author: Paul Ward, Justice.

text:
    Larry James WRIGHT v. STATE of Arkansas
    5299
    419 S. W. 2d 320
    Opinion delivered October 16, 1967
    [Rehearing denied November 6, 1967.]

      J. Sam Wood and Martin Green, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

Larry Wright, appellant was charged with the crime of committing rape on the night of January 24, 1967. He was tried and convicted on May 9, 1967, and sentenced to life imprisonment.

The victim identified appellant as the person who entered her bedroom about midnight and forced her to have intercourse with him. Appellant’s defense consisted mainly of an alibi. He took the witness stand, and testified, in substance: He was at the home of his parents from about 10 p.m. on the night in question and remained there constantly until 7 or 8 o’clock the next morning. He was corroborated by his parents, and, to some degree, by other witnesses.

On appeal, and for a reversal, appellant does not contend there was any lack of sufficient evidence to support the jury verdict of guilty. He does, however, contend the case should be reversed because of two alleged errors committed by the trial court, which alleged errors we presently examine.

One. The first contention by appellant is:

“The trial court erred in failing to grant a mistrial after allowing the prosecution to improperly cross-examine the defendant by accusing defendant of specific acts of bad conduct and criminal conduct and attempting to impeach defendant’s credibility.”

Another point raised by appellant is closely related to the above and will not be discussed separately. It merely concludes that “the verdict of the jury was rendered ont of bias and prejudice against the defendant as a result of the improper cross-examination ...” mentioned, above.

On cross-examination appellant was asked nine-questions by the prosecuting attorney relative to his alleged past conduct or behavior. The first question was:

Q. “I will ask you if Mr. Eoger Tucker on several occasions has requested that you quit hanging around his place of business because you make indecent proposals to women.”

Appellant objected on the ground that “it has nothing to do with the proof of innocence in this case at all.” Then the trial court stated:

“. . . you know this defendant has taken the stand. He is subject to the same rule and cross-examination as any other witness. These questions may be asked on the credibility of the witness.”

To the above appellant again objected, and saved exceptions.

Six or seven other questions of the same or similar import were propounded to appellant, all of which were denied by him. To one other question of this nature appellant answered that “I used to hang around the Palace Laundry and they told me, the lady did, to stay away and I ain’t been back there since”.

There were several discussions between the court and the attorneys relative to the propriety of the question during which time appellant made proper objections. Then the court made this statement to the jury

“Gentlemen, you understand these questions and. answers with respect to this line of questioning which has just been pursued, to which the defense has objected, is not to be considered by you as substantive proof of the offense for which he is being tried. It goes only to his credibility.”

A review of our decisions pertinent to matter here in question leads us to conclude the trial court’s ruling ivas correct.

In support of his contention of error appellant cites cases of Ware v. State, 91 Ark. 555, 121 S. W. 927; Younger v. State, 100 Ark. 321, 140 S. W. 139, and; Henson v. State, 239 Ark. 727, 393 S. W. 2d 856. We think, however, these cases are not applicable to the situation here. In the Ware case the State offered testimony by witness as to other crimes committed by appellant after he had tried to prove his good character. In rejecting the State’s testimony this Court also said:

“As a witness in the cause, he could have been cross-examined ; and upon his cross-examination, like any other witness, he could have been asked as to specific acts for the purpose of discrediting his testimony as a witness.”

In the Younger case (which was a rape case) the State again offered to prove appellant’s bad character by its own witnesses, even though he had not attempted to prove his good character. In holding this was improper, we said:

“Appellant, however, having taken the witness stand in his own behalf, was subject to all the rules of examination and impeachment as any other witness. Therefore to test his credibility the State had the right on cross-examination to ask the witness if he had not been convicted of petit larceny, and if he had not been confined in the penitentiary.”

The issue in the Henson case was very similar to that in the Ware case, and we held that after appellant had offered to prove his good character the State could not introduce witnesses to prove “specific instances of bad behavior as a matter of contradicting appellant’s testimony”.

There are numerous decisions by this Court holding, in effect, that when a defendant takes the witness stand (as he did here) he is subject to the same rules of evidence and impeachment as other witnesses on cross-examination to test his credibility. Jordan v. State, 141 Ark. 504, 217 S. W. 788; Kyles v. State, 143 Ark. 419, 220 S. W. 458; Hays v. State, 219 Ark. 301, 241 S. W. 2d 266, and; Edens v. State, 235 Ark. 178, 359 S. W. 2d 432.

Two. It is here contended that the trial court committed reversible error in refusing to discharge the jury and empanel a new jury. The issue arose in the manner described below.

While the jurors were being questioned for qualification the trial court asked them if anyone knew anything about the facts of the case or if they had heard anything about it. Thereupon John Candler (a member of the panel) stated: “This incident occurred in rent property owned by myself and my wife.” Appellant moved for a mistrial, and it was denied by the court. An objectioii was made by appellant, and exceptions saved.

A review of the record convinces us the court committed no reversible error. In response to further questioning by the court Candler made it clear that he had talked with no one who purported to know the facts; that, if accepted, he would not be influenced either way as to guilt or innocence of the defendant; that he didn’t know appellant or the prosecuting witness, and had never seen either before the morning of the trial; that he only heard that an “alleged incident did happen”

Appellant also made a motion to strike Candler for cause, and this motion was granted.

We think the trial court, under the state of the record here, did not abuse hi$ discretion in refusing to declare a mistrial. In the case of Briley v. White, 209 Ark. 941, 193 S. W. 2d 326, this Court refused to grant a mistrial. In sustaining the trial court we used this language:

“Much latitude must be given to the trial court in handling matters of this kind, and, in the absence of a showing of abuse of discretion or a manifest prejudice to the rights of the complaining party, this court will not reverse a judgment on account of the action of the trial court”. (Citing numerous cases in support.)

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    J. E. BROOKS v. RENNER and Company Inc. et al
    5-4267
    419 S. W. 2d 305
    Opinion delivered October 16, 1967

      Murphy & Burch, for appellant.

      Putnam, Davis & Bassett, for appellees.
   Lyle Brown, Justice.

Suit was filed by J. E. Brooks, plaintiff-appellant, against Renner and Company Inc., a Fayetteville insurance agency, and Commercial Standard Insurance Co., with whom Renner placed a substantial part of its business. The sole issue below was whether a Commercial Standard auto liability policy issued by Renner to J. E. Brooks on June 3, 1964, was in effect on November 2, 1964. On motion for summary judgment the trial court ruled against Brooks.

Brooks resided in Fayetteville continuously for many years. For some ten years he had insured one or more automobiles through the Renner agency. A policy was written annually; however, it carried a four months expiration date. Prior to the stated expiration date, Renner would mail a four months renewal statement and a premium bill. It is Brooks’ contention that because of the described business practices, there existed an implied agreement between the parties which bound Renner, in the absence of notification to the contrary, to renew the contract.

In 1963, Brooks moved to Little Rock but maintained his auto liability coverage with Renner. The expiration date on the involved policy was October 3, 1964.

Under date of September 21, 1964, Renner addressed this letter to Brooks at his office in Little Rock:

“Your coverage on your cars under the above policy will expire October 3, 1964.
“In your present situation, it would be best that you secure coverage in Little Rock. You will be able to get better service from an agent there closer to you.
“When you get your other coverage effective 10-3-64, be sure the agent furnishes evidence of the insurance to G-MAC on the 4 Dr. Hardtop and the Bank of Arkansas on the Convertible.
“We greatly appreciate having written this coverage for so many years.”

The letter to Brooks was received in due course. He is not sure just when he read the letter; it was his general recollection that it was approximately one week after receipt of it. Brooks did not reply to Renner’s letter.

Did Renner’s letter to Brooks, dated September 21, 1964, constitute notice that the policy would not be renewed? Any doubts and inferences about the content of the letter in this respect must be resolved in Brooks’ favor. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).

On a motion for summary judgment this court is authorized to ascertain the plain and ordinary meaning of a written instrument. This is permitted only after any doubts are resolved in favor of the party moved against. If doubt exists and makes the meaning ambiguous, there then arises an issue of fact to be litigated. Elbow Lake Coop. Grain Co. v. Commodity Credit Corp., 251 F. 2d 633 (1958).

Tested by the stated principles we think there is but one logical conclusion to he reached. It plainly and simply gave notice to Brooks that his policy was not being renewed. It is devoid of any alternative. For example, the letter did not point up the inconvenience of his insurance being written in a city 200 miles distant from his city of residence, and, alternatively, offer to continue writing it if Brooks insisted. Renner gave him the date of expiration. Brooks was told it would be best to secure the coverage in Little Rock. He was advised to notify GMAC and the Bank of Arkansas of the change. Appreciation was expressed for having had Brooks as a customer.. This was unequivocally a letter of finale.

Appellant attaches significance to the absence of such a bold statement as “I am not going to continue coverage.” That argument is not convincing. American National Insurance Co. v. Hamilton, 192 Ark. 765, 94 S. W. 2d 710 (1936). There the court held an instructed verdict for the Company should have been granted. Our court said that a notice which reasonably appraises the insured that the insurer is exercising its right not to renew is sufficient. We think Renner’s notice meets the reasonableness test.

Finally, appellant argues that if the non-renewal letter of September 21 is interpreted in light of extraneous circumstances, it would be obvious to a jury that the letter was ambiguous; here it is pointed up that Mr. Renner and Brooks were friends and Brooks was a longstanding customer. For those reasons, appellant Brooks concludes,i> rather inarticulately, that. Renner was impliedly obligated to take care of Brooks’ insurance needs. We recognize that service agencies are expected to, and usually do, take an interest in the welfare of their regular customers. Ofttimes they render courtesies over and above the obligations created by contracts. That is -simply good business.

Concerning appellant Brooks’ final argument, we lave reviewed the record and conclude it is without merit. To the contrary, the record refutes it. The only variance in the contractual relationship was that Renner ac-commodated Brooks by not requiring payment of premium in advance. He carried Brooks on open account and the last premium due in June 1964, was not paid until the following November. In all other respects their transactions were handled in accordance with sound business practices. The same procedure for renewal was followed for some ten years. That was Brooks’ testimony. Every four months Renner would mail a renewal certificate and render a statement. That was done each time in advance of the expiration date. Ten days in advance of the October renewal date the usual renewal notice and billing were not mailed. In lieu of those, Renner wrote a letter reminding Brooks of the expiration date, advising him to obtain his insurance in Little Rock, cautioning him to notify the automobile lienhold-ers of the change, and thanking him for having “written this coverage for so many years.”

If, as now contended by appellant, neither of the parties treated this letter as a non-renewal notice, why did Brooks wait until November 5 to reply? That was three days after one of his automobiles had been involved in an accident in Little Rock.

Affirmed.


text:
    G. L. ARMSTRONG v. E. L. COOK
    5-4309
    419 S. W. 2d 308
    Opinion delivered October 16, 1967

      J. H. Spears, for appellant.

      Giles Dearing, for appellee.
   Lyle Brown, Justice.

This action originated when appellant Armstrong filed petition in the Cross, County-Court under the provisions of Ark. Stat. Ann. § 76-110 (Repl. 1957); there he sought to establish a private road which would lead from the county road across appellee Cook’s lands and to the Armstrong property. The county court granted the petition. On appeal to circuit court by Cook, the findings of the county court were vacated. Those findings were based on omissions which we shall later describe. It is appellant Armstrong’s contention that the county court’s order which awarded him an outlet to the county road was justified.

Appellant Armstrong and appellee Cook own adjoining farm lands. A public road runs through the Cook lands. Armstrong has no immediate access to a public road. For a number of years he has gained access to his acreage by crossing, with permission, the woodlands of his neighbor. The woodlands were cleared and planted in an orchard and Cook no longer desired to make passageway available.

The county court failed to follow the statutory requirements in a number of respects, all of which will not be enumerated. We do point out that the written report of the appraisers does not sufficiently describe the land through which the road would pass; nor does it calculate the value of the strip of land which would he appropriated for the road. No survey was incorporated in the commissioners’ report.

Here is the only instrument of the commissioners:

“We, the undersigned Commissioners, appointed to view the lands in Section 31, Township 7 North, Range 4 East, in Cross County, Arkansas, to determine the feasibility of laying off a private road to reach the lands belonging to Gr. L. Armstrong, do make this report.
“We find that Gr. L. Armstrong needs a road to his property. We also find that there is no other feasible route except an old road now in existence.
“We recommend that a 20 foot road be built at the same location where the old road is now. There will he no damage to the Cook Farm in the construction of this road.”

The order entered by the county court adopted the same description as is contained in the commissioners’ report. If that report, along with the order of the county court, were recorded, it is apparent that the description is so vague that the road could not be located from an examination of the records. It is also noted that the county court order makes no finding with respect to damages. Section 76-110 requires a finding as to whether damages are sustained, “which damages shall include the value of the land of each owner sought to be appropriated. ’ ’

The recited omissions were sufficient to invalidate the county court proceedings. However, the circuit court erred in granting Cook’s prayer for dismissal. That court should have retained jurisdiction and tried the case de novo. Ark. Stat. Ann. § 27-2006—7 (Repl. 1962). See Garland County Board of Election Commissioners v. Ennis, 227 Ark. 880, 302 S. W. 2d 76 (1957).

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Jake CARDEN v. Bertha J. EVANS, Mother and next friend of Martha Jane EVANS, a minor
    5-4279
    419 S. W. 2d 295
    Opinion delivered October 16, 1967

      Wright, Lindsey & Jennings; By: Alston Jennings, for appellant.

      Felver A. Rowell Jr., for appellee.
   John A. Fogleman, Justice.

This appeal invokes the application of the automobile “guest statutes” [Ark. Stat. Ann. §§ 75-913 and 75-915 (Repl. 1957).] Appeal was taken from a judgment based upon a jury verdict after the trial judge denied a motion for a directed verdict at the conclusion of the evidence offered on behalf of appellee. Appellant then rested without presenting any testimony and renewed the motion which was again denied.

The suit was brought by appellee Bertha J. Evans, as mother and next friend of Martha Jane Evans, a minor, against appellant Jake Carden, also a minor. Viewing the evidence in the light most favorable to ap-pellee, the facts are:

Martha Jane Evans, aged 14 at the time, was riding as a passenger in an automobile being driven by Jake Carden, then 17 years of age, on Sunday evening, December 19, 1965. The two had been going together since the late part of the summer, having had dates on Fridays, Saturdays and Sundays. They frequently went in his automobile. He normally drove fast — usually not under 60 miles per hour, most of the time around 70. She had, on occasion, told him to slow down. On most of these occasions he ignored the request. On some of them he slowed down some, but not a lot. On the night of December 19, he wasn’t driving any differently from the way that she knew he always drove, except that he didn’t ordinarily take his eyes off the road or drive with one hand. On this particular evening Carden came to her house around 6:30 and they left for town around 7 or 7:30. They went to Bill’s Tastee Queen and got something to eat. After about a thirty-minute stay at Bill’s, they went to Bigelow where Carden lived. On the way to Bill’s, Martha Jane had occasion to ask Carden to slow down but he did not do so. On the return trip from Bigelow, while traveling on Highway No. 113 at about 11 p.m. at a point half way between Houston and Oppello, out in the open country, the car ra.n off the road shortly after the vehicle had come out of a long curve. As a result, Miss Evans was' thrown out of the car and suffered severe, painful and disfiguring injuries about the mouth and face. Just before the car ran off the road, Jake was helping her, at her request, to adjust or unfasten her seat belt. In order to do so, he looked off the road and had only one hand on the steering wheel. They were in a curve at the time. When she asked him to help he was driving around 70 miles per hour and she asked him to slow down but he did not do so. He ignored her objections to his not slowing down. His eyes were off the road for at least one minute. He negotiated at least one curve safely without ever looking at the road. While she could not say definitely that Carden was driving faster than 60 miles per hour, she testified that the speed limit was not 60 but she could not remember what it was at the point. Appellant admitted to the investigating police officer that he was driving too fast and that he had looked over at Miss Evans momentarily and left the highway.

We find that there was error in failure to direct a verdict for appellant. There can be no liability on the part of young Carden unless there is evidence to show that his vehicle was willfully and wantonly operated in disregard of the rights of others — particularly Martha Jane Evans. While the evidence undoubtedly shows negligence, perhaps even gross negligence, on his part, it is not sufficient to show the required willfulness and wantonness. Splawn, Admr. v. Wright, 198 Ark. 197, 128 S. W. 2d 248; Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472; Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723; Steward v. Thomas, 222 Ark. 849, 262 S. W. 2d 901; Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39.

In order to constitute the willful misconduct required, there must be a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another, as distinguished from gross negligence which does not involve such reckless disregard of consequences. Splawn v. Wright, supra. There must be a willfulness, a wantonness and indifferent abandonment in respect of consequences, applicable alike to self and guest. Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723. The burden of proof to show the required conduct was upon appellee. Poole v. James, 231 Ark. 810, 332 S. W. 2d 833; Splawn v. Wright, supra. Before a driver will be found guilty of this conduct, the evidence should be unusually strong and convincing. Splawn v. Wright, supra.

This case is uniquely similar to the Splawn case. There the driver of the vehicle was driving at a speed of 40 to 45 miles per hour on a slick, muddy road in bad visibility conditions due to rain and fog when his vehicle went off the road after having negotiated a curve. He lost control of the car after he reached down to turn on or adjust the heater. He had paid no attention to the objections of the injured party that he was driving too fast. There was testimony that most any speed would have been hazardous. This court reversed and dismissed the case because of failure of the trial judge to direct a verdict for the administrator of the estate of the driver who was killed. Even the elements of bad visibility and bad road surface conditions are absent here.

In another case reversed and dismissed for refusal to direct a verdict for a driver and against his guest, it was said that wantonness, in the sense of the statute, is a mental attitude shown when a person, notwithstanding his conscious and timely knowledge of an approach to an unusual danger and of common probability of injury to others, proceeds into the presence of danger, with indifference to consequences and with absence of all care. Ellis v. Ferguson, 238 Ark. 776, 385 S. W. 2d 154.

In Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472, there was evidence that the injured passenger, as well as the husband of the host driver, had called the latter down two or three times about her excessive speed on a road with curves on which the gravel was loose, before she lost control of her vehicle as she negotiated a “square” turn at a speed of 60 or 70 miles per hour or faster and left the road some quarter of a mile beyond the curve. This case was also reversed and dismissed.

Appellee relies on the holding in Spence v. Vaught, 236 Ark. 509, 367 S. W. 2d 238, as authority for affirmance of this judgment. There is a great distinction between this case and that, so it does not support appellee’s position. There testimony was introduced tending to show that appellant, after her car began to make first a singing, then a grinding noise, and finally a swerve lasting over some period of time, ignored warnings from her guest to slow down from a speed of 50 to 60 miles per hour and see what was the matter. The court found that the failure of appellant to slow down after the grinding noise started and the car swerved more violently, although twice warned to do so, would constitute willful or wanton negligence. We have no such evidence here. As was said in Steward, v. Thomas, 222 Ark. 849, 262 S. W. 2d 901, acting negligently on the spur of the moment is quite a different thing from persistent pursuit of a course of driving in a reckless and dangerous manner over the protest of the occupants of his vehicle. In view of our own holdings we do not find cases from other jurisdictions cited by appellee to be persuasive, even if applicable.

In view of the disposition we make of the case, we find it unnecessary to determine whether the action of the trial judge in forcing appellant to file an answer and go to trial on the same day the court appointed his mother as guardian ad litem to defend for him constituted an abuse of discretion.

Reversed and dismissed.


author: J. Fred Jones, Justice.

text:
    Zilpha NOWAK v. Gladys MARTIN et al
    5-4280
    419 S. W. 2d 300
    Opinion delivered October 16, 1967

      Gardiner & Steinsiek, for appellant.

      Marcus Evard, Oscar Fendler, Graham Sudbury and H. G. Partlow Jr., for appellee.
   J. Fred Jones, Justice.

This is the second appeal growing ont of litigation over the last will and testament of Ida B. Crockett. The first appeal, Nowak v. Etchieson, 241 Ark. 328, 408 S. W. 2d 476, concerned the validity of the codicil to the will and the disposition of a lapsed legacy. The present appeal concerns the disposition of rents from farm lands held by the trustee under a testamentary trust created by paragraph nine of Mrs. Crockett’s will. The exact question presented is whether or not rents from the real property collected between the death of the testatrix and the sale of the real property under power of the trust, are to be distributed to the cestui que trust, along with the proceeds from the sale of the real property under item nine of the will, or whether these rents are to be distributed to the residuary legatees under item ten of the will.

After providing for the payment of funeral expenses, debts and other specific legacies, items nine and ten of the will, insofar as they relate to the question here involved, are as follows:

“9. I give and devise to J. F. Etchieson, of the City of Blytheville, Arkansas, as trustee for the uses and purposes hereinafter mentioned and set forth, all of the rest and residue, of my real estate, wherever the same may be situated, of which I shall die seized and possessed, to be held and disposed of by him as such trustee in the manner hereinafter provided.
“It is my will and command that the said trustee shall, as promptly after my death as he shall feel a reasonable price may be obtained therefor, sell all of my said real estate at private sale for the best obtainable price, and that, after deducting from the proceeds of such sale reasonable compensation for Ms time, effort and business judgment together with any expense incident to the sale, divide the proceeds of such sale equally among the within named ELLA CUNNINGHAM, BERTHA MILLER AND GLADYS MARTIN. If any notes or instruments of security shall he received in connection with any such sale said trustee shall personally endorse and assign the same without recourse on himself to the above three persons as tenants in common owning equal interest with each other. For these purposes, my trustee is hereby given absolute power and authority to negotiate and enter into any and all things, contracts and agreements for the sale of said property and to execute, acknowledge and deliver all contracts and instruments of conveyance that he shall deem to be expedient or desirable in connection with the disposition of such real estate. My trustee shall not be required to seek any authority from any other or other [sic] tribunal or to make any report to any other, tribunal or person other than the three beneficiaries of the trust who have been named herein.
* * #
‘‘10. I give and bequeath to my nieces, ZILPHA NOWAK and ELLA LUTZ, as tenants in common owning equal interests with each other, all of the rest and residue of my property, if there be any such residue, that shall remain after the foregoing provisions of my will shall have been fully complied with.”

Ella Cunningham and Ella Lutz were one and the same person and predeceased the testatrix. Her share of the proceeds from the sale of the real property under item nine of the will, went to the heirs of the testatrix as a lapsed legacy under our holding on the previous appeal. In the case at bar, the trial court made the same division of the rents and held that Bertha Miller and Gladys Martin were each entitled to one-third of the rents, with, the remaining one-third to he distributed to the heirs at law of Ida B. Crockett. Zilpha Nowak, as the sole surviving residuary legatee under paragraph ten of the will, brings this appeal and relies on three points for reversal, as follows:

“1. The farm rents from the lands of Ida B. Crockett are considered as personalty and belong to the Executor of the Estate.
“2. Said farm rents pass under the provisions of Paragraph 10 of the Last "Will and Testament of Ida B. Crockett.
“3. In the Probate action, if said rents do not pass under Paragraph 10 of the Last Will and Testament said rents are intestate property and belong to all heirs at law of the decedent, Ida B. Crockett.”

The points relied on are so closely related to the same rule of construction we shall not attempt to treat them separately.

Appellant contends that there was an equitable conversion of the real estate devised to J. F. Etchieson in trust, and that this real property should be treated as personalty from the date of the death of Mrs. Crockett until the date of sale. Appellant earnestly contends that the rents collected from this real estate while in trust, and prior to the exercise of the power of sale under the trust, constituted separate personal assets of the estate of the decedent to be administered • as such; that since the rents were not needed for the payment of funeral expenses, debts and other legacies, and since they were not specifically mentioned in other legacies, they should be charged to the account of the executor and distributed as residue under item ten of the will. The thrust of appellant’s contention is that since the real property was converted to personalty, item nine of the will devised personal property consisting only of the proceeds from tlie sale of the real estate and that the rest and residue of the estate, consisting of rents from the real property should go to appellant under paragraph ten of the will.

We agree that a conversion of the real estate was effected here and agree, that for the purpose of the will, the conversion related back to the death of the testatrix. We do not agree that an equitable conversion of real property under the power of a testamentary trust, automatically, and by operation of law, separates the proceeds of the sale under the power from the income derived from rents on the real property prior to the exercise of the power of conversion. Certainly we do not agree that an equitable conversion under the power of a testamentary trust can defeat the object of the trust or the intentions of the testator in creating it.

The taking of rents and profits is a necessary incident of possession and where there is no express direction as to the disposition of rents and profits, the reasonable implication is that they are to go to the persons beneficially interested in the estate. Hubbard. v. Housley et al, 59 N. Y. Supp. 392, 43 App. Div. 129.

The estate of Mrs. Crockett was entirely solvent and it was not necessary to sell her real estate to pay debts. But, even in a case where it is necessary to sell real estate to pay debts and where a sale is ordered because a decedent’s estate is insufficient to pay his debts, it has been held that the rents accruing after the decedent’s death and before the exercise of a power of sale go with the title to the land to the heirs or devisees, and not to the executor or to the purchaser under the power. Bittle v. Clement, et al, 54 Atl. 138 (N. J. 1903).

The question here is not whether there was or was not an equitable conversion. It is obvious that there was. The question is not whether the real property of the decedent was to be considered personal property from the date of decedent’s death for purposes of the will —we conclude that such is the incidental effect of an equitable conversion. The real question here is whether the rents constitute a portion of the personal estate of the testatrix to be administered as such outside the power of the trust.

The cases cited by appellant do not reach the precise point on this question, but this precise point was before the Supreme Court of Rhode Island in the early case of Hendrick v. Probate Court of East Greenwich, 55 Atl. 881, 25 R. I. 361, and the question there involved being so near in point with the question here, we quote rather extensively from the decision in that case.

In the Hendrick case, a Mrs. Jones died testate. The named executor renounced the trust conferred upon him and the decedent’s husband, Mr. Jones, was appointed and qualified as administrator with .will annexed. Mr. and Mrs. Jones owned real property as tenants in common. As to her undivided one-half interest in a part of the real property, Mrs. Jones’ will provided:

“ *1 direct my executor hereinafter named, as soon after my decease as he can conveniently do so, to sell, at public or private sale, as he may deem best, my interest in the estate known as the Tillinghast estate, .... and to pay over and divide the fund arising from said sale to and among the following named persons, in the proportions specified, to wit. ’ ”

Then follows a list of the persons amongst whom said fund is to be divided.

After the death of Mrs. Jones, her husband administrator collected rents from the real estate in the amount of $280.00. A Mr. Hendrick, as an interested party, contended that one-half of this rent money should be charged to the administrator in his account and in this connection, the court said:

“The only question presented for onr decision in. this case is whether the administrator, as such, is properly chargeable with one-half of the rents collected from said estate as aforesaid. If the rents constitute a portion of the personal estate of the testatrix, of course they are properly chargeable to-him in his account; but, if they do not, then they-are not so chargeable. At the trial of the case the-court directed the jury to find that the amount of $140 — this being one-half of the amount of rent collected — should be charged against Mr. Jones, and be accounted for by him; and they accordingly so found. We think this instruction was error. Under the will of Mrs. Jones, as we construe it, the entire beneficial ownership of the real estate devised by virtue of said twenty-fifth clause thereof passed immediately to the persons named as beneficiaries, and hence whatever rents were collected belonged to them. The direction to sell contained in said clause amounted, in effect, to an equitable conversion of said real estate into personalty, and impressed it with a trust in favor of said beneficiaries. And the mere fact that the real estate was not immediately converted into personalty did not have the effect to deprive the beneficiaries of any part of said property. The duty of the administrator c. t. a. under said clause was to convert said real estate into personalty as soon as he could conveniently do so after the-death of the testatrix, and distribute the proceeds of such sale as directed. This direction impressed a trust upon the land, and specified who should execute said trust. The power of sale given in said, clause was not a naked power, but was coupled with, a trust, which required the execution of the power as soon as might be. And in powers which are in. the nature of trusts, as said by the court in Green-ough v. Welles, 10 Cush. 576, ‘the rights and interests of third parties who are beneficially interested in the trusts which arise and grow out of the execution of the power come in and can be enforced as against the party to whom the power is given. # # * When a trust is to be effected by tbe execution of a power, then the trust and power become blended, and binding upon the donee of the power. The most familiar instance given in the books of such a union is the case where a power is given by a will to sell an estate, with direction to apply the proceeds upon a trust.’ See Gibbs v. Marsh, 2 Metc. (Mass.) 243. In Leeds, Ex’r. v. Wakefield, 10 Gray, 517, Shaw, C. J. says: ‘As a general rule, one clothed with a mere naked power may execute the power or not, at his own will; but one invested with a power to which a trust is annexed is bound in equity, as in other cases of trust, to execute the power, in order that the equitable rights of those who are stated as the objects of the testator’s bounty under such trusts may have the enjoyment of the benefits intended for them.’ The doctrine that in equity the beneficial interest in property is the controlling and real interest, and also that where, under a devise, an estate is to be sold, and the proceeds divided among designated parties, such direction amounts to an equitable conversion of the estate into personalty, was fully elaborated by Stiness, J., in delivering the opinion of this court in Van Zandt v. Garretson, 21 R. I. 418, 44 Atl. 221. See, also Newport Water Works v. Sisson, 18 R. I. 411, 28 Atl. 336. And while it is true that the proceeding before us is not technically ah equitable one, yet, for the purpose of determining as to the rights of the parties relating to said rents, we see no reason why said doctrine should not be applied. Moreover, it is well settled law in this state that a probate court has nothing to do with the real estate, or the rents of real estate, of a deceased person, until the proper legal steps have been taken to place such property in the hands of the executor or administrator for the necessary purpose of settling the estate. That is to say, until the personal property of a decedent is exhausted in the payment of debts and legacies', neither the executor, the administrator, nor the probate court has anything to do with the real estate or the income thereof, except as may he directed by the will, if there be a will. As said by Matteson, C. J., in Grinnell v. Baker, 17 R. I. 49, 23 Atl. 913: ‘The ordinary powers and duties of an executor are to take possession of the goods and chattels of the testator,- to collect the debts due to him; to sell the goods and chattels, so far as may be necessary for the payment of the testator’s debts and the pecuniary legacies and expenses of administration ; and to distribute the residue of the assets among the persons entitled to them under the provisions of the will. If to these ordinary powers and duties there is superadded the power and duty to invest portions of the testator’s estate and to pay over the income, such power and duty, being appropriate to the office of a trustee, rather than of an executor, are held to constitute a trust, and the executor, in executing them, is regarded as a trustee, and not as executor. ’ Applying this rule to the case now under consideration, it clearly appears that said Charles B. Jones, administrator e. t. a., held the rents in question as trustee for said beneficiaries, and not as administrator c. t. a.; and hence it follows that he is not chargeable therefor in his account as such administrator. The exception taken to the ruling of the presiding justice relating to said item of rent must, therefore, be sustained.”

Although Mr. Etehieson was the executor, as well as trustee with power of sale under the will of the testatrix, the estate was entirely solvent in personal property and there was no need for the executor to invade the real property. There was no need for the executor to invade the appellees’ beneficial interests in the real estate or the rents therefrom for any purpose. The testatrix was specific in separating the duties of Mr. Etehieson as executor and as trustee. The testatrix did not merely execute a will coupled with a naked power of sale. The power was coupled with a trust, the testatrix was specific in separating the duties under the power in the trustee from the duties of the executor. She not only placed the trustee in possession of the trust property with a power to sell her real estate, her directions to the trustee impressed a trust upon the land, and the trustee was to account to no one except the named beneficiaries of the trust. .It clearly appears in this ease, as in the Hendrick case, supra, that Mr. Etchieson held the rents in question as trustee for the beneficiaries and not as executor, and that the chancellor was correct in ordering the distribution of the rents to the beneficiaries of the trust and not to appellant as residuary legatee under item ten of the will or to the heirs of the decedent.

We are of the further opinion that it was the testatrix’s intention that the appellees have all the beneficial interest in the real property converted, including the rents therefrom, as well as the proceeds from the sale. We conclude that the chancellor’s findings are not against the preponderance of the evidence in this case, and that the decree should he affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    Tom SADLER, Guy Clemons and Imogene Clemons v. Shirley HILL
    5-4300
    419 S. W. 2d 298
    Opinion delivered October 16, 1967
    [Rehearing denied November 6, 1967.]

      Arnold, Hamilton & Streetman, for appellant.

      Drew & Holloway, for appellee.
   Conley Byrd, Justice.

This appeal challenges the validity of the published notice of foreclosure proceeding by the Eudora Western Drainage District. The trial court found that the foreclosure proceeding was valid and that the drainage district’s deed vested title in ap-pellee Shirley Hill. Appellants Cuy Clemons et ux, record title holders to the 40 acres of land involved, and appellant Tom Sadler, the tenant holding under Clemons, appeal, and for reversal rely on the following points:

I. That the trial court was in error in holding that the notice of foreclosure by Eudora Western Drainage District was legally sufficient to vest the court with valid foreclosure and sale jurisdiction as to property of appellant.

II. That the trial court was in error in holding that the foreclosure sale by Eudora Western Drainage District was a valid sale in view of noncompliance with provisions of Ark. Stat. § 21-548.

The facts show that in 1945-46 one P. H. Williams began paying taxes on the property in the name of “W. T. Williams,” that he continued to do so through the tax year 1959, and that having acquired title to the 40 acres by adverse possession he sold them in February, 1961, to Cuy Clemons and Imogene Clemons, his wife, for $3,000. Cuy Clemons et ux, through Tom Sadler, immediately took possession of the premises and remained in possession through the trial of this lawsuit. Clemons, upon acquisition of his deed, promptly recorded it, hut neglected to assess his property with the tax assessor, as required by Ark. Stat. Ann. § 84-414 (Supp. 1965). He also neglected to pay the taxes for the tax year 1960, which were due and payable on and after the third Monday in February, 1961. For the tax years 1961, 1962 and 1963 the lands were assessed in the name of Clemons ; however, the taxes were not paid and were returned delinquent.

The lands are also in the Southeast Arkansas Levee District, and the taxes due that district on and after the third Monday in February, 1961, for the tax year 1960, were returned delinquent. At the delinquent land sale in November, 1961, the 40 acres was sold to the Southeast Arkansas Levee District for the general taxes and levee taxes due thereon. However, no confirmation was had as required by § 9 of Act 83 of 1917, the act creating the Southeast Arkansas Levee District. The chancellor found that the sale did not vest title in the Levee District because the redemption period had not expired.

"With respect to the Eudora Western Drainage District, the record shows that foreclosure proceeding was instituted in April, 1962, for the. delinquent 1960 taxes. Throughout the proceeding the supposed owner of the lands was listed as “W. T. Williams.” The District made no inquiry as to record ownership or possession. The only notice to appellants of anyWf the proceedings was by publication, listing the supposed owner as “W. T. Williams.” No notice of the proceeding was given the Levee District, and the Notice of sale and the sale in no manner recognized the interest of the Levee District. The court confirmed the foreclosure sale to the Drainage District in June, 1962, and a deed was issued to the Drainage District in June, 1964. In October, 1964, the Drainage District conveyed the land to Hill for $100. Hill then, on October 24, 1964, acquired a conveyance from the Southeast Arkansas Levee District, conveying “all rights, title and interest of said Levee District acquired by it pursuant to its purchase at county collector’s sale for taxes due year 1960, payable in 1961.”

The lands had increased in value from the $75 per acre paid by Clemons in 1961 to $150 per acre at the time Hill acquired his deed in 1964.

I

Appellant says that the question to be determined on this appeal is whether the publication of the notice during the foreclosure proceeding in the name of “W. T. Williams” as the supposed owner was constitutionally sufficient to give appellants notice of the proceeding. In alleging insufficiency of notice, appellants rely on Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15 (1920).

We find appellants’ contention on this point to be without merit. This matter was held contrary to appellants’ contention in Leonard v. Thompson, 228 Ark. 136, 306 S. W. 2d 869 (1957). Therefore we hold that the notice of the foreclosure proceeding published in the name of “W. T. Williams” as the supposed owner was a sufficient compliance with the law, Ark. Stat. Ann. § 20-1124-26 (Repl. 1956).

II

Nor do we find merit in appellants’ contention that the sale to the Drainage District was invalid because of its noncompliance with Ark. Stat. Ann. § 21-548 (Repl. 1956). The record fails to show any capacity on appellants ’ part which would give them any right to challenge the sale to the Drainage District under § 21-548. Furthermore, the record clearly shows that the sale to the District was had in June, 1962 and that the present suit was not instituted until October, 1965. In that event any right of action on the part of anyóne to set aside the sale to the District is clearly barred by § 21-548, which provides:

. . If the board of commissioners or directors of any drainage district having a lien on the lands or the trustee of any bondholders having such lien is not notified of the application for such sale, they may on motion at any time within three [3] years have the sale set aside and the lands resold.”

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Marjorie MILLER v. Mary Jane RIEGLER et al
    5-4283
    419 S. W. 2d 599
    Opinion delivered October 23, 1967

      Leonard L. Scott, for appellant.

      George E. Lusk Jr. and Robert G. Downie, for appellees.
   Carleton Harris, Chief Justice.

Marjorie Miller, appellant herein, and Mary Jane Eiegler, appellee, are sisters, and reside in Little Eock. Minnie Wagar, who died in Little Eock, testate, on August 8, 1963, was an aunt of these two sisters. In March, 1957, Mrs. Wagar lived in Long Beach, California. She had been ill, and Mrs. Eiegler and her mother went to California and brought Mrs. Wagar back to this city. The latter lived with appellee, paying $100.00 per month for room and board, until January, 1958, when she went to a nursing home, staying there until her death. A joint checking account was opened with Mrs. Wagar’s funds in the names of Minnie M. Wagar and Mary Jane Eiegler, and a joint safe deposit box was taken in their names, and Mrs. Wagar’s property was placed there. On July 23, 1957, Mrs. Wagar, then 81 years of age, executed her last will and testament, and on July 25, she caused several hundred shares of stocks of the approximate value of $45,000.00 (representing about one-half of stocks owned by Mrs. Wagar) to be transferred to the joint names of Mrs. Eiegler and herself. The new stock certificates reflected the owners of the stock to be “Mrs. Minnie W. Wagar and Mrs. Mary Jane Eiegler, as joint tenants with right of survivorship and not as tenants in common.” It was agreed that the aunt would receive the dividends for the balance of her life. Subsequently, the dividends from these stocks were placed in the joint checking account, and these dividends were reported on the Federal Income Tax returns of Mrs. Wagar. As previously stated, Mrs. Wagar departed this life in August, 1963, and her will was duly admitted to probate in Pulaski County. Mrs. Eiegler, the executrix of the estate, recognized that the money in the joint checking account was a part of the estate, but she claimed absolute ownership of the stock as the survivor of the joint tenancy. Thereupon, Mrs. Miller instituted suit, asserting that the stocks that, were still held in the joint names at date of Mrs. Wagar’s death actually belonged solely to the deceased (and accordingly were a part of her estate), and should be administered as such. Appellant asked for judgment for one-half of the stocks and one-half of the value of any that had been converted. Mrs. Riegler answered, denying that the transfer of the stock was for the convenience of Mrs. Wagar, asserted that it was a gift to Mrs. Riegler, and that Mrs. Miller accordingly had no interest. On trial, the Pulaski Chancery Court (1st Division) held:

“That all of the stock .certificates involved in this suit (including all stock certificates sold by Mary Jane Riegler prior to the institution of this suit and all stock certificates held by Mary Jaiie Riegler at the commencement of this suit which had been reissued in her name individually) were originally issued in the name of the testatrix and Mary Jane Riegler as joint tenants with right of survivorship and not as tenants in common, and all of said stocks are the solé property in fee simple absolute of Mary Jane Riegler, individually, and all dividends received from this stock aré the sole property in fee simple absolute of Mary Jane Riegler, individually.”

From the decree so entered, appellant brings this appeal. For reversal, it is asserted that the stocks involved in this case, which were held in the joint names of Minnie M. Wagar and Mary Jane Riegler at the time of the death of Mrs. Wagar, were the property of Minnie M. Wagar, and the 1957 transfer of the stocks into the joint names of Minnie M. Wagar and Mary Jane Riegler did not constitute or create a true joint tenancy, or gift, or otherwise vest any ownership rights in Mrs. Riegler.

It is first argued that the circumstances surrounding the transfer of the stocks clearly show that there was no intention by the aunt of making a gift to her niece. It is pointed out that, though reissued in the joint names of the two women, the stocks were returned to a joint safe deposit box (which had been acquired in their names on May 27, 1957), and that all other property in the box belonged to Mrs. Wagar. It is likewise pointed out that all of the dividends from all stocks including those held jointly, and those simply in Mrs. Wagar’s name, were placed in the joint bank account at the Worthen Bank. Further, it is mentioned that the dividends from the joint stocks were reported solely on the federal income tax return of the aunt. Mrs. Wagar also received a $65.00 per month pension, which was placed in the joint bank account. No separate monies or funds of Mrs. Riegler were deposited in this account, and all checks written on it were solely for the debts or expenditures of Mrs. Wagar. The checks were all written by appellee, with the exception of five or six of $100.00 each, which were given to Mrs. Riegler, and signed by Mrs. Wagar in payment of room and board. These facts are all argued by appellant as evidence that Mrs. Wagar had no intention, in creating the joint tenancy, f giving an interest in the transferred stock to Mrs. Riegler, but only made the transfer for the purpose of convenience, i. e., to enable Mrs. Riegler to handle financial transactions for the aunt with handiness. Appellant also calls attention to the fact that Mrs. Riegler recognized that funds in the joint bank account (with her aunt) were properly a part of the estate, and such funds were listed as assets. It is also argued that it simply isn’t reasonable that Mrs. Wagar would give this amount of stock to a person (Mrs. Riegler) that she had only seen three or four times in her life before moving to Little Rock. Mention is made of the fact that the deceased was apparently very devoted to her brother, and that it was her principal intent, as evidenced by her will, that he he taken care of the rest of his life; that the will provided that, upon his death, the two daughters should take the residue of the estate. We see little, if any, significance to the fact that Mrs. Wagar held a high regard for her brother, as expressed in her will. The proof reflects that Mr. Miller had an income of oyer $200.00 per month, was older than Mrs. Wagar, and certainly the income, or even the principal, if needed, of the remaining $45,-000.00 worth of stock (still held by 'Mrs. Wagar) would have been considered adequate to take care of his needs. For that matter, however affectionately Mrs. Wagar might have felt toward her brother, she had made no provision for him until the will of July, 1957, was executed. At any rate, appellant’s arguments, heretofore quoted, are all based on surmise and speculation. It is sometimes difficult to ascertain people’s motives, hut it is generally true, even with relatives, that a decedent feels closer to, or likes, one relative more than another. Here, one fact instantly stands out, viz., That Mrs. Wagar lived with Mrs. Riegler for nearly a year, and at the time of making the stock transfer, evidently planned to live with appellee for the balance of her life, this plan being altered because of illness suffered by the aunt following a fall in November of 1957. Not only that, but the very fact that the aunt would pick Mrs. Riegler to handle her business for her (which is not disputed) indicates that she had more confidence in, or closer ties with, appellee than with appellant. Still again, ■ Mrs. Riegler was named Executrix of the Wagar estate, as well as Trustee. Of course, if the transfer was only made for convenience, one immediately wonders why all stocks were not transferred, instead of only half.

Be that as it may, litigation cannot be decided on surmise, or what someone else might have done under similar circumstances. It can only he decided on the evidence presented in court. The testimony heavily preponderates to the effect that the transfer was made at a time when Mrs. Wagar was fully possessed of all her faculties, and understood exactly what was being done. Only three people testified, Mrs. Riegler, Mrs. Miller, and Warren Bass, a certified public accountant of Little Rock, who handled tax matters for Mrs. Wagar.

Mrs. Miller testified that it was her “understanding” from a conversation with her sister that the latter was going to take care of the aunt’s affairs, and the transfer of stock had been made for convenience only; she also stated that her sister said that, though part of the estate was in her (appellee’s) name, everything would be divided “50-50.” Mrs. Riegler denied making these statements, and said that she had informed Mrs. Miller that everything in the estate would be divided “50-50.”

The strongest evidence introduced was that of Mr. Bass, who testified as follows:

Mrs. Wagar was a small lady, quite bright, alert, knowledgeable, and very interesting to talk to. She knew the property she owned, and planned a transfer of stock along with executing the will. She stated that she intended to make her home with Mrs. Riegler the rest of her life; she also said that there were two people she cared for, one being Mrs. Riegler, and the other being the brother.

The witness made a list of the stocks which were to be transferred, such list being offered as an exhibit at the trial. He discussed the matter with Mrs. Wagar several times. Bass was very emphatic in stating that Mrs. Wagar knew exactly what she was doing, and that it was her intention to transfer the $45,000.00 worth of stock to Mrs. Riegler as a joint tenant. We think it was clearly established that the aunt, of her own free will and accord, made the transfer with full knowledge that the stocks transferred would not be a part of her estate, and the survivor of the joint tenancy created would take the full amount.

It is next contended that the requisites of a joint tenancy were not met, and accordingly, the gift must fail. It is first pointed out that there is no statutory provision here involved, such as those which cover savings and loan associations and banks; that accordingly, when a joint tenancy is created, the four “unities” must exist. These are set out in the case of Stewart v. Tucker, 208 Ark. 612, 188 S. W. 2d 125, and are listed, in a quote from 33 C. J. 907, as follows:

“(1) unity of interest (2) unity of title (3) unity of time (4) unity of possession. That is, each of the owners must have one and the same interest, conveyed by the same act or instrument, to vest at one and the same time . . . and each must have the entire possession of every parcel of the property held in joint tenancy as well as of the whole.”

Let it first be said that we have already, to some degree, departed from the rule of. the four unities. In Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625, George Brookhyser conveyed real property, which he owned, from himself to his wife and himself as tenants by the entirety. The trial court held that an estate by the entirety had been created, and Ebrite appealed to this court. There too, Stewart v. Tucker, supra, was principally relied upon, and it was contended that essential requirements to create the estate had not been complied’ with, the wife’s undivided half interest not having been acquired at the same time as the interest retained by her husband; that the husband could not convey to himself, and therefore could have acquired no new title by virtue of his own deed. In upholding the trial court, we stated that there was no reason why parties should not be able to do directly that which they could undoubtedly do indirectly through the device of a strawman. The late Justice J. S. Holt, writing for this court, stated:

“We cannot agree with this reasoning. A complete answer is given in what is now the leading case of In re Klatlz’s Estate, 216 N. Y. 83, 110 N. E. 181. There a majority of the judges, Bartlett, Collin, Hiscock, and Cardozo, agreed that under modern married women’s property acts a husband may create a tenancy by the entirety by a conveyance to himself and his wife. The same argument as to the unity of time was presented there as here, but Judge Collin answered: ‘The husband did not convey to himself, but to a legal unity or entity which was the consolidation of himself and another.’ ”

This decision certainly has not been viewed as unsound for there can be no logic in preventing a spouse from directly giving to his or her marriage partner equal rights in property that is owned, when the same result was permitted by creating the estate through a third party who really held no interest in the property at all.

Likewise, it also appears that the same view is being widely followed with reference to joint tenancy. The landmark case is probably that of Colson v. Baker et al, 87 N. Y. Supp. 238. The issue was stated in the opening line of the opinion, as follows:

“The question to be determined on this motion is whether a person seized in fee of an estate can, by a direct grant, deed the property to another and himself in joint tenancy, instead of tenancy in common, without the intervention of a third party.”

A part of the logic used by the court is interesting. It is pointed out that the unity of time refers to joint parties becoming joint tenants at the same time. As stated:

“* * * When, therefore, he attempts to create for himself and his grantee an estate in joint tenancy out of his fee by a direct deed to the grantee, why does not the joint tenancy arise at the same time and by the same act? I think it does. Of course, each joint' tenant has the same interest by such a deed, and each is in possession of the whole like tenants in common.
“In all references to the ‘four unities’ requisite to create a joint tenancy, I find nothing that prevents their existence or creation by the act of the grantor for himself and another as well as by his act for two other persons.”

In the case of Kleemann v. Sheridan (Ariz.), 256 P. 2d 553, there is a succinct discussion of the issue with which we are here concerned. There, the question was whether a joint tenancy in personal property, had been created by two sisters who, in leasing a safe deposit box, recited in writing that all property theretofore or thereafter placed in the box was the joint property of both and would pass to the survivor. The Arizona Supreme Court discussed the history of joint tenancy, saying:

“Before entering upon a discussion of the points raised by appellant it will perhaps be pertinent to briefly recount the common-law essentials to create a joint tenancy. They are unity of time, unity of title, unity of interest, unity of possession. Such tenancy could not arise by descent or other operation of the law but may arise by grant, devise or contract. Of course the right of survivorship is inherent in the joint tenancy estate and without which joint tenancy does not exist. At first joint tenancy under the common law involved only interest in land but at an early date it was recognized as applying to personal property as well. At common law a person could not make a conveyance to himself. An attempt to convey land to himself and to another resulted in a conveyance of only one-half of the property to the other and the grantor still held his moiety under his original title, thus destroying two essentials of joint tenancy, unity of time and of title. The result of such attempt was to create a tenancy in common.
“The same rule would seem to logically apply tc personal property and is the rule of law relating to both real and personal property in many of the states of the Union including Maine, Illinois, Wisconsin and Nebraska, but the majority of the state courts have held that the common-law concept of the four unity essentials should give way to the intention of the parties and that a joint tenancy may be created by a conveyance from one to himself and another as joint tenants. California has passed a law making the rule applicable to husband and wife.
“We have apparently aligned ourselves with the majority rule insofar as personal property, the title to which passes by delivery, is concerned.* * *
“Another characteristic of joint tenancy is that it is not testamentary but ‘is a present estate in which both joint tenants are seized in the case of real estate, and possession in ease of personal property, per my et per tout,’ that is, such joint tenant is seized by the half as well as by the whole. The right of survivorship in a joint tenancy therefore does not pass anything from the deceased to the surviving joint tenant. Inasmuch as both cotenants in a joint tenancy are possessors and owners per tout, i. e., of the whole, the title of the first joint tenant who dies merely terminates and the survivor continues to possess and own the whole of the estate as before.”

The court, mentioning that it was holding in line with the majority rule, and that it was the intention of the sisters to create a joint tenancy, held that that estate had been created. Numerous other cases also hold that the intention of the parties is controlling, rather than the common law concept of the four unities.

Here, we think the intention of Mrs. Wagar is established, i. e., to create a joint tenancy, and we can see no more reason to hold to the old premise that the four unities must exist, than the jurisdictions (and numerous others) just quoted, particularly when we have already, as earlier pointed out, to some extent discarded that concept of the law.

However, appellant also relies upon the fact that. Mrs. Wagar and Mrs. Riegler agreed that Mrs. Wagar was to retain — and did retain — the dividends from the stocks jointly transferred. This, says appellant, is fatal to the creation of a joint tenancy for the reason that the two parties did not have equal rights to share in the enjoyment of the property during their lifetime. In connection with this argument, it is also urged that the retaining of the dividends from the transferred stock prevents the transfer from acquiring the status of a gift. We do not agree with these arguments. Joint tenants may agree between (or among) themselves as to the use made of the property. In 48 C. J. S. under “Joint Tenancy,’’ Section 10, Page 933, we find:

“Joint tenants may contract with each other concerning the use of the common property, as for the exclusive use of the property by one of them, or the division of the income from the property.”

In Tindall et al v. Yeats et al (Ill.), 64 N. E. 2d 903, the question was whether a Mrs. Adams and Mrs. Yeats were joint tenants or tenants in common. The trial court held that they were joint tenants, and this holding was appealed to the Supreme Court. One of the points argued by appellant was that Mrs. Yeats had agreed that Mrs. Adams should have all rents from the land, as well as the possession thereof during the life of Mrs. Adams, and this, said appellant, prevented the estate from being one of joint tenancy. The Illinois Supreme Court disagreed, holding that it was clear that it was the intention of the parties that Mrs. Adams should enjoy the possession of the entire estate; that this was done with the permission and consent of Mrs. Yeats, and that the parties had the right to mate this agreement. And why should this not be permissible? Why should owners of property, real or personal, he prohibited from doing as they desire with that property, so long as the disposition is \iot for an immoral purpose, or against public policy?

Nor do we agree with appellant’s argument with reference to the invalidity of the gift. Appellant states in her reply brief:

“We submit it cannot be that there is any difference in the presumptions applicable to or the basic rules essential to the creation of a gift, whether in the form of outright ownership, joint tenancy, or otherwise, except such as might be inherent in the nature of the particular estate created. * * * If there is a retention of a right to income or principal, or both, inconsistent with the estate ostensibly donated, so that it is not made ‘beyond recall,’ then we submit it is incomplete and ineffectual as between the parties. * * * And, as pointed out in our brief in main, to permit a joint tenancy with retention of all income is nothing more than a void testamentary arrangement. ’ ’

This stock was given to Mrs. Riegler, and placed in the lock box. We have shown, in the citations mentioned, that the joint tenancy was not affected, even though Mrs. Riegler was not to share in the dividends. We here point out that, in the creation of the joint tenancy, Mrs. Riegler did not first become possessed of her interest or rights in the property when Mrs. Wagar died; rather, she acquired a present interest when the estate was created, i. e., her rights as a joint tenant had already vested before her aunt’s death. This fact, of course, silences the armament that a joint tenancy with retention, of income is nothing but a void testamentary arrangement.

Affirmed.

      Under Mrs. Wagar’s will, after making some specific bequests, the residue and remainder of the estate was devised to Mrs. Riegler in trust, the income of the principal of the trust estate to be distributed in convenient installments to her brother, George Henry Miller, the father of appellant and appellee, during his lifetime. The trustee was .also aüthorized to use any part of the principal as might be required to properly' take care of the brother. The will further provided that, upon the death of George Henry Miller, or upon the death of Mrs. Wagar (if the brother died before the testatrix), the trust estate was to be divided equally between Mrs. Riegler and Marjorie Nidolini (Miller), or in event of the death of either niece, that share to the child or children of the deceased relative.

      There was also a prayer in the complaint for certain items of personal property to which Mrs. Miller made claim, but the Chancellor’s adverse decision on this point has not been appealed.

      The record indicates that this was about the same number of times that Mrs. Miller had seen her aunt.

      It is also argued, though not forcefully, that Mrs. Wagar likewise retained an interest in the principal. This contention is based upon some answers given on cross-examination by Mrs. Riegler and Mr. Bass, but we think the evidence falls far short of establishing any retention by Mrs. Wagar of an interest in the principal. Actually, the testimony is confusing as to whether the dividends were to be, in all events, retained by Mrs. Wagar, or would only be retained if they were needed for her support. The legal question would be the same, but we treat the matter as though the withholding of the dividends was definite.

      Incidentally, Illinois is one of the states that still holds that the four unities must be observed in creating a joint tenancy. Mrs. Adams was the original owner of the property, and a conveyance from a third party was used in effecting the joint tenancy. At the time of the creation of the joint tenancy, Mrs. Adams and Mrs. Yeats entered into the following agreement:
      “Whereas the First Party has this day and date vested title in the parties hereto as joint tenants in the Marshall County, Illinois, farm owned by the First Party, all evidenced by certain deeds executed by the First Party and Martin A. Adams, her husband, and Walter C. Overbeck, all of the within date;
      “Now Therefore, in consideration of having vested title of said real estate as aforesaid, The Second Party herein, in consideration thereof, agrees with the First Party that said First Party shall have all the rentals from said real estate and the possession thereof during the term of her natural life, with power and authority to insure the buildings thereon, make repairs and do such other things thereon as she could or would do were she the sole and exclusive owner thereof. This Agreement shall not, however, in any manner affect the joint tenancy of said real estate nor the legal incidents accompanying same.
      “Dated this 31st day of May, A. D. 1939.
      “Grace M. Adams, (Seal)
      “Margaret Isabelle Yeats, (Seal)”

      See, inter alia, Greenwood v. Commissioner of Internal Revenue, 9 Cir., 134 F. 2d 915; Switzer v. Pratt, 237 Iowa 788, 23 N. W. 2d 837; Conlee v. Conlee, 222 Iowa 561, 269 N. W. 259; Creek v. Union National Bank in Kansas City (Mo.), 266 S. W. 2d 737. These cases cite numerous others to the same effect.


author: George Rose Smith, Justice.

text:
    Arlene DICKERSON v. Coe DICKERSON
    5-4305
    419 S. W. 2d 608
    Opinion delivered October 23, 1967

      Edgar E. Bethell, for appellant.

      Jack Bose, for appellee.
   George Rose Smith, Justice.

This is a suit for divorce brought by the appellant, Arlene Dickerson, on the ground of personal indignities rendering her condition in life intolerable. The chancellor dismissed the complaint, finding that even though it is probably impossible for the parties to continue to live together the plaintiff failed to prove her asserted ground for divorce. The only issue here is whether that conclusion is against the weight of the evidence.

The couple was married in Ozark in 1948, when he was 21 and she was 17. They were living in Fort Smith when they separated nineteen years later. Pretty much by common consent the husband moved to an apartment, allowing his wife to occupy the family home with their two children, a boy of 18 and a girl of 15. Since the separation Dickerson has voluntarily contributed $150 a month to the support of his family.

Mrs. Dickerson disclaims any suggestion of violence, physical abuse, or infidelity on the part of her husband. Her grievances are twofold: First, she blames him for the couple’s difficulty in really communicating with each other for some time before their estrangement. Secondly, she considers her husband’s handling of the family finances to have been so niggardly and tyrannical as to amount to an intolerable affront to her dignity and peace of mind. Mrs. Dickerson testified that for a year or more before the separation she was under such nervous tension that she broke out with hives and was compelled to take tranquilizers for relief. Her condition improved materially after her husband moved out of the house.

Upon the first point Mrs. Dickerson testified that when she tried to discuss their problems Dickerson would refuse to talk about their difficulties and would instead read the paper or leave the house. Dickerson denied that testimony, saying that during their entire married life there were only one or two occasions when he refused to talk with his wife. On the other hand, he .accuses her of having declined to discuss financial matters (which were evidently of abnormal importance to him).

It is fair to say that by far the greater part of this couple’s unhappiness stemmed from money matters. Both have been employed for' a number of years. At the time of the trial Dickerson’s take-home pay was abont $555 a month and Mrs. Dickerson’s was about $65 a week. Dickerson has long taken the position that he and his wife should each hear a definite part of the family expenses. His responsibility has included the purchase of food, payments on the house, insurance, utility bills, his own personal expenses, and part of the children’s clothing and school expenses. His wife’s part in the family financial scheme has embraced the purchase of her clothes, the acquisition of some furniture, payments upon her car, and lesser matters that we need not detail.

It is quite apparent that for the past two or three years what Mrs. Dickerson calls her husband’s obsession about money has been a constantly growing source of irritation to her. For a while the couple maintained a joint bank account, but if Mrs. Dickerson wanted to write a check for an outlay that Dickerson regarded as her personal responsibility he required her to pay him the amount of the check in cash. She finally opened her own account. Again, Dickerson customarily picked up and paid for only his own dry cleaning, leaving his wife to make extra trips to get the rest of the family cleaning. Dickerson has undoubtedly been somewhat secretive about his own income and bank accounts — all part and parcel of the undue emphasis he appears to place upon financial security.

We are not convinced that Dickerson’s peculiarities in the management of the family’s pecuniary problems should be declared to constitute habitual and intolerable personal indignities to his wife. This case is typical of those in which the chancellor’s opportunity for reaching the right decision is immeasurably superior to ours. Even though he concluded that the parties’ clash of personalities is so great that they are not likely to be able to continue to live together, “such a situation does not warrant the granting of a divorce in the absence of proof that a statutory ground therefor- exists.” Lipscomb v. Lipscomb, 226 Ark. 956, 295 S. W. 2d 335 (1956). Dickerson testified positively that he loves his wife and always will. His attitude may well have been regarded by the chancellor as decidedly more conciliatory than that of his wife. With the testimony in conflict upon many pivotal points, we are not able to say that the trial court’s decision is against the weight of the evidence.

The appellee is directed to pay the appellant’s court costs and briefing expense, together with an additional attorney’s fee of $250.

Affirmed.

Harris, C. J., and Brown, J., dissent.


author: Paul Ward, Justice. John A. Fogleman, Justice,

text:
    CARROLL COUNTY BOARD OF EDUCATION v. COUNTY SCHOOL DISTRICT NO. 1 et al
    5-4306
    419 S. W. 2d 592
    Opinion delivered October 23, 1967

      H. G, Leathers, for appellant.

      H. Paul Jackson, for appellee.
   Paul Ward, Justice.

This litigation concerns the dissolution [including annexation to two other districts] of County School District No. 1 of Carroll County (an appellee here). Appellee was created under Initiated Act No. 1 of 1948 which includes Ark. Stat. Ann. §§ 80-426 to 429 (Rep]. 1960) and is found in the Acts of 1949 at pages 1414 to 1416.

On July 1, 1966 the Carroll County Board of Education (appellant here) dissolved the appellee district and annexed approximately the west one-half of the land to the Berryville School District and the east portion to the Green Forest School District.

Appellee (along with residents of District No. 1) prosecuted an appeal to the circuit court, where testimony was introduced by both sides.

At the conclusion of the hearing the trial court set aside the Order made by the Board of Education, dissolved District No. 1, and gave approximately 15% of its territory to the Green Forest School District (described by metes and bounds) and the rest of its territory to the Berryville District. From the above decision and Order appellant prosecutes this appeal, seeking a reversal on two grounds, stated as follows:

(One) “The Board of Education of Carroll County has the authority to annex some or all portions of Carroll County School District No. 1 to another district or districts.
(Two) “The order of the Board of Education was made to more effectively and more efficiently serve the residents of the district; such Order cannot be altered unless it is shown by clear and convincing evidence that the Board acted in an arbitrary and discriminatory manner.”

One. Appellant,,under this point, argues that the trial court was in error in holding the Board had no authority to annex portions of District No. 1. What the trial court held was that the Board had no authority of Ark. Stat. Ann. § 80-426 et seq. However, the Board is given this authority under Ark. Stat. Ann. § 80-213 (b) (Repl. 1960), and any error (a point which we do here decide) the trial court may have made is harmless, and does not affect any issue raised on appeal.

Two. A careful reading of the record convinces us that the trial court was justified in setting aside the Order of the Board which divided District No. 1 in two equal parts. Such division strongly indicates the Board failed to make a careful study of the matter of convenience to the school children and their parents, and that it disregarded their expressed wishes, which were shown by petitions filed with the Board. Such petitions showed that 85% of the people in District No. 1 chose to join the Berryville District. Furthermore, it is significant, we think, that no one makes any objection to the division made by the trial court.

It is our conclusion, therefore, that the Order of the trial court should be, and it is hereby, affirmed.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. County School District No. 1 of Carroll County came into being by operation of Section 1 of Initiated Act No. 1 of 1948 [Ark. Stat. Ann. § 80-426 (Repl. I960)]. It is clear to me that the trial court was in error in holding that the County Board of Education had no power to annex territory from the district to other districts under the provisions of this act (Ark. Stat. Ann. § § 80-426 to 80-429). This authority could be exercised at any time after June 1, 1949. Appellees’ contention that this could not be done after this election of directors in the district is contrary to the act itself. Section 3 (Ark. Stat. Ann. § 80-428) clearly indicates that a county board of education may annex all or a portion of the territory of such a district to other districts in order to provide each child access to accredited schools as close to his home as possible. The act distinctly made the provision of such access the duty of the board of the district and the county board. Consequently, there is nothing in the act to limit the action of a county board to the period prior to election of a district board. This question was reserved in Stroud v. Fryar, 216 Ark. 250, 225 S. W. 2d 23. I do not find where it has arisen subsequently.

It then becomes important to determine the scope of appellate review by the circuit court. Appeal within thirty days is provided for by Ark. Stat. Ann. § 80-428. This section does not provide any procedure for appeal or limitation on the scope of review. I take it that § 80-236 governs appeals by any person feeling aggrieved by any final order or decision of a county board of education. It has been specifically held that the circuit court should conduct a trial de novo on an appeal so taken. I think that the circuit court properly tried the case de novo. School District No. 26 v. School District No. 32, 177 Ark. 497, 6 S. W. 2d 826. Cases cited by appellant holding that the circuit court can only disturb orders of a county board of education when it is clear that a board has acted arbitrarily, unreasonably, or discriminatorily, relate either to proceedings under other statutes specifically limiting the scope of review or to mandamus, certiorari or equitable proceedings. I am not unaware of cases holding that in matters of formation or consolidation of school districts the action of a county board will not be disturbed unless testimony shows it to be arbitrary and unreasonable. See Bledsoe v. McKeowen, 181 Ark. 584, 26 S. W. 2d 900; Priest v. Moore, 183 Ark. 999, 39 S. W. 2d 710; Milsap v. Holland, 184 Ark. 996, 44 S. W. 2d 662; Perry v. Gill, 184 Ark. 1099, 44 S. W. 2d 1084; School District No. 26 v. Baxter County Board of Education, 183 Ark. 295, 35 S. W. 2d 1013. These decisions are based on a statute providing that such action be taken where, in the judgment of the county board of education, it would be for the best interest of all parties affected. It was pointed out in the Baxter County case that this meant the hoard had a discretion in the matter, but the court did not. No such language appears in the statute involved here and the provision for appeal is in the same section as the provision for board action. I feel that trial de novo under the authority above cited was proper here. However, I find nothing to indicate that either the Green Forest District or the Berryville District, to which the territory of School District No. 1 was annexed, has consented to the annexations. This is necessary to the annexation (§ 80-428). I would reverse and remand for a new trial in the circuit court.


text:
    Lillie Mae SPOTTS, Adm'x, et al v. Ella LEWIS
    5-4302
    419 S. W. 2d 622
    Opinion delivered October 23, 1967

      John F. Gibson, for appellants.

      Robert M. Smith, for appellee.

      Willie Mae Lewis was substituted as Administratrix on the day of trial; however, the trial court and attorneys made no change in subsequent records. So for clarity we leave the case as originally styled. Our opinion, however, binds the present administratrix.

   Lyle Brown, Justice.

Bennie Lewis and Ella Lewis, subsequently divorced, owned a tract of land by the entirety. Upon the complaint of Ella Lewis, appellee here, the chancellor ordered the ejectment of appellants, widow and certain children of Bennie Lewis, deceased. Ella Lewis claimed under a right of survivorship. Appellants claimed title by adverse possession on the part of Bennie Lewis claimed under a right of survivorship. Appellants Bennie’s death. The chancellor held (1) that under an estate by the entirety, one spouse cannot hold adversely to the other, and (2) that adverse possession was not in fact established. Those are' the two issues argued on appeal.

In 1945 Bennie and Ella Lewis, husband and wife since 1929, acquired by the entirety the involved 175.85 acres. They lived on the land prior to purchase. The acreage, mostly unimproved, adjoined some sixty-six acres which Bennie owned in his own right. In 1946 Ella took the youngest of seven children and went to Milwaukee, Wisconsin. (Over the years the other children followed her there.) Bennie obtained a divorce on grounds of desertion in 1947. The land was not mentioned in the decree. In 1948 Bennie remarried and lived on the involved land until his death in 1964. At the time of Bennie’s death, his widow and their eight children were living on the land. This suit followed, by which Ella claimed title under the 1945 deed to Bennie and Ella Lewis, then husband and wife. The appellants— the widow and her children by Bennie Lewis — argue Ella lost her title by adverse possession of Bennie Lewis. They also plead estoppel; however, the single point argued on appeal is that of adverse possession.

Assuming, without deciding, that adverse possession can defeat the record title of Ella Lewis, we examine the record to resolve the correctness of the chancellor’s finding that adverse possession was not established.

From the time Ella Lewis left for Milwaukee in .1946 until Bennie’s death in 1964, Bennie lived on the land; he cleared, cultivated, sold timber, and paid the taxes; he borrowed money and received allotment payments ; he bnilt another house and raised a new family. In none of his financing did he execute a mortgage or give written assurance that he was the sole owner; however, those who financed Bennie Lewis considered the land to belong to Bennie and they testified that Bennie was generally reputed to be the owner. Ella Lewis testified that she made several requests of Bennie Lewis that he share some of the proceeds of the farm with her. In no instance did he respond favorably; at the same time, he did not assert that his refusal to divide was based on a claim of exclusive ownership.

On the other side of the coin, the chancellor found these elements which, as stated in his written findings, weighed against the claim of adverse possession:

(1) Ella Lewis produced a letter from Attorney Will Irvin, dated August 18, 1947. Attorney Irvin wrote her on behalf of Bennie Lewis, seeking her signature on a waiver of service and entry of appearance in Bennie’s divorce case. In that letter she was assured that the divorce “will not interfere with your property rights. He can get a divorce and you will retain the same interest in the property that you now have.”

(2) Ella Lewis testified that on one occasion after the divorce Bennie told her the land ought to be sold and she replied in the negative; that on another occasion she asked “for her part” and he responded that her part was needed for taxes; that at no time during her many visits (the first one in 1951 and regularly after 1955) did Bennie Lewis assert that he was claiming the land exclusive of her; that on those visits to her mother she and Bennie would talk “about the kids and about the land, but he never would offer me what I would like.”

(3) At no time between the separation of the husband and wife and the death of Bennie Lewis did he place any incumbrance on the land.

(4) Ella Lewis produced two letters written by Bennie in May and July 1962. In the first letter he offered Ella fifty dollars “to sand your name off the deed.” He explained he had no desire to sell the land; “I want to fix it so the children can’t sell it. When I am dead you will have a home as long as you live. The children will need a home. I want to fix it so nobody can’t sell it. . . I want the children to have a home as long as they live and their children.” He told Ella that Willie (then his wife) was agreeable to the plan.

Ella did not reply to that letter so in July a note was sent by Bennie to a daughter in Milwaukee. He requested her to deliver the message to Ella. It was of the same tenor as the first letter. Ella testified she did not respond to those propositions; that in March 1964 she was in Dermott and met Bennie on the street; thart they talked about the land and she suggested it be sold and the proceeds divided equally. Bennie died the following June. Ella attended the funeral.

Again, assuming that adverse possession could, in law overturn the record title of Ella Lewis, we must look for the evidentiary requirements to be met. Precedent is found in Anderson v. Walker, 228 Ark. 113, 306 S. W. 2d 318 (1957). Mr. and Mrs. Walker owned an estate by the entirety. The husband left the wife and she continued to occupy the property. She obtained a divorce on constructive service in 1947. In 1955 the husband brought suit against the heirs of the deceased wife, the heirs having continued in possession of the property after the death of Mrs. Walker. In that situation our court invoked this rule:

“We have frequently and consistently held that, ‘where entry upon land is permissive, the statute will not begin to run against the legal owner until an adverse holding is declared and notice of such change is brought to the knowledge of the owner.’ ”

The chancellor discussed Anderson and found that the record title of Ella Lewis had not been overturned by the heirs’ claim of adverse possession. We are unable to say his findings are against the preponderance of the evidence.

The principal weakness in the heirs’ claim of adverse possession is the lack of proof that Bennie Lewis ever openly declared that he was holding adversely to Ella’s title. That declaration need not be affirmatively made; it can be established by acts “so notorious and unequivocal that notice must be presumed.” McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714 (1960). In McGuire, a tenant in common'was “in charge of the farm, managing it for his own benefit, paying taxes, and paying the installments upon the mortgage debt; but these facts are insufficient to support a claim of adverse possession against his co-tenants.” Bennie Lewis’ activities may be similarly described, with the added statement that he did treat the land as his own when borrowing money on open account.

The chancellor gave considerable weight to the letters written by Bennie Lewis in 1962. Appellants contend those letters were written after Bennie’s title had ripened by adverse possession and have no probative value. We do not agree. A nominal offer of purchase is often made “to buy peace and avoid litigation.” However, an offer may be considered by the trier of facts if it sheds light on the nature of the defendant’s possession. That is true even if the offer is made after the seven year period has elapsed. Baughman v. Foresee, 211 Ark. 149, 199 S. W. 2d 596 (1947). Other statements in those letters are far more enlightening on Bennie’s state of mind. We refer to his avowed intention to so arrange the title that he, Ella, and all his children -would have a home during their lifetime. That is clearly inconsistent with a state of mind that closets a claim of exclusive and adverse title.

We concede that the ouster of the present family of Bennie Lewis evokes our sympathies; however, it should he remembered that through the years they have enjoyed all the fruits of the land. Ella could have put her rightful share to good use, Bennie’s and Ella’s children all gradually migrated to the mother in Milwaukee and their rearing became her burden, with no financial help from the father, Bennie. Furthermore, Bennie Lewis owned at the time of his death 66.30 acres adjoining the involved tract. Ella testified that she makes no claim to that land.

As in Anderson v. Walker, we do not here reach appellants’ contention that in an estate by the entirety one spouse can hold adversely to the other. That is on the theory that divorce dissolves the entirety estate. Numerous holdings of this court have answered that question in the negative. Those holdings seem to be contrary to the great weight of authority. Our Legislature, declaring “that numerous injustices have been done” because entireties could not be dissolved in a divorce proceeding, enacted Act 340 of 1947. That Act permits chancery courts to dissolve entireties in divorce proceedings and to treat the parties as tenants in common. Act 340 is not here applicable because the estate was created prior to the passage of the act. Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124 (1951). We recognize the many instances in which this court, absent Act 340, has held that divorce cannot dissolve an entirety estate. We are reluctant to disturb those holdings because, as evidenced in Jenkins, they are looked upon as establishing a rule of property. Yet we can conceive, as did the Legislature, of situations where blind adherence to the rule could make a mockery of justice. So we say the plea of adverse possession to an entirety estate could conceivably succeed in a situation where there is clear evidence of unequivocal notice to the former spouse of intention to hold adversely.

Affirmed.