author:
John A. Fogleman, Justice.
      Conley Byrd, Justice,

text:
    BURKS MOTORS, INC. v. INTERNATIONAL HARVESTER CO. et al INTERNATIONAL HARVESTER CO. et al v Earl PIKE et al
    5-5425
    5-5427
    466 S. W. 2d 945
    Supplemental opinion on rehearing Delivered May 10, 1971
    [Petitions for rehearing denied.]

      Wootton, Land ¿r Matthews, for appellant, Burks Motors, Inc.

      Wright, Lindsey & Jennings, for appellees, International Harvester Co.

      Wright, Lindsey & Jennings, for appellants. International Harvester Co.
    /. Hugh Lookadoo ir McMath, Leatherman, Woods ir Youngdahl, for appellee, Pike.
   John A. Fogleman, Justice.

Burks Motors, Inc. in a petition for rehearing in 5-5425 asks that we amplify and clarify our opinion of March 1, 1971, to state that the judgment of contribution is binding between it and International Harvester Company, by reason of the judgment of the trial court and International’s failure to seek contribution from Burks or ask reversal of the judgment for contribution here. International’s petition in this case is for amplification only and asks that we declare that the judgment rendered against it is reversed and remanded in its entirety so that the determination of proportionate fault between it and Burks is nullified. International also filed a petition for rehearing in 5-5427, on its successful appeal, asking amplification or supplementation of the opinion as asked by it in 5-5425, asserting that until and unless there is an adjudication of liability against International on retrial, it cannot possibly be a joint tort-feasor, from whom contribution may be obtained. Burks filed a petition for rehearing in 5-5427, as a party to the appeal, asking that our opinion in that case be amplified and supplemented to state that the judgment against both it and International was reversed and remanded, so that Pike has no judgment against Burks, or, alternatively, that the opinion in 5-5425 entitles it to a 91% contribution from International. None of the parties cites any authority for its position.

While most of the questions raised by the parties are prematurely posed, the basic one is the status of the judgment against Burks. As pointed out in our opinion in 5-5425, that judgment was joint and several. Reversal as to one tort-feasor or defendant does not necessarily call for a reversal of a several judgment against another. A. S. Barboto & Co. v. James, 205 Ark. 53, 168 S. W. 2d 202. Any benefit to which Burks might have been entitled because of the points asserted by International have been waived. On International’s appeal (No. 5-5427) Burks was specifically designated as an appellee. Burks then gave notice of appeal and filed a designation of the record on its appeal. This designation specifically named only the judgment, the interrogatories posed to the jury and the jury’s answers as the record on appeal. Burks filed this record (No. 5-5425) on August 3, 1970, one day before International filed the entire record designated by it on its appeal (No. 5-5427). The filing of the partial record limited the scope of our review on Burks’ appeal to those assignments of error appearing upon that record. Hanson v. Anderson, 91 Ark. 443, 121 S. W. 736; Little Rock Road Machinery Co. v. Jackson County, 233 Ark., 53, 342 S. W. 2d 407. Burks filed an abstract and brief in 5-5425 on September 14, 1970, 15 days before any brief was filed by International in either appeal. Burks abstracted only the record designated by it and thereby limited the scope of our review on its appeal to the sole question raised by it—the proposed modification of the percentage of fault to reduce that attributable to Burks from 9% to 0.9%. Arkansas State Highway Commission v. Lewis, 243 Ark. 943, 422 S. W. 2d 866; Rural Single School District v. Lake City Special Sch. Dist., 144 Ark. 362, 223 S. W. 381. Burks’ statement of the points to be relied upon also limited the scope of our review as to it as it only assigned error in the court’s application of the jury’s answer to interrogatories relating to allocation of responsibility between it and International. Arkansas Power & Light Co. v. City of L. R., 243 Ark. 290, 420 S. W. 2d 85. See also Eveland v. State, 189 Ark. 517, 74 S. W. 2d 221.

Burks expressly waived any other point or argument in its brief in its statement of the case which includes the following:

This appeal does not question the issue or issues of liability nor the amount of damages but only seeks to correct the Judgment of the Court to require it to conform to the Jury’s findings in the Interrogatories.

The conclusion of the brief reads as follows:

The Judgment of the trial court should be modified to provide for contribution in favor of Appellant Burks and against Appellee International for any amounts Appellant Burks pays in excess of $783.00, together with its pro rata share of any interest and costs.

Limitation of its attack on appeal to one ground constituted an abandonment of all others. Stevens v. Shull, 179 Ark. 766, 19 S. W. 2d 1018, 64 A. L. R. 1258. Furthermore, the failure of Burks to argue any other point asserted by it in the only brief filed by it constituted a waiver or abandonment of such other points. Gordon v. Street Improvement District, 242 Ark. 599, 414 S. W. 2d 628; Commercial Standard Ins. Co. v. Coffman, 245 Ark. 1005, 436 S. W. 2d 83; Cummings v. Boyles, 242 Ark. 923, 415 S. W. 2d 571; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S. W. 9; Purifoy v. Lester Mill Co., 99 Ark. 490, 138 S. W. 995; Bowling v. Stough, 101 Ark. 398, 142 S. W. 512.

Present assertions that International’s appeal should redound to the benefit of Burks are not supported by the record. As an appellee on that appeal, Burks is not entitled to a new trial on the judgment against it as a result of the reversal of the judgment against International. A. S. Barboto & Co. v. James, 205 Ark. 53, 168 S. W. 2d 202. The issues argued by International were not all applicable to Burks, as suggested by the latter. As a matter of fact, one of International’s principal arguments was directly adverse to Burks. This was the contention that Burks’ negligence was an efficient intervening proximate cause and relieved International of any liability to Pike. One of the points on which the International judgment was reversed had to do with closing argument by Pike’s counsel. Burks neither objected nor moved for mistrial, so this issue was not applicable to Burks. There was never the remotest suggestion that International’s arguments, either in its brief filed September 29, 1970, or in oral argument, were advanced on behalf of Burks. Nothing in the motion to consolidate, made only by International the next day after filing its brief in 5-5427, made any such suggestion. International expressly limited the application of its point to itself in its statement of points to be relied upon. Burks never filed any brief except its brief as appellant in 5-5425. This brief strictly limited Burks’ position and Burks did not indicate in any manner whatever that it adopted any of International’s arguments. Its attorney did not participate in the oral argument in any way. International did not, on appeal, press the point that there was error in the assessment of liability between it and Burks, which it asserted in its motion for new trial in the circuit court. Burks would have been an appellee on this point. In its brief in response to Burks’ in 5-5425, filed after consolidation, International only resisted a modification of the judgment for contribution to decrease the proportionate liability of Burks or to increase its own contribution to Burks, and did not mention or suggest reversal or remand of this judgment. These actions and omissions, of course, constituted a waiver of the point.

The judgment as to Burks must be affirmed as no error has been asserted against it by Burks. Price v. Price, 217 Ark. 6, 228 S. W. 2d 478. Arguments not asserted or points not argued in the briefs of the parties cannot be considered by this court. Smith v. Snider, 247 Ark. 342, 445 S. W. 2d 502; Tumlinson v. Harville, 237 Ark. 113, 372 S. W. 2d 385; Groves v. Keene, 105 Ark. 40, 150 S. W. 575. While there was a reversal on International’s appeal for failure of the court to give an instruction requested by International submitting the question of Pike’s negligence, Burks entered a general objection to that instruction even though it did request a similar one later. Still, Burks did not complain on appeal about any of the instructions given or requested, so it waived any error in regard thereto. Firemen’s Insurance Co. v. Jones, 245 Ark. 179, 431 S. W. 2d 728, 33 A. L. R. 3d 1059; Harrell v. Davis, 210 Ark. 939, 198 S. W. 2d 180. In their original briefs neither Burks nor .International made the contentions they are now asserting, so they cannot be considered on petition for rehearing. Berry v. Gordon, 237 Ark. 547, 865, 376 S. W. 2d 279, 289; Bost v. Masters, 235 Ark. 393, 361 S. W. 2d 272, 277; Midland Valley R. Co. v. LeMoyne, 104 Ark. 327, 148 S. W. 654.

Except for the question of finality of the judgment against Burks, other points raised by Burks and International depend upon future developments and must be litigated in the trial court in the light of those developments. It is certain, however, that Burks cannot be entitled to a money judgment against International under any set of circumstances until Burks has either paid the judgment or discharged more than its pro rata share. Ark. Stat. Ann. § 34-1002 (Repl. 1962). The eventual determination of the question of Burks’ right to recover from International depends to some extent upon whatever rights it has to indemnity as well as contribution. International conceded, in the trial court, that if Burks should be held liable as a vendor because of improper design or breach of warranty, it was entitled to indemnity against International.

Except for our statements as to the finality of the judgment against Burks and as to Burks’ entitlement to a money judgment against International the petitions for rehearing are denied.

Harris, C. J., and Byrd and Holt, JJ., dissent.

Conley Byrd, Justice,

dissenting. In the trial court a joint and several judgment was entered in favor of Earl Pike against both Burks Motors Inc. and International Harvester Company. In addition, a judgment in favor of Burks and against International Harvester was entered on Burks Motors Inc.’s request for contribution —it being there determined that for purposes of contribution Burks Motors Inc. was liable for only 9% of the joint and several judgment. These matters were entered in one instrument dated May 7, 1970. International Harvester filed notice of appeal, designated both Pike and Burks Motors as appellees and in cause no. 5-5427 (International Harvester Company v. Pike, opinion delivered Feb. 15, 1971) we held that, for the errors committed, International Harvester was entitled to a new trial on all issues. This of course did not affect the joint and several judgment that Pike had against Burks Motors. See A. S. Barboro & Co. v. James, 205 Ark. 53, 168 S. W. 2d 202 (1943).

However, since Burks Motors’ judgment over against International Harvester was already set aside by our Feb. 15, 1971 decision, it is my conclusion that we decided nothing in cause no. 5-5425 when we, on March 1, 1971, said that Burks was not entitled to have its responsibility reduced to 0.9%. If on the other hand our decision in cause no. 5-5425 (Burks Motors, Inc. v. International Harvester Company, March 1, 1971) did decide that International was liable over to Burks for 91% of the total judgment, then I am at a loss to understand what International accomplished when it obtained a new trial in cause no. 5-5427.

For the reasons herein stated and to avoid the confusion expressed by the parties, I would declare that the joint tort contribution issues between Burks and International in cause no. 5-5425 became moot with the new trial granted International Harvester in cause no. 5-5427 and that that issue stood for trial anew.

The parties by their petitions for clarification have expressed their confusion from the two decisions and I have attempted to show mine. How the trial court may read them one can only speculate. Unless we resolve the confusion, it is possible that we have created more controversy than we have solved.

Harris, C. J., and Holt J., join in this dissent.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    C. W. ABEL v. Carl DICKINSON, Executor et al
    5-5559
    467 S. W. 2d 154
    Opinion delivered May 10, 1971
    [Rehearing denied June 14, 1971.]

      Basil H. Munn, for appellant.

      John M. Graves, for appellees.
   John A. Fogleman, Justice.

This case involves the contest of the will of Grace Abel Evans by her 74-year-old brother C. W. Abel. Mrs. Evans died in the Ouachita County Hospital on April 12, 1969, when she was 81 years of age. She was a widow without any children and survived only by appellant with whom she had lived for many years. Abel had never been married. Mrs. Evans had successfully operated cafes and boarding houses. Because of a heart attack, high blood pressure and failing eyesight, she retired from the operation of a coffee shop in Chidester three years before her death. She was not able to operate her automobile. She and her brother lived on a farm about Wz miles from Chidester for over 15 years. Abel had farmed the lands for over 20 years. This land was conveyed to Mrs. Evans by her mother, shortly before the latter’s death. Mrs. Evans employed Mrs. Belton Stinnett, who was not a relative, to drive her automobile for her, and to mow and keep her downtown lots and other yards, and care for her flowers. She paid Mrs. Stinnett $1 per hour for her services.

The will was not probated or its existence disclosed to appellant until after Mrs. Stinnett’s death in an automobile collision one month after Mrs. Evans’ death although he testified that Mrs. Stinnett frequently came out to the house, where he and his sister had lived, after Mrs. Evans’ death and that she borrowed his sister’s car (which she was using at the time of her death) from him on several occasions. After Mrs. Evans’ death Mrs. Stinnett’s son disclosed that the will was in his mother’s purse. Later the will was delivered by Henderson Stinnett, the widower of Mrs. Belton Stinnett, to Carl Dickinson, the executor nominated therein. Dickinson caused a copy of the will to be made, which he delivered to appellant. Later he took the original to its scrivener, Mr. Thomas Gaughan, an attorney at Camden, who offered it for probate.

The will directed payment of Mrs. Evans’ debts, devised a life estate in a 40-acre tract and a 2-acre tract of land to appellant, with remainder to Charles Franklin Stinnett, one of the sons of Mrs. Stinnett, and devised lots in Chidester to Mrs. Stinnett. Carl Dickerson [Dickinson] was nominated as executor. No mention was made of personalty and the will contained no residuary clause, although Mrs. Evans owned her automobile, an interest in her mother’s furniture and other personal property. Mrs. Evans had no close relatives, other than her brother. Neither Mrs. Stinnett nor her son was related to Mrs. Evans by blood or marriage.

The probate judge found that the evidence was insufficient to show that Mrs. Evans was incompetent to make a will at the time of its execution, that a preponderance of the evidence showed that she was of sound and disposing mind and memory and fully competent to dispose of her property and estate by last will and testament, and that she was not acting under the influence of Mrs. Belton Stinnett or any person whatsoever in the making or publication of the will.

Appellant’s first point for reversal is that the court failed to exclude the lots in Chidester from the will. He contends that his sister did not own the lots since he was the owner of an undivided one-half interest as a tenant in common, as the only heir of his mother beside Mrs. Evans. The lawyer who drafted the will explained that he failed to note that the ownership of this property indicated on the tax receipts given him to identify Mrs. Evans’ property was listed in the names of both Mr. Abel and Mrs. Evans. Resort to tax receipts and deeds of a testator to determine what he meant by a land description he employed is proper. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176. Appellees conceded that this one-half interest was never owned by Mrs. Evans and has never been claimed as a part of her estate. They also concede in their brief here that the will devises only the undivided one-half interest of Grace Abel Evans. If there was any error in this regard, it is harmless, because appellees could not hereafter require appellant to elect whether he will retain his own property and repudiate his sister’s will or conform to the will and permit Stinnett to keep the full title to the lots, as otherwise might be the case under such decisions as McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L.R.A. (n.s.) 657.

Appellant next contends that the will is so unreasonable as to overcome the presumption of testamentary capacity and so unnatural as to give rise to an inference that it resulted either from lack of testamentary capacity or undue influence. The fact that a will is unjust, unreasonable or unnatural does not affect its validity. Blake v. Simpson, 214 Ark. 263, 215 S. W. 2d 287. No relative, however near or however deserving of a testator’s bounty he may be, has any claim which can be asserted against a legally executed will. Blake v. Simpson, supra. One possessed of testamentary capacity, acting free from inducement by fraud or undue influence, may make testamentary dispositions of his property to whomever he chooses, no matter how capricious or frivolous they may seem to others. Hiler v. Cude, 248 Ark. 1065, 455 S. W. 2d 891. It is not necessary that the objects of a testator’s bounty be meritorious in order for a will to be valid. It is only essential that it be the free and voluntary act of a mind having testamentary capacity. Jones v. Jones, 234 Ark. 163, 350 S. W. 2d 673.

We have held, however, that the courts may consider that the provisions of a will are unjust, unnatural and unreasonable as a circumstance in determining the mental capacity of the testator. See Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d 1019. This does not mean that this circumstance alone overcomes the natural presumption of sanity or testamentary capacity or creates any presumption of lack of testamentary capacity or of the existence of undue influence. The disposition made by a testator may give rise to an inference of mental illness or undue influence, but not to any presumption. See Scott v. Dodson, 214 Ark. 1, 214 S. W. 2d 357; cf. Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. Evidence of an unjust, unreasonable and unnatural disposition is admissible only as a help to be considered with other evidence, as tending to show an unbalanced mind or one easily susceptible to undue influence. Howell v. Miller, 173 Ark. 527, 292 S. W. 1005. A court cannot strike down a will in favor of what it deems to be a more equitable disposition of the testator’s property, unless it appears from the evidence that it was induced by undue influence or that the testator lacked testamentary capacity. Toombs v. Blankenship, 215 Ark. 551, 221 S. W. 2d 417.

We are unable to say that a preponderance of the evidence shows that the disposition made by Mrs. Evans by her will was unjust, unnatural or unreasonable. It is only where a testamentary disposition is unaccountably unnatural that less evidence is required to establish undue influence. Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447.

This is not a case where a parent attempted to disinherit her only child in favor of her youngest brother, a successful 40-year-old businessman of independent means, as was the case in Brown v. Emerson, supra, or a case where the testatrix disinherited a sister for whom she had great affection and who had given her part of their mother’s estate to the testatrix by favoring a male business associate with whom she had become infatuated as was the case in Howell v. Miller, supra. It is unexplained inequality and unreasonableness which do violence to natural instincts of the heart, to the dictates of affection, to natural justice, to solemn promises and moral duty that are entitled to weight in considering questions of testamentary capácity and undue influence. Brown v. Emerson, supra. If a disposition can be rationally explained, it cannot be said to be unnatural. In re Llewellyn’s Estate, 83 Cal. App. 2d 534, 189 P. 2d 822 (1948); In re Walther’s Estate, 177 Ore. 382, 163 P. 2d 285 (1945). See Scott v. Dodson, 214 Ark. 1, 214 S. W. 2d 357; Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447. The expression “unjust and unnatural will” is usually applied when a testator leaves his estate, or a large portion of it, to strangers, to the exclusion of natural objects of his bounty without any apparent reason. In re Shay’s Estate, 196 Cal. 355, 237 P. 1079 (1925). See Scott v. Dodson, supra. A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship [In re Walther’s Estate, supra; see Scott v. Dodson, supra; see also In re Ewart’s Estate, 246 Pa. 579, 92 A. 708 (1914)], or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance. In re Llewellyn’s Estate, supra. A will is unnatural in the legal sense only when it is contrary to what the testator would have been expected to make in the light of his feelings and intentions at the time, even though they may be prejudiced, however much it may differ from the ordinary actions of people in similar circumstances. In re Ewart’s Estate, supra.

Facts which mitigate against a finding that Mrs. Evans’ will was unjust, unnatural or unreasonable are appellant’s advanced age, his and the testatrix’s childlessness, the absence of any other close relatives, the provision for a life estate for Abel, his inheritance of any personal property of his sister remaining after payment of debts and expenses of administration, his succession to three joint bank accounts (once amounting to at least $22,000) established by the testatrix, and the relationship that had developed between Mrs. Evans and Mrs. Stinnett. Among Mrs. Evans’ personal belongings was a collection of antiques and of her own works of art, some of which were shown to have some value. She also owned some stocks, which Abel said had been "cashed out” after her death. Not only does it clearly appear that Mrs. Stinnett performed well the services for which she was employed by Mrs. Evans, it is also obvious that these two ladies shared a warm affection for each other. Abel himself testified that Mrs. Stinnett "loved his siter to death,” “petted her all the time,” and would sit down and talk and “gossip” with her nearly every day of the week during Mrs. Evans’ entire three years’ illness. Abel said that Mrs. Stinnett visited his sister on occasions when she was "not on the payroll.” Charles Franklin Stinnett, her son, was a pallbearer at Mrs. Evans’ funeral. He testified that he visited Mrs. Evans about once a month during the two or three years preceding her death. He said that she had loaned him money and given him advice about saving money. Etheleen Garrison, Ouachita County Health Nurse, observed that Mrs. Evans became more and more dependent on others. The nurse rarely met any social visitors when she made at least semimonthly professional calls on Mrs. Evans. We cannot say that Abel was in need of his sister’s bounty or that Mrs. Evans’ bounty to Mrs. Stinnett and her son is not rationally explained or that it is unaccountably unnatural.

Giving the disposition made by Mrs. Evans its strongest probative force, however, we still could not say that the chancellor’s findings are clearly against the preponderance of the evidence.

For proof of lack of testamentary capacity, appellant relies upon Mrs. Evans’ age, her being an invalid for two or three years and her loss of memory which he claimed to have resulted from a stroke about one month before the will was made, in addition to the alleged unnatural disposition of her real property. He depends for the most part on his own testimony, particularly as to the alleged stroke. He concluded that an illness suffered by his sister was a stroke because when she awakened him about 1:00 a.m. she was lying in the bed with her eyes open and in such condition that he knew something was badly wrong, causing him to get help to get an ambulance to take her to a hospital where she remained for two weeks. His conclusion was contradicted by the testimony of a supervising nurse at the hospital where Mrs. Evans was a patient. This witness, called by appellant, testified that there was no diagnosis of a stroke prior to Mrs. Evans’ death, that she did not see anything like that on the patient’s chart, and did not observe any personality change in the testatrix after a time at least one month prior to the alleged stroke.

Dr. J. L. Dedman was Mrs. Evans’ physician for about five years, beginning July 7, 1964. He attributed her death to heart failure. For four or five years she was in his office every month or so. She was under his care in the hospital approximately a dozen times. Before her death, she was coming to the doctor’s office every three or four weeks. Each of her visits was for a period of five to ten minutes. He described her mental condition as “sharp as a tack.’’ He identified a notation on her will dated April 18, 1968, that Mrs. Grace Evans was mentally able to take care of her business as having been written and signed by him. Although he said that Mrs. Evans was getting worse and weaker all the time, and was “going downhill” after February 1968, he saw her thereafter on March 12, and found no difference in her mental condition. He attributed her hospital visits tó the necessity for draining fluid that accumulated in her system because of a heart weakened by high blood pressure and hardening of the arteries. He stated that Mrs. Evans did not have a stroke during his treatment of her. He stated that he knew nothing of her mental ability to know the nature and extent of her property or the just deserts of her different kinsmen.

Mr. Thomas Gaughan, a practicing attorney at Camden since 1934, was the scrivener. The will was dated February 26, 1968, and prepared in his office to which Mrs. Evans and Mrs. Stinnett came on that date. He testified that Mrs. Evans asked him to prepare her will, and told him the disposition she wanted to make of her property. He had not known either Mrs. Evans or Mrs. Stinnett prior to this occasion. He observed that the testatrix was approaching 80 years of age. He discussed the matter with the two ladies, who remained in the room while he dictated the will to his secretary. He said that Mrs. Evans looked at the will before signing it. According to him, Mrs. Evans was in his office VA to 2 hours. He testified that he evaluated Mrs. Evans as having testamentary capacity, or he would not have prepared the will. His consultation revealed nothing to him abnormal or subnormal, except for her advancing years, and he was of the opinion that she knew her property.

The burden of showing lack of testamentary capacity lay upon appellant. Hilter v. Cude, 248 Ark. 1065, 455 S. W. 2d 891. We are unable to say that evidence adduced by appellant preponderates over the testimony of the physician and the attorney, whose respective actions strongly corroborate their testimony. For the most part, it consisted of: Abel’s testimony that Mrs. Evans was unable to see without her glasses, that she had the mind of a 10-year-old child after her “stroke” that she did not recognize people and that she was forgetful; the testimony of Juanita Norwood that for the last two years Mrs. Evans was failing with regard to her mental state, and had poor memory; and the testimony of Etheleen Garrison, Ouachita County Health Nurse as to Mrs. Evans’ gradual decline after February 1968, her deteriorating mental condition from 1967 until her death, her increased dependency on others, her inability at times to complete a statement or remember what she was talking about, her forgetfullness, and her discarding of two checks received in the mail about a year prior to her death. Complete sanity in a medical sense was not essential to testamentary capacity, if the power to think rationally existed when the will was made. Hiler v. Cude, supra. Awareness of her relatives, of the property owned and of the disposition made of it is the critical factor. See Rogers v. Crisp, 241 Ark. 68, 406 S. W. 2d 529. It was not shown to be lacking.

This leaves the question whether the preponderance of the evidence shows that Mrs. Evans’ will was induced by the undue influence of Mrs. Belton Stinnett. While the burden of proof on this issue was upon appellant, he seeks to shift it, just as the appellants did in Hiler v. Cude, supra, and Sullivant v. Sullivant, 256 Ark. 95, 564 S. W. 2d 665. He relies upon the rule that where the will is drawn or procured by a beneficiary, there is a presumption of undue influence, making it incumbent upon the proponents of the will to show beyond reasonable doubt that the testator had both the requisite mental capacity and freedom of will and action to render the will legally valid. See Orr v. Love, 225 Ark. 505, 285 S. W. 2d 667. This rule, however, does not shift the burden of proof, in the sense of ultimate risk of nonpersuasion, from the contestant, although it may shift the burden of going forward with the evidence. Hiler v. Cude, supra. Of course, there are two essential elements necessary to establish undue influence. First, the influence must not be that which springs from natural affection or is acquired from kind offices, but must be such as results from fear, coercion, or other cause that deprives the testator of his free agency in the disposition of his property. Second, it must be directly connected with the execution of the will and specially directed toward the object of procuring a will in favor of particular parties. Thiel, Spec. Admr. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507. The presence of Mrs. Stinnett in the attorney’s office was not sufficient to shift the burden of proof, if the will was drafted according to explicit directions of Mrs. Evans, given without prompting or instructions by Mrs. Stinnett. Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665.

Appellant relies upon the fact that one of the principal beneficiaries of the will, who was the mother of the other, drove Mrs. Evans’ automobile to the office of the scrivener, helped her into the office, and engaged in discussions about the terms of the will. There was, as appellant admits, no element of fear or duress involved. Furthermore, there is no actual proof that Mrs. Stinnett procured the will or directed its making. The mere fact that a beneficiary is present when the will is made does not give rise to any presumption of undue influence when there is no evidence that he induced or procured the execution of the will. Jones v. National Bank of Commerce, 220 Ark. 665, 249 S. W. 2d 105. Appellant testified that the undue influence Mrs. Stinnett exercised consisted of petting his sister to death and running out all the time and getting every dollar she could out of her. He only suspected that Mrs. Stinnett “carried the ball’ while some unidentified person gave her plenty of help. Of course, the testimony of the scrivener is of vital importance. Certainly a practitioner of his long experience would be particularly alert to any attempt on the part of Mrs. Stinnett to dictate or direct the terms of the will. He could not recall any particular comment she made while the three were discussing the will. He said that it did not appear to him that Mrs. Evans was under duress, compulsion or restraint or in fear. His testimony as to directions given by Mrs. Evans and her insistence on paying for his services immediately tends to negate any undue influence on her. He testified that after Mrs. Evans directed that the will provide for a remainder dn the 42 acres of land in Charles Franklin Stinnett, either she or Mrs. Stinnett or both explained to Gaughan that Mr. Abel was unmarried and without descendants and that the testatrix had no children. This fact is not indicative that Mrs. Stinnett was directing the action or procuring the particular testamentary disposition. After the will was typed, Mr. Gaughan read it to both ladies, before he handed it to Mrs. Evans. He testified that Mrs. Evans was not told what to do or given any commands while in his office. Appellant sought to discredit the testimony of this lawyer by showing alleged inconsistent statements made to a friend of appellant. These statements were denied by Mr. Gaughan. We cannot say that the probate judge erred in according greater credibility to the scrivener’s testimony. Neither can we say that Mrs. Stinnett was the procurer of the will nor that the probate judge’s finding on undue influence is against the preponderance of the evidence.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    CITY OF CROSSETT, Arkansas v. C. W. ANTHONY et al
    5-5488
    466 S. W. 2d 481
    Opinion delivered May 10, 1971

      Thomas S. Streetman, for appellant.

      W. P. Switzer, for appellees.
   J. Fred Jones, Justice.

At a special election, properly called for the purpose, the electors of the City of Crossett, Arkansas, voted in favor of annexing two areas to the City of Crossett. One of the areas lay north of the present city limits and is referred to as “North Crossett.” The other area lay south of the present city limits and is referred to as “South Crossett.” Both North and South Crossett are contiguous to the present corporate limits but not to each other.

Following the election the City Council, hereafter called “City,” filed its petition for annexation in the Ashley County Court as provided by statute (Ark. Stat. Ann. §§ 19-302—19-307 [Repl. 1968]). The county court gave due notice of a hearing on the petition and C. W. Anthony, Harold Bryant, Nolan Jeffress, W. M. Stover and Chesley Peters filed a response in opposition to the petition. The two areas involved were treated as separate cases and the county court denied the petition as to both North and South Crossett. The City appealed to the circuit court where the cases were consolidated for trial and the petition as to both areas was also denied by the circuit court on trial de novo. The City has appealed to this court and relies on the following points for reversal:

“Lower court erred in denying appellant’s motion to dismiss contest as to South Crossett for lack of standing to sue by appellees.
There is no substantial evidence to support the findings of the trial court as to:
A. North Crossett.
B. South Crossett.”

We agree with the City on its first point, but we must affirm the judgment of the trial court as to North Crossett.

The fact situation in this case presents a rather unique problem for the City of Crossett. The Georgia Pacific Corporation and its predecessor, Crossett Lumber Company, apparently at one time owned all lands inside the present city limits of Crossett as well as most of the surrounding lands in the area. Georgia Pacific still owns all the vacant land inside the corporate limits of Crossett, and from time to time develops, and sells to individuals, such residential and business lots as it considers necessary for the orderly growth of Crossett and as it considers the demand and need exists. It appears from the record that Georgia Pacific places certain restrictive covenants in its deeds of conveyance apparently designed to control a uniform and orderly construction of homes in connection with adjacent areas of the city. As Georgia Pacific develops and sells lots from its lands inside the city, it constructs streets and extends utilities, all of which apparently goes into the cost price of the lots; thereby leaving a prospective purchaser with the option of purchasing a lot from Georgia Pacific inside the present city limits or going outside the city limits where there is more competition in the open market for building lots and where there is more latitude in restrictive use covenants or none at all. As a result the City of Crossett has actually expanded, and continues to expand, in a haphazard manner beyond its corporate limits, both north and south along the highways, and into areas unplanned and unrestricted as to use, zoning, location or structure. It is apparent from the overall record before us that Crossett could very easily be swallowed up by slums over which it has no control and in which it has no legal jurisdiction.

The guide lines for the annexation of contiguous property to a town or city as laid down in the case of Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, have been so consistently followed by this court since the rendition of the Vestal decision in 1891, that we deem it unnecessary to repeat them here. See Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317, and Planque v. City of Eureka Springs, 243 Ark. 361, 419 S. W. 2d 788. It is also well settled that the vote of electors favoring annexation makes a prima facie case for annexation and the burden rests on those objecting, to produce sufficient evidence to defeat the prima facie case. Mann. v. City of Hot Springs and Planque v. City of Eureka Springs, supra. This burden of proof does not shift but remains the same when tried in the circuit court de novo on appeal from the county court, Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536, and the circuit court findings have the same weight and effect as the verdict of a jury. In such situation we are not called upon to decide where the preponderance of the evidence lies, but we are obligated to affirm the trial court’s judgment if we find any substantial evidence to support it. Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442.

We render no opinion as to whether the City of Crossett fully met the guide lines for annexation as laid down in Vestal, supra, for that is not the question before us on this appeal. We are not called on to determine whether the trial court erred in granting the petition; we are called on to determine whether the trial court erred in denying it. We now proceed to the questions that are before us.

Ark. Stat. Ann. § 19-102 (Repl. 1968) provides that “any person interested may appear and contest the granting the prayer. . .” So, the first question is whether the protestants have such interest that entitles them to contest the petition on appeal in circuit court for the annexation of South Crossett. We are of the opinion that they have shown no such interest.

In the early case of Perkins, et al v. Holman, et al, 43 Ark. 219, Perkins and 36 other persons attacked the annexation of territory to the incorporated town of Locksburg through certiorari for the want of notice prescribed by law and for other causes. After the proceedings and orders of the county court had been certified up, the defendants filed a motion to quash the writ of certiorari—in legal effect a demurrer to the petition— because it appeared that the judgment and proceedings were regular and in pursuance of law. The motion was sustained and the petition dismissed. In affirming the trial court, this court said:

“Without considering the merits of the controversy, there is one insuperable obstacle in the way of reversing the judgment below. Neither the petition, nor any other part of the record, shows that the petitioners have any interests to be affected by the determination of the question sought to be presented. It is not alleged that they, or any of them, reside, or own property, either in the old town, or in the territory proposed to be annexed. It does not appear what right the petitioners have to interfere to prevent annexation. This is a subject upon which no presumptions can be indulged by an appellate court. There must be a substantial error, injurious to the appellants, before we can disturb the judgment of the Circuit Court.”

In the case at bar all of the protestants testified. Their testimony was confined to where they lived and owned property. Mr. Anthony testified that he lived on Route S, North Crossett, but not within the area subject to annexation. He testified, however, that he did own a business inside this area of North Crossett, but owns no property in South Crossett. Mr. Bryant testified that he lives in the North Crossett area under consideration for annexation and has never resided or owned property in South Crossett. Mr. Jeffress testified that he lives in North Crossett in the area subject to annexation and that he does not live or own property in South Crossett. Mr. Stover testified that he lives in North Crossett in the area subject to annexation and does not reside or own property in South Crossett. It was stipulated that Mr. Peters resides in North Crossett in the area subject to annexation and that he does not live or own property in South Crossett.

The City of Crossett filed a motion in the circuit court which reads, in part, as follows:

"That in their response to the petition for annexation the above named respondents state that they are residents and property owners in the area proposed to be annexed and described in the petition for annexation filed herein by petitioners; that the proof before the court establishes conclusively that none of the respondents were residents of or property owners in the area commonly known as South Crossett in this annexation action and more particularly described as being all of the Southwest Quarter of Section 29, Township 18 South, Range 8 West lying South of the existing city boundary of the City of Crossett and the Northwest Quarter of Section 52, Township 18 South, Range 8 West.
That no party to this action has shown any standing to contest the annexation of the area known as South Crossett and the contest as to that area ought to be dismissed and the area deemed to be annexed to and a part of the City of Crossett, Arkansas.
WHEREFORE, petitioner moves the Court to grant its motion dismissing the contest as to the area described above and known as South Crossett for the reasons hereinabove stated.”

While it is true that these protestants filed their protest for themselves and others similarly situated, they do not reside or own property in the South Crossett area subject to annexation or within the present city limits of the City of Crossett. We are of the opinion, therefore, that the protestants, for themselves as well as for others similarly situated, have not shown such interest within the meaning of the statute that would permit them to question the propriety of the annexation of an area to a city in which they have shown no interest in the city or in the area to be annexed. If these protestants have such interest, there would be no reason why any other citizen within the trade area of Crossett; or indeed within Ashley County, would not also have such interest. We hold, therefore, that “any person interested” as referred to in the statute, means any person who actually has some interest in the city or in the area to be annexed, and that at least some such interest must be shown on trial de novo in the circuit court in the face of a motion to dismiss for lack of interest.

As to the North Crossett area, the case of Pine Bluff v. Mead, 177 Ark. 809, 7 S. W. 2d 988, is very much in point. In that case the majority of electors in Pine Bluff voted to annex contiguous territory. The county court approved the annexation and on appeal to the circuit court conflicting evidence was submitted on trial de novo and the petition was denied. After reciting the conditions under which it is proper for the boundaries of a city or town to be extended as laid down in Vestal v. Little Rock, supra, this court in Mead said:

"We think it unnecessary to set out or to review the testimony offered in support of and in opposition to the prayer of the petition for annexation. We are of the opinion that by far the greater part of the territory involved is shown, under the tests announced by Judge Hemingway, by the great preponderance of the evidence, and much of it by the undisputed evidence, to be territory which should be annexed to the city. But, before we could reverse the finding and judgment of the circuit court, we would have to say that all of the land included in the petition was adapted to urban uses.
We do not interpret the court’s finding as meaning that none of the land embraced in the petition was adapted to urban uses, but only that lands were included in the petition which should not have been, and, if that finding is supported by substantial testimony, we must affirm the judgment of the circuit court, which denied the prayer of the petition. Brown v. Peach Orchard, 162 Ark. 175, 257 S. W. 732.
There was testimony that a forty-acre tract of land owned by W. M. Simpson is unplatted and is used exclusively for agricultural purposes, and its present value is due to that use and is not attributable to its adaptability for urban purposes. Similar testimony was offered as to certain other tracts of land.
This testimony was not undisputed. On the contrary, the testimony on the part of the petitioners was to the effect that all this land was adapted to urban uses and derived its principal value from that fact. But we are required to affirm the judgment of the court below if it is supported by substantial testimony, and it is so supported.
In the Vestal case, supra, this court on the appeal held that most of the territory embraced in the annexation petition should properly have been annexed, including a forty-acre tract of land which was said to be vacant, low, flat, wet, and covered with timber, but the judgment of the circuit court which had affirmed the order of the county court annexing the unincorporated town of Argenta to the city of Little Rock, was reversed because another forty-acre tract of land was embraced in the annexation petition, and the court found that the owner of this land had no need of local government and the city had no need of his land.
A similar finding was made by the court below as to certain agricultural land included in the petition, and, as there is substantial testimony to support that finding, the judgment must be affirmed, and it is so ordered.”

In the case at bar the trial court found, among other things, as follows:

“The principal area sought to be taken is North of the City of Crossett containing about 2000 acres of the total acreage sought. A part of this area, lying along U. S. Highway 82, is densely populated and there are several platted additions and a street system in this area. On the other hand, there are extensive areas that are not densely populated or populated at all and which are not served by streets or municipal services or adjoined by platted additions. There are more than 327 acres of timber land in the North Crossett and 123.84 acres in the South Crossett area according to the testimony of the county tax assessor and 355 acres of open unimproved land, possibly farm lands, in the North Crossett area according to the testimony of the Manager, U. S. Department of Agriculture office.
#jí, ¿¿, IP tP
. . . a large portion of the areas sought to be annexed include a large part, possibly as much as 800 acres, in vacant, unimproved, open land, under cultivation or in timber and uninhabited and not served with streets or roads and which is not suitable for annexation.
* * #
This is not to say that a part of the proposed area is not suitable for annexation but because of the large portion that is not suitable this court has no alternative but to deny the petition of the City of Crossett for annexation in its entirety and in this respect the motion of the city to dismiss as to the South area should be denied.”

Mr. Harold Bryant, in surrebuttal, testified that there is some farm land under cultivation in the North Crossett annexation area. He testified that a Mr. Mann owns 40 acres within the area which he uses for pasturing cows and horses; that a Mr. Barnett lives within the proposed annexation area and owns 60 acres of which about 40 acres is in cultivation; that Tommy Barton lives within the area and owns about 120 acres which he also uses for pasture. He testified that Belouts have 60 acres within the area which is not being used for anything now, but which has been used for pasture. He testified that Dr. Barnes’ estate consisting of 79 acres of open land is within the area but that it is not being used for pasture. He testified that Sonny Courson has about 20 acres within the area which has been used in the past for horse pasture.

None of the vacant land owners testified and there is no evidence in the record as to enhancement of land values because of adaptability to municipal inclusion. It was stipulated that Mr. J. C. McGoogan, a real estate agent, if called as an expert witness, would testify that the highest and best use of the undeveloped land within the proposed annexation area would be for residential and commercial purposes.

Mr. Joe West was the only witness who lived or owned property in South Crossett. His testimony was directed primarily to the water system now in use in South Crossett. He also testified that a petition was circulated in South Crossett and a majority of the residents signed the petition opposing annexation.

Certainly if the trial court had granted the petition for annexation, there would have been substantial evidence to support such judgment—but that is not the case. The trial court denied the petition and as we said in Mead, “before we could reverse the finding and judgment of the circuit court, we would have to say that all of the land included in the petition was adapted to urban use.” We cannot say this for the reason that there is substantial evidence that some of the land in the North Crossett proposed annexation area is not adapted to urban use.

The judgment as to North Crossett is affirmed and the judgment as to South Crossett is reversed. This cause is remanded to the trial court for entry of an order annexing South Crossett to the City of Crossett.

Affirmed in part; reversed in part and remanded.

George Rose Smith, Brown and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. I disagree with that portion of the majority opinion holding that the trial court should have annexed the South Crossett area. The error of the majority opinion is that it considers the property owners as the appellant in the circuit court whereas in fact the city was the appellant and as such had the duty under Ark. Stat. Ann. § 19-101 to notify all interested persons by newspaper publication of the time and place of the hearing it desired the court to hold. If the county court had ordered the annexation of the South Crossett area then Perkins v. Holman, 43 Ark. 219 (1884), would be authority for the position here taken. However, the appellant here was also the appellant in the circuit court and in that case the matter stood for trial de novo, as if it had originally been brought in that court, see Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 253 (1940), upon the petition of the city for annexation.

Ark. Stat. Ann. § 19-307, authorizing annexation by a city, provides that after a favorable vote the city must present a petition to the county court praying for such annexation and that the procedure in the county court shall, so far as applicable, be had in accordance with Ark. Stat. Ann. § 19-101 to 19-103 (Repl. 1968).

So far as here applicable Ark. Stat. Ann. § 19-101 provides:

“. . . When any such petition shall be presented to the court, they shall cause the same to be filed in the office of the County Clerk, to be there kept, subject to the inspection of any person or persons interested, until the time appointed for the hearing thereof; the court shall, at or before the time of such filing, fix and communicate to such petitioners or their agent, a time and place for the hearing of such petition, which time shall not be less than thirty [30] days after the filing of such petition, and thereupon the petitioners or their agent shall cause a notice to be published in some newspaper of general circulation in the county, not less than three [3] consecutive weeks; and, if there is no newspaper of general circulation in the county, a notice shall be posted at some public place within the limits of said proposed incorporated town for at least three [3] weeks before the time of such hearing which notice shall contain the substance of said petition, and state the time and place appointed for the hearing thereof.”

Ark. Stat. Ann. § 19-102 provides:

“Every such hearing shall be public, and may be adjourned from time to time, and any person interested may appear and contest the granting the prayer of said petition; and affidavits in support of or against said petition, which may be prepared and submitted, shall be examined by said court, and they may, in their discretion, permit the agent or agents named in the original petition to amend or change the same, except no amendment shall be permitted, whereby territory not before embraced shall be-added, or the character of the proposed incorporated town changed from special to general, or from general to special, without appointing another time for hearing, and requiring new notice to be given as above provided.”

There is no statutory procedure for an appeal by the city to the circuit court from the county court’s denial of a petition for annexation. Its only right of appeal is that set forth in Article 7, § 33 of the Constitution which provides:

“Appeals from all judgments of county courts. . . may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.”

In Pike v. City of Stuttgart, supra, we pointed out that the procedure in the circuit court would be the same as that set out in Ark. Stat. Ann. §§ 19-101 to 19-103 for the procedure in the county court. This would require the city to again comply with the notice required by Ark. Stat. Ann. § 19-101.

Under the procedure outlined above, Joe West had a right to appear at the public hearing required by Ark. Stat. Ann. § 19-102, supra, and without formal pleading to protest the annexation. I submit that when the county court sustained his objection and the city appealed to the circuit court under Art. 7 § 33, supra, Mr. West had the same right to appear and protest at the public hearing required by Ark. Stat. Ann. § 19-102. Mr. West did appear in the circuit court to register his protest and testified that by a petition circulated an overwhelming majority of the people of South Crossett opposed the annexation.

In the case of Perkins v. Holman, 43 Ark. 219, relied upon by the majority, the county court had approved the annexation and the persons objecting to the annexation and wishing to appeal to the circuit court neither lived nor owned any land in the affected territory. This court there properly held that the objectors had no standing in the circuit court to complain of the annexation by the county court. The distinction between the Perkins case and the one at bar is that the city was the petitioner in both the county court and the circuit court and that under Ark. Stat. Ann. § 19-102, supra, Mr. West had a right to appear and be heard.

Another and totally different reason for sustaining the circuit court’s findings is that by Ark. Stat. Ann. § 19-103, the court is required to find, as a prerequisite to annexation, that it is “right and proper” to annex the territory in question to the city. Here the testimony as to South Crossett was much the same as that on North Crossett area.

For either or both of the foregoing reasons, I dissent.

George Rose Smith and Brown, JJ., join in this dissent.


author: J. Fred Jones, Justice.

text:
    Jerry DENHAM v. STATE of Arkansas
    5589
    466 S. W. 2d 469
    Opinion delivered May 10, 1971

      Louis W. Rosteck, for appellant.

      Ray Thornton, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Jerry Denham from an order of the Pulaski County Circuit Court denying his petition for post-conviction relief in the form of habeas corpus. The trial court record enables us to dispose of the matter without a great deal of difficulty. We affirm the judgment of the trial court.

Denham was charged with first degree rape of a little Negro girl who had been babysitting with Den-ham’s sister-in-law’s children. Competent counsel was appointed to represent him. He entered a plea if not guilty and not guilty by reason of insanity. He was found without psychosis upon examination at the State Hospital; and after a jury was empaneled and selected to try his case, the prosecuting attorney agreed to waive the death penalty upon a plea of guilty. Denham entered his plea of guilty and was sentenced to the penitentiary for life.

Denham alleged in his petition that his constitutional rights were violated in that he was denied the assistance of counsel; that he was never given a copy of indictment, or information, or bill of particulars; that he was denied counsel at police interrogation; that trial counsel finally appointed for him was ineffective; that statements made under duress were admitted in evidence against him; and finally, that he was denied the right to appeal his conviction. The petition was signed by Den-ham over a jurat as follows:

“Sworn and subscribed this 22nd day of September, 1970. /s/ Jack Jones—My Commission Expires April 25, 1974.”

An evidentiary hearing on the petition was held in the trial court on the 28th day of October, 1970, at which time Denham appeared with his court-appointed counsel and was permitted to testify in support of his petition. At the outset, however, the record made at the original trial of his case was read to him, which reflected that he was charged by information filed on June 27, 1967; that on July 3, 1967, Harry Robinson and Allan Dishongh were appointed to defend and his case was passed to July 10 for arraignment; that on July 11, 1967, he entered a plea of not guilty and not guilty by reason of insanity; that he was then sent to the State Hospital for psychiatric examination; that on July 25, 1967, he was returned to the court with a certificate from the State Hospital “without psychosis”; that on July 31, 1967, a jury trial was set for October 26 and 27; that on October 23, 1967, Allan Dishongh was relieved as attorney. Under date of October 26, 1967, the record made in the trial court reveals as follows:

“Both parties announced ready for trial; drawn and struck jury; death penalty was asked by the State; the jury was empaneled and sworn; death penalty was waived by the State; plea of not guilty withdrawn, plea of guilty entered, jury instructed to return a verdict of guilty and assess a life sentence; verdict, by direction of Court, guilty, life, Max F. Atwood, Foreman; and time for sentencing waived and defendant sentenced and committed.”

The record before us reveals that on September 25, 1970, Mr. Louis Rosteck was appointed to represent the petitioner on his petition for habeas corpus. In support of his petition Denham testified that he did not know that Mr. Dishongh was appointed to represent him; that he does not recall whether Mr. Dishongh was in the courtroom when he entered his plea of guilty to the rape charge or not; that he does not recall whether he ever talked to Mr. Dishongh but does not think that he did. He testified that he recognized Mr. Robinson as being his attorney; that he remembers that he first pleaded not guilty to the charge of rape; that he believes it was not guilty by reason of insanity as well. The pertinent answers to questions are as follows:

“Did your attorney, or attorneys, ever talk to you concerning the trial? Did you have any conferences with them, with either of them?
A. Yes. I had one or twice with Mr. Robinson, and I don’t remember what it was about though.
Q. Well, did you talk about the nature of the case itself?
A. Yes, sir, I imagine we did. I just don’t remember, it’s been so long ago.
Q. And did you make it known to him as to what your plea would be?
A. Yes, sir.
Q. Now, I would like for you to be more specific since you are alleging here, one of the grounds here, that you were coerced into making a plea of guilty. I wish—I don’t hardly know how to ask the question, but I wish you would tell the Court here as to what you base that on?
A. What do you mean?
Q. You have alleged here that you were coerced into entering a plea of guilty.
THE COURT: Somebody forced you to enter a plea of guilty.
THE WITNESS: Well, I had to plead guilty, or get the electric chair.
Q. (Mr. Rosteck, Continuing) Tell the Court how that came about?
A. Well, anybody with any sense would say that is my point.
Q. Who came to you and told you that you had to enter a plea of guilty?
A. I don’t rightly remember.
Q. Did your attorney, or court-appointed attorney, recommend to you to enter a plea of guilty?
A. I believe he did; said it would be best to plead guilty.
Q. To plead guilty?
A. Yes, sir.
Q. Are you sure about that now?
A. Yes, sir, I am sure.
Q. Was any of the officers, either the county jail or the county officers, city officers, or state officers, did any of them threaten, coerce you in any manner?
A. No, sir.
Q. As to entering a plea of guilty to this charge?
A. No, they didn’t.
Q. Did you at any time make it known to your attorney that you wanted to have a jury trial, or did not want to have a trial?
A. Yes, sir, we was going to have a trial and then we come in here, this room here, and I believe that is when he told me it would be best to plead guilty because I had all of those people in the courtroom on me, and it was in the papers and all that stuff; told myself it would be best to plead guilty instead of getting the electric chair.
Q. Or get the electric chair?
A. Right.
#46- 4t« TT* TT
Q. Let me ask you this. Do you recall appearing in the courtroom with your attorney, or attorneys, and that a jury was selected?
A. Yes, sir, a jury was selected.
Q. They were selected and seated in the jury box?
A. Yes, sir.
Q. You recall that?
A. Yes, sir.
Q. After the jury was sworn in by the clerk, you recall that?
A. Yes, sir.
Q. Jury being sworn in?
A. Yes, sir.
Q. What transpired from that point on?
A. Well, I don’t really remember. That’s when we come in here and started talking. I don’t know.
Q. Was there any indication to you at the time you went to trial that the Prosecuting Attorney’s office, or the State, was asking the death penalty?
A. Yes, sir, they was to start with.
Q. You were aware of that?
A. Yes, sir.
Q. So your attorneys were ready to have a jury trial at that point?
A. Yes, sir.
Q. At some point after the jury was empaneled, you came into the Judge’s Chambers? Is that correct?
A. Yes, sir.
Q. And, at that time, be specific on what you’re saying now, and think carefully, what happened, if anything happened, that you can recall, either coerced, or under duress, or threatened, or anything of that nature, to make you change your plea from not guilty to guilty?
A. Well, I wasn’t really, what you say threatened. Like I told you while ago, the man said it would be best to plead guilty and I know it would be myself.
* * #
Q. (Mr. Rosteck, Continuing) Mr. Denham, you mentioned here that you did—you never received a copy of the bill of particulars. Was this requested by you?
A. No, sir.
Q. Do you know what a bill of particulars is?
A. I really don’t.
Q. You alleged in here that you requested, you intimated that you didn’t receive it, neither did you receive a copy of the information?
A. I didn’t receive one.
Q. Did you make any formal request of your attorney for a bill of particulars?
A. No, sir.
Q. Did you ask your attorney for information to be more specific as to the crime itself?
A. I don’t know.
Q. To get you any information?
A. No.
Q. Were you aware at the time that you were brought to trial what you were charged with?
A. Yes, sir.
Q. The nature of the crime?
A. Yes, sir.
Q. And also the penalty for which you could receive?
A. Yes, sir.
Q. You were aware of all that at that time?
A. Yes, sir.
Q. Now, you further allege, and this is the last point here, that you had ineffective assistance in counsel. Now, I wish you would be more specific and say why you feel that you did not have effective assistant counsel?
A. Well, really, I don’t believe I could have had any court-appointed, or any other kind, the way they were all right in court and all that stuff on me. I didn’t have a chance to start with.
Q. When you say ineffective assistance, what do you actually mean by that?
A. Well, I didn’t even—I don’t know. I didn’t write that. That lawyer up there wrote it for me.
THE COURT: You got a jailhouse lawyer, or a regular lawyer?
THE WITNESS: I don’t know. I guess sorta jailhouse lawyer.
Q. (Mr. Rosteck, Continuing) Well, for the matter of record here, did you receive—
THE COURT: (Interposing) How much did he charge you for writing it?
THE WITNESS: He didn’t.
THE COURT: I didn’t know if he was practicing law without a license, or not. Proceed.
Q. (Mr. Rosteck, Continuing) Did you receive counsel from your court-appointed attorneys? Did they counsel with you?
A. Yes, sir, Mr. Robinson did.
Q. Do you feel like there was anything they could have done which they didn’t do?
A. No, sir, I don’t believe they could.
Q. In other words, you feel that they were as effective as they could possibly have been under the circumstances for which you were charged?
A. Yes, sir.
Q. I will ask you one last question. Is there anything else, or any statement that you would like to make to support your petition, anything that I have not asked you and anything you want to say?
A. No, sir, not that I know of.”

On cross-examination the appellant reiterated that he was afraid the jury would assess a death penalty, and that he knowingly and intentionally entered his plea of guilty with the understanding that he would get a life sentence to the penitentiary, rather than take the chance of getting a sentence of death in the electric chair. The assistant prosecuting attorney then proceeded on cross-examination to elicit the following answers to the following questions:

“Q. Now, your attorney went into a great deal of detail in explaining this to you, did he not?
A. Well, he didn’t go into all that; he just told me.
Q. You agreed to it, did you not?
A. Yes, I agreed to it.
Q. You agreed to it because you had done the act that you were charged with? Is that not true?
A. No, sir, I didn’t do the act.”

On redirect examination Mr. Denham testified as follows:

“Q. Mr. Denham, you indicated that you did not commit this particular crime. I will ask you specifically, did you, or did you not —are you, or are you not stating that you were, or were not, guilty of the crime of rape?
A. I pleaded guilty then, yes.
Q. You plead guilty to it, and you are admitting today that you were guilty of it?
A. No, I am admitting I wasn’t guilty of it, but I pleaded guilty instead of getting the electric chair, which I would have got.
Q. Now, so that I am sure I am right on this, you plead guilty because you were in fear of getting the electric chair?
A. That’s right.
Q. And what induced you to plead guilty?
A. If you read the papers, the papers would tell you why.”

The court reporter who' participated at the original trial on the plea of guilty, as well as Mr. Harry Robinson who represented the appellant at his original trial, testified. The substance of their testimony was that after the jury was empaneled to try the defendant on a charge of first degree rape, the prosecuting attorney agreed to waive the death penalty and recommend life imprisonment if Denham desired to enter a plea of guilty rather than risk his chances with a jury. Mr. Robinson’s qualifications, as set out in the record, show that he had been an attorney for 40 years; that he had served as deputy prosecuting attorney; had served as a municipal judge as well as a circuit judge; and that he had participated in the trial of many capital cases.

Mr. Robinson testified that he discussed the case with the appellant and his family on many occasions prior to trial; that after the jury was empaneled and sworn to try the case, he discussed a plea of guilty with the prosecuting attorney; that when the prosecuting attorney agreed to waive the death penalty, he felt that it was to his client’s best interest that he enter a plea of guilty and accept a sentence to life imprisonment.

The pertinent facts surrounding the original crime are only before us as referred to by Mr. Robinson in his testimony. The substance of his testimony is that the crime itself had complicated features in that the victim of the crime was a little Negro girl who was babysitting for the appellant’s sister-in-law; that following the crime she was denied admittance to a local hospital because the doctor in charge did not want to become involved, and the crime itself as well as the subsequent events was attended by considerable statewide publicity. Mr. Robinson concludes as follows:

“I just told him the facts as it was. He had a rough case, coupled with some other—rape itself was rough, but all this other hullabaloo, it was just a rough case, and Denham understood it.
* * *
I could have discussed it with him a hundred times and never would come up with but one conclusion —you better plead if you could. It wras that kind of case to me.”

Mr. Robinson testified that he filed a motion requesting a list of the witnesses the state intended to use at the trial, but that after a plea arrangement was worked out with the prosecuting attorney, the motion became moot. As to the alleged failure to furnish a bill of particulars and to appeal, Mr. Robinson testified as follows:

“Q. Did you ever file a motion for a bill of particulars?
A. No, I didn’t need it. I didn’t think. Now, a bill of particulars is either to aggravate, or delay, the Prosecuting Attorney, or it’s very seldom ever filed for, actually for information.
THE COURT: Let me ask you this. Did this man request you to appeal this case? He said something in there about failure to take his appeal.
THE WITNESS: No, sir, he was well satisfied under the circumstances. ***
Q. (Mr. Rosteck, Continuing) Let me ask you you one last question. If, today, you had the same situation, would your decision be the same?
A. Absolutely.”

Mr. Denham was offered the opportunity to direct questions to Mr. Robinson concerning the petition he filed, but he declined to do so.

The judgment is affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Ruth W. O’NEAL, next Friend of Anne Davis Warmack et al v. Ed WARMACK et ux
    5-5525
    466 S. W. 2d 913
    Opinion delivered May 10, 1971
    [Rehearing denied May 31, 1971.]

      Eichenbaum, Scott ir Miller and Warner, Warner, Ragon ir Smith, for appellant.
    /. W. Durden, for appellee.
   Conley Byrd, Justice.

Appellants Ruth W. O’Neal, next friend of Anne Davis Warmack, David George Warmack, John Porter Warmack and Robert Edward Warmack, minor children of appellees, and Eugene Weisenfels, guardian ad litem of James T. Warmack and Daniel D. Warmack, also minor children of appellees Ed and Jane Warmack, allege that the trial court erred in ruling that a trust instrument violated the rule against perpetuities and in the alternative that the trial court erred in ruling that the property revested in the settlors instead of the beneficiaries.

We do not reach the first point because the trust instrument, upon which the trial court ruled, has not been abstracted as required by our Rule 9(d).

The next alleged error is not supported by the record which shows that all the assets of the trust originated with appellees Ed and Jane Warmack who made an attempted gift for the benefit of their children. The general rule is that a resulting trust arises in favor of the donor or settlor when the trust is held void for violating the rule against perpetuities. See Hopkins v. Grimshaw, 165 U. S. 342, 41 L. ed. 739, 17 S. Ct. 401 (1897); 54 Am. Jur. Trusts § 200.

Affirmed.

George Rose Smith, J., concurs, and Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent as to point two. I find no evidence whatever to support the statement that Mr. and Mrs. War-mack made or attempted any gift to their children or that any of the assets of the trust originated with them. Ed Warmack testified that all property of the purported trust was conveyed to him as trustee for Ed Warmack Family Trust. He never owned any of the real property, nor held any title except as trustee. He borrowed the money, in his capacity as trustee, to purchase the Kansas property, the first acquisition. Later he exchanged property he personally owned for property in Louisiana conveyed . to the trust, but financed the property as trustee and paid himself the fair market value of his property exchanged. There is a shopping center on the Kansas property and a Sears-Roebuck warehouse on the Louisiana property. The income from the property has been invested for the benefit of his six children. He has never claimed any of it and stated that it had always been his intention that his children have the benefit of this trust property. Neither he nor his wife has ever claimed any of the trust property personally. He testified that neither he nor his wife had ever given any money to the trust.

It seems to me that the Warmacks, as declarants of the trust, clearly intended a trust for the benefit of all children born to them during the life of the trust. This is clearly indicated by Paragraph 1 of the trust set out in appellants’ brief. The invalidity of the trust should not vest title in grantors who conveyed the property to the trustee and who have been paid full consideration for their conveyances. While a resulting trust in favor of the grantor is often declared when the trust expressed in his conveyance fails, such a result is proper and equitable when the conveyance is without consideration, but it is improper when the grantor conveys his entire estate upon a valuable consideration. Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554. The father was not the grantor in any conveyance of property to him as trustee under the declaration of trust, so there would be no proper basis for a trust in his favor. Certainly there should not be a trust in favor of the grantors who have received a valuable consideration for their property. Davis v. Jernigan, supra.

The violation of the rule against perpetuities can only be based upon delayed distribution of the corpus beyond the time allowed. The conveyances themselves should not be invalid. The equitable result would be that the title to the property go to those who should certainly benefit—the children of the Warmacks—and that the title should be held in trust for their benefit, either by resulting trust of which the grantors in the conveyances are trustees, or, preferably, the named trustee in the conveyances, the father of these children. Vesting the title in the parents, or either of them, who have not contributed one cent to the purchase price of the property and who never intended to benefit from the purchases seems totally inequitable.

Neither of the parties is a donor or a settlor in the sense of the authorities stated in the majority opinion. Regardless of the very wholesome desires of these parents at the time the family trust was created and their present concern for their children, there are many, many factors, such as financial reverses, that frustrate the most noble parental concern. More than 90 years ago, Mr. Justice Eakin spoke for this court of equity’s jurisdiction over the property of minors as a very high trust, involving the most delicate and important interests of a helpless class which is peculiarly the subject of the jealous and watchful care of chancery and peculiarly liable to injury from the greed of crafty men and the carelessness of relations. Myrick v. Jacks, 33 Ark. 425.

This concern for the welfare of minors makes it our duty to take that action with regard to the title to the land which is most consonant with the best interests of these minors. The principles of equity not only permit us to do so, but direct us to do so. The rules applicable to property freed from the disposition made by the conveyor are aptly stated at 5 Powell on Real Property 686.1, § 790 (1970) as follows:

When the special rules applicable because of the presence of a power of appointment fail to provide a destination for the property in question, and also in all cases of complete or partial invalidity produced by the rule against perpetuities in limitations involving no power of appointment, the property in question passes, either (1) in accordance with the other limitations contained in the same conveyance to the extent that such limitations would have effectively disposed of this property if the limitations found invalid had not been made; or (2) if there are no such "other limitations,” then as undisposed of property of the conveyor.
The determination of the ultimate recipient of what cannot go exactly as the conveyor has directed is guided by a constant judicial desire to give as full effect to the manifested desires of the conveyor as is consistent with the adequate protection of social interests. The rules above stated implement this general attitude with respect to both deeds and wills, and as to limitations involving either land or personalty or both.

The rule stated by Powell is consistent with § 424, Restatement of the Law, Trusts, Second, Chapter 12, Page 370, which reads:

Where the owner of property transfers it upon a trust which fails, and he receives from a third person consideration for the transfer as an agreed exchange, there is a resulting trust in favor of the person who paid the consideration.

We have said that the fact that an express trust is invalid because of statutory inhibition will not prevent an implied trust from resulting by operation of law, if the circumstances are such as to give rise to a resulting trust. Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749. Implied trusts are those deducible from a transaction as a matter of clear intention of the parties, but not expressed in words, or those superinduced on a transaction by operation of law as a matter of equity independently of the particular intention of the parties. They are raised by operation of. law, either to carry out a presumed intention of the parties or to satisfy the demands of justice or protect against fraud. Hunt v. Hunt, 202 Ark. 130, 149 S. W. 2d 930. Accord, Caldwell v. Matthewson, 57 Kan. 258, 45 P. 614 (1896); Allbert v. Allbert, 148 Kan. 527, 83 P. 2d 795 (1938.)

When I view all the circumstances here, among which are the stated intention of the parents and the source of the purchase money, I think equity demands that we declare Ed Warmack to hold the title to the property involved as trustee for the children now or hereafter bom to appellees.

Language of § 404.1, V Scott on Trusts (Third Edition) 3213, seems clearly applicable:

A resulting trust is to be distinguished on the one hand from an express trust and on the other from a constructive trust. An express trust is created only if the settlor manifests an intention to create it, although the manifestation may be made by conduct as well as by words. A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest in the property. In other words, an express trust is created if it appears that there was an affirmative intention to create it; whereas in the case of a resulting trust the circumstances indicate the absence of an intention to give the beneficial interest to the person in whom the legal title to the property is vested.
There are three situations in which the trust which arises is properly called a resulting trust: (1) where an express trust fails in whole or in part; (2) where an express trust is fully performed without exhausting the trust estate; (3) where property is purchased and the purchase price is paid by one person and at his direction the vendor conveys the property to another person. In each of these cases there is an inference that the person taking title to the property is not intended to have the beneficial interest, and in each of these cases the inference arises from the character of the transaction. In the first two cases an express trust is created, but there is no provision in the terms of the trust as to what is to happen if the trust fails or if there is a surplus. The inference is that the trustee is not to keep the property, and since no other disposition' is made of it the property or the surplus should be returned to the settlor. The inference is, not that the settlor actually intended that the property or surplus should be returned to him, for there is no evidence that he contemplated the possible failure of the express trust or the possible existence of a surplus, but that he did not intend in any event that the trustee should have a beneficial interest. Since the trustee was not intended to keep the property or the surplus, and since no other disposition has been made in the event which has happened, the court will compel the 'trustee to return the property or the surplus to the person who created the trust. It cannot be said that the settlor actually intended this result, since there is nothing to indicate that he had any intention with respect to the matter. At most it can be said that it is what he probably would have intended if the question had occurred to his mind.
On the other hand, where property is purchased by one person and the property is transferred at his direction to another, it is inferred that the purchaser intended that the grantee should hold the property for the benefit of the purchaser. It is arguable that the trust which arises is therefore an express trust arising out of the intention of the purchaser manifested by his conduct. The courts have always taken the view, however, that the trust can properly be considered a resulting trust, since no evidence of the purchaser’s intention to create a trust is required other than the character of the transaction. The character of the transaction raises an inference that he did not intend that the grantee should have the beneficial interest in the property. Accordingly, it is held that the purchaser is not precluded by the Statute of Frauds from compelling the grantee to convey the property to him. The circumstances of the transaction make it unnecessary to prove an undertaking by the grantee to hold the property in trust for the purchaser, and certainly dispense with the necessity of a written memorandum which is required by the Statute of Frauds where an express trust of an interest in land is created.

The general rule is stated at 5 Thompson on Real Property (Permanent Edition) 48, § 2361, thus:

“Trusts” arising by operation of law are termed “implied trusts,” and they divide into “constructive” or “resulting trust.” They are deducidle from the transactions of the parties where there is no express purpose to create a trust, or those which arise by operation of law as a result of the demands of justice and fair dealing. They result from the conduct, relation and supposed intention of the parties independent of any agreement whatsoever between them, and are construed as trusts as a -matter of justice. Such trust may be created although an oral express trust fails.

In finding that the allegations of a complaint stated a resulting trust in Allbert v. Allbert, supra, the Kansas Supreme Court quoted and relied upon statements from Corpus Juris as follows:

Implied trusts are defined in 65 C. J. 221 as follows: “Implied trusts are more frequently defined as those which, without being expressed, are deducible from the nature of the transaction as matters of intent, or which are super-induced upon the transaction by operation of law as matters of equity, independently of the particular intention of the parties. However, some definitions disregard the element of intent and define these trusts to be such only as arise by operation of law. By some authorities the term ‘implied trusts’ is used in a sense exclusive of resulting and constructive trusts to designate a form of express trusts.”
On the next page, in distinguishing a resulting trust from a constructive trust, both of which are implied trusts, it is said: “* * * a resulting trust has been defined to be one raised by implication of law and presumed always to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance.” 65 C. J. 222.

I find that there are applicable Kansas Statutes which read:

When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections. Kan. Stat. Ann. 58-2406.
The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof. Kan. Stat. Ann. 58-2408.

See also Aaron v. Rothrock, 102 Kan. 272, 169 P. 1161 (1918).

On the subject of resulting trust, we find that Thompson makes these additional statements (Volume 5, Page 62, § 2370):

A resulting trust arises by implication of law, and does not grow out of a contract, and, where there is an express trust, there can be no resulting trust. It results from the conduct, relation, and supposed intention of the parties independent of any agreement whatsoever between them. Fraud is not an essential element to the creation or existence of a resulting trust. Such trusts are raised by implication of law and presumed to have been contemplated by the parties, the intention being found in the nature of the transaction although not expressed in the deed or instrument of conveyance. They oridinarily arise either upon a failure of an express trust or where property is transferred by a grantor to a third party at the request of one who pays the purchase-price. A trust may result in favor of the donor where there is a failure of an express trust. Such trust arises where the legal estate in .property is transferred, but the intent appears or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to be enjoyed with the legal title, in which case, the trust is implied or results in favor of the grantor who is deemed to be the real owner. A resulting trust arises when one person’s money is paid for land and the conveyance is taken in the name of another person. The trust depends upon the equitable presumption of intention, and arises the instant the legal title is taken. They are sometimes termed "presumptive trusts,” or "passive trusts.” Where, for any reason, the legal title to property is in one person under such circumstances as to make it inequitable for him to have the beneficial interest, equity will imply a trust in favor of the person entitled to the beneficial interest. It must appear from the entire transaction that there is an obligation on the part of the holder of the legal title to hold it for the benefit of someone else.

On the subject of resulting trusts, there is an interesting and applicable discourse in 4 Pomeroy’s Equity Jurisprudence (Fifth Edition) 61, et seq., §§ 1031, et seq., as follows:

In all species of resulting trusts, intention is an essential element, although that intention is never expressed by any words of direct creation. There must be a transfer, and equity infers the intention that the transferee was not to receive and hold the legal title as the beneficial owner, but that a trust was to arise in favor of the party whom equity would regard as the beneficial owner under the circumstances. The equitable theory of consideration, heretofore explained, is the source and underlying principle of the entire class (see § 981). Resulting trusts, therefore, are those which arise where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. In such case a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real owner. This person is the one from whom the consideration actually comes, or who represents or is identified in right with the consideration; the resulting trust follows or goes with the real consideration.
All true resulting trusts may be reduced to two general types: 1. Where there is a gift to A, but the intention appears, from the terms of the instrument, that the legal and beneficial estates are to be separated, and that he is either to enjoy no beneficial interest or only a part of it. In order that a case of this kind may arise, there must be a true gift so far as the immediate transferee, A, is concerned; the instrument must not even state any consideration, and no valid complete trust must be declared in favor of A or of any other person. Such trusts, therefore, generally arise from wills, although they may arise from deeds. If the conveyance be by a deed, the trust will result to the grantor; if it be by a will, the trust will result tó the testator’s residuary devisees or legatees, or to his heirs or personal representatives, according to the nature of the property and of the dispositions. 2. The second type includes the cases where a purchase has been made, and the legal estate is conveyed or transferred to A, but the purchase price is paid by B.

Cases supporting the rules stated in the texts are numerous. Some are particularly applicable to the facts here:

In Skidmore v. Gueutal, 145 App. Div. 407, 128 N. Y. S. 402 (1911), it was held that when a grantor conveys property absolutely for a valuable consideration paid to a trustee who executes a declaration of trust later found to be invalid for indefiniteness and for violation of the rule against perpetuities, title does not vest in the person named as trustee, but vests in the beneficiaries named in the declaration, when it is manifest that the grantor did not intend to convey to the trustee in his individual capacity.

In Smith v. Pratt, 95 N. H. 357, 63 A. 2d 237 (1949), it was held that, when the trust instrument fails to disclose the intention of a declarant concerning ultimate disposition of the res, it will result to the creator of the trust in the absence of evidence of intention that the beneficial interest should pass to someone else. In that case there was no such evidence, so the one who furnished the consideration for the conveyance to the trustee who made the declaration of trust was deemed to be the creator of the trust and the beneficiary of a resulting trust in the remainder, after a life estate in the trustee specifically provided for in the property.

In Rosenthal v. Miller, 148 Md. 226, 129 A. 28 (1925), it was said that when there is consideration for a conveyance upon a void trust, or one which fails, the grantee takes the beneficial interest only when he furnishes the purchase money, but if it was paid by someone else, a resulting trust arises in favor of the party furnishing the consideration.

Graybill v. Manheim Central School District, 175 Pa. Super. 415, 106 A. 2d 629 (1954), is another case in which it was held that fee simple title vests in the beneficiary in a deed where full consideration has been paid to the grantor and an attempted limitation is void for violation of the rule against perpetuities.

I would reverse the decree and remand for the entry of a decree declaring that Ed Warmack holds the corpus of the trust as trustee for the use and benefit of children born to him and his wife.

       Kansas cases are referred to because a part of the trust real property lies in that state. The parties have argued Kansas law in their briefs. The record before us is devoid of any suggestion that the law of any other state has any application. See Ark. Stat. Ann. § 27-2504 (Supp. 1969); American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S. W. 2d 622.


author: Conley Byrd, Justice.

text:
    Dorothy SAUTER et al v. Dicki ATCHINSON et al
    5-5567
    466 S. W. 2d 475
    Opinion delivered May 10, 1971
    [Rehearing denied May 31, 1971.]

      Terral, Rawlings, Matthews ir Purtle; By: Gail O. Matthews, for appellant.

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellees.
   Conley Byrd, Justice.

The appellant Dorothy Sauter, individually and as mother and next friend of Larry Imler, a minor, brought this action to recover for injuries received by Larry when a parked car owned by appellee Dicki Atchinson and occupied by appellee Diane Masingill suddenly rolled forward and over Larry. The jury, upon interrogatories, found that neither Larry, Dicki nor Diane was guilty of negligence. For reversal of the judgment entered on the jury’s verdict, appellant contends: (1) that the trial court should have sustained her motion in limine to prohibit appellees from referring to headlighting rabbits from the car hood prior to the occurrence here involved; (2) that the trial court should have given an instruction on Res ipsa loquitur; and (3) that the findings of the jury are contrary to the law and the evidence.

The record shows that Larry, Dicki, Diane, Diane’s sister Karen, Jimmy Ryburn, and Fred McMurtry decided to headlight rabbits. They obtained a shot gun from Dicki’s house and took Dicki’s car out Chicot Road to the end of the pavement. At this point Diane started driving with Larry and Dicki riding on the hood of the car with the shot gun. Diane turned off onto a fire lane and proceeded to the end where she parked on the crest of a hill. Not finding any rabbits to shoot, they decided to shoot some cans. Dicki got back into the car. He said that he put the gear shift in park, set the hand brake and switched the lights to bright. Diane moved to the passenger’s side of the car where she remained until after Larry was injured. Dicki and Jimmy Ryburn took their turn shooting, standing in front of the headlights and shooting at cans thrown by the others. When Larry took his position to shoot, the car started rolling forward, and rolled over him, causing the injuries complained of. All during the can shooting, Diane testified, she remained on the passenger’s side of the front seat and her sister Karen and Fred McMurtry remained in the back seat. The car’s motor was left running and a stereo tape player was on. The automobile was in neutral when it eventually came to rest.

1. The evidence of the events leading up to parking the car on the crest of the hill was admissible to show the relationship among the parties. It follows that the trial court did not err in refusing appellant’s motion in limine.

2. Appellant only asked for the Res ipsa loquitur instruction as to Dicki. When we consider that the car stood in its parked position while Dicki and Jimmie Ryburn took their turns shooting and that the car was occupied by Diane, her sister Karen and Fred McMurtry, we hold that trial court properly refused the Res ipsa loquitur instruction as to Dicki. The doctrine of Res ipsa loquitur is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured party, and also on the premise that the defendant had exclusive control. See Ford Motor Company v. Fish, 232 Ark. 270, 335 S. W. 2d 713 (1960). Here neither situation exists.

3. In her last point appellant contends that under the facts as developed Larry could not have been injured and the accident could not have happened, had not someone been negligent and thus the jury’s findings to the contrary are contrary to the law and the evidence. This argument overlooks the fact that there was other testimony from which the jury could have found that Dicki acted as a reasonable and prudent person in placing the car in “park” and setting the handbrake and that Diane did nothing to cause the car to start rolling.

Affirmed.