposed the annexation is void as conflicting with Amendment 14 to the Arkansas Constitution, which forbids the passage by the General Assembly of local legislation. They reason that since the power of a municipal corporation to extend its borders is derived from the legislature, the City also has the restrictions of Amendment 14 placed upon it; that the City by carving out certain enclaves in the territory annexed has conferred a special favor upon the local banks, and therefore the ordinance is forbidden by Amendment 14.

This argument is unsound for the reason that Amendment 14 is a restriction on the General Assembly and not on the municipal corporations of the state. Of course, it is not inconceivable that a city within the state might pass an ordinance which would so unreasonably and arbitrarily affect certain persons, their rights or their property, as to be unconstitutional. If so, the ordinance might be attacked in the courts on constitutional grounds, but certainly not on the basis of Amendment 14.

The appellants assert that the circuit court was without jurisdiction to hear this case because at the time the City passed its ordinance of annexation which is the subject of the present litigation, there was an appeal pending in the Pulaski Circuit Court from an order of the Pulaski County Court denying annexation of identically the same territory. We need not consider the merit of the assertion because appellants introduced no evidence in support thereof, and neither this Court nor the circuit courts will take judicial notice of such a matter. Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105; Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517.

Appellants’ next contention is that appellee’s first amendment to its original petition made in the county court added territory to that described in the original petition, and for that reason the circuit court’s order annexing territory described in the third amended petition should be reversed.

It is true that the amendment allowed in the county court was void as being in excess of the jurisdiction of the court. Ark. Stats. § 19-102 provides that “. . . no amendment shall be permitted [by the county court], whereby territory not before embraced [by the original petition] shall be permitted. . . .” As was said in Grayson v. Arrington, 225 Ark. 922, 286 S. W. 2d 501: “Where the court ... is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the power thereby conferred is null and void.”

It must be borne in mind, however, that the appellants herein took the present case from the county court to the circuit court by direct appeal. Article 7, § 33 of the Arkansas Constitution provides “appeals from all judgments of the county courts . . . may be taken to the circuit court. . . .” Ark. Stats. § 27-2006 states that “the circuit court shall proceed to try all such appeals [from the county court] de novo. . . .” Upon trial de novo in the circuit court the court has jurisdiction of the subject matter for final judgment, to the same extent as though original jurisdiction had been in the circuit court. Ark. Stats. § 27-2007; Batesville v. Ball, 100 Ark. 496, 140 S. W. 712. Thus it is apparent that the circuit court was clearly within the bounds of its authority when it disregarded the void amendment allowed by the couhty court and proceeded to hear this case on the original petition, as if it had been originally brought in the circuit court, and as if no amendment had been made at all in the county court.

On the date set by the circuit court for a hearing on the matter, the City filed amendment two to its original petition, which was identical to the first amendment made in the county court, with the exception of the small acreage in the northwest corner added by the first amendment, which was deleted. This brought the land sought to be annexed within the territorial limits of the original petition. Amendment three neither added to nor subtracted from the territory described in the original petition as modified by amendment two. The order of the circuit court in approving the original petition as modified by amendments two and three was proper.

The appellants allege that amendment one made in the county court was made by the appellee at the request of the county judge, a sort of condition precedent, so to speak, for the approval by the court to the annexation, but appellants offer no proof as to this allegation, and in the absence of evidence to the contrary we must assume, as we do, that the City acted at all times during this litigation in absolute good faith, and that through its agents it has honestly sought to carry out its public trust.

Appellants argue that the description in the third amended petition and the map filed therewith are inaccurate and do not sufficiently identify the limits of the territory sought to be annexed. John P. Powers, a registered professional civil engineer, testified that the map is as accurate as it is humanly possible to show it, and that he could take the map and the description contained in the third amended petition and locate the proposed boundaries of the City on the ground. No witnesses were offered by the appellants to testify as to the alleged inaccuracy of the description and map. We think the circuit judge correctly found the map and the description to be sufficiently accurate. Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884; Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536.

Appellants urge that the City is not financially able to provide ordinary municipal services to the area in question, but offered no concrete evidence to support their conclusion. On the other hand, the City put in evidence the testimony of various city officials who testified as to the services which their departments could and would furnish to the area. The circuit court, apparently relying heavily upon the testimony of the city manager, who testified at length on the financial status of the City, specifically found that “the proof in this record does not arise to the point of persuasiveness to find that the City could not furnish the ordinary municipal services to the territory sought to be annexed, if the petition for annexation should be granted.”

In City of Little Rock v. Findley, 224 Ark. 305, 272 S. W. 2d 823, it was said: “The law governing appellate review in cases of this kind has been settled for many years. It is our duty to affirm the circuit court’s judgment if it is supported by substantial evidence.” We think the rule set forth in the Findley case is applicable to the case at bar; there is substantial evidence to support the finding of the trial court regarding the financial ability of the City to furnish services to the territory proposed to be annexed.

The last point raised by the appellants is the assertion that by reason of the enclaves or “islands” of unincorporated land lying completely within that which is sought to be incorporated, the contiguity of the desired territory is destroyed, and therefore it cannot be annexed.

The exact question was before this Court in the recent case of Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317, wherein two small plots of ground on which two branch banks were located were not included in the annexation. In footnote 3 of the Mann case it was stated that, “the exclusion of the two plots does not destroy the contiguity of the territory to be annexed.” The statement is equally applicable in the present case, and the enclaves in the territory do not destroy its contiguity.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Anderson v. Anderson.
    5-2426
    352 S. W. 2d 369
    Opinion delivered December 18, 1961.
    [Rehearing denied January 22, 1962.]

      Pickens, Pickens <& Boyce, for appellant.

      D. Leonard Lingo and Harry L. Ponder, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a Chancery decree granting appellee, Wesley Anderson, a divorce from appellant, Leona Anderson, and adjudicating property rights between the parties.

Appellee sought the divorce upon the grounds of general indignities and alleged, inter alia, that he and appellant had settled their property rights.

Appellant denied that appellee had grounds for divorce, denied any property settlement and cross-complained seeking a decree for separate maintenance and support; a property division and settlement between the parties; decree of sale of all properties owned by the parties as tenants by the entirety, with proceeds to be divided equally; and a sum as permanent alimony, attorney’s fee, suit money, and cost.

From a decree which was adverse in part to appellant’s prayer comes this appeal.

Aside from a contention that the division of property decreed by the court is inequitable and that the court abused its discretion in failing to grant alimony and attorney’s fee, appellant’s principal contention is that there was no corroboration of appellee’s testimony which would entitle him to the relief granted by the Chancellor.

As to corroboration, the Chancellor in his findings said:

“I find here a picture that, to me, is highly regrettable. I might say that in making my finding on the petition for divorce, the question of corroboration arises; it has been questioned severely. The corroboration, as I have seen it, has come as much at least, if not more, from the testimony of the defendant herself as from those witnesses introduced by the plaintiff.”

In argument here,. appellant calls to our attention the provisions of § 34-1207, Ark. Stats. Ann. which reads as follows:

"The statements of the complaint for a divorce shall not be taken as true because of the defendant’s failure to answer, or his or her admission of their truth.”

Of course, it is a rigid rule of continuous application in this State that in an action for divorce a decree will not be granted upon the uncorroborated testimony of one of the parties. Smith v. Smith, 215 Ark. 839, 233 S. W. 2d 776. But the purpose of the rule requiring corroboration is to prevent the procuring of divorces through collusion, and when it is plain that there is no collusion, the corroboration may be comparatively slight. Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6.

This was a hotly contested divorce suit with no intimation of collusion. In our view it clearly falls within the following rule which was aptly stated in Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078, as follows:

“It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential of his or her divorce. It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.”

The record in the present case is voluminous. It would serve no useful purpose to here set forth the minute details of appellant’s contemptuous conduct toward appellee which took place over a period of years. There was evidence to the effect that such conduct resulted in the absence of cohabitation as husband and wife for a period of some three years prior to the commencement of this action even though the parties continued to inhabit the same home. Appellee was relegated to sleeping on the back porch of their home and was found one night sleeping on a counter in his place of business. On one occasion appellee was stricken with a serious kidney ailment. "When it appeared that he might die, it is impressive that appellant took the occasion to ask appellee to forgive her for the way she had treated him.

Appellee was a building contractor and had built up a substantial business known as Anderson Lumber Company. Appellant performed some limited duties for the business but to the employees, behind appellee’s back, she was known as the “big boss” due to her dictatorial attitude. Appellant would publicly criticize appellee and would correct him in front of customers. One witness testified that after two of appellee’s construction jobs had been turned down by plumbing inspectors, he heard appellant tell her husband that if he had done the jobs right he would have gotten his money out of them and then almost immediately told appellee to get out of his own place of business and stay out. This witness said: “I saw there was trouble coming up and I got out and stayed out myself.” So did appellee. Another witness testified that on several occasions he noticed appellant use short, cut off sentences and catty remarks to appellee. Another witness noticed how worked up appellant would get when she began to talk about her troubles with her husband and what she was going to do to him. The record is replete with instances such as here set out, each perhaps small within itself but together produced cumulative results which caused the Chancellor to find that they constituted such indignities to the person of appellee as to render his condition intolerable.

As was said in Coffee v. Coffee, 223 Ark. 607, 267 S. W. 2d 499:

“The Chancellor and the parties reside in the same community and he had the advantage of seeing and hearing the witnesses testify and was in a preferred position to determine the credibility of the witnesses and the weight to be accorded this testimony.
“We have also held that while Chancery cases are tried de novo, the established rule of practice is that his findings are of such persuasive force upon evenly balanced testimony that the decree will not be reversed.”

And in Koury v. Koury, 230 Ark. 536, 323 S. W. 2d 554:

“The very nature of the ill treatment inflicted upon Mrs. Koury was such that there could not be much corroboration, and in a case of this kind where there is no collusion her testimony does not need much corroboration. ’ ’

Applying these rules here there was more than sufficient evidence to support the Chancellor’s finding. Therefore, the decree of divorce is affirmed.

Further applying the above rules we find after a careful examination of the record that the Chancellor’s adjudication of the property rights of the parties was not only fair but under the circumstances extremely just and equitable. Appellant’s total assets following the trial court’s adjudication are substantial. From the record it is clear that she is a fairly young woman. There is no contention that she is in ill health. She is remarkably shrewd in business dealings, having been engaged in successful financial transactions for many years. She possesses great ability and appears to be financially independent. From the standpoint of ready money and liquid assets she seems to be in a superior position to appellee. From what has been said, it follows that since the matter of alimony and attorney’s fees fall within the sound discretion of the trial court, we are unable to find abuse of discretion. Therefore, on the whole case the decree is affirmed.


author: Neill Bohlinger, Associate Justice. Jim Johnson, Associate Justice,

text:
    Hogan v. Hogan.
    5-2513
    352 S. W. 2d 184
    Opinion delivered December 18, 1961.
    [Rehearing denied January 15, 1962.]

      Holt, Park S Holt, for appellant.

      Robert G. Doivnie and Edwin E. Dunaway, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant and the appellee were married on March 2, 1942, the appellant at that time being a stockholder in the Greater Little Bock Stock Yards, a corporation. The appellee was employed by the corporation as a bookkeeper. In November 1943 the corporation was dissolved. The appellant had acquired all the stock of the corporation and continued to operate the business. The appellee continued as bookkeeper for the business but was paid no salary.

The appellee herein contends that after the dissolution of the corporation she and the appellant became joint partners in the business and that thereafter the business filed partnership returns for income tax accounting and that for the last two months of 1943 and the years 1944-45-46 the profits of the business were divided equally between appellant and appellee. After the year 1946, the profits remained in the business and the living expenses of the parties and the expenses of the business were withdrawn from the joint business account as needed.

On February 12, 1960 the appellee filed in the Chancery Court her complaint seeking a divorce from the appellant. Two children had been born of the marriage and she asked permanent care and custody of the minor children; alimony and support money; possession of the premises which appellant and appellee had used jointly up until that time; and further asked for a division of the property commonly owned by the parties and for her statutory rights in all property individually owned by appellant.

The matter was presented to the Chancery Court which granted the appellee a divorce from the appellant, giving her the exclusive possession of the residence of the parties, custody of the minor children and awarded the appellee $300.00 per month for the maintenance and support of the minor children and also attorney’s fees. The part of decree granting the divorce, use of the living quarters, the $300.00 a month support money and attorney’s fees is not questioned here.

The chancellor further found that the parties herein were the owners and operators of the Greater Little Rock Stock Yards, a partnership in which each partner owned a one-half undivided interest; that the net worth of said business was $33,439.52; that the appellant was due the partnership account $17,500.00 as the proceeds from some bank stock that had been bought with partnership funds; that there was a refund of federal taxes due the partnership in the sum of $9,327.57, making the adjusted value of the partnership $60,267.09, one-half of which sum was awarded to the appellee. The court further found that the appellee was entitled to a one-third interest in the cash surrender value of certain life insurance policies which one-third interest amounted to the sum of $12,004.00. The appellant was further required to execute a proper conveyance of the residence to appellee so as to create an estate by the entirety in the said real property. The court further awarded the appellee a one-third interest for life in 17 acres of land in appellant’s name in Pulaski County, Arkansas, of a value of approximately $5,000.00.

The court further found that purchases of U. S. Savings Bonds had been made from partnership funds for benefit of the two minor daughters of the parties; bonds in the amount of $30,000.00 for Lou Ann Hogan and of $20,000.00 for Patti Hogan. The bonds purchased for Patti Hogan were cashed by the appellant and invested in the business and the transaction appears as a credit account in the name of Patti Hogan on the books of the Stock Yards Company and is listed in the accounting as a liability. The court directed that this sum and the bonds purchased for Lou Ann Hogan be held in trust.

Prom this decree the appellant prosecutes this appeal, alleging that the Greater Little Rock Stock Yards was never a partnership and that the court erred in dividing that property equally between the parties herein. It does not appear to be questioned that the parties filed a partnership return in reporting their income. The returns, as filed, showed that each of the parties hereto owned fifty per cent of the business and the appellant had signed the statement on the tax form, in which he declared, under the penalty of perjury, that the return had been examined and was true and complete. The federal partnership return appears to have been questioned by the Internal Revenue Service and the partners herein went to the Regional Office in Oklahoma where they jointly urged that Mrs. Hogan was a partner in the business and the Treasury Department thereafter recognized Mrs. Hogan as a partner in the Greater Little Rock Stock Yards and made an adjustment in the partnership returns on that basis. The appellant further, in his testimony, used the expression that “he fought the government for it to be a partnership” and that the partnership relationship had saved him approximately $100,-000.00 in four or five years. It further appears that for more than three years the profits of the business were divided equally between Mr. and Mrs. Hogan. The profits were not divided after 1946 for it is stated that profits were deemed necessary for the expansion and progress of the business and the parties hereto thereafter only took their living and business expenses from the joint business account.

The appellant herein now says that a partnership did not exist for the reason that inter alia Mrs. Hogan had not put any money into the partnership or purchased any part thereof from him. It was not necessary for her to so do in order to create a partnership. A partner may bring to the business of the partnership other things than money. A partner may contribute skill or other things that are necessary to accomplish the purpose for which all business partnerships are formed — namely, making money. This seems to have been accomplished by Mrs. Hogan’s participation in the partnership when we consider the appellant said the partnership arrangement saved him $100,000.00 over a period of several years and appellee continued to work at the business. This has all the earmarks of a partnership and we are unable to say that the chancellor erred in so holding and making a division on the basis of a partnership.

In Reed v. Reed, 223 Ark. 292, 265 S. W. 2d 531, this court said:

“There is a sharp conflict in the testimony as to whether Helen is a partner in the plumbing business, and although there is substantial evidence to sustain the contention of such a partnership, there is also convincing evidence to the contrary; and we cannot say the Chancellor’s finding in that respect is against the preponderance of the evidence.”

Further, in Williams v. Williams, 186 Ark. 160, 52 S. W. 2d 971, a divorce action in which there was a controversy over the property settlement, this court said:

“* * * jg c]ear from the evidence that both appellant and appellee worked and conducted the business which resulted in the accumulation of the property in controversy. It is immaterial whether there was a partnership. If appellee and appellant, by their joint work, labor and management, acquired the property, a court of equity would, even before the recent statutes, protect the wife’s interest in the property.
* * * The Chancellor found that the appellee was the owner of one-half of the property, and we cannot say that his finding is against the preponderance of the evidence. ’ ’

We are further unwilling to disturb the chancellor’s finding as to the value of the partnership property. The finding was largely in line with the testimony of the appellee but the appellant had the books of the business and testified that he had an auditor, whom he neither named nor produced, and offered only generalized statements that were not, in the opinion of the chancellor, sufficient to overcome the testimony and evidence presented by the appellee. This finding we do not disturb.

Point two argued by appellant for reversal alleges that the court erred in admitting certain ledger sheets introduced by the appellee. We take it that the point is directed solely at the two ledger sheets which the appellee identified and introduced as the original ledger sheets from the books of the Greater Little Rock Stock Yards. They were identified as to the date they were made, the person making them, the transactions they purported to show and that they were made during the regular course of business. These sheets were admissible under Ark. Stats. 28-928 for the purpose of showing that the appellee had participated in the profits of the business. The ledger sheets were not admitted to show the partnership itself, but for the purpose of showing participation in the profits which is only one of the criteria for showing the existence of a partnership. Even if the ledger sheets had not been admitted, there was other sufficient evidence to show that the partnership did exist.

For his third point the appellant contends that if a partnership did exist, the lower court erred in ordering appellant to pay one-half of the book value without complying with the Uniform Partnership Act. We do not agree. The Uniform Partnership Act does not prevent a chancellor, in a divorce proceeding, from dividing the partnership property between a man and wife who are the partners, when there are no other partners or creditors involved.

In the case of Johnson v. Lion Oil Company, 216 Ark. 736, 227 S. W. 2d 162, this court said:

“As long as the agreement creates the basic structure of a partnership, we think the parties may insert details that would be treated differently by the Act in the absence of the contractual provisions.”

Since partners can agree that certain matters can be handled in a different manner than that provided under the Uniform Partnership Act in the absence of other partners or creditors, a chancery court, in dividing property between man and wife in a divorce proceeding, may proceed in a different manner than provided in the Partnership Act. We find no error and the case is affirmed on direct appeal.

The appellee has cross-appealed from the denial of the chancery court of her prayer for a one-third interest in the one-half of the partnership property decreed to appellant. We think it is well settled that the wife is entitled to a one-third interest in the personal property owned by her husband as an individual. But the rule applicable in this case is found in McLerkin v. Schilling, 192 Ark. 1083, 96 S. W. 2d 445:

“It will be noticed that the statute is applicable to ‘the personal estate of such deceased person.’ Partnership assets are not the personal estate of the individual partners during their lifetime, and death of one of the partners does not make them such. Partnership assets belong to the partnership, and not to the individual partners. Such assets never become the personal estate of the individual partners until the partnership is dissolved, its debts paid, and the remaining funds distributed. The death of one of the partners dissolves the partnership. We have so held since Bernie v. Vandever, 16 Ark. 616. In the same case and ever since, it was and has been held that the surviving partner is entitled to the partnership property and effects for the purpose of paying the debts of the firm. Marlatt v. Scantland, 19 Ark. 443; Adams v. Ward, 26 Ark. 135; Cline v. Wilson, 26 Ark. 154; Hill v. Draper, 54 Ark. 395, 15 S. W. 1025; Coolidge v. Burke, 69 Ark. 237, 62 S. W. 583; Evans v. Hoyt, 153 Ark. 334, 240 S. W. 409.”

As this court said in the case of Richardson v. Adler, Goldman & Co., 46 Ark. 43, “property belonging to the firm cannot be said to belong to either partner as his separate property.”

In the case of Reed v. Reed, 223 Ark. 292, 265 S. W. 2d 531, it was stated, in connection with the statutory interest of the wife in her husband’s property, that she is entitled to one-third of her husband’s personal property absolutely [Citing cases]. This would include one-third of any interest the husband might own in a partnership with his brother or anyone else. Since it is pointed out that the wife might be entitled to an interest in a partnership between her husband and someone else, it is thus stated that the application is to a partnership in which the wife is not involved. To reach the interest of the husband under those circumstances, a charge order must be resorted to.

In a partnership, the partners are co-principals and the partnership estate is not altogether dissimilar from an estate in the entirety. In any event, it cannot be said to be individual personal property. Ark. Stats. 65-125, Nature of partner’s right in specific partnership property — states:

“A partner is coowner with his partners of specific partnership property holding as a tenant in partnership. * * *
(e) A partner’s right to specific partnership property is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin.”

Since the one-half interest which the appellant had in the partnership was not specific personal property, it follows that the statutory one-third interest of the appellee does not apply and the chancellor was correct in so holding.

This case is affirmed both on direct and cross-appeal.

Bobinson and Johnson, JJ., dissent.

Ward, J., not participating.

Jim Johnson, Associate Justice,

dissenting. After carefully reviewing the entire record before us on trial de novo, my conscience will not permit me to agree with the majority opinion.

Here we have a young divorcee who after working for appellant for some seven or eight months as a $125 per month bookkeeper married her wealthy boss. Soon after the marriage it was determined that appellant could save money on his exorbitant income taxes if he should file a partnership return rather than an individual return. This was done. Because of this one act, appellee now contends that she was a full partner in the business and therefore entitled not only to a full 1/2 of the fruits of appellant’s entire business efforts, but further contends that she is entitled to a 1/3 share of appellant’s remaining 1/2 interest.

As early as 1840 this Court declared the rule from which it has not deviated that as between the parties themselves, the agreement or contract alone constitutes, them partners. Olmstead v. Hill, 2 Ark. 346. In the-instant ease there was absolutely no agreement or contract except the agreement to save money by taking advantage of the liberal partnership tax laws.

The Uniform Partnership Act, Section 65-106 of the Arkansas Statutes, defines a partnership as:

“(1) A partnership is an association of two (2) or more persons to carry on as co-owners of a business for profit.
“(2) But any association formed under any other statute of this state, or any statute adopted by authority, other than the authority of this state, is not a partnership under this Act, unless such association would have been a partnership in this state prior to the adoption of this act . . .”

Appellee relies almost solely upon the fact that the Income Tax Division of the Treasury Department of the United States and the Commissioner of Revenues of the State of Arkansas permitted the parties to file income tax returns as a partnership to establish conclusively that the Greater Little Rock Stock Yards was a partnership.

Since the status of a partnership was given this company only by a division of the tax departments of the Federal and State Governments for income tax purposes, and since it has never been established as a partnership under the authority of the laws of this State governing partnerships, the question then arises — would such an association have been a partnership in this State prior to the adoption of the Uniform Partnership Act?

It must be borne in mind that the income tax division of the Treasury Department of the United States and the Revenue Department of the State of Arkansas are only departments or agencies of their respective governments.

There is no doubt in my mind but that all of the necessary elements of a partnership, either before or after the adoption of the Uniform Partnership Act, are sadly lacking in this case.

Appellee stated: “I started as bookkeeper in June 1941 for the Greater Little Rock Stock Yards, Inc. It was a corporation then. I was paid $125.00 per month salary as bookkeeper. The Greater Little Rock Stock Yards was formed as a partnership on November 1, 1943, and I made the partnership tax returns for the two months in 1943 and every succeeding year including 1959.”

As I view the matter, the only question before us is — did the filing of income tax returns as a partnership with the income tax division of the Federal Government and the State of Arkansas conclusively fix the status of the Greater Little Rock Stock Yards as a partnership?

Appellant stated: “I found out I could save quite a bit of money by taking her in as a partnership. The Internal Revenue people challenged this and asked me why I took her in if it was not for tax purposes only. We went before the technical staff in Oklahoma City and I told them it was for tax purposes only. I also showed the Arkansas return that way. You don’t establish that and turn around and knock it in the head. It was saving me a lot of money by establishing it in 1943 and 1944. They knew Mrs. Hogan did not have any money in the business and had no knowledge of running it.”

Even appellee did not dispute -that the Federal and State Income Tax Returns were filed as a partnership for the purpose of saving on their taxes.

Mrs. Hogan was asked on Cross-Examination:

‘ ‘ Q. That partnership entered into in order to save money as far as the tax structure of the Federal Government was concerned?
“A. That was one valid reason.
‘ ‘ Q- How much money did you put in the partnership?
“A. At the time we opened the partnership I did not put any money in it.”

<¡ Persons who are associated as principals in a common business and share both the profits and losses are < bnerally considered partners.

“If they are not so associated, but the stipulation is p art of an arrangement to avoid competition, or to eo>n- ¿ let a litigation in the results of which they are severally i terested, or to secure a greater activity on* skill on the p irt of a servant or agent, or to accomplish some similar % irpose, the mere sharing of profits and losses will! not make them partners.” Outlines of Partnerships, Donald J. Kiser, L. L. D. (Emphasis supplied.)

Following the rules as set out above, I cannot escape the conclusion that the filing of income tax returns for the sole purpose of reducing their tax burden did not make the business a partnership between the parties» Therefore, I respectfully dissent.