author: Paul "Ward, Associate Justice. Carleton Harris, Chief Justice George Rose Smith, J.

text:
    Clemons v. Bearden Lbr. Co.
    5-2968
    370 S. W. 2d 47
    Opinion delivered May 20, 1963.
    [Rehearing denied September 9, 1963.]

      McMath, Leatherman, Woods $ Youngdahl and John P. Sizemore, for appellant.

      Mahony do Yocum, for appellee.
   Paul "Ward, Associate Justice.

Barney Clemons (either as an employee or as an independent contractor) was working for the Bearden Lumber Company (hereafter called company) when he suffered a heart attack and later died. His widow and minor children filed a claim for death benefits under the Workmen’s Compensation Act. The question of whether Clemons’ death resulted from his employment was not presented to the commission and it is not an issue here. The commission (and the circuit court) disallowed the claim on the ground that Clemons was not covered by the act because he was an independent contractor and not an employee of the lumber company. This appeal challenges the substantiality of the evidence to support the findings of the commission.

The Bearden Lumber Company is a lumber manufacturing concern. In the course of providing logs from the forest to keep its mill operating, the company employs a number of persons whom it (here) calls “contractors” to cut logs and haul them to the mill. Barney Clemons was one of these “contractors” whose duty it was to haul the logs from the woods to places on the highway or road so they would be accessible to other trucks which would haul them to the mill. It is not disputed that Clemons had less than five men under his supervision. The testimony tending to show the relationship between Clemons and the company (whether employee or independent contractor) is not materially in dispute. The problem then largely becomes one of determining the legal effect of definitely determined facts. A summary of the testimony pertinent to the indicated issue is set out below.

Mrs. Clemons (the widow) understood her husband worked for the company; he got one check for labor and another for his one truck and a one-half interest of another truck; the company took deductions for social security, etc., from what he earned at $1.00 per hour. They had three children under age. Waymon Clemons, twenty-two year old son of deceased, had worked with his father six to eight months; was paid $1.00 per hour by check from the company; his father had worked for the company ten years; Charley Crawford, employee of the company, directed his father’s work in these particulars— scaling the logs, saw to it that land was cleaned up good, told where to get logs; told them when they were doing a poor job; his father told him and the two other men (I. J. and John Mays) what to do; the work hours were turned in to the company and they were paid by company cheeks. I. J. Mays worked with the deceased five years and was paid by the hour by company check—took orders directly from deceased. John Mays’ testimony was the same. Larkin Clemons, brother of deceased; they owned three trucks as partners; all men paid same as other company employees; deceased got one check for wages and another one for use of trucks; Crawford was the company supervisor over deceased; he (Crawford) came out on job nearly every day, and gave instructions in detail; when deceased did anything wrong Crawford got after him; the men (including deceased) were paid by company check, and the company held out for social security ; the company told us we had to pay men $1.00 per hour—we never paid any more than that—our working agreement was oral.

The only testimony offered by the company to sustain its contention that Clemons was not an employee but was in fact an independent contractor was that given by its manager, G-arland Anthony, Jr. He did not deny any of the testimony given by claimant’s witnesses, and none of his own testimony was refuted. This testimony is long and much of it is repetitious, but the essence may be summarized as follows: The contract with deceased was verbal—whereby he was to be paid $8.00 per thousand feet for logs “banked”; they had similar contracts with men other than the deceased; he had no control over deceased, but did direct his operation—such as choosing the banking area; deceased turned in the payroll (for himself and three men under him) after Crawford scaled the logs. According to a typical week (actually shown by company books) 27,468 thousand feet of logs were banked—$219.74 due at $8.00 per thousand feet—deceased and three men received (gross) $28 each or a total of $112—after deductions deceased got a check for $94.69 on the “contract” and $26.11 for salary (at $1.00 per hour)-—the other men received $24.36, $27.16, and $26.11 respectively.

The record further reflects that the payroll sheets kept for deceased and the three men under him were just like those for other regular company employees, and that the company had only one insurance carrier to cover its employees and the insurance deductions made from the paychecks (of the deceased and the three men) were the same as deducted from the paychecks of regular mill-workers.

In the face of the above (undisputed) testimony the full commission made the following decisive announcement:

“After a careful study of all the evidence of record, we are of the opinion that the Referee’s finding is supported by a preponderance of the evidence and should be and is herewith affirmed because the evidence clearly establishes that the deceased toas free to choose the means and methods by which the details of the ivork was to be performed and there is no evidence that would indicate that the deceased was not in full agreement with the bookkeeping system employed by the Bearden Lumber Company.” (Emphasis added.)

We fully agree that there is substantial evidence to support the commission in finding (a) Clemons had control of the details of his work and (b) he had no fault with the manner in which the company kept its books. Even so, those findings, in our opinion, fall far short of proving (by substantial evidence) that Clemons was an independent contractor.

For convenience, we first dispose of finding (b). Certainly and without doubt no employee of a large corporation would be expected to object to its “book-keeping system”. So, we say, that finding in no way proves Clemons was an independent contractor, and that it was not substantial evidence of such fact.

(a) Let us, then, examine the finding that Clemons was “free to choose the means and methods by which the details of his work was to be performed”. The only “details” connected with Clemons’ job that the company did not control were insignificant things such as would normally be left to any employee.

Most important, we think, is the fact that it is not denied the company had the right to discharge Clemons at any time. This is most persuasive that the company really had effective control over every detail of Clemons ’ activities. In the case of Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674, in considering this same question of control, we quote with approval this statement:

“By virtue of its power to discharge, the company could, at any moment, direct the minutest detail and method of the work. The fact, if a fact, that it did not do so is immaterial. It is the power of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor.”

Further on in the same opinion we again quoted as follows :

“The power to discharge has been regarded as the test by which to determine whether the relation of master and servant exists. While it is not the sole test, it is the best test upon the question of control.” ’ ”

Also, it is undisputed that the company instructed Clemons to pay his men (and himself) $1.00 per hour. Realizing this was a strong implication that Clemons (and his men) were employees, the company attempts to explain away the implication by showing it was only a matter of bookkeeping and was only a precautionary measure. The same situation arose in the cited case where Irvan was contending Bounds was an independent contractor, but we had to see to it that Bounds was paid in compliance with the Wage-Hour Law. The Court, however, said:

“A reasonable interpretation of this statement is that Irvan was complying with the Federal Wage-Hour Law as to the pay of these men, and it indicates that Irvan considered Bounds to be an employee, because, if Bounds was an independent contractor, and not an employee, it was not necessary, in order to comply with the federal law, to guarantee him any minimum wage.”

In reaching the conclusion that the record fails to contain substantial evidence to sustain a finding that Clemons was an independent contractor, we take into consideration not only what we have heretofore said, but we consider as highly significant the following facts and circumstances : (a) We find many facts, heretofore pointed out, to indicate Clemons was an employee; (b) There is really no fact or circumstance shown by the record to indicate Clemons was an independent contractor that is not also consistent with an employee relationship; and, (e) any other conclusion than the one we have reached could result in serious injustices to laboring people whom the law intended to protect. It is in the record that the company has several other “contractors” like Clemons. It is not unreasonable to expect that many of these “contractors” are judgment proof, and they cannot be forced to carry insurance. Therefore, if we permit employers like appellee to escape liability, there will be no way injured employees and (in case of death) their wives and minor children can be protected. Not only so, but, in this case, there appears another injustice or inequity. The company and the insurance carrier are each receiving part of the laborer’s pay each week which they will (apparently) be allowed to keep without any liability to anyone.

The law imposes on us the duty to interpret the Workmen’s Compensation Law liberally to the end that injured employees shall be remunerated for loss of earning power. In that spirit, and under the undisputed facts of this case, we are unwilling to say there is substantial evidence to support the finding of the commission and the circuit court.

The finding, therefore, is reversed and the cause is returned to the circuit court with instructions to remand to the commission for further proceedings consistent with this opinion.

Harris, C. J., and McFaddin, J., dissent.

George Rose Smith and Robinson, JJ., concur.

Carleton Harris, Chief Justice

(dissenting). I will agree that the preponderance of the evidence in this case indicates that Barney Clemons was an employee of the Bearden Lumber Company, but as stated in numerous cases, so numerous as to require no citation of authority, this court is not concerned with the question of which side carries the preponderance—we are only concerned with whether there was any substantial evidence to support the finding of the commission.

There are several facts which tend to support the finding that Clemons was an independent contractor. He was paid $8.00'per thousand feet (for log banking), and likewise furnished his own trucks and equipment. The majority refer to testimony by the widow and brother of the deceased to the effect that Clemons received one check (the larger check mentioned in the majority opinion) for use of his equipment. This fact is very much in dispute, and is not supported by any other testimony in the record. To me, from the evidence, it clearly appears that the larger check was based upon the number of feet of log banks. At any rate, the matter was in dispute, and the commission had the right to accept either view. In Parker Stave Co. v. Hines, 209 Ark. 438, 190 S. W. 2d 620, this court stated:

“The fact that appellee was paid by the thousand and furnished his own truck tends to indicate that he was an independent contractor. On the other hand, the fact that the employment was to run for no specified time, and the further fact that the stave company could terminate the relation at any time, without' liability, are features which indicate that appellee was an employee.”

As indicated by that case, the fact that Clemons was paid by the thousand, and furnished his own trucks, are circumstances to indicate that he was an independent contractor. It is not disputed that Clemons had the complete right to hire and discharge the men who worked under him in banking the logs. However, in my opinion, the strongest circumstance indicating that Clemons was an independent contractor is the fact that all tvages, paid to Clemons and his employees, along with Workmen’s Compensation deductions on the four men, ivere charged back to Clemons and deducted from the main check received by him (based upon the number of feet of log banks). In other words, Clemons’ employees were covered for Workmen’s Compensation insurance, and he paid the premium for this coverage. This is established by the testimony of Garland Anthony, Jr., manager of the Bearden Lumber Company, such testimony, as far as I am able to determine, being undisputed. From the testimony of Anthony:

“He (referring to Clemons) received a payroll check for himself in the amount of $26.11 and a check for Waymon D. Clemons for $24.36, John H. Mays, $27.16, I. J. Mays, $26.11, which was their gross payroll check less their normal deductions. And in addition to that, Barney Clemons was issued a check for the balance of the contract price with the gross payroll deducted and the Workmen’s Compensation deducted.
Q. And what did that check represent?
A. It amounted to $94.69.
Q. I know, but what did it represent?
A. The balance of the contract payment for that week.”

The majority mention that various deductions were made by the company from the wage checks given to Clemons and his men. Company officers testified that the Bearden Company made the deductions as a convenience to Clemons because he had no bookkeeping facilities, and that the company followed the same procedure with other independent contractors. This strikes me as an entirely reasonable explanation. The fact that Federal Income Tax was withheld, along with deductions for Social Security, Workmen’s Compensation Insurance, and group insurance, were only circumstances to consider. In Smith v. West Lake Quarry & Material Co., 231 Ark. 294, 329 S. W. 2d 167, we said:

“Appellant insists that the withholding, social security, and unemployment tax matters are, in themselves, conclusive evidence that Smith was an employee of West Lake, and that West Lake is estopped to claim otherwise. Appellant cites these cases to sustain his contention: (here citing cases from other states). A study of these cases convinces us that they do not hold that such tax deductions conclusively establish an employer-employee relationship, irrespective of all other evidence. These cases use the fact of tax deductions or insurance payments to corroborate other evidence as to the employer-employee relationship. In short, the tax deductions or the insurance payments are circumstances to be considered along with all the other circumstances in the case in looking at the relationship.”

In the same connection, the opinion cites from other Arkansas cases as follows:

“In Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341, we said that the payment of workmen’s compensation insurance on the worker would be 'relevant as a circumstance’ in determining whether the relationship was employee or independent contractor. In Farrell-Cooper Lbr. Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 445, we said: 'Evidence that an employer pays workmen’s compensation or liability insurance on a workman is a circumstance to be considered in determining whether said workman is an employee and thus subject to the employer’s right and power to control.’ (Emphasis supplied.) All the authorities that we have been able to find support the statement contained in Larson on Workmen’s Compensation Law, § 46.40, that such tax deductions and/or insurance payments are ‘a factor to be given weight,’ but are not determinative or conclusive on the issue. To the same effect, see 99 C.J.S. p. 351, ‘Workmen’s Compensation’ § 104.

“The Commission found that the withholding and the tax payments were satisfactorily explained in the case at bar, and we cannot say that there is an absence of substantial evidence to support such finding. With the withholding and the tax payments as only ‘circumstances to be considered,’ it is clear that a fact question was made as to whether Smith was an independent contractor or an employee; and the Commission’s decision on that fact question has ample evidence to sustain it within the purview of our cases, some of which are: Parker Stave Co. v. Hines, 209 Ark. 438, 190 S. W. 2d 620; Wren v. D. F. Jones Const. Co., 210 Ark. 40, 194 S. W. 2d 896; Farrell-Cooper Lbr. Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 445; and Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S. W. 2d 959.”

The majority emphasize the fact that the company had the authority to discharge Clemons at any time it desired. The opinion also states, “The only ‘details’ connected with Clemons’ job that the company did not control were insignificant things such as would normally be left to any employee. ’ ’ With reference to the right to discharge, let us take note of what this court said in Ozan Lumber Co. v. Garner, 208 Ark. 645, 187 S. W. 2d 181.

“While it is true that it appears that appellant company reserved the right to discharge appellee and that this is evidence in support of appellee’s contention that he was an employee and not an independent contractor, we have many times held that this right to dis charge is not controlling and is not the sole test. The rule announced by this court, and since followed in subsequent decisions, in determining whether a workman occupies the status of an employee or that of an independent contractor, is clearly stated in Moore and Chicago Mill & Lumber Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, in Headnote 3. ‘If there is nothing in the contract showing an intent upon the part of the employer to retain control or direction of the means or methods by which the party claiming to be independent shall perform the work, and no direction relating to the physical conduct of the contractor or his employees in the execution of the work, the relation of independent contractor is created. The governing distinction is that if control of the ioork reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master aAid servant necessarily follows. Put if control of the means be lacking, and the employer does not undertake to direct the manner in which the employee shall ioork in the discharge of his duties, then the relation of independent contractor exists.’ ”1b

Certainly, there is substantial evidence in this record that the manner in which the work was to be performed was entirely in the hands of Clemons.

The men were hired by Clemons; he had the sole right to fire them; his was the sole responsibility of determining how many men he needed for the job; he fixed the pay (except that he must pay a minimum of $1.00 per hour), and the hours each man would work. He had full responsibility in determining the manner in which the work would be carried out. I do not suppose that the company cared whether it was done by truck, or by horse and wagon-—so long as the job was completed. The only “control” by the company that I can find in the record relates to the fact that the company woods foreman, Charlie Crawford, would tell Clemons where to bank the logs, and would advise whether the company needed logs for the week, or did not need them. I see nothing incompatible between these actions and Clemons’ status as an independent contractor. If I enter into an agreement with a contractor to haul dirt to build up my yard, I certainly will tell him where to place the dirt-—but this does not make the dirt hauler my employee. Nor do I feel that the company should be expected to take a lot of logs that it could not handle. In fact, this could well be a reason for hiring an independent contractor to do this work, i.e., the company would not have to pay out wages during a period of time when it had sufficient logs on hand, or during a period of inclement weather when the logs could not be hauled from the woods.

Summarizing, evidence for appellants shows that the company made deductions for Federal Income Tax, Social Security, group insurance, and Workmen’s Compensation Insurance. These facts, according to the authorities, herein cited, were circumstances tending to show that Clemons was an employee, along with the fact that the company could terminate its arrangement with him at any time. On the other hand, the following facts support the inference that Clemons was an independent contractor :

First, he used his own equipment;

Second, he had full charge of hiring and firing his employees;

Third, the manner of accomplishing the work was entirely in the hands of Clemons; and,

Fourth, all wages paid to Clemons and his employees,, along with the Workmen’s Compensation coverage, was charged to Clemons and the total amount deducted from the check given him (based on the contract of $8.00 per thousand).

In other words, he paid the wages and the Workmen’s Compensation coverage.

I am unable to say that these facts do not constitute evidence of a substantial nature supporting the finding of the commission.

I, therefore, respectfully dissent.

I am authorized to state that Mr. Justice McF addin joins in this dissent.

George Rose Smith, J.

(concurring). I concur in the result reached by the majority opinion, but it does seem to me that the position now being taken cannot be reconciled with the views that were expressed in a number of our prior decisions. Judging by similar situations in the past, we can foresee that there will be constant pressure upon the court to broaden the scope of today’s holding, until what will actually be a new conception of the independent contractor relationship has finally been spelled out by the cases. It seems safe to suppose that it will be several years before the full effect of today’s decision can be accurately determined.

       and b Emphasis supplied.

       The logs were banked in a location where they could be loaded on the trucks in any kind of weather and hauled to their destination.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    McLaren v. Cross.
    5-2976
    370 S. W. 2d 59
    Opinion delivered May 20, 1963.
    [Rehearing denied September 9, 1963.]

      Gregory é Claycomb, for appellant.

      Bob Bailey, Jr., J. Marvin Holman, Robert E. Irwin, for appellee.
   Paul Ward, Associate Justice.

This litigation calls for an interpretation of a will executed by one Gr. A. McLaren who died on August 7, 1952. The will was admitted to probate on August 27,1952.

The appellee, Zada Cross, (a beneficiary under the will) filed a petition on May 23,1953 in the probate court to have the will construed in order to determine (a) when she would receive a bequest of $5,000 and (b) when she would enter into a life estate of eighty acres of land. The probate court ruled it lacked jurisdiction to decide either issue (a) or (b). Upon appeal to this Court we held the probate court did have jurisdiction to adjudicate her claim to the $5,000 but not to her claim relating to the real estate. See Cross v. McLaren, 223 Ark. 674, 267 S. W. 2d 956, where many of the facts related to the issues in the present appeal are set forth, and which facts will not be repeated here.

Upon remand by this Court issue (a) was presented to the probate court and issue (b) was presented to the chancery court, and in both instances the issues were resolved in favor of appellee. By agreement of the parties, the two cases are consolidated on appeal for briefing and submission. The parties apparently now agree, and we find, that the issue is the same in both cases, and that the decision in one case controls the decision in the other case.

The Issue. The will in question consists of twenty-five separate items, and it is modified by three separate codicils. It is necessary first to point out (in general terms) that the will designates two persons as executrices, that it conveys the bulk of the property to them as trustees, and that the trustee-ship terminates on the more remote of two designated dates: one, thirty years after the death of the testator; the other, upon the death of his widow and daughter. It is not questioned by appellants that the will gives appellee $5,000 and also a life interest in the east half of the southeast quarter of Section 32, Township 7 North, Eange 18 West, 80 acres.

The only issue to be decided on this appeal is whether appellee (Zada Cross) gets the above mentioned properties at the death of the testator (as the trial courts held) or whether she gets them at the termination of the trusteeship (as appellants contend).

The portions of the will bearing primarily on the issue mentioned are • Item '24 and two codicils which modify said item. The first codicil deletes certain words from Item 24 while the second codicil adds certain words. To simplify and facilitate consideration of Item 24 as modified it will be copied below with the deleted words in capital letters' and with the added words in italics.

“After the full expiration of twenty years from my death and the' death of both my wife Florence and my daughter, Alta, either before or after the full twenty year period and whichever is latest to occur, then I declare the trust herein created to terminate and my Trustees shall thereupon execute their trustees deed to my granddaughter, Sandra Lee McLaren, and to the issue of her body, but if the said Sandra Lee McLaren, be dead, then said conveyances shall be made to her bodily heirs and if there be no bodily heirs of the said Sandra Lee McLaren living at the termination of this Trust as herein provided, then all property held by my said Trustees shall revert to my estate IN' THE EVENT OF SUCH REVERSION BY REASON' OF THE DEATH OF SANDRA LEE McLAREN AND FAILURE OF BODILY ISSUE OF HER, THEN IT IS MY WILL, AND I GIVE AND BEQUEATH TO MY COUSIN, ARNIE McLAREN, THE SUM OF FIVE THOUSAND AND NO/lOO ($5,000) DOLLARS; TO MY COUSIN TABITHA McLAREN FRONABARGER, OR IN THE CASE OF HER DEATH TO HER DESCENDANTS, ACCORDING TO THE LAWS OF DESCENT AND DISTRIBUTION OF THIS STATE, FIVE THOUSAND AND NO/lOO ($5,000.00) DOLLARS, to Zada Cross I give bequeath and devise Five Thousand and no/100 ($5,000.00) Dollars, in money, absolutely, and the East Half (E %) of the Southeast Quarter (SE %), of Section 32, Township 7 North, Range 18 West, in Pope County, Arkansas, for and during her life and under the same terms and conditions as her present lease. Provided, said Zada Gross complies with the terms and conditions in her lease; then neither my trustees or beneficiaries of my will, may dispossess her of the lands under her lease or disturb her in the peaceable possession of the lands so leased or willed to her.” (The twenty year period mentioned above was changed by a codicil to a thirty year period.)

The general rule in a case of this type, acknowledged by both parties, is that the intent of. the testator, as gathered from the entire will, is controlling. If, however, the intent cannot be determined with certainty from the language in the will, recourse must be had to judicial interpretation and construction. In the case of Park v. Holloman, 210 Ark. 288, 292, 195 S. W. 2d 546, 548, we find this rule forcefully stated in the following words:

“The polestar of the court, in construing a will, should always be the intention of the testator; and the will itself is ordinarily the only place to which the court should resort to find such intention. If it be in the Avill expressed in language that is clear and unmistakable the court should go no further, but should put in effect the intention of the testator, as thus clearly set forth in his will.”

In Prall v. Prall, 204 Ark. 1074, 1077, 166 S. W. 2d 1028, the court, quoting from Kelly v. Kelly, 176 Ark. 548, 3 S. W. 2d 305, said:

“ ‘The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be gained from reading the entire will and construing it so as to give effect to every clause and provision, therein if this can be done.’ ”

In Quattlebaum v. Simmons National Bank, Admr., 20S Ark. 66, 68, 184 S. W. 2d 911, the Court said:

“On the question of interpretation and construction of a will, the general rule, running through a long line of our cases, is that it is only where there is some ambiguity or doubt as to tbe meaning of the language used in the will that recourse to judicial interpretation or construction is justified.”

It is also well established that ordinarily, the law favors the early vesting of titles. See Hurst v. Hilderbrandt, 178 Ark. 337, 10 S. W. 2d 491, and Wallace v. Wallace, 179 Ark. 30, 13 S. W. 2d 810. Also, if there is any inconsistency between any portion of a will and the codicil, the latter will control. In the case of United States of America v. Moore, 197 Ark. 664, 124 S. W. 2d 807, the court quoted with approval the following language:

“ ‘ “ . . . the mere taking of a codicil gives rise to the inference of a change in intention, and such an inference does not arise in the case of a will standing by itself. When a will and codicil are inconsistent in their provisions, the codicil, being the latest expression of the testator’s desires, is to be given precedence.” ’ ”

After carefully studying the language in Item 24 of the will and the effect thereon of the language taken from the two codicils, and applying the rules of construction above mentioned, we have concluded it was the intention of the testator that appellee should come into use ajjixl possession of the subject properties immediately following the probation of his will, and that, consequently, the judgment and decree of the trial courts must be affirmed. It must be admitted that this result is not readily deducible from the language used in the original Item 24. In fact the language in that item strongly indicates the testator intended for appellee to wait (to enjoy said properties) until the trust terminated. On the other hand it is difficult to understand why the testator would have deleted the indicated words (by the first codicil) if he did not intend to change the date for the vesting of the property. It must be conceded the testator intended the properties to vest on one of the two designated dates since no other date is mentioned.

A careful study of the language used in the second codicil (shown as emphasized in Item 24 above) also tends strongly to support the conclusion already annotuieed. This language clearly implies the testator considered the trustees were to have some control over appellee as to how she managed the property “willed to her. ’ ’ This intended control by the trustees, however, is absolutely inconsistent with an intent for the life estate to vest after the trustees had been discharged—that is, after the trust terminated. As pointed out by appellee, if the life estate was not to vest until the trust terminated, it is highly probable that appellee (who is now advanced in years) would have an expectancy of less than two years left in which to enjoy it. It hardly seems reasonable to believe the testator intended to create a situation of this type.

Appellants ably and forcefully argue that an interpretation of the testator’s will which allows the gifts to become effective upon his death, violates other portions of the will. In support of this argument they point out that under Items 4 and 7 of the original will the testator “had already made a clear gift in trust of the same properties claimed by appellee under Item XXIV of the will.” For reasons presently set forth we do not feel compelled to agree with appellants’ interpretation of the meaning of the language in the two mentioned items.

The testator, after directing the payment of his debts and after making certain gifts to his wife, provided in Item 4 that ‘ ‘ all the rest and residue ’ ’ of his estate should go to his trustees “to hold . . . for the term, conditions and purposes hereinafter mentioned and set out...” By the use of the above language we think it is possible that the testator meant one of the “conditions” was that appellee should have the. two gifts. Item 7 of the will provides that the trustees should hold, for the life of the trust, certain lands which are described. Among these lands is the land in which appellee gets a life estate. Appellants ’ argument is that one fact contradicts the other; that is, the trustees could not “hold” a parcel of land while appellee had a life estate in the same land. We think, however, that the testator could have intended only that the trustees should not dispose of the fee simple title to the land. Support for this intent is found by reference to Item 21 of the will. There we find this language: “I declare it is not my intention that fee simple to any lands . . . shall vest in any beneficiary ...” (Emphasis added.)

It is our conclusion, therefore, based upon what we have heretofore said, that the judgment and decree of the trial courts should be, and the same are hereby, affirmed.

MoFaddin, J., dissents.


author: Sam Bobinson, Associate Justice. Carleton Harris, Chief Justice

text:
    Ray v. Garner Construction Co.
    5-3002
    370 S. W. 2d 73
    Opinion delivered May 20, 1963.
    [Rehearing denied September 9, 1963.]

      McMath, Leatliermcm, Woods <& Youngdahl and Jon P. Sizemore, for appellant.

      Barber, Henry, Thurman & McCashill, for appellee.
   Sam Bobinson, Associate Justice.

This is a workmen’s compensation case. Appellant, Hollis W. Bay, who lives at Sheridan, claims that he was injured while working for appellee, D. H. Garner Construction Company on a job in North Little Bock on June 10, 1960. The Workmen’s Compensation Commission denied compensation and Bay has appealed.

On the 23rd day of June, 1960, Bay was operated on for two ruptured discs. There is no question about the discs being ruptured. The only issue is whether there is substantial evidence to sustain the Commission’s finding that Ray was not injured in the course of his employment.

Appellant is 42 years of age and has been a heavy equipment operator for many years. He also preaches on occasion. In April, 1960, he went to work for appellee operating heavy equipment, such as bulldozers, motor graders, etc. Some time prior to June 11, 1960, he made arrangements with his employer to take off from work the week beginning June 13 so that he could help to conduct a revival meeting in Pine Bluff. ■ He worked up until noon Saturday, June 11, the usual quitting time for the week.

The next day, Sunday, June 12, and also on Monday and Tuesday, he preached at Pine Bluff. On Wednesday, June 16, he drove from his home at Sheridan to Pine Bluff to attend the revival service. His wife was with him and they stopped at a super market to get some groceries. He stooped over to get a box of crackers; a sharp and severe pain struck him in the back causing him to become prostrate with pain on his back on the floor of the super market. His wife called Dr. Heirs, a chiropractor of Pine Bluff who had treated Ray for back trouble 10 or 15 times since March 9,1960. Dr. Heirs immediately went to the super market where Ray was still on his back on the floor. With the help of others the doctor got him into an automobile and took him to the doctor’s office. There, a medical doctor was called who administered some shots for pain.

Later Ray returned to his home and the next day went to see Dr. Guy Smith, a chiropractor in Little Rock. This was on Thursday. The following Saturday Dr. Smith recommended surgery to relieve the back condition, and then, for the first time, Ray notified his employer of his claim of having been injured eight days previously. Dr. Horace Murphy was called and the following week, on June 23, he operated and found two ruptured discs which he repaired. Ray was off from work about 4 months and has a 20% permanent disability.

The issue is not whether the evidence is sufficient to sustain a finding other than that made by the Commission, but is there substantial evidence to sustain the order that the Commission did make. Definitely, there is substantial evidence to sustain the Commission.

Appellant claims he was injured in the course of his employment in this manner: He testified that a short time before the end of the work day on Friday, June 10, he cleaned the tracks of the tractor he was operating, and a stone weighing 10 or 12 pounds was lodged in one of the drive sprockets; that he dislodged it; that he tossed it aside and felt a sharp and severe pain in his back. He claims that at that time he injured his back and that such injury resulted in two ruptured discs. This is the alleged injury for which the Commission denied compensation.

There is no evidence at all that appellant received an injury as he claims, except what he says about it; but there is substantial evidence that the discs in appellant’s back were not ruptured as he claims on June 10, 1960. Appellant does not say that he felt any pain when he removed the rock from the sprocket, but claims that when he tossed it aside he felt a sharp and severe pain, but notwithstanding such pain he got back on the tractor and drove it to the usual parking place for the night. Although there were two other men on the job, he said nothing to them about having been injured and nothing about being in pain. He drove to his home at Sheridan Friday night and drove back to work the next day and worked the usual time for Saturdays, 5% hours. Again he said nothing about having been injured and his fellow workers observed nothing unusual about him as he went about his work in the ordinary manner.

Although in making his claim for compensation he says he was in great pain the Saturday morning following the alleged injury on Friday, he drove from his work in North Little Bock to his home at Sheridan, and on Sunday he went to Pine Bluff to preach at the revival. He again attended the revival on Monday and Tuesday. On Wednesday he drove from his home at Sheridan to Pine Bluff, and while stooping for a box of crackers in a super market, he suffered the injury that disabled him. He claims to have had a severe pain in his back ever since the alleged injury in North Little Rock on Friday. It would not be unreasonable for the Commission to believe that if he was suffering such pain he would not have stooped for the crackers.

The act of stooping in itself was sufficient to cause his disability. Appellant says that he bent his knees in stooping for the crackers. This would put him in a squatting position. Dr. Murphy, who operated on him, testified that a squatting position seems to produce more ruptured discs than anything else. Moreover, Dr. Murphy testified that it does not take a severe injury to cause a ruptured disc; that it can be caused by pushing back a chair or bending over; that a slight motion can cause this type of injury; such things as coughing or sneezing could cause this particular condition that appellant complained of. No doubt appellant had a weak back when he stooped for the crackers. He testified to having had trouble with his back for 10 or 15 years. Dr. Smith corroborated him on that point.

Furthermore, appellant testified that prior to the time of the alleged injury he had X-ray pictures made of his back, but at the time of the hearing before the Commission he said he could not remember who made the pictures. He spoke in a derogatory manner of the doctors who made the pictures, but still could not remember who the doctor was, nor did he produce the pictures. His testimony on that point may have caused the Commission to believe that if his memory was a little better the doctor who made the pictures could have been called as a witness and the X-rays produced, clearing up the question of when the discs ruptured.

Appellant admitted to having had a pain in his back at the point of the ruptured disc ever since two weeks after he went to work for appellee; that the pain had been constant since that time up to the time of the operation; that the pain had gone down into his toes and the ball of his foot. He stated that he had taken sleeping pills in order to sleep; that the pills had been prescribed for his wife, but he did not know what doctor had prescribed the sleeping medicine. Perhaps the Commission thought it remarkably strange that a man would not know what doctor was prescribing for his wife.

Dr. John Hundley, an orthopedic surgeon, examined Ray on behalf of the appellee and testified positively that Ray denied to him that he had ever had any trouble with his back prior to the alleged episode on June 10, 1960. The record is replete with evidence to the effect that Ray had been having trouble with his back for many years. Dr. Hundley also testified that if appellant had received an injury causing a ruptured disc as he claims on June 10, the pain would have been so excruciating he could not have worked 5% hours the following day and could not have preached at Pine Bluff.

When all the evidence is considered, it cannot be said that it is not substantial to sustain the finding of the Commission.

Affirmed..

Harris, C. J., and Johnson, J., dissent.

Carleton Harris, Chief Justice

(dissenting). I find no substantial evidence to justify the finding of the commission denying compensation in this case. Certainly, the fact that he did not report the injury to his employer until eight days later should not be held against appellant, since the statute gives him sixty days from the date of such injury to make such a report. Nor do I attach a great deal of significance to the fact that he did not tell two fellow employees about the injury. To place importance on this fact would seem to imply that an injured employee must tell- a fellow worker that he has been hurt-—and this, in spite of the fact that he is only required to tell his employer withim sixty days. Apparently, the referee did not believe Ray’s testimony that he received such an injury on June 10, though his (and the commission’s) finding is not predicated on such a fact. However, comment relative to the testimony of Dr. Ottis Hiers indicates that the referee felt that Ray might be withholding facts.

The referee, in his ‘‘Conclusions,” stated:

“The report of Dr. Hiers, the Pine Bluff chiropractor who examined the claimant just after the incident in the Pine Bluff grocery (Claimant’s Exhibit 2 in transcript of 9-28-60 hearing), states that he felt the back condition was due to a job injury related by the claimant as having occurred the previous week at work. Dr. Hiers made no mention of claimant’s bending over to pick up a box of crackers, causing the Referee to wonder if the claimant failed to relate it or if Dr. Hiers disregarded it.”

Apparently, some significance was attached to this fact, or the referee would not have mentioned it, but the subsequent testimony of Dr. Hiers, whose deposition was taken, clearly dispels any suspicion that Ray was holding back any facts from the doctor. The testimony of Hiers established that Ray gave to him a complete history. From the testimony:

“Well he stated that he was just—of course, they were buying groceries and he had—was going down the aisle and I think his wife was—usually are ahead of their husbands and so forth in grocery stores and he just reached over to pick up a box of crackers and a pain hit him in the back just like that. In other words, there was no mention of him slipping or anything on the floor, anything, that wasn’t the case.” ■

In fact, Hiers whs asked specifically about both incidents (the rock-throwing incident on the job, and the intense pain suffered when picking up the box of crackers). From the testimony:

“Q. Well, first of all, I would like to ask you if in your opinion there is any connection with the rock throwing incident and the herniated discs based upon those various factors, is there any connection in your opinion?
“A. Well, in my opinion, there had to be previous damage. When we study the makeup of the spinal column, they just don’t rupture by bending or picking up a box of crackers. There had to be previous damage and if that—from the information that he gave me, that is very possibly where the whole thing started. That is where he incurred the damage. * * *
“Q. What would you say was the mechanical function, if any, of the picking up the box of crackers incident which took place just before you saw him in June, in other words, what part did that play in the total disc condition, would you say?
“A. Well, I don’t think that that was a major cause. I think the damage had been done previously. It would have had to have been done before that because you couldn’t—I don’t see any way that you could do that much damage just picking up a box of crackers. The damage had to be previously done in my opinion. ’ ’

It is thus obvious that the apparent suspicion held by the referee that Ray was withholding facts, was certainly, at least in this instance, unjustified.

Dr. Hiers had already flatly testified that, based upon the condition in which he found Ray, on June 15, 1960, (at the supermarket), based upon the history of the case and Ray’s description of what had happened at the job, and, further, based on the fact that Ray was operated on by an orthopedic surgeon, Dr. Horace Murphy, and three extruded herniated discs were found, it was his opinion that the “rock-throwing incident” was the occasion where Ray incurred the damage to his back.

The referee concluded his finding with a reference to the testimony of Dr. Horace Murphy, as follows:

“If Dr. Murphy’s statement that excruciating pain could not be long endured, the claimant has not made a case on an injury of June 10, 1960, and if Dr. Murphy’s statement that the most recent injury caused the back condition, then such resulted from the incident in the supermarket on June 15, 1960. The claim is denied and dismissed.”

Dr. Murphy, in his report, recited the history that had been given to him by Ray. This history is entirely consistent with appellant’s testimony. Murphy recited that Ray told him that he had difficulty “off and on” for the last several years with his back, but had managed to get along fairly well and do heavy work. From the history, Ray told Murphy that he had felt considerable pain in his back while bending over in a crouched position for the purpose of removing a large rock from the machinery that he was operating. Further, that he rested for a while, continued to work, but the pain increased. According to the doctor, he was also told that approximately five days following the initial injury, Ray suffered excruciating pain in the right hip and right leg posteriorly. When asked whether the cracker box incident would have caused the condition which Dr. Murphy found Ray to be suffering from, the doctor replied:

“No. I think the man gave a perfectly straight forward history, having pain when he picked up the rock in a flexed position, I would say from a physiological standpoint that the extruded disc at that time caused this, that is my opinion that this resulted when he was injured originally. * * *
“Q. Can you say with any degree of medical certainty when this disc did extrude whether it was when he lifted or bent over and had excruciating pain in the grocery store?
“A. No, I think if I had to make a statement as to when it actually happened, I would say when he picked up the rock and had the original pain at that time. ’ ’

Still further:

“Q. Now, if you had a condition such as this man had, do you think in your opinion, that it would be possible for him to continue his work?
“A. I think so for a time. In fact, the history of it is that usually the patient doesn’t have to he taken to the hospital immediately. He almost always states that he felt something in his back and that he felt an aching pain in his back and that they try to continue to work. It is almost rare for a patient to stop work. We have literally hundreds of cases and the history that we have taken the patient felt the next morning when he got up a stiff back or he was stiff in the back and he tries to go to work and may do so for a week, at this time the disc probably is developing.2b

Certainly, the reports of these two doctors do not substantiate the findings of the referee. Yet, the referee, according to his opinion, portions of which have been herein quoted, apparently relied in large measure upon the testimony of these two doctors to support his finding. In fact, the referee only mentioned the testimony of three doctors in his opinion (the other being Dr. Guy Smith, whose testimony will be hereinafter discussed), and the testimony of all three of these men, to my way of thinking, súbstantiatéd Bay’s contention. The referee (nor the commission) did not even mention the testimony of Dr. John Hundley, who was the only physician to testify on behalf of the company. Since neither the referee, nor commission, saw fit to comment on Dr. Hundley’s testimony, apparently not relying on same, I see no reason for detailed comment. In fact, Dr. Hundley (who examined Ray.about a year after the occurrence) stated: “Therefore, I am of the opinion that this patient has had a back operation and that if his history is correct that he did sustain an injury that produced this condition in the lower back requiring an operation.”

Dr. Hundley then pointed out that Ray had had prior back trouble and stated:

“I believe this question is not one of a medical nature but that of a legal nature to determine whether or not he did have an injury to the lower back.”

The majority say, “There is no evidence at all that appellant received an injury as he claims, except what he says about it; * * That statement is literally correct, but there are circumstances that verify appellant’s contention. The majority opinion mentions the incident wherein Ray stooped over to get a box of crackers, and suffered the severe pain. It is then related that Dr. Hiers was called, and subsequently a medical doctor was also called, the latter administering shots for pain. The opinion then recites, “Later Bay returned to his home and the next day he went to Dr. Guy Smith, a Chiropractor in Little Bock.” This' is the first mention by the majority of Bay’s making a visit to Dr. Smith.

Apparently the majority have overlooked Dr. Smith’s testimony that Bay went to Smith on June 11, which was the next day after the claimed injury on the construction job. Dr. Smith stated that Bay told him at that time that he had developed a severe pain in his lower back while trying to remove a stone from the machine that he was operating. This certainly corroborates Bay's contention that he received an injibry on Jume 10. The incident referred to in the majority opinion (the intense pain while stooping to pick up a box of crackers) did not occur until five or six days later. It is true that Bay did again go to Dr. Smith after this occurrence—but his first visit was made the day following the alleged injury on the job—with a full description to that doctor of what had happened. Two days later, Dr. Smith recommended surgery, the employer was notified, and Dr. Murphy was called.

To summarize, we have the testimony of Dr. Horace Murphy, who felt that Bay’s condition was caused by the injury sustained on Jibne 10 (rather than the cracker box incident)-—-the evidence of Dr. Ottis H. Hiers, who was likewise of the opinion that the condition was caused by the injury on June 10 (rather than the cracker box incident)—and the testimony of Dr. Guy Smith that Bay reported to him the job injury on June 11 (which was several days before the cracker box incident). I consider that the testimony of these men, all of whom are highly reputable, constitutes substantial evidence to support appellant’s claim. On the other hand, to support the commission’s finding, we have the testimony of two fellow employees that Bay did not report to them that he had been injured, and the fact that Bay did not report the mishap to his employer for eight days. I am unable to consider this testimony as substantial evidence to deny the claim.

I, therefore, respectfully dissent.

I am authorized to state that Mr. Justice Johnson joins in this dissent.

       § 81-1317, Vol. 7A, Ark. Stats., 1960 Replacement.

       and b Emphasis supplied.


author: Sam Robinson, Associate Justice.

text:
    Baxter Land Co. v. Gibson
    5-3005
    367 S. W. 2d 741
    Opinion delivered May 20, 1963.

      Smith é Smith, for appellant.

      Robert B. Gibson, for appellee.
   Sam Robinson, Associate Justice.

This is an action to enforce a lien for an attorney’s fee. Dan Holmes died testate August 26, 1958. By his will he left 20 acres to his daughter, Eddie Mae Holmes Nelson. About a year after the death of Holmes his will had not been filed for probate and Eddie Mae employed as her attorney, appellee herein, Robert B. Gibson, to look after her interest and to get for her whatever she had coming under the terms of the will. The contract between attorney and client provides: “It is agreed by both parties that said attorney will receive for his services 33%% of any and all property received by Eddie Mae Holmes Nelson from the estate of Dan Holmes.” Gibson was successful in getting the Holmes will probated and the matter brought to a conclusion. In the meantime, Eddie Mae had deeded the 20 acres to appellant, Baxter Land Company, Inc. Gibson filed a motion in Probate Court to enforce his lien on authority of Ark. Stats. 25-301. The Probate Court granted the motion and entered an order in effect sustaining the lien.

On appeal appellant raises only one issue. It contends that the Prohate Court did not have jurisdiction of the subject matter; that is, jurisdiction to sustain the attorney’s lien. There is no contention that at the time of the purchase from Eddie Mae appellant did not know of appellee’s contract with her. There is no issue here of priority of equities.

Ark. Stats. 25-302 provides: “The court before which said action was instituted, or in which said action may be pending at the time of settlement, compromise, or verdict, upon the petition of the client or attorney, shall determine and enforce the lien created by this act [section].”

The matter was pending in the Probate Court at the time it was concluded. Under the terms of the contract Gibson was entitled to one-third of any and all property recovered by Eddie Mae. If he had failed to ask for the enforcement of his lien in the court where the matter was pending, he may have been barred from enforcing it in some other court. It is said in 7 C.J.S. 1206: “. . . where the forum is designated by statute and proceedings to enforce attorneys’ liens are purely statutory, such proceedings must be brought in the forum so designated.” Citing Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 225.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Alcorn v. Ark. State Hospital.
    5-2954
    367 S. W. 2d 737
    Opinion delivered May 20, 1963.

      Erwin <& B eng el, for appellant.

      Pope, Pratt & Shamburger, by M. Jack Sims and Robert D. Ross, for appellee.
   Jim Johnson, Associate Justice.

Appellee Arkansas State Hospital sued appellant J. N. Alcorn under the provisions of Arkansas Statutes §§ 59-230 and 59-230.1 for maintenance, medical care and treatment furnished to appellant’s unmarried daughter during four long stays at the hospital between October 31, 1950 and March 1, 1961. The cause was submitted to the trial court on appellee’s motion for judgment and on the following stipulation: (1) appellant admitted the correctness of the account and that his daughter, a member of his household when not confined in the State Hospital, received the benefit of appellee’s services; and (2) that appellant raised two issues, (a) that a judgment in this cause of action is dependent upon appellant’s ability to pay and therefore appellant should be entitled to submit proof as to his inability to pay, and (b) the. statute of limitations is pleaded in bar of all charges made prior to the date of this action. After submission of trial briefs, the court found that the services constituted necessaries and that appellant was liable for the amount sued for. Prom that judgment comes this appeal.

Por reversal appellant urges that the court erred in rendering judgment without requiring proof of ability to pay in order to make a prima facie case, and that the court erred in sustaining appellee’s motion to exclude evidence on the part of appellant with reference to his inability to pay and to maintain his daughter during the period of time involved and at all times during her confinement.

The statutes involved here are as follows:

59-230. ‘ ‘ Pay for maintenance of patients — Investigation of ability to pay. If any patient admitted to the State Hospital be found, upon examination, to possess an estate, over and above all indebtedness, more than sufficient for the support of his or her dependents, his or her natural or legally appointed guardian shall pay out of such estate into the office of the business manager of the State Hospital, in advance, an amount equal to one [1] month’s maintenance, at a rate to be fixed by the Board of Control [State Hospital Board] from time to time on the basis of maintenance costs, and in addition, shall supply the patient with sufficient and suitable clothing, and shall remove said patient when so required and notified by the Superintendent. If the patient remains in the State Hospital more than one [1] month, such payments shall be made, monthly in advance, for the whole period during which the patient remains in the State Hospital. If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient. Inability to pay shall not, however, cause any person to be refused admission to or discharged from the State Hospital.
“The business manager, following the admission of a patient into the State Hospital, shall make an investigation to determine the extent of the estate, if any, owned by the incompetent patient, and whether he has a duly appointed and acting guardian to protect his property and his property interest. The business manager shall also make an investigation to determine whether the patient has any relative or relatives legally responsible for the payment of maintenance, and shall ascertain the financial condition of such relative or relatives to determine whether in each case such relative or relatives are in fact financially able to pay such charges. All reports in connection with such investigations, together with the findings of the business manager, shall be kept in the business office and may be inspected by interested relatives, their agents, or representatives, at any time upon application.”
59-230.1 “Monthly statement of charges — Certification of unpaid accounts for collection. — Records and Information. The business manager of the State Hospital shall periodically ascertain the per capita cost of maintenance of patients and shall render monthly statements of charges therefor to the guardian or other person whose duty it is to provide care, maintenance or support of each patient, and he shall diligently attempt to collect such charges.
‘ ‘ The business manager shall make monthly certifications to the State Hospital Board of all patient accounts which have been due and unpaid for a period of three [3] months or more. The Hospital Board shall certify such unpaid account to some reputable person or agency, previously approved by the State Hospital Board of Control for collection. The compensation of such person or agency shall be paid from moneys collected on such accounts and the amount of such compensation shall not exceed charges as recommended and approved by the American Bar Association for similar collection work.
“Permanent records shall be kept by the business manager showing to whom and on what date or dates statements of charges are rendered, the amount thereof, payments made thereon, whether such charges have been certified by the Hospital Board, the action taken thereon by the Hospital Board, whether or not any money has been realized by the collecting agent of the Board and such other information as shall be deemed appropriate by the State Hospital Board.
“The Hospital Board shall require such person or agency as it may employ to collect outstanding charges for patient maintenance to furnish the Board with information as to what action has been taken by such agency, the results thereof, what accounts are thought to be uncollectible and such other information as the Board shall deem appropriate. Such information shall he submitted to the Board over the certification of the collecting agency.
“This act shall be cumulative to existing statutes pertaining to maintenance charges against patients in the State Hospital.
59-115. “Persons liable for support. — The father and mother of poor, impotent or insane persons shall maintain them at their own charge, if of sufficient ability, and the children and grandchildren of poor, impotent or insane parents or grandparents shall maintain them at their own charge, if of sufficient ability. ’ ’

In the recent case of Arkansas State Hospital v. Kestle, 236 Ark. 5, 364 S. W. 2d 804, decided after the trial court judgment in the case at bar, this court held that in seeking recovery under Ark. Stats. § 59-230, the burden of proving that a patient confined in the State Hospital has no estate is a condition precedent to recovery for necessaries and treatment against any person who is legally bound to support such patient.

The Act carefully provides for determination of whether the patient has an estate and also whether the patient has any relative or relatives legally responsible for the payment of maintenance who are in fact financially able to pay such charges. Upon determining that the patient is without sufficient estate, as decided in Ark. State Hospital v. Kestle, supra, it is apparent that the Legislature intended that those persons who may be secondarily liable be so notified, and upon notification to them that the State Hospital Board has made such determination, the secondary liability commences as to indebtedness incurred after receipt of such notice. This is not to say, however, that such liability is absolute.. The legislature in the enactment of Ark. Stats. § 59-115, as set out in full above, carefully made such liability, by the use of the words “if of sufficient ability,” dependent upon ability to pay, thereby recognizing the humane responsibilities of society as a whole to provide for those unfortunates when the secondary obligors are unable to pay. From the entire tenor of the liability statutes it is manifest that the Legislature never contemplated that one should be charged with the support of an incompetent to such an amount as to leave other members of his family in a destitute condition, 44 C. J. S. p. 180, § 75.

In the Kestle ease, supra, this court acknowledged that under Ark. Stats. § 59-230, the legislature intended that the burden be placed on the State to show the patient’s inability to pay as a condition precedent to imposing liability on the secondary obligor. It is our view that the enactment of § 59-230 in no way repealed § 59-115. The liability imposed on the patient by § 59-230 is a positive liability, whereas the liability imposed on the secondary obligor by § 59-115 is, as we have seen, conditioned on ability to pay. This being true, the claim of inability to pay would be in the nature of an affirmative defense to an action seeking to enforce the obligation, and the burden, therefore, to plead and show inability to pay would rest upon the person seeking to invoke the defense. Faulkner v. State, 6 Ark. (1 Eng.) 150.

Accordingly, it was error for the trial court to sustain appellee’s motion to exclude appellant’s evidence of his financial inability to maintain his daughter in the State Hospital.

Appellant’s final contention for reversal is that the trial court erred in refusing to hold all that part of the bill more than three years old was barred by the Statute of Limitations.

The statutes here under consideration contain no statute of limitation. In Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S. W. 2d 977, this court stated:

“In the absence of a specific provision in that regard, there is a diversity of opinion among the authorities as to the application of general statutes of limitation to the subordinate political subdivisions of a state. In a discussion of the question in 34 Am. Jur. p. 309, it is said: ‘It has been said that the maxim ‘nullum tempus occurrit regi’ is an attribute of sovereignty only, and cannot be invoked by counties or other subdivisions of the state. In many cases, probably a majority, a distinction is drawn between cases where a subordinate political subdivision or agency is seeking to enforce a right in which the public in general has an interest and those where the public has no such interest, and it is held that the statute of limitations, while applicable to the latter character of actions, cannot be interposed as a bar where the municipality is seeking to enforce the former type of action. In these decisions, the view is taken that the plaintiff, in seeking to enforce a contract right, or some right belonging to it in a proprietary sense, may be defeated by the statute of limitations; but as to rights belonging to the public ancl pertaining purely to governmental affairs, and in respect to which the political subdivision represents the public at large or the state, the exemption in favor of the sovereignty applies, and the statute of limitations does not operate as a bar. ” [Emphasis ours.]

In this regard, it has been further said, in 34 Am. Jur., p. 314, § 399, as follows:

. . . ‘ ‘ On the other hand, the weight of authority supports the view that the statute cannot be set up as a defense to an action by an incorporated state insane hospital to recover for board and medical attention furnished an inmate, where the hospital is owned and controlled by the state, is a mere governmental agency thereof, and all charges imposed for the care and maintenance of the hospital’s inmates are for the benefit of the state and when collected go to the support of the hospital.”

We are unwilling at this time to depart from our general rule that the statute limitations does not operate in matters where the public interest is concerned.

In the instant case, there is no showing that appellant’s liability has in fact commenced, that is, there is no showing that appellant ever received notice of a determination by the constituted authority of the inability of the patient (principal) to pay all or any part of her accumulated account and that appellant was determined to be secondarily liable.

For the reasons stated herein, this canse is reversed and remanded for further proceedings consistent with this opinion.


text:
    Taylor v. Merchants National Bank, Ex’r.
    5-3010
    367 S. W. 2d 747
    Opinion delivered May 20, 1963.

      Franklin Wilder, Sexton & Morgan, for appellant.

      Martin L. Green and Edward E. Bediuell, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves two wills, a suit to enforce an oral contract to devise real property, and a claim against an estate for money loaned decedent, all of which have been consolidated for briefing and argument.

On June 12, 1962, the Sebastian Probate Court, case no. 9913, admitted to probate a will of Laura D. Barton bearing the typed date of April 23, 1962. Letters testamentary were issued to appellant Viola Barton, a daughter of the decedent. Thereafter on June 26, 1962, case no. 9921, Elliot Barton, a son of decedent, petitioned for probate of a will of decedent dated April 24, 1962. On July 5, 1962, Barton filed a petition in the first probate case to revoke the letters testamentary granted to appellant on June 12th, on the ground that the will in that case was not the latest will of the decedent.

The two cases were consolidated for trial. Hearing was had August 10, 1962, following which the trial court revoked the letters granted to appellant and the probate of the will dated April 23, 1962, admitted to probate the will dated April 24, 1962, and ordered that letters testamentary be issued to appellee, the Merchants National Bank of Port Smith as executor of the will of April 24th.

At the hearing on August 10, 1962, appellant presented evidence for the purpose of showing that the will dated April 23rd was actually executed on the 26th or 27th of April and therefore the later will, and that this will was executed by decedent in performance of an oral contract made by decedent with appellant, under which decedent borrowed two sums totaling $3,800.00 from appellant and promised to will real property to appellant if the loans were not repaid before decedent’s death.

On August 28, 1962, appellant filed her claim, in the second probate case, for $3,800.00, alleging that she had made two loans to decedent totaling that sum and that no part of it had been paid.

On September 6, 1962, appellant filed a petition in Sebastian Chancery Court seeking specific performance of the alleged oral contract to devise real property.

On January 4, 1963, all parties stipulated that the testimony offered by the opposing parties at the hearing on August 10, 1962, in the Probate Court would be all of the testimony to be considered by the Chancery Court in the specific performance case, and by the Probate Court in the second probate case concerning appellant’s claim. On that same date, January 4th, the trial court entered its decree denying the relief sought in Chancery and dismissing the complaint, and in the Probate case disallowing the claim. Prom the decrees then entered, appellant has appealed to this court.

Appellant’s first point urged for reversal is that the will having the typed date, April 23,1962, was deceased’s last valid will.

The trial court found that the April 24th will was the last valid will of the decedent. Appellant in no way questions the execution and attestation of the April 24th will, or controverts the testimony as to the date of execution of that will. The April 23rd will was first admitted to probate on proof of will forms approved by this court which affidavit states in part, “On the execution date of the instrument” the testatrix signed the instrument and the witnesses signed as attesting witnesses “the attached written instrument, dated 23rd day of April, 1962.” Until the April 24th will was offered for probate as a later will, there would be no reason for appellant to show that it was executed other than on the date typed into the instrument. However, once the April 24th will was offered for probate, the burden was then on appellant to show that the April 23rd will was in fact executed other than on the 23rd. We have long required clear, cogent and convincing evidence to vary the terms of any written instrument. Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458. Reviewing all the evidence (much of which is patently inconsistent) as we do on trial de novo, and considering only the competent and credible evidence, Barksdale v. Carr, 235 Ark. 578, 361 S. W. 2d 550; Nolen et al v. Harden et al, 43 Ark. 307, we do not find such a preponderance of the evidence as to be clear, cogent and convincing that the April 23rd will was executed on any other date than April 23rd.

Appellant’s next contention for reversal is that the oral contract to devise the property to appellant should be enforced.

In Offord v. Agnew, 214 Ark. 822, 218 S. W. 2d 370, onr general rule on oral contracts to devise is quoted as follows:

“It is not sufficient that he establish it by a preponderance of the testimony, but that he must go further and establish the contract by evidence so clear, satisfactory and convincing as to be substantially beyond a reasonable doubt.”

Reviewing the testimony and reflecting on the conduct of the members of this family, such as the fact that appellant was the one daughter of decedent’s three daughters to whom decedent turned when her husband died fifteen years earlier and whom decedent chose to make her home with or near, contrasted with the facts that her only son had traveled to see decedent just twice in the twelve years prior to her death, such an oral contract to devise property is not inconceivable. However, in addition to the apparent financial security of decedent it was shown that subsequent to the making of the alleged loans which were contended to be the consideration for the oral contract to devise the property here in question, appellant purchased from the deceased a small sixteeen or eighteen foot corner off said property and paid the deceased a cash consideration therefor. The payment of money to one’s alleged debtor is, to say the least, not consonant with the existence of a debt. This testimony along with the testimony as a whole relative to an oral contract to devise property does not approach that required by the Offord case, supra, that is, the evidence is not “so clear, satisfactory and convincing as to be substantially beyond a reasonable doubt.” Hailing this, the Chancellor did not err in refusing to enforce an oral contract.

Appellant’s last argument for reversal is that appellant’s claim against the estate is not barred by the statute of limitations. In order to consider this point in its proper perspective it must be borne in mind that appellant has failed to establish an oral contract to devise property. This being true, then the simple question here presented is whether appellant’s claim against the estate is barred by the statute of limitations. For this determination we will treat the testimony as uncontradicted that appellant loaned decedent $2,000.00 in 1947 or 1948 to buy a home in Ft. Smith after her husband’s death, and that again in 1949 appellant loaned her mother $1,800.00 to buy a larger home. The statute of limitations applicable to such a debt is as follows:

“37-206. The following actions shall be commenced . . . within three (3) years after the cause of action shall accrue: First, all actions founded upon any contract, obligation, or liability . . . [and not in writing] . . .”

Appellee pleaded the statute of limitations in bar to appellant’s claim, and the burden is therefore on appellant to show that the running of the statute had been tolled or revived by payment or otherwise. Johnson v. Murphy, 204 Ark. 980, 166 S. W. 2d 9; Blake v. Commercial Factors Corp., Inc., 216 Ark. 664, 226 S. W. 2d 986. There is a total failure of proof on this point.

Finding no error on trial de novo, we have no choice but to affirm the decrees appealed from.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Harris v. Harris
    5-3003
    370 S. W. 2d 121
    Opinion delivered May 20, 1963.
    [Rehearing denied September 16, 1963.]

      Mann & McCulloch, for appellant.

      Daggett & Daggett, Carrold E. Bay, for appellee.
   Frank Holt, Associate Justice.

The appellee, Quincy Harris, by his next friend, Odell Barrier, brings this action against the appellants to establish his claim that he is the sole and only heir at law of the testator, James Harris, and as a pretermiteed child he is, therefore, entitled to inherit all of his estate, subject to the dower and homestead rights of decedent’s widow. In his only will, dated in 1953, James Harris devised a life estate in all of his real estate to Ella Harris, his wife [who pre-deceased him], and upon her death he devised forty acres in fee to his foster son, the appellant Lee Andrew Harris, and then the remainder to the other appellants, in this manner:

“To my children, Jesse Harris, Roosevelt Harris, and Annie Bell Harris all the rest and remainder of my real estate in fee simple, as equal tenants in common.” In 1958 Ella Harris died and thereafter James Harris married the appellant, Lettie Harris. In 1961, when James Harris died at 82 years of age, he had not changed any of the provisions of this will, although he had the county and probate clerk, who had the will in his office, to read it to him about seven months before he died.

The appellee, Quincy Harris, contends that appellants, Annie Bell Harris Shears, Jesse and Roosevelt Harris, are not legitimate children of James Harris. On the other hand, the appellants question that Quincy Harris is a legitimate child of James Harris. The facts surrounding this litigation occurred over a period of approximately 68 years. The appellee, who is a resident of Mississippi, claims that James Harris was married to a Mehalie Hudson in Mississippi, and he is the only child of that marriage. He was born there in 1895, or when his father would have been 16 years of age. Quincy produced witnesses in support of the validity of this marriage and his parentage. There is no marriage certificate supporting this marriage. According to appellee, James [Jim] Harris abandoned him and his mother and came to Arkansas in 1903, or when appellee was eight years of age. Appellee presented evidence that Jim established contact with him beginning about 1948 and from then until Jim died in 1961 he visited him in Mississippi several times and Quincy visited him in Arkansas. There is evidence that James Harris acknowledged to witnesses, and in letters to Quincy that Quincy was his son. James was illiterate and these letters were written by his teenage granddaughter.

The appellants, Roosevelt Harris, Jessie Harris, and Annie Bell Harris Shears, all born in Arkansas, also contend that James Harris is their father. Annie Bell, who was born in 1898, testified that she understood James Harris to be her lawful father and that he came to Arkansas and married Ella Moore, her mother, no later than 1895. Jesse was born in 1902 and Roosevelt about 1904. One witness testified that he first met James Harris in Arkansas in 1900; that he was present in 1904 during a church trial of Ella Moore on charges of immorality when she testified that James Harris was the putative father of Jesse and her expected child [Roosevelt] ; that Jim Harris escorted Ella to the church court that night and there said “that those two kids was his kids and that he would marry her. And they married in ’04. And they was married by a preacher by the name of H. M. Townsend in the home of the bride.” There is no marriage certificate to support this marriage either. It is undisputed that Jim and Ella Moore Harris lived together as husband and wife from about 1905 until Ella died in January, 1958 and, further, that as husband and wife they reared Annie Bell, Jesse and Roosevelt as their own children. During this interval Jim acquired the lands in litigation.

It is admitted that Jim Harris is not the father of Lee Andrew Harris, the foster son. In 1919 Jim and Ella brought into their home Lee Andrew at five weeks of age who was the son of a neighbor family. In the community Lee Andrew was known, and so designated in Jim Harris’ will, as a foster son. He was reared and treated by them as such a child.

The appellants, Annie Bell, Jesse, Roosevelt and Lee Andrew, while growing up in this family, assisted Jim and Ella Harris in the farming and maintenance of the property. It appears that Roosevelt aided in acquiring some of the land which Jim owned at the time of his death.

James Harris died on March 18, 1961. He owned 250 acres of land in Lee County which is the land involved in this litigation. Quincy Harris, with two carloads of his family and relatives, attended James Harris’' funeral services on March 26, 1961. The next day the appellee and appellants went to the courthouse where the will was deposited with the county and probate clerk and had the will read to them and other members of their families. This group, consisted of twelve or fourteen people. It was then discovered that Quincy’s name was omitted from the will. Thereupon, the appellee, the appellants, and their families held a conference among: themselves. On Quincy’s demand for a part of the estate, or some of the “dirt”, they reached an agreement and went directly to a lawyer’s office where they asked him to draw the necessary deeds to effectuate their compact. The next day, on March 28, 1961, the appellee, Quincy Harris, with several of his children present, met the appellants, Roosevelt Harris, Jesse Harris and Mabel Harris, his wife, Annie Bell Harris Shears, Lee Andrew Harris and Flora Mae Harris, his wife, and the widow, Lottie Harris, in the lawyer’s office and exchanged six partition deeds among themselves dividing the 250 acres. According to these deeds, Quincy was alloted 20 acres, Lettie 10 acres, and the balance of the land was divided according to the tenor of the will, namely; Lee Andrew, 40 acres, Annie Bell, 60 acres, Jesse, 60 acres, and Roosevelt, 60 acres. The deeds were duly recorded.

On June 15, 1961, the appellee, Quincy Harris, filed suit to set aside these deeds and have the title to the 250 acres of land quieted in him subject to the dower and homestead rights of the widow, Lettie Harris. In his complaint the appellee contends that he is the sole and only legitimate child of Jim Harris; that none of the appellants, Roosevelt, Jesse, Annie Bell, and Lee Andrew, are legitimate children of Jim Harris; that as a pretermitted child he is, therefore, entitled to all of the estate; that the deeds executed by him are void because he was incompetent when he made them and, further, they were partition deeds and invalid because the appellants are not co-tenants.

The appellants denied his allegations and contend that they are legitimate children of Jim Harris and that the deeds are valid in every respect. Appellants pray that their title to the land described in the respective deeds be quieted in them. Upon a trial the Chancellor found that Quincy was the only legal child or heir of Jim Harris and a pretermitted child; that the appellants, Annie Bell Harris Shears, Jesse Harris and Roosevelt Harris are not the children or heirs of Jim Harris as they were in being when he came to Arkansas from Mississippi; that none of the appellants were legally adopted by Jim Harris and that the partition deeds should be cancelled and set aside because, first, they were partition deeds only and therefore vested no title in appellants because they were not co-tenants and, secondly, that Quincy Harris was incompetent at the time of the making of the deeds. The court cancelled the deeds and quieted the title to the lands therein described in the appellee subject to Lettie’s dower rights. From this decree the appellants bring this appeal.

For reversal the appellants contend that the trial court erred in finding that Quincy Harris was the sole and only heir of Jim Harris and that Quincy was a pretermitted child; that the trial court erred in finding that none of the appellants was an heir of Jim Harris; that the trial court erred in setting aside the deeds on the grounds of incompetency and lack of consideration. Also, that the decree provided only for Lettie’s dower interest and did not provide for her homestead rights.

In chancery cases we review and determine appeals de novo, Nolen, et al, v. Harden, et al, 43 Ark. 307. The appellee attempts to avoid the settlement deeds made in this case on the basis of being incompetent on March 28, 1961, when he signed these deeds and accepted one partitioning and dividing the property in question. To discharge the burden of proof of showing his incompetency, the testimony of Dr. Moore, a general practitioner where appellee lives in Mississippi, was introduced by deposition. He testified that he had administered to the appellee as a family physician before and after March 28,1961, Avhen the deeds were signed by the appellee. Dr. Moore testified that the last time he saw the appellee before March 28, 1961, Avas on November 25, 1960, and the nest time be observed Quincy was on November 13, 1961. Thereafter, he saw him November 28,1961 and on March 13, 17 and 21, 1962. Quincy became his patient the first time in August, 1960. In November, 1960, Quincy was. hospitalized due to a foot infection and pneumonia. Dr. Moore described him as a nursing problem, confused and forgetful. He testified that his confusion varied and Quincy appeared about normal at times and at other times quite abnormal during hospitalization. He described Quincy’s condition as being a fairly typical case of early senile arteriosclerosis dementia. He testified :

“In my medical opinion I do not feel that Quincy was competent at any time during the period of my observation. No day was different from any other.” Other witnesses testified that at times appellee appeared confused,, agitiated, forgetful, suspicious and had threatened members of his family.

The true test of Quincy’s competency in this case is. what was his mental capacity or competency Avhen he signed the deeds on March 28, 1961. No witness who observed him on that date testified that Quincy appeared incompetent then. On the contrary, the lawyer who drafted and explained the deeds and his secretary, who notarized the deeds, observed no incompetency about appellee on March 27 or 28,1961. A Reverend Hart testified that he was with the group at the reading of the will, the conference thereafter, attended with them the meeting-in the lawyer’s office, and that Quincy “talked with good judgment.” As stated, Quincy returned the next day with members of his family to consummate this agreement. Thus, he, with his children, had until the next day to reflect on his rights and the settlement of them by these deeds. No objection was ever made by appellee or anyone on either of these days as to his competency. Appellee signed the deeds in the presence of members of his family, it appears, by touching the pen and his daughter signing- his name.

More than a year later, in May, 1962, when this cause was tried, the appellee, claiming to be incompetent, appeared as a witness in behalf of. his claim of parentage. A review of his testimony reflects that he could remember distant and recent events. He recalled going to the lawyer’s office and signing the deeds; he testified that James Harris was his father and he remembered seeing- him when he was eight years old and the last time he remembered seeing him was when he died and he attended the funeral. Appellee testified he was about seventy years of age; he knew his mother’s name; that Jim Harris told him, about three years before he died, that he owned 250 acres; that they had exchanged visits; that he was acquainted with the appellants; that he had no education and could not write; he remembered and identified various acquaintances in Mississippi; he remembered going to the courthouse and listening- to the reading of the will; he remembered business transactions such as the purchase of a car in 1955; that he is presently indebted to Odell Barrier; and, further, that he had made an effort to sell the land which he had acquired by this questioned deed.

There is a presumption of law that every man is sane, fully competent and capable of understanding the nature and effect of his contracts. The burden of proving incompetency rested with the appellee, since he seeks to void the signing of these deeds. In Hunt v. Jones, 228 Ark. 544, 309 S. W. 2d 22, this court said:

‘ ‘ Since the sanity and mental capacity of Miss McCray to make the deeds in question is presumed, the burden rested on the appellants to show her mental incapacity to execute them by a preponderance of the evidence. Gibson v. Gibson, 156 Ark. 528, 246 S. W. 845. As this court said in Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510: ‘The familiar principles of law applicable to cases of this kind have often been announced by this court. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.” [Citing cases]

In the Hunt case, Miss McCray had executed two deeds, one in 1953 and one in 1954, which conveyed property owned by her. In 1954, at the age of 86, she died a few months after signing the last deed. Numerous collateral heirs attempted to have these deeds cancelled on the ground of her mental incompetency. Miss McCray also suffered from the disease of arteriosclerosis. Sometimes her mind was clear and at other times she was noisy, belligerent, and mentally confused. Her deeds were held valid.

After a careful review of the evidence in the case at bar we think the appellee has failed to meet the burden of proof cast upon him to refute the presumption of his sanity or competency by a preponderance of the evidence. Therefore, the deeds are valid on that issue.

As to the remaining points, we prefer to rest our decision in this case upon the well-known family settlement doctrine which is a favorite of the law. According to the evidence in this case these partition deeds were in settlement of the estate based upon the appellee’s claim to part of the property when he discovered, upon a reading of the will, that his name was omitted. Jesse Harris testified that the appellee, Quincy Harris, desired a division of the property. No witness disputed the following quoted testimony by Jesse and Annie Bell. Jesse testified as follows:

“Q. Well, how did you go about doing that?
A. He said he wanted to know what he was going to get before he went home.
Q. He wanted to know what he was going to get before he went home?
A. That’s right; yes, sir. I asked ‘Well, what do you want?’ When I first asked him how much money he wanted he said he wanted some dirt.
Q. Somewhat?
A. Some dirt.
Q. He said he wanted some dirt?
A. Yes, sir. Then we asked him how much did he want. And he said ‘well I’ll be satisfied with what you all give me. I know you all been here all the time working it, and I’ll be satisfied with what you all give me.’ He said “you all been here all the time, and I’ll appreciate what you all give me.’
Q. Now, how much land did he say he wanted?
A. That’s what I’m saying now, he said ‘I’ll appreciate what you all do to me.’ So we commenced laying it off, and he come down from thirty acres to twenty.
A. " >:;s * And then we asked him if he wonld be satisfied with twenty and he said “yes, that’s all right.’ And all his family said ‘yes, that would be nice.’
Q. You mean you all compromised on twenty?
A. Yes, sir; on twenty acres.
Q. Then did everybody seem to be satisfied?
A. Yes, sir. Everybody thought that was all right.”

He further testified that the purpose of the partition deeds was to avoid a lawsuit.

Annie Bell Harris Shears testified the settlement was with Quincy’s approval. She testified:

“Q. And did Quincy say he was satisfied that day?
A. Quincy said he was satisfied. He said he was satisfied that day. He sure said it—Jesus knows he said it.
Q. What about his children? Did they seem to be satisfied?
A. They seemed to be satisfied; yes, sir.”

The question presents itself, in this case, whether the deeds signed by the appellee and the one received by him are to be construed as a valid and sufficient family settlement. There are many cases in Arkansas, beginning with Pate v. Johnson, 15 Ark. 275, numerous others cited in Pfaff, Adm., v. Clements, 213 Ark. 852, 213 S. W. 2d 356, and the recent case of Hobbs v. Cobb, 232 Ark. 594, 399 S. W. 2d 318, which approve the doctrine of family settlement in the absence of fraud or mistake. There is no evidence of fraud or mistake in the case at bar. Family settlements are upheld in the absence of a pre-existing dispute. In the Pfaff case, supra, we said:

“It is not necessary that there be a previous dispute or controversy between the members of the family before a valid family settlement may be made. Thus, in Martin v. Martin, supra, there wa.s no dispute at the time of the conveyance or will in question, yet the agreement was called a ‘family settlement’.” [Citing cases]

The motive to distribute and settle amicably an estate is sufficient consideration for a family agreement. Quoting further from Pfaff, supra:

“Likewise, it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration-—as required in ordinary contracts-—-be present in family settlements. It is sufficient that the members of the family want to settle the estate; one person may receive more or less than the law allows; one person may surrender property and receive nó quid pro quo.”

Appellee now contends that he is the sole and only heir of the testator and, therefore, that appellants have no interest in the property in question. In the early case of Turner v. Davis, 41 Ark. 270, it was claimed that Watkins did not have sufficient interest in the property to support a family settlement. There, Mr. Justice Eakin, speaking for the court, said:

“We cannot go behind the agreement to ascertain the interest of Watkins. It is a matter of no consequence whether he had curtesy or had nothing. It was a family contest concerning lands descended, between parties claiming antagonistic interests. The agreement stands on the ground of family settlements,' which are as much encouraged and favored in equity, * * * they are supposed to be the result of mutual good will, and imply a disposition to concession for the purpose, regardless of strict legal rights; always excepting cases of fraud, of which nothing in this case appears.” [Emphasis added]

The courts have also quickly approved family settlements where the question of legitimacy was involved. In Bunel v. O’Day, 125 Fed. Rep. 303, the question of legitimacy was an issue between a brother and a sister which resulted in a compromise settlement of the interests each claimed. In refusing to vacate this compromise and in approving it as a family settlement the court said:

“It is a wholesome rule of law, equally founded in sound public policy, that an amicable compromise of a litigation of the character of this should be favored by the courts. No matter if, on further investigation or subsequent development, it should appear that the defend knew at the time that the demand was not well founded in law or in fact, it would not affect the validity of the compromise. If fairly obtained, it should stand. ‘ The value consists in the release from an uncertain position, with its anxieties, from apparent danger, and from inevitable expenses and trouble.’ ” [Citing eases]

In Strong et al v. Cowsen, 197 Miss., 282, 19 So. 2d 813, a partition deed was made between the parties to resolve the doubt about their respective inheritance rights because of a question of legitimacy. In refusing to cancel this partition deed, and upon approving it as a family settlement, notwithstanding the sufficiency of the proof established one of the parties was not a lawful heir, the court quoted with approval from 12 C.J. p. 322 as follows:

“* * *The termination of such controversies is considered a valid and sufficient consideration for the agreement, and the court will go further to sustain it than it would under ordinary circumstances. Accordingly, it has been laid down as a general rule that a family agreement entered into on the supposition of a right, or of a doubtful right, although it afterward turns out that the right was on the other side, is binding, and the right cannot prevail against the agreement of the parties.”

The court further said:

“* * * there was something more than the mutual mistake of fact relied on herein that influenced the grantors in the execution of the deed here involved. They were likewise influenced by the desire to avoid the expense of litigation then thought to be necessary to determine the true facts, and by the uncertainties as to what the proof to be subsequently ascertained by an investigation and the litigation might disclose;”.

In our state family settlements of property rights will not be set aside except for very strong and cogent reasons. Hollowoa v. Buck, 174 Ark. 497, 296 S. W. 74. We find no such reasons to exist in the case at bar. These contending parties considered their claim, or the claim of the other, to be uncertain and doubtful and believed it expedient to adjust their differences and beliefs by these partition deeds and thereby set at rest the uncertainty and anxiety of their respective claims which are based upon the terms of the will and the question of their parentage. Family settlements tend to prevent litigation and uncertainty, and maintain peace and harmony even though the result reached is not what a court of justice might determine if its decision was first sought.

The affirmative relief sought by the appellants that these partition deeds be held valid and that title to the lands as described in them be quieted is granted. Therefore, the decree of the trial court is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.

       See Am. Jur., Deeds, g 376, p. 652 and Am. Jur., Insane Persons, § 132, p. 253.

       Also, see 38 A.L.R. 734, 739; 54 A.L.R. 977; 118 A.L.R. 1357; 15 C.J.S. Compromise and Settlement, § 3 (b) p. 715; 11 Am. Jur., Compromise and Settlement, § 11, p. 258.

       See also Walker v. Walker, 221 Miss. 225, 72 So. 2d 243; Carter’s Succession, 149 La. 189, 88 So. 788; Kam Chin Chun Ming v. Kam Hee Ho, 371 Pac. 2d 379; Smith v. Mogford, 21 Week Rep. (Eng.) 472; Stapilton v. Stapilton, 1 Atk. 2, 26 Eng. Reprint. 1, 12 Eng. Rul. Cas. 100.