author: Carleton Harris, Chief Justice.

text:
    David Turner v. William O. Rosewarren, et al
    5-4883
    440 S.W. 2d 769
    Supplemental Opinion on Rehearing Delivered June 9, 1969
    [Original opinion delivered May 5, 1969, p. 798.]
   Carleton Harris, Chief Justice.

We find no merit in the petition for rehearing on the main case, but, in line with our decisions in St. Louis Southwestern Railway Company v. Clemons, 242 Ark. 708, 415 S.W. 2d 332, and Hayes Brothers Flooring Company v. Carter, Admx., 240 Ark. 522, 401 S.W. 2d 6, the cause is remanded for another trial, rather than dismissed. In Hayes v. Carter, supra, we said:

“Appellant asks that we reverse and dismiss, blit, after due consideration, we think it is possible that the case has not been fully developed. In fact, our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly apjjiears that there can be no recovery that we consider it proper to dismiss the cause. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108, and Arkansas Natural Gas Company v. Gallagher, 111 Ark. 247, 163 S.W. 791.”

It might be added that, in remanding this cause, we have given no consideration whatsoever to the so-called “petition for new trial.”


source: Caselaw Access Project

author: Carretón Harris, Chief Justice.

license: Public Domain

text:
    NATIONAL HOUSEWARES CORP. v. Leah B. TRAHIN
    5-4920
    444 S. W. 2d 68
    Opinion delivered August 25, 1969

      Allen, Dahlen & Young, for appellant.

      Rose, Meek, House, Barron, Nash & Williamson, for appellee.
   Carretón Harris, Chief Justice.

The question in this case is whether National Housewares Corporation, appellant herein, is entitled to remove certain partition walls from a building owned by Leah B. Trahin, appellee herein. The evidence reflects that on November 1, 1959, .appellant leased the front portion of a building at 1217 Broadyray Street in Little Rock under a sub-lease with Delta Oxygen Company, the latter having leased the entire building from Mrs. J. M. Bourne, the then owner. At the time of the execution of this sub-lease, National Housewares. Company requested of Delta that it (National Housewares) be given permission to sublease a portion of the premises it had leased to another party; also, permission was requested to construct partitions which National Housewares desired to remove at the expiration of the lease. Delta Oxygen gave its consent to both requests, stating, however, that if the partitions were attached to the building, it would be necessary, upon removal of same, to place the building back in the same condition as existed prior to the construction of the partitions. The record does not reflect that Mrs. Bourne or Mrs. Trahin, the subsequent owner, ever approved the sub-lease between appellant and Delta, or gave permission for the partitions to be constructed — or to be removed. In fact, there is no evidence that the owner was ever aware of the sub-lease and agreements between National Housewares and Delta — nor is there evidence relating to whether Delta had the right to sublet any part of the premises. The lease was not introduced into evidence. Following the agreement between appellant and Delta, partition walls and shelving were constructed in separate panels or sections, and set into placé. According to Robert O. Rogers III, employed by National Housewares Corp., the partitions were made of substantial material, constructed at proper lengths to fit the areas, and were connected to the walls of the building by nails driven through the end upright stud a short distance into the plaster of the wall. Rogers said that a “few” six-penny nails were driven through the wood in the bottom of the partitions and into the floor sufficiently to keep the partitions from sliding sideways. None of the area was partitioned fully to the ceiling of the building. Rogers stated that the partition walls only extended about half-way to the ceiling. Cost of labor and materials for this construction was $2,100.00.

After entering upon the premises, National Housewares sub-leased an unused portion of the premises it occupied to Local 266, Associated Federation of Musicians.

On January 1, 1962, Mrs. Bourne, having died, and Leah Trahin, having inherited the property, a lease was entered into between tbe latter and the union for the whole front portion which had theretofore been leased by National Housewares, and it was necessary that appellant find other quarters. All partitions, except those in the office area, were removed by appellant. Rogers testified that he was notified by one of the union officials that the new lessee would have the benefit and use of the remaining partitions, and appellant could not remove them.

On January 6, 1965, National Housewares instituted suit against Mrs. Trahin, Delta Oxygen Company, and Local 266, American Federation of Musicians, seeking an order allowing it to remove the remaining partitions, or, in the alternative, praying that it be awarded a judgment against the defendants in the amount of $1,500.00 for the value of the property, and damages for the wrongful detention of same in the sum of $1,000.00. Mrs. Trahin answered, alleging inter alia that the partitions remaining on the premises were fixtures, and could not be removed without damaging the property; waiver and estoppel were also pleaded. A non-suit was taken as to Delta Oxygen and Local 266, and the court, sitting as a jury, proceeded with the trial of the case. At the conclusion of the evidence, the court found for Mrs. Trahin, holding that appellant had failed to show that the owner of the property had consented to the subleasing of same, and there was no evidence that the owner of the property knew, or had been advised, that the additions to the property were being made. The court also held that there was no proof that would make the property owner responsible for commitments made by Delta Oxygen to National Housewares. It was further found that the walls became a part of the realty, and were constructed by appellant for its own use and benefit, and that appellant did receive benefits from such construction. The complaint was ordered dismissed. From the judgment so entered, appellant brings this appeal.

We agree with the trial court that National Housewares cannot prevail in this litigation, and actually, there are several reasons why this is true. As early as 1888, this court, in Gocio v. Day, 51 Ark. 46, speaking through Chief Justice Cockrill, said:

“The law imposes no obligation upon a landlord to pay his tenant for improvements made by him upon the demised premises. The tenant is presumed to repair and improve for his own benefit; and his only right to the fruits of his labor expended for that purpose, is to enjoy the enhanced value of the premises during the term, and within certain limitations to remove the improvement before its expiration. It is only by virtue of an agreement by the landlord to pay for improvements that the tenant can recover their value of him.”

This case was cited with approval in Capitol Monument Co. v. State Capitol Grounds Commission, 220 Ark. 946, 251 S. W. 2d 473.

It has already been mentioned that the BourneDelta Oxygen lease was not offered into evidence, and there is absolutely no proof that either Mrs. Bourne or Mrs. Trahin ever had any knowledge that the partitions were placed in the building, much less that they agreed that these partitions could either be installed or removed. The record also clearly reflects that some of the partitions were removed when National Housewares gave up the premises; as to the wall partitions now in litigation, Rogers said:

“Mr. Thompson stated to me that he had agreed . . . that Mr. Trahin had signed his lease that he could rent our offices and this with the partitions included and stipulated and he at that time notified me that Mr. Trahin said that he would take a court order if I attempted to try to move the partitions.”

This testimony was inadmissible as hearsay evidence, and excluded by the court; for that matter, there is not one iota of evidence reflecting that Thompson (of the union) spoke for Mrs. Trahin — or that Mr. Trahin had the slightest authority to represent appellee. The record does show that the partitions which were removed were not wanted by the union. It is thus evident that the question of whether these wall partitions could be removed, arose at that time, but again, there is no evidence that appellant ever made demand upon the owner to permit it to remove same. Instead, appellant waited more than two years before instituting suit in the matter. During this period, the walls were extended to the ceiling, and it appears from the pictures offered in evidence that the air conditioning system had been placed in the upper wall structure. To now remove the lower walls would be to remove the support of the upper walls, placed on the premises during the last two years.

It is thus shown that the partition walls have been utilized by the present tenant, and by the owner, for Rogers testified that these partition walls were included in the lease from Mrs. Trahin to the union.

Though appellant was aware of these circumstances, no explanation of any kind was given for waiting more than two years to commence action. Under the record here presented, it is evident that there was no effort to remove, or to obtain authority to remove, the partitions, within a reasonable period of time. In Pearce v. Williamson and Caldwell, 212 Ark. 413, 206 S. W. 2d 8, this court reversed a jury verdict for the appellees. There, a small house had been placed on Mrs. Pearce’s property. Mrs. Pearce claimed that this house had been moved from other property belonging to her to the later location. Appellees contended that the house came from the Williamson farm. The jury found for Williamson and Caldwell, but this court reversed, stating:_

“ * # * But we do hold that in placing the house at the millsite (assuming that it came from the Williamson farm) without consulting Mrs. Pearce, and in failing to remove it within a reasonable time after the mill had served its purpose, Caldwell justified the belief that there was no expectation of claiming it.”

We held that whatever rights the lessee might have had were so effectively disregarded that abandonment was fairly inferable, and Mrs. Pearce was justified in assuming that her possession would not be questioned.

Here, the property in dispute was attached to the building without consulting the owner, and it was not removed within a reasonable time after appellant left the premises.

Affirmed.

       According to witness Rogers, about one-third were removed.

      This is the only time that a Mr. Trahin is mentioned in the record, and it is not shown whether he was appellee’s husband, brother-in-law, father-in-law, or what his relationship may have been to appellee.


author:
George Rose Smith, Justice.
      John A. Fogleman, Justice,

text:
    Lewis DENDY v. GREATER DAMASCUS BAPTIST CHURCH et al
    5-4922
    444 S. W. 2d 71
    Opinion delivered August 25, 1969

      Anderson & Crumpler, for appellant.

      Brown, Compton, Prewett & Dickens, for appellees.
   George Rose Smith, Justice.

In 1965 the appellees, the Greater Damascus Baptist Church and its trustees, built a small church which proved to have been placed by mistake upon an acre of unfenced woodland owned by the appellant Dendy instead of upon an adjoining three-acre tract which the appellees had bought as a site for the church building. Dendy, by means of a survey, learned with certainty that the mistake had been made and demanded that the building be removed from his land. The church refused to comply with his demand. Dendy then brought this action in ejectment to recover possession of his property and damages for the removal of timber.

Upon the defendants’ motion the case was transferred to equity. The chancellor found that Dendy had been guilty of laches “when he stood by and allowed the building to be built without taking any action other than to say he believed it was on his land.” Upon that finding the chancellor entered a decree which (a) transferred the title to the three-acre tract from the church to Dendy, (b) transferred the title to the one-acre site from Dendy to the church, ,and (c) awarded Dendy $200 in damages. Dendy has appealed.

We must reverse the decree. We appreciate the chancellor’s sympathy for the congregation’s unhappy predicament, but the law does not sanction a resort to a rough and ready system of justice that demonstrably disregards Dendy’s property rights.

When Dendy first noticed that his land was apparently being cleared for some sort of construction he made an immediate investigation, which revealed the church’s plan to erect a building on the property. Dendy informed Jerusha Parker, a church member whom he thought to be in charge of the project, that he was reasonably sure that the site was his land. Despite that warning the church went ahead with its plans to erect the building. There is no evidence tending to show that Dendy misled the church members in any way. The most that can be said is that he did not follow up his warning by filing a suit to enjoin the construction. That, however, was not his duty. The church was at least equally at fault in failing to ascertain the exact location of its own three acres. In chancery cases involving fact situations even less favorable to the true owner than that presented by the case at bar we have held that the encroachment must be removed. McLendon v. Johnston, 243 Ark. 218, 419 S. W. 2d 309 (1967); Beaty v. Gordon, 236 Ark. 50, 364 S. W. 2d 311. Those decisions are controlling here.

The decree is set aside and the cause remanded for further proceedings consistent with this opinion. We note the fears expressed by the appellees’ counsel — that Dendy may attempt to claim the little church building as his property. He does not seem to have shown any inclination to do so, but upon that point we call attention to our decision in Shick v. Dearmore, 246 Ark. 1209, 442 S. W. 2d 198 (1969), and to Ark. Stat. Ann. § 50-103 (1947). Although that statute allows only twelve months for the removal of an improvement placed upon another’s land by mistake, the church asserted its rights within that time by the filing of its answer. Thereafter the pendency of the litigation would of course suspend the running of the statute. Winn v. Collins, 207 Ark. 946, 183 S. W. 2d 593 (1944). The chancellor will also fix the amount of ,any damage that Dendy may have suffered by the removal of the timber from his land.

Reversed.

Pogueman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the treatment and disposition of this case by the majority, except for the suggestion that the chancery court proceed under the decision in Shick v. Dearmore, 246 Ark. 1209, 442 S. W. 2d 198.1 adhere to the views stated in the dissenting opinion in that ease. I see no reason why proceedings cannot he had pursuant to Ark. Stat. Ann. § 50-103 (1947), which did not come to our attention in the Shick case. In this connection, I suggest the second paragraph of this section, however, is unconstitutional under Article 2, Section 13, of the Arkansas Constitution.


author: Lyle Brown, Justice.

text:
    PIKE COUNTY SCHOOL DISTRICT NO. 1 et al v. PIKE COUNTY BOARD OF EDUCATION et al
    5-4938
    444 S. W. 2d 72
    Opinion delivered August 25, 1969

      James A. Buttry, for appellants.

      Joe H. Hardegree, Prosecuting Attorney, for appellees.

      Arnold & Arnold, for intervenors Harmon O. Davis et al.
   Lyle Brown, Justice.

The sole question in this cause — No. 4938 — is the validity of the three challenged votes. During the pendency of this case in the lower court a petition purportedly signed by a majority of the qualified electors of District No. 1 was filed with the county board. That petition sought annexation to the Kirby District. Annexation was approved and appealed here. An opinion in that case — No. 5001 — is being rendered today.

Before discussing the facts relating to the challenged votes a brief summary of our constitutional and case law relating to voting residency is in order. Our Constitution restricts the voting privilege to those who have resided in the State twelve months, in the county six months, and in the precinct, town, or ward, one month immediately preceding any election at which the citizen proposes to vote. Election contests are tried by the court without a jury. We are committed to give the trial court’s findings on residency the force of a jury verdict. Consequently those findings are upheld if there is substantial evidence to support them; and that is true even though we might have reached a different conclusion had we been in the position of the trial court. Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931 (1953).

There are two important features in resolving the asserted validity of voting residence. First, there is the intent of the voter with respect to residency. Secondly —and equally important — is that the conduct of the voter must be reasonably consistent with his asserted residency. For example, we held in Phillips that the elector was eligible to vote in Franklin County notwithstanding he moved to Sebastian County sixty days before the election. That was because he convinced the trial court that his work in Sebastian County was temporary and there was no intention of surrendering Franklin County' as his permanent residence. In other words, his assertion of residency was found to be consistent with his conduct and we refused to reverse. On the other hand, the inconsistency of asserted intention with conduct is pointed up in Harris v. Textor, 235 Ark. 497, 361 S. W. 2d 75 (1962). There the Cartrights had lived in Pulaski County so long as to make their conduct inconsistent with their assertion that they never intended to give up their voting residence in Greene County. To the same effect see Wood v. Brown, 235 Ark. 500, 361 S. W. 2d 67 (1962). In special cases ,an extended absence will not necessarily cause a forfeiture of voting residency. We have so held in cases involving a voter in government service, college students, and young men enrolling outside their county in a government conservation camp. Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696 (1941); and Ptak v. Jameson, 215 Ark. 292, 220 S. W. 2d 592 (1949).

Turning now to the facts incident to the challenged votes, we have examined the record and find substantial evidence to support the trial court. Certainly the evidence was not overwhelmingly in favor of the validity of the three questioned votes; however, the evidence we shall summarize which supports the trial court’s findings was substantially sufficient.

The vote first challenged was that of Mrs. Doris Cathleen Schoeff. She finished the public schools at Lodi in Pike County (District 1) in 1963. Shortly after graduation she went to Huntington, Indiana, to live with her married sister. There she met and married Paul Schoeff. For a time the couple lived in Florida where Paul was stationed until he was shipped overseas in February 1967. After a brief stay with Paul’s parents in Indiana, Doris decided it would be better to live with her parents at Lodi, Arkansas, until Paul could fulfill his overseas military obligation. She took up residency at Lodi in May 1967, helping to equip a room at her parents’ home for herself, her son, and a child soon to be born. She opened a bank account at Grlenwood, obtained an Arkansas driver’s license, “and considered it my home,” at least until her husband returned, and hopefully thereafter. In fact she testified that she and her husband corresponded about buying her father’s farm and settling there; however, it was agreed that the decision to buy the farm would be postponed until Paul came home.

Doris duly registered as a voter prior to the school, election of June 18, 1968. Her husband was discharged early in June and headed for Lodi and his family. She testified that he inquired about the prospects of employment in Pike County; that the outlook was not too good and they decided to look over the situation at Columbia City, Indiana. They left for Columbia City some four days after the election, where Paul obtained a good job and they have remained. There was some evidence to the effect that they intend to return to Lodi, possibly after two years.

It is not disputed that Doris Schoeff intended to make her home in Pike County, at least until her husband returned from overseas. She resided there continuously for some thirteen months prior to and including the date of the election at which she voted. Her conduct was consistent with her assertion of residency; at least the trial court so found and on substantial evidence.

The challenged votes of Mr. and Mrs. Bobby Jack Vaught may be considered together. As a young couple they lived in numerous places because he was generally following public and seasonal work. Here is a chronology of their significant moves and activities in the years just prior to the school election of 1968:

In 1964 they moved to Lodi where his father lived; Bobby registered with the Pike County draft board in 1965 and the registration was never transferred; work grew scarce and he went to Indiana in May 1966; most of the Vaughts’ personal belongings were left in Lodi because, so they testified, their stay in Indiana was intended to be temporary; in November 1966 they voted absentee in Pike County; they started back to Arkansas in 1967 and Mrs. Vaught was seriously injured in a collision. That experience, said Vaught, delayed their departure for several months. They voted .absentee in the school election. They were re-established in Pike County in time to vote in person in the August 1968 primary election. In the interim they had paid taxes on personalty in Pike County.

It was not unreasonable for the trial court to conclude, from the assertions and course of conduct, that the Vaughts established their residence in 1964 and maintained it throughout the period described.

Affirmed.


text:
    PIKE COUNTY SCHOOL DISTRICT NO. 1 v. PIKE COUNTY BOARD OF EDUCATION et al
    5-5001
    444 S. W. 2d 75
    Opinion delivered August 25, 1969

      James A. Buttry, for appellant.

      Joe H. Bar degree, Prosecuting Attorney, for appellees.

      A mold & Arnold, for Intervenors Harmon O. Davis et al.
   Lyle Brown, Justice.

Pursuant to a petition purportedly signed by a majority of the qualified electors of Pike County School District No. 1, the county board of education ordered District No. 1 dissolved and its territory annexed to the Kirby District in the same county. The school board members of District No. 1, acting in an official capacity, appealed to the circuit court; and that court affirmed the county board. Appellant is Pike County School District No. 1. There are two classes of appellees; there is the Pike County Board of Education, designated as appellee; and Harmon O. Davis and five other citizens of District No. 1, designated appelleesintervenors. Three points of error are asserted, each of which shall be described, and discussed separately.

School District No. 1 alleges as prejudicial error the granting of leave by the circuit court to Harmon O. Davis et al., to intervene. Davis and five others described themselves as electors and taxpayers of District No. 1; they stated that all of them favored annexation, whereas the board members of District No. 1 (intervenors’ district) opposed it; and that intervenors wished to produce evidence to sustain the order of consolidation entered by appellee, the county board of education, whereas appellant District No. 1 would introduce evidence directed to nullify the county board’s holding. Harmon O. Davis was a leader in procuring signatures to petitions favoring .annexation. In fact, Davis filed the formal petition for consolidation and annexation; and he personally appeared at the public hearing held by the county board and presented two additional petitions.

We have ample precedent wherein this court has approved the allowance of interventions in situations analogous to the one before us. For example see Ozark School District No. 56 v. Jackson, 201 Ark. 381, 145 S. W. 2d 732 (1940); and Mammoth Spring School Dist. No. 2 v. Fairview School Dist. No. 7, 190 Ark. 769, 80 S. W. 2d 615 (1935).

The second point for reversal concerns the definition of the phrase, “qualified electors,” as used in Ark. Stat. Ann. § 80-418 (Repl. 1960); there it is provided that a majority of the qualified electors must sign the petition for dissolution and annexation. Here the petition was presented to the county board for final action on September 19, 1968. Within the preceding twenty days, five persons registered to vote in the county district. The trial court held those persons not to be qualified electors as of September 19. (Amendment 51, Section 9, sets up the so-called twenty-day cutoff period for registration, during which period registration is not effective except as to elections following the twenty-day expiration.) Those five persons were removed from the total number of electors to be used in ascertaining whether the petition was signed by a majority.

The five persons in question could not have voted in an election held on September 19, 1968. Ark. Stat. Ann. § 80-418 permits dissolution either upon petition signed by a majority of the qualified electors of the district to be dissolved, or by a majority vote favoring dissolution. When either one of those procedures is used the qualifications of the petitioners and the qualifications of the voters are intended to be the same. We therefore reject appellant’s theory that any person eligible to register, and who does register, on or before the submission of the petition for dissolution, should be counted as a qualified elector. In fact, the filing of a petition for annexation has been likened to the holding of an election. In Dansby School Dist. No. 34 v. Haynes School Dist. No. H, 210 Ark. 500, 197 S. W. 2d 30 (1946), we said that by the signing of a petition changing boundaries of a school district the signers were in effect easting their ballots.

This brings us to appellant’s final contention. When this litigation was being tried, School District No. 1 questioned the right of the court to order annexation in toto; the challenge was based on the existence of a compact between District No. 1 and Glenwood School District whereby certain pupils from District No. 1 would attend Glenwood schools during the 1968-1969 school year. District No. 1 contends the trial court should have recognized the compact as binding and excepted from any annexation transfer those pupils then or afterward attending Glenwood under the compact. Neither Glen-wood District nor Kirby District is a party to this proceeding; no effort was made to join them; nor was any proof tendered on tbe status of the compact. Nothing in the record reveals the attitude of the Kirby board toward the contract. Under those circumstances the trial court was correct in holding “this issue is not ripe for ' adjudication. ’ ’

Affirmed.


author: J. Fred Jones, Justice.

text:
    Peggy GEORGE v. Jackie GEORGE
    5-4887
    444 S. W. 2d 62
    Opinion delivered August 25, 1969

      Hodges, Hodges & Hodges, for appellant.

      Pickens, Pickens & Boyce; By: James A. McLarty, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Peggy George from a decree of the Jackson County Chancery Court holding that her former husband, Jackie George, is not the father of her child. This .appeal questions the sufficiency of the evidence to overcome the presumption of the legitimacy of a child conceived during marriage but born after divorce.

Peggy and Jackie George were married on November 18, 1961, and separated on June 16, 1967. One child was born on July 13, 1962. Peggy was granted a divorce on September 7, 1967, on her complaint of indignities and the custody of the child was awarded to her. Jackie’s eountercomplaint of indignities was dismissed and Jackie was ordered to pay $75 per month for the support of the child.

On February 28, 1968, Jackie filed a petition for a modification of the original decree as to child support praying a reduction because of impending military service bringing about change in condition as to income. On March 12, Peggy filed a general denial and on May 24, 1968, she filed a response to the petition for modification denying that Jackie’s income would be reduced by induction into the National Guard but would be enhanced. Also on May 24, Peggy filed a counterpetition for modification of the original decree alleging the birth of an additional child, subsequent to the date of the original decree, and praying for additional support for the two children. On June 12 Jackie filed an answer to the countorpetition and denied the paternity of the second child.

The chancellor found that there had not been such change in the condition of the parties as to justify a change in the original decree as to support money and the petitions of both parties for modification were denied. The chancellor further found and decreed that Jackie George was not the father of the second child. Peggy relies on the following point for reversal:

“The chancellor erred in finding that the child born to appellant after the rendition of the decree was not the child of appellee in view of the testimony and current Arkansas case decisions.”

Both parties testified that they separated on June 16, 1967, and have not lived together or engaged in sexual intercourse with each other since that date. Jackie testified that he last had sexual relations with Peggy one or two weeks prior to their separation on June 16, and Peggy testified that they had sexual relations on June 15 or June 14 before they separated on June 16. The child, a girl, was born on March 29,1968, and Peggy testified that the birth followed a full term pregnancy. The child weighed 5 pounds, 11 ounces at birth.

Jackie offered to submit to a blood test for use in evidence as to paternity and a blood test was ordered by the chancellor. Peggy objected to submitting the child to a blood test and none was carried out. Dr. Jabez F. Jackson was the obstetrician who attended Peggy during her pregnancy and at the child’s birth and Jackie called Dr. Jackson as a witness. Peggy claimed the medical privilege as to Dr. Jackson’s testimony by general objection. The general objection was overruled but specific objections to most of Dr. Jackson’s testimony were sustained by the chancellor. Dr. Jackson was permitted to testify anyway “for the record,” the substance of his testimony being that he first saw Peggy on September 9, and that Peggy gave .a history of having menstruated in July. The only pertinent testimony of Dr. Jackson to which objections were not sustained, is as follows:

“Q. And how was the birth brought about, Dr. Jackson?
A. Well, I induced it.”

Peggy testified that she had. been seeing Dr. Jackson prior to the separation and she admitted a menstrual period of one day’s duration after she suspected or knew that she was pregnant.

We conclude that the chancellor erred in decreeing that Jackie George is not the father of the child under the evidence in this case. There is no contention that Jackie and Peggy were not still married to each other on the date of conception, whether it occurred when Jackie testified he last had sexual relations with Peggy one or two weeks prior to June 16, 1967, or whether it occurred on the occasion as testified by Peggy, one or two days prior to June 16, 1967.

Certainly Peggy’s attitude toward blood tests and her objections to Dr. Jackson’s testimony do not add anything to the credibility of her testimony, but Jackie had the burden of proving his allegations that he is not the father of the child conceived during his marriage to Peggy, and the burden was not on Peggy to prove that the child was conceived through sexual relations with her husband.

There is no evidence in the record, including the original divorce proceedings, that Peggy was guilty or even accused of adultery, or of infidelity to her marriage vows. She testified that no one else except Jackie could have been the father of the child. The nearest thing to a suggestion of impropriety on Peggy’s part was testimony at the original trial to the effect that Jackie, on one occasion, left the house with a gun and with threats against someone who had called on the telephone inquiring about the welfare of the older child who had been injured in an automobile wreck. There is no evidence in the record as to the significance of a one day menstrual period in the early months of pregnancy. Apparently the chancellor based his opinion primarily on the length of time between the last admitted sexual relations and the birth of the child. The appellee states in his brief as follows:

Using the date of birth as beginning point and substracting 270 days, the normal period of gestation for humans, the date of June 27, 1967, is produced as the probable date of conception. This is some eleven days after the date of separation and is within a period in which it is undisputed that appellee was without access to the appellant.'” (Appellee’s emphasis.)

There is no testimony in the record, medical or otherwise, as to the normal gestation period for humans, hut in Blakiston’s New Gould Medical Dictionary under “pregnancy” is found the following: “The duration of pregnancy in woman is approximately 280 days.” There is no evidence in the record as to the .acceptable deviation from normal.

The appellant argues that under Ark. Stat. Ann. § 61-104 (1947) providing that “the issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered legitimate,” should settle the question here. The question here is not whether the issue of a marriage is legitimate, but the question is whether the child involved in this case is the issue of the marriage. We agree with the appellee that the statute does not apply to the situation in this case.

The appellant argues that we should follow the rule announced in bastardy proceedings (Kennedy v. State, 117 Ark. 113, 173 S. W. 842), and in descent and distribution cases (Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22; Morrison, Adm’x v. Nicks, 211 Ark. 261, 200 S. W. 2d 100) as reiterated in West v. King, 222 Ark. 809, 262 S. W. 2d 897, that “there is a well recognized presumption that children born to a couple lawfully married are the children of the husband;” that this presumption “is one of the strongest presumptions known to the law and that it continues until overcome by the clearest evidence that the husband was impotent or without access to his wife,” and the appellant argues that this presumption should apply to the time of conception, unaffected by subsequent divorce.

The appellee argues that this presumption has been weakened by the ravages of time and that the presumption should be relaxed because of its age. The appellee urges us to re-examine our prior holdings, relax our previous rules as to the quantum and quality of evidence required to rebut the presumption of legitimacy, and he concludes as follows:

“The appellee strongly urges that the allowance of blood test results and other relevant evidence, rather than only allowing evidence of the husband’s impotency or non access, represents a far more enlightened position than does the old presumption. Here is a man who had not been with his former wife for more than nine months. He had gone through the ordeal of divorce and had never once been remiss in his obligation to his child. He had started a new life for himself by remarriage. To require this man to exonerate himself by using only evidence of impotency or non access is an unfair, if not impossible, requirement. A man, whose former wife gives birth after their divorce, should be able to rebut the presumption of legitimacy by any relevant evidence. The appellee urges that this court adopt such a rule by overruling its prior holding, in as much as they apply to the fact situation at bar. For these reasons, the Chancellor’s decision should be upheld.”

The appellee points to Ark. Stat. Ann. §§ 34-705.1— 34-705.3 (Repl. 1962) as legislation indicating a public policy contrary to the presumption of legitimacy. This statute pertains to blood tests in paternity proceedings, is digested under the chapter on “Bastardy,” and provides :

“Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the husband, wife .and child submit to one [1] or more blood tests to determine whether or not the defendant can be excluded as being the father of the child.

We are not concerned in the case at bar with all the evidence that would rebut the presumption of legitimacy, we are only concerned with whether the evidence that was submitted -at the trial in this case was sufficient to rebut the presumption of legitimacy, and we conclude that it was not.

Reversed.

      As to the conclusiveness of blood tests in cases of this nature see Prochnow v. Prochnow, 274 Wis. 491, 80 N. W. 2d 278.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Henry WELTER et al
    5-4907
    444 S. W. 2d 65
    Opinion delivered August 25, 1969

      Thomas B. Keys, Philip N. Gowen & Hubert Graves, for appellant.

      George J. Gambiano, for appellees.
   Conley Byrd, Justice.

This is an eminent domain action by appellant Arkansas State Highway Commission for the taking of 1.94 acres at the intersection of Highways 1-40 and 95 for construction of the westbound offramp of the interchange, and for ,a temporary construction easement containing 0.75 acre. Involved in the permanent taking is all or part of 12 lots according to a recorded paper plat of the forty acre tract. The construction easement covers four additional lots.

The Highway Department deposited $100.00 as estimated just compensation for the two easements. From judgment on a jury verdict awarding $23,000.00, the Highway Department appeals contending that there was no basis for the valuation testimony given by the landowners’ witnesses and that we should enter a verdict consistent with testimony of the highway department’s witnesses.

The landowners, Henry and Lucille Welter and James and Alexia Hart, introduced as valuation witnesses Charles B. Owens, Henry Welter and Grene Huett. All three witnesses readily admitted that the property involved was platted into a paper subdivision in 1959 or earlier and that no streets or utilities existed on the property. The nearest utility was 500 or more feet away. All witnesses followed the paper subdivision description in testifying.

Mr. Charles Owens testified to a before value of $27,000 and an after value of $3,000, for total damages of $24,000. He stated that he arrived at his values by the comparable sales method and that the valuation of the lots was $30.00 per front foot. He also admitted that he compared the undeveloped lots to the fully developed lots in North Hills Addition which were selling for $30.00 per front foot. He also conceded that the North Hills subdivision had all streets, utilities, curbs and gutters in place at the time of the sales involved. On cross-examination he testified:

“Q. You are saying the State of Arkansas should pay Mr. Welter just as much for this undeveloped property as we would have to pay you for in Deerwood or North View!
A. Yes, Sir.
Q. You think that is reasonable?
A. Yes, Sir.
Q. That is your expert opinion?
A. Yes, Sir.”

Mr. Henry Welter testified that his property had a before value of $31,000 and a value after the taking of $3,000 for a total damage of $28,000. He stated the property was platted into lots and blocks in 1959 or earlier and has been planted in pine trees for 7 or 8 years. He agreed with Mr. Owens that the nearest utilities .are 500 feet away. On direct examination he testified that he had checked into subdivision property and that the North Hills subdivision was selling for $30.00 a running foot and corner lots at $15.00 more. He then gave a $2,-000 a lot value to the lots fronting on highway 95 and a $1,500 per lot value to the back lots. Based upon these valuations he arrived at his damages of $28,000. He admitted that the North Hills subdivision had all the utilities in place with curbs, gutters and paved streets at the time of the sale of those lots. On cross-examination he testified as follows:

“Q. I can’t get over the fact, Mr. Welter, that you testified that your undeveloped lots — this is your testimony — you are testifying that these undeveloped lots — this undeveloped subdivision — the lots have the same value as North Hills Subdivision.
'A. Yes, sir. Trees come high. They don’t come every day.
Q. You are telling this jury, just like Mr. Owens told this jury, that your undeveloped property that has been laying there eight or nine years, a lot is worth just as much on the market as a lot in a going subdivision?
A. Yes, sir.
Q. Is that what you want them to believe?
A. That’s right.”

Mr. Gene Huett, after qualifying as an expert, arrived at a before value of $26,750 and an after value of $3,000 for a total damages of $23,750. On direct examination he testified as follows:

“Q. How did you arrive at the figure of $26,-750.00?
A. I used for the seven front lots down this street the basis of $35.00 per front foot. That is $12,250.00. And five lots on the back at $25.00 a foot, $6,250.00 and two lots for the street, one on the front and one on the back— the one on the front $35.00 a running foot .and the other on the back at $20.00 — $3,000.00
Q. All right.
A. Three lots for the front the easement $35.00 a running foot, $5,250.00.
Q. How did you arrive at the after value?
A. The three lots that will be returned I figure they would be damaged $750.00. They Avould be worth $1,000.00 apiece Avhen returned, and $750.00 damage.
Q. That leaves a figure of $23,750.00?
A. That’s correct.
Q. Mr. Huett, is there any what we call enhancement value of this property as a result of the highway? I am talking about the property we have before up within the taking?
A. Not that I can see.
Q. Why do you say that?
A. Well, in my opinion, it is on the wrong side of the road to be commercial, to be of value for commercial on Highway 95.”

On cross-examination he agreed that the property involved was not in the city limits of Morrilton, that no zoning was involved and that he used the comparable sales method based upon the sale of developed lots in the North Hills subdivision.

We agree with the Highway Commission that the trial court should have struck the testimony of all the landowners’ witnesses relative to valuation because there is a total absence of any reasonable or factual basis in the record for comparison of the value of lots in the paper subdivision with the sales price of fully developed lots in North Hill subdivision where all utilities, streets, curbs and gutters were in place. See Arkansas Highway Commission v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808 (1969).

Under its second point the Highway Commission contends that since there was no substantial evidence to support the verdict appellant is entitled to have the judgment modified and the trial court directed to enter a judgment consistent with appellant’s testimony. With this we cannot agree. Both of appellant’s Aritnesses arrived at their after valuations on the basis of an enhancement caused by the freeway offramp. Both witnesses however recognized that there was a high-pressure gas line bisecting the two lots immediately adjacent to the offramp. From the testimony we find that a fact issue existed as to whether the property could be used for commercial purposes because of tbe Mgb-pressure line. Appellees’ witness Charles Owens testified that no building could be constructed upon the lots because of the high-pressure line. However, when we state that an issue of fact exists on this question, we point out that the issue of fact only exists under the record as made. It may be possible on retrial that any fact issue relative to the enhancement or the possibility of building on the property involved may be resolved beyond any doubt.

Reversed and remanded.


author: Frank Holt, Justice.

text:
    Roy C. BARNHILL v. STATE of Arkansas
    5422
    444 S. W. 2d 97
    Opinion delivered August 25, 1969
    [Rehearing denied September 22, 1969.]

      E. L. Holloway, for appellant. •

      Joe Purcell, Attorney General; Bon Langston and Mike Wilson, Assistant Attys. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged with violation of Ark. Stat. Ann. §§ 75-901 and 75-903 (Repl. 1957), commonly known as the “hit and run” statutes. Upon a jury trial he was found guilty and his punishment assessed at one year imprisonment in the county jail and a $500 fine. From the judgment on that verdict comes this appeal. Appellant’s present counsel did not represent him in the trial of the case.

The appellant contends that the trial court erred in not granting his motion for a directed verdict at the close of the appellee’s case; in refusing his renewed motion at the close of appellant’s case; and that the verdict is contrary to both the law and the evidence. Thus, appellant asserts that the evidence is insufficient to support the verdict.

It is a well established rule that upon appeal we must review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support the jury’s verdict, then it must be sustained. Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374 (1945); Finley v. State, 233 Ark. 232, 343 S. W. 2d 787 (1961). We review the evidence in accordance with this governing principle of law.

There was evidence that the appellant was the driver of a vehicle which ran a stop sign at a street intersection and collided with another vehicle. A witness found Mrs. Robinson, driver of the other vehicle, groping alongside her car in a dazed condition. Appellant was observed sitting in his car which was stopped a short distance from the scene. During the time that witnesses were rendering aid to Mrs. Robinson, the appellant, who was recognized by these witnesses, continued to sit in his car with his head leaning forward. He was asked not to leave the scene. However, before Mrs. Robinson was removed from the scene, the appellant left at a “fast clip” with his tires making a “squalling” noise and turned a street corner at a fast rate of speed. His car was found unoccupied and stuck in the mud a few blocks from the scene. Before he left he did not offer any aid or assistance to Mrs. Robinson or to her benefactors. He did not in any manner offer his identification. Mrs. Robinson was taken to the hospital and her injuries were such that she remained in the hospital for approximately one month. A short time preceding the accident the appellant was observed driving in such a manner that a motorist’s car was forced from the road. Appellant stopped his car on the side of the road and then proceeded in his original direction which was a short distance from the intersection accident. There was evidence that a short time following the accident and also about an hour or hour and a half thereafter when appellant was arrested at his home, his behavior and appearance indicated that he was under the influence of drugs or intoxicating liquor and that he did not appear to be “at his-self” and “didn’t remember much about” being involved in an accident.

In our view we think there is substantial evidence to support the jury’s verdict that the appellant did not comply with the pertinent traffic statutes {% 75-901 and § 75-903) which require that the driver involved in an accident resulting in injury to any person shall stop his vehicle and in every event shall remain at the scene until he has identified himself and his vehicle. Further, that he shall render to any injured person in such accident reasonable assistance, including hospital and medical attention if nécessary. Although his identity was known and others were rendering aid, there is evidence that appellant hurriedly left the scene of the accident before Mrs. Robinson was removed and after being requested not to leave.

Appellant next asserts that the trial court erred in refusing to grant him a new trial for the reason that his court appointed counsel was inadequate because of illness or inexperience. We cannot agree with appellant. Based upon this assertion in Ms motion for a new trial, the court conducted an evidentiary hearing. According to appellant, his attorney was suffering from the flu, had a Mgh fever and was physically unable to properly represent him on the day of the trial. Appellant testified that Ms counsel did not call two witnesses which appellant requested; that he did not propound certain questions that he wanted witnesses to be asked; that he did not offer in evidence certain pictures and voiced insufficient objections. The appointed counsel testified that he was 26 years of age, a 1967 graduate of the University of Arkansas Law School and had practiced law for approximately 17 months. He described his condition on the day of the trial as being “ill” rather than “sick” from the flu. He testified that Ms illness did not physically or mentally incapacitate him in such a manner that he could not adequately represent the appellant; that he was not aware of any evidence that he failed to present because of his illness; that he had discussed the case with the appellant on occasions for about a year previous to the trial; that it was appellant’s decision not to take the stand in his own behalf, that one witness, a physician, was not called to testify on behalf of appellant because the appellant did not want to subpoena Mm; that he had not refused to present any witnesses or evidence requested by the appellant and that he had conducted the defense according to Ms best judgment; that he had consulted with the appellant about trial strategy and .appellant was made aware that as a witness he was subject to cross-examination about past conduct and perhaps it would not be to appellant’s advantage. This and other aspects of trial strategy were discussed with appellant in conference with other counsel. Appellant himself testified that during these conferences he was advised that he might be asked questions that he “wouldn’t want to answer.” Further, that his counsel did not refuse him the right to testify and .asked Mm if he could add anything to the evidence. Appellant said he declined because he couldn’t remember anything about the accident. The court noted that if appellant’s counsel had appeared to be incapable of defending appellant, it would have, on its own motion, continued the case.

We agree with the trial court’s refusal to grant a new trial based upon appellant’s contention of inadequacy of trial counsel. We cannot agree with appellant’s assertion that his counsel, because of inexperience or illness, conducted his defense in such a manner that his trial was a farce and a mockery of justice which denied him a fair trial. The appellant’s court appointed counsel had worked on his case for approximately a year and preceding his trial had successfully quashed one jury panel. Appellant’s complaint about his counsel’s conduct of the case primarily relates to trial strategy or tactics which involve the elements of discretion, and judgment upon which competent counsel might honestly disagree, especially after the event. Therefore, the conduct of appellant’s defense did not constitute the denial to him of a fair trial. Thomas Linville Coleman v. State, 242 Ark. 751, 415 S. W. 2d 549 (1967). See, also, 24 A. L. R. 1025; 64 A. L. R. 436; 74 A. L. R. 2d 1390. The appellant has not demonstrated that he did not have effective assistance of counsel in the trial of his case. To the contrary, it .appears that appellant was provided competent and diligent representation.

Affirmed.

Fogleman, J., not participating.


text:
    James Charles MCCLAIN v. STATE of Arkansas
    5423
    444 S. W. 2d 99
    Opinion delivered September 2, 1969

      John F. Stroud, Jr., for appellant.

      Joe Purcell, Attorney General; Don Langston, Mike Wilson, Asst. Attys. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, James Charles McClain, was charged by Information filed in the Circuit Court of Miller County with the crime of robbery, allegedly committed at the 7-11 Pood Store in Texarkana. He was tried on February 4, 1969, before a •jury, found guilty, and his punishment was fixed at 12 years’ confinement in the state penitentiary. From the judgment so entered comes this appeal.

The proof reflects that at approximately 10:30 P.M., oh Christmas Eve, 1968, a lone person entered the 7-11 store, and forced Mrs. Tony Smith, an employee of the store, at gunpoint, to give to him the money contained in the two cash registers. As the gunman was leaving, another man, Charles Wagner, entered and saw the robber. Shortly thereafter, police officers obtained a description of the gunman from both Mrs. Smith and Wagner. Four days later, George Sewell, of the Texarkana police force, showed Mrs. Smith a picture of a suspect (a “mug shot”), but Mrs. Smith said that he was not the robber. A day or two later, another picture, also a “mug shot,” of another man, was shown to Mrs. Smith, but she made the same answer. On December 31, Sewell and officer Jim Pinson took a third picture to Mrs. Smith, this picture being of appellant. Sewell testified that, when the picture was placed in front of her on the counter, she jumped back, threw a pencil that she was holding, and said, “ ‘ G— D — , that is the one that robbed me. ’ And she just broke down and went to crying, and just went all to pieces. At that time we were unable to get any calmness from her. She was shook up and in an almost state of shock.” At the time, McClain was being held in the Shreveport, Louisiana, jail, and had waived extradition proceedings to return to Arkansas because of a charge that had been lodged against him at Mena. After being charged with the Miller County crime, counsel for appellant filed a motion to suppress the testimony of Mrs. Smith, relative to the pre-trial identification of appellant from the photograph, it being asserted that the procedure used in presenting the photograph suggested to Mrs. Smith that appellant was the person who robbed her. Appellant principally relied upon the case of Simmons v. United States, 390 U. S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967. After taking the evidence of Sewell, Mrs. Smith, and Walter Weir, a detective with the Texarkana, Arkansas, Police Department, in chambers, the court said:

“I fail to find that the identification procedures by exhibiting the photographs were so impermissibly or unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable mis-identification, which is what I understand the standard to he * *

The motion was denied, and the case proceeded to trial before the jury. There, Mrs. Smith and Sewell testified, and Mrs. Smith identified appellant in the courtroom as the man who had held the gun on her and robbed the store. No testimony, or evidence of any nature, was offered on behalf of appellant.

For reversal, it is first asserted that the motion to suppress the testimony of Mrs. Smith relative to her identification of appellant should have been sustained inasmuch as the photograph identification procedure employed by the officers was so impermissibly suggestive as to give rise to a substantial likelihood of irresponsible misidentification. It is then asserted that the in-court identification of appellant by Mrs. Smith should not have been allowed because the improper photograph identification tainted the in-court identification for the reason that the witness was apt to retain in her memory the image of the photograph, rather than the person actually seen. We proceed to a discussion of these points.

In Simmons v. United States, supra, the United States Supreme Court said that circumstances involved in pretrial photograph identification procedure could be so unduly prejudicial as to call for a reversal of a judgment of conviction. The court stated that it was unwilling to prohibit the use of initial identification from a photograph, and mentioned that this procedure had been used widely and effectively in criminal law enforcement. It was pointed out that the danger of a conviction based on misidentification could be substantially lessened by a cross-examination at trial which exposed to the jury the method’s potential for error. It was then stated:

“Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

The court held that Simmons could not prevail in his contention, but appellant points out factual differences between that case and the present one, and suggests that Simmons sets a standard not met by the evidence in the case before us, and this being true, the trial court should have granted the motion to suppress. He then lists factual differences as follows:

“1. The robbery occurred in the afternoon in a well-lighted bank;
2. The robbery was witnessed by five employees for almost a period of five minutes;
3. The photographs were shown a day later while memory was still fresh in employees minds;
4. At least six photographs were displayed to each witness. These consisted primarily of group photographs with the defendants each appearing several times in a series;
5. There was no evidence that the FBI Agent in any way suggested which persons in the pictures were under suspicion;
6. The robbers were still at large and the FBI Agents had to determine if they were on the right track; and
7. None of the witnesses displayed any doubt about their respective identifications of the Defendant in viewing the photographs in that trial where each identified Defendant as the person.”

It might be here stated that, though some other cases are also cited, Simmons is by far the strongest support for appellant’s position; in fact, it would seem that the procedure followed in the photograph identification was almost perfect, and it might he added that the identification methods in the other cases called to our attention were not nearly so thorough. As a matter of fact, there would be but few cases where the circumstances supporting identification could he more cogent than in Simmons. Let it be remembered that Simmons does not require five witnesses — or that the photographs be shown no more than a day later — or that six photographs be displayed to the witnesses; rather, the holding was simply that each case must be considered on its own facts.

Appellant first complains that the showing of the picture of just one person to the witness flagrantly violated the standard in Simmons, and that this procedure presents a clear danger of misidentification. It is true that the photograph of only one person at a time was shown to Mrs. Smith, but it is also true that photographs of two other suspects were earlier shown to her within a three-day period. All of the pictures were photographs of persons that the police considered in line with the general description. The testimony reflects that Mrs. Smith very quickly rejected the first two photographs as not being the person who entered the store.

It is also argued that the use of the “mug shot” of McClain whs prejudicial, suggesting as it did that this man was already being held in jail, and was a criminal. It is admitted that the use of “mug shots” does not, in itself, violate the Simmons standard, but appellant says:

“* * * however, when coupled with the fact that the ‘mug’ shot of just the Defendant and no one else was shown to the witness for comparison in her identification of the robber, the cumulative effect results in an abrasive violation of the Simmons standard.”

Here, again, this was not the only picture of that type exhibited to Mrs. Smith for identification; the first two photographs presented to the prosecuting witness were also “mug shots.” It would not thus appear that appellant was prejudiced, because of the particular photographs presented. Under appellant’s reasoning, Mrs. Smith would have been more apt to have chosen the first picture shown. In Saville v. United States, 400 F. 2d 397, eight “mug shots” were shown to a witness, and she identified the defendant from the eight pictures, though it was pointed out in a concurring opinion that the picture selected was the only one where the person pictured had grey hair or was wearing a parka, as defendant had been described. Perhaps the showing of a group picture, including a suspect, would be preferable, but such pictures are not always available.

It is argued that the Texarkana police unwittingly communicated to Mrs. Smith the thought that appellant was the robber. This assertion is based on the fact that one of the officers said: “We have another picture we want you to look at and see if this was him.” We fail to see how this remark could have had any effect on the witness. As each separate photograph of the three men was presented to her, she certainly knew that the officers thought there was a possibility that each could have committed the robbery, else the pictures would not have been shown to her.

Appellant next says that the amount of time the witness has to observe the perpetrator of the crime is a circumstance that must be weighed in determining whether the photographic procedure was impermissibly suggestive. Mrs. Smith first testified that the period of time of the robbery was probably about ten minutes, but on cross-examination, she admitted that the time could have been considerably less, possibly within a minute or two.

It is pointed out by appellant that only Mrs. Smith was able to identify the appellant from the photograph; Mr. Wagner, who had seen the robber leave the store was unable to positively identify the picture as- a likeness of the person he saw leaving. This is not surprising, since one ivas going out the door as the other entered, and, of course, there was no reason-for Wagner to particularly notice the man leaving, since he was not, at that time, aware of the robbery.

It is also mentioned by appellant that the testimony of the officers and Mrs. Smith, relative to her actions .at the time she was shown the photograph of McClain, was conflicting, the police testimony being to the effect that when she saw the picture she practically went into hysterics, threw a pencil which she was holding in her hand, broke down and started crying, and seemed to be in a state of shock. Mrs. Smith testified that she did not say anything until she had placed the match box on top of the picture. She admitted the use of the profanity, mentioned by the officer, but denied the other actions. Whether Mrs. Smith started crying, or nearly went into hysterics, is not really the important point; all three agreed (Mrs. Smith and the officers) that the identification was positive, and expressed without the slightest hesitation or equivocation and without any prompting whatsoever.

It is vigorously argued that the courts have placed emphasis on the fact, when approving photograph identification, that the defendants were at large, and that it was necessary for the police to immediately determine whether they were on the right track. Here, the suspect was in custody of the Police 'Department in Shreveport, Louisiana, and appellant states that the officers knew that he had already waived extradition to Arkansas on .another charge. Accordingly, says appellant, there was no necessity for the officers to act swiftly, and there was no need to present the photographs to Mrs. Smith for identification; within a few days, she could have viewed the suspect in a line-up. We do not find anything in the record which establishes that the Texarkana Police Department knew that McClain had already waived extradition proceedings, and would accordingly be returned to Mena within a short time. Of course, it would not be logical to initiate steps to extradite a suspect, simply because he answered the general description given by Mrs. Smith to the officers at the time of the robbery. She had already said that the first two pictures shown her were not pictures of the robber, and it certainly seems that it would have been premature, and a little foolish, to have gone to Shreveport and returned McClain, perhaps after hearings, simply to give Mrs. Smith a chance to look at him in person. At any rate, this is only one circumstance, and we do not think even if the Texarkana police knew that, the man was to be returned to another Arkansas county, that the evidence should be suppressed because of that fact.

Admittedly, the circumstances here are not so strong as those in Simmons, but we reiterate that that case is an example of the ideal circumstances for identification — not the required quantum of evidence. Of course, there are cases of all types, including murder cases, where the circumstances present almost a perfect ease; in others, the evidence is not nearly so strong— but that does not mean that the defendants in the latter cases should be released because the evidence does not measure up to the proof in the first mentioned category.

The state, on trial before the jury, did not rely upon Mrs. Smith’s photograph identification. This was not mentioned in the direct evidence offered by the Prosecuting Attorney. The facts relative to that occurrence were originally brought out by .appellant on cross-examination of the state’s witnesses. Mrs. Smith, as previously mentioned, identified appellant in court as the robber, and appellant was endeavoring to show that the in-court identification was suggested, and was really dependent upon the identification of the photograph, i. e., that she simply recognized appellant as the same man who appeared in the photograph.

Mrs. Smith was very positive that her in-person identification had no connection with the identification of the photograph: “Anybody that has a gun stuck in my face, I’m going to remember that face, * * * If I had never seen that photograph, I could still recognize him.” Having held that the identification procedures employed were not impermissibly suggestive, it follows that the second point is also without merit.

The testimony of Mrs. Smith relative to the robbery, set out in the statement of the case, and the in-court identification were sufficient to make a jury question, and the jury found that the crime had been committed, and appellant' perpetrated the robbery.

Affirmed.

      “Mug shot” is slang for a picture taken of a suspect while he is in custody of the police. In viewing the pictures, Mrs. Smith took a match box and placed it on the forehead, because of the fact that the robber was wearing a toboggan cap at the time of the holdup.

      Actually, Sewell testified that they exhibited two pictures to Mrs. Smith, one, a front view, and the other, a side view of appellant. Mrs. Smith testified that she only saw one picture, the front view, possibly meaning she only examined this picture. Sewell said that Mrs. Smith was so upset when shown the picture that she evidently did not recall the second one. The pictures had been obtained from the Texas City Police Department, which had made mug shots of McClain in September of 1967.

      There was only one suggestion by the court for improvement in the procedure followed, this suggestion being found in Footnote 6 of the opinion.

      Nonetheless, we have found only one case where the procedure employed in photograph identification occasioned a reversal.

       The opinion recited that the conviction was sustained under another identification, but the court refused to find that the defendant was prejudiced because of the identification herein described.

       Mrs. Smith had described the robber to the police as follows: 30 to 35 years old, 5 feet 4 inches in height, 135 pounds, light brown hair, medium complexion. Mr. Wagner, who, of course, only saw the robber as they passed, gave the following description: 22 to 27 years old, 5 feet 5 inches tall, 145 to 150 pounds, brown hair. Actually the appellant is 36 years old, 5 feet 7 inches tall, and his hair is a reddish brown.

      McClain might have resisted extradition to this state when he learned that this additional charge was pending, and it is almost certain, with Arkansas offering nothing more substantial than a general description, and no identification, extradition would have been refused.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Bernice WILLIAMS and Reba Williams DILWORTH v. Margaret OWEN et al
    5-4915
    444 S. W. 2d 237
    Opinion delivered September 2, 1969

      Patten & Brown, for appellants.

      Gauglian, Laney, Barnes & Roberts and Streett & Plunkett, for appellees.
   George Rose Smith, Justice.

This case involves primarily the respective rights of the various parties to the use of a corridor or driveway, 232 feet long by 20 feet wide, that runs northwesterly from Highway 79 near Camden to a homestead owned by the appellants, Bernice Williams and her sister Reba Williams Dilworth. The appellants claim the exclusive fee ownership of the driveway, but the appellees assert public and private easements in their favor. This appeal is from a decree sustaining the appellees’ contentions in several respects that can best be discussed one by one after the facts have been described in broad outline.

The Barney Joyces formerly owned a 40-acre tract abutting Highway 79 to the south. Over a period of several years the Joyces sold off various parcels, eventually retaining only a homestead of substantial size and the corridor now in dispute. In 1944 the Joyces sold the home place and the corridor to the appellants. Since then Bernice Williams and her mother have occupied the home and used the driveway.

In 1967 Miss Williams asserted her claim to exclusive ownership by erecting fences along both sides oí the driveway throughout its length. Three separate suits were promptly filed by the appellees, all claiming easements in the disputed strip. The cases were consolidated for trial and ended in the decree now under review.

I. The appellants insist that the chancellor erred in vesting the fee title to the driveway in the appellees Harvey, who now own all the lands abutting the driveway on both sides. The decree, however, does not clearly so provide, and in this court the Harveys readily concede that they claim only an easement in the strip. Hence we need not discuss this point, which can be set at rest by the entry of a more precise decree on remand.

II. The chancellor found that public and private easements in the driveway were acquired by prescription after the Joyces sold their land. During the prescriptive years the lands now owned by the appellees were held in three separate ownerships. What we will call Tract 1 abutted the driveway along its western border. Tract 2 abutted the driveway on the east. Less than a year before this litigation arose the Harveys bought Tracts 1 and 2 and consequently now own all the lands on both sides of the corridor.

Tract 3 abuts the appellants’ land on the east, the two southern boundaries forming a continuous line. The driveway reaches the appellants’ southern boundary at a point five feet east of the southeast corner of their property. Hence Tract 3 is separated from the northeast corner of the disputed corridor by that distance of five feet. Thus the occupants of Tract 3 cannot reach the driveway except by crossing either the appellants’ land to the west or Tract 2 to the south.

We consider first the chancellor’s finding of private easements in the driveway. For more than seven of the prescriptive years the appellee Margaret Owen and her late husband owned and occupied Tract 3. Owen maintained a plumbing business in .a small building east of the dwelling house on the property. Both, the Owens and their customers continually used the driveway in going to and from Highway 79. According to the decided preponderance of the proof the Owens acquired a private easement in the driveway by adverse user for a period of more than seven years.

The chancellor erred, however, in extending that easement fifty feet northward along the eastern edge of the appellants’ home place, thereby giving Mrs. Owen and her prospective purchaser, the appellee Beaver, the right to enter Tract 3 from the west by crossing the southeast corner of the appellants’ homestead. According to the undisputed proof the Owens and their customers did not use that means of access to the Owens’ property. Instead, by agreement with Fred Ragsdale, who owned Tract 2 to the south of the Owens’ property, the Owens and their customers turned off the driveway before reaching the appellants’ homestead and parked their cars along the north edge of Tract 2. Both Mrs. Owens and Ragsdale so testified. Hence the trial court’s extension of the easement northward onto the appellants’ home place must be set aside.

The appellees Harvey own all the land along both sides of the corridor from its southern terminus at Highway 79 to its northern terminus at the southern boundary of the appellants’ home place. The chancellor found that the Harveys are entitled to use the driveway as a means of access to their lands on both sides and as a means of crossing from one side of the driveway to the other. The evidence, however, supports the decree only with respect to the land lying east of the corridor. We have mentioned the fact that the Owens, with Rags-dale’s permission, used the driveway as a means of access to the northern part of Tract 2. There was also a public roadhouse fronting on Highway 79 at the southern end of the tract. Both the owner of the roadhouse and his patrons used the driveway for parking and as a means of access to the establishment. We find by the weight of the evidence that the owners of Tract 2 acquired an easement in the driveway as a means of access to that tract.

The situation is materially different with regard to the Harvey’s land (Tract 1) lying west of the corridor. We find no persuasive proof that the owners of that tract ever acquired a prescriptive easement by adverse user of the driveway for seven successive years. Part of the time there was a fence along that side of the corridor, which denied access to the tract. Moreover, the businesses that fronted on Highway 79 to the south — a barber shop and a filling station farther west — are not shown to have needed any lateral access from the corridor. We have pointed out that when an easement is acquired by prescription, the nature of the use cannot be changed to render it more burdensome to the servient estate than it was during the prescriptive period. Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18 (1957). Hence even though the corridor is used as a driveway, the owners of Tract 1 have no rights therein, because none were acquired by prescription.

Upon this point we have not overlooked counsel’s statement that the record is “replete” with references to use of the driveway from both sides of the Harveys’ property. To support that assertion counsel merely cite 14 pages of the transcript. We have frequently pointed out that we are not required to search the transcript, which cannot conveniently be made accessible to all the seven judges. Counsel must abstract the testimony upon which they rely.

In the same vein it is appropriate for us to point out that the appellants’ abstract of the record is also not above criticism. Eule 9 (d) provides that when a plat or other exhibit must be examined for a clear understanding of the testimony, the appellant must reproduce the exhibit and attach copies to his abstract. In this case the parties jointly introduced a plat of the lands in controversy. Our study of the testimony would have been made much easier had that plat been reproduced as contemplated by the Eule. In fact, a minority of the court would affirm the decree for noncompliance with the Eule. Even though a majority of us have found the infraction of the Eule not to be so serious as to require a summary affirmance of the decree, we take this opportunity of again emphasizing the importance of that provision in Rule 9 and the risk that attorneys ran by not complying with it when there is a possibility that compliance may be found to have been mandatory.

Neither can we sustain the chancellor’s finding that the general public acquired an easement in the driveway. The driveway was not a thoroughfare. It came to a dead end at the appellants ’ residence. In a case involving a similar cul-de-sac that was used almost daily by tradesmen and others for some twenty years as a means of access to a single dwelling, we held that the resulting easement was a private one appurtenant to the property rather than a public one. Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768 (1954). That conclusion is manifestly desirable in the case at hand. If, for instance, Tracts 1, 2, and 3 and the appellants’ homestead should all be acquired by one owner, there would be no reason for the lands to be burdened by a public easement. The recognition of a private easement provides the owners of Tract 2 and Tract 3, and their visitors, with all the rights of access to which they are reasonably entitled.

III. The appellants also complain of a provision in the chancellor’s decree that quiets Mrs. Owen’s title to the land lying east of the fence between her land and that of the appellants. The fence once followed a curved line. In 1951 it was straightened by agreement between the appellants and the Owens, with Owen paying $100 to the appellants as consideration for the modification of the boundary line. Ever since then the land within the fence has been occupied by the Owens (or by Mrs. Owen since her husband’s death). The decided weight of the evidence supports the chancellor’s finding, either upon the theory of agreed boundary line or upon the theory of adverse possession.

The decree is affirmed in part and reversed in part, and, the title to land being involved, the cause is remanded for the entry of a decree pursuant to this opinion.

Fogleman and Byrd, JJ., would affirm.

John A. Fogleman, Justice,

concurring in part; dissenting in part. I would affirm the decree of the chancery court on all points. Rule 9 (d) of this court provides :

“* * * Whenever a map, plat, photograph, or other exhibit must be examined for .a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.”

Without the plat mentioned in the majority opinion, the testimony is incomprehensible. The very points on which this court reverses the chancery court are the most difficult to understand. I am particularly reluctant to join in a reversal of a trial court upon an abstract that does not permit every member of the court to have a clear understanding of the evidence on the pertinent issues. Rule 9 (e) states:

“* * * When the case is considered on its merits the court may impose or withhold costs to compensate either party for the other party’s non-compliance with this rule. The court may also affirm the judgment or decree for noncompliance with this rule. ’ ’


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Mrs. O. E. BILLINGSLEY et al
    5-4941
    444 S. W. 2d 259
    Opinion delivered September 2, 1969

      Thomas B. Keys, Virginia Tackett, for appellant.

      Gordon, Gordon & Eddy, for appellees.
   Lyle Brown, Justice.

This is a highway condemnation case wherein the taking and construction for widening of an existing highway by the Arkansas State Highway Commission took most of the landowners’ frontage. The Commission appeals the award principally on the basis that access actually remained after the taking, therefore the blocking of the remaining access was not a compensable item.

• The subject property consists of a 25-aere tract adjoining State Highway 247 on the east side. The highway frontage is 808 feet.' The property is owned by the widow and children of O. E. Billingsley. It was the home place of the family. The children are grown and Mrs. Billingsley still resides there. It is an urban homesite, located approximately two miles north and east of the Morrilton business district. It was also used for pasturing and the growing of hay. The improvements are located in the extreme northwest corner, consisting of a sizable frame dwelling with modern conveniences, an old barn, fences, and cross fences. Along the north boundary line is a lane extending eastward from Highway 247 to a new subdivision. Caney Creek runs in an east and west direction, entering the land by crossing Highway 247. Approximately fifteen acres are on the north side of the creek. The land has a desirable rolling topography, with the highest point being at the home-site.

Interstate 40 runs in an east and west direction a short distance south of the Billingsley tract. A portion of the Billingsley lands was acquired by the State for the purpose of building an overpass north and south over Interstate 40 and on State Highway 247. The Highway Commission condemned a strip north and south completely across the Billingsley frontage. The widest point of the taking is at the south end of the tract, being approximately 125 feet in width. The taking gradually narrows to fifty feet at the north property line. Additionally, the Commission took an easement on a small tract east of the taking in fee for the purpose of changing the channel of Caney Creek. That easement begins approximately seventy-five feet south of the north property line and near the homesite, and extends south to a point near the center of the tract. Construction plans call for the building of a diversion channel on the easement. That channel would be some ten feet deep and fifty feet wide and would be permanent. Most of the Billingsleys’ frontage, after construction, will be under controlled access.

The Commission contends that the landowners still ‘.■have access to the highway in a reasonable amount, seventy-five feet of usable frontage.” The landowners dispute the existence of reasonable access after the taking, offering evidence that a change in grade, the alteration of the boundary line, the building of a diversion ditch, and the existence of a control-of-access line “effectively prevents” access all along the frontage. However, the landowners concede that it is “technically possible” to cross to-and-from the highway by utilizing the extreme north seventy-five feet for that purpose. If as a result of the composite changes related the freedom of access has been so substantially affected as to diminish the fair market value of the tract then compensable damages arise. We have no hesitancy in concluding that there is substantial evidence establishing considerable diminution of ingress and egress.

The right to recover in the circumstances is well established by a number of authorities. Perhaps the leading authority of this court is Campbell v. Arkansas State Highway Comm’n., 183 Ark. 780, 38 S. W. 2d 753 (1931). There a change in grade of the highway was said to have substantially impaired ingress and egress, which latter right was one of property:

Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highway for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself; and any subsequent act by which that easement is substantially -impaired for the benefit of the public is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation.

The facts in the case .at bar are even stronger than those in Campbell. Here there was an actual taking, the establishment of a diversion ditch on appellees’ property, and a control-of-access line, all in addition to a change in grade. Also, the easement initially extended as a matter of law along the entire frontage; see Arkansas State Highway Comm’n. v. Kesner, 239 Ark. 270, 388 S. W. 2d 905 (1965). As was said in Kesneer, destruction of access or substantial impairment thereof may form a basis for recovery.

Finally, the Commission contends that a change of venue should have been granted. The form of the motion and the evidence supporting the motion were the same as in Arkansas State Highway Comm’n v. Duff, 246 Ark. 922, 440 S. W. 2d 563 (1969). There we held adversely to the Commission and we adhere to that holding.

Affirmed.


author: John A. Fogleman, Justice. Lyle Brown, Justice,

text:
    Marie VAUGHT v. Wallace VAUGHT et al
    5-4833
    444 S. W. 2d 104
    Opinion delivered September 2, 1969

      Shaw & Shaw, for appellant.

      Joe H. Ilardegree, for appellees.
   John A. Fogleman, Justice.

The sole question to be determined is whether an instrument executed by Otey R. Vaught on January 11, 1951, in his own handwriting is entitled to probate as his holographic will. Appellant contends that the trial court erred in denying probate of the instrument as being based on a contingency which did not occur. We find that the instrument was not contingent or conditional and that it should be admitted to .probate.

Otey R. Vaught died June 5, 1966. He left only collateral heirs at law surviving him. Appellant Marie Vaught, a sister-in-law in whose home the decedent had lived on various occasions for many years and who had cared for him during various illnesses was the proponent of the will. Probate was opposed by the collateral heirs. The will bears the date of execution and signature of the testator. Its text is reflected in the record as folIoavs :

This is my will if I should die at once. I want Marie Vaught, to have my land and personal property. Sign by. /s/ Otey R. Vaught

This purported will was never revoked by the decedent. The denial of probate would result in intestacy and' the .descent .and distribution of his property to numerous collateral heirs.

The rules governing determinations of this sort are easier to state than to apply. The particular question depends upon whether the contingency is referred to as the occasion of, or reason for, making the will at the time of execution, or is referred to as the reason for making the particular disposition of property which would be disposed of thereby and is intended to specify the condition upon which the will is to become operative. In the latter case, the will is contingent or conditional. In the former it is not. 1 Page on Wills (New Rev. Treatise), 418, 423, §§ 9.1, 9.5; Annot. 1 A. L. R. 3d 1048, 1050; 57 Am. Jur. 453, 456, §§ 671, 674; 94 C. J. S. 939, Wills § 152; In re Taylor's Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953).

It is when the contingency and the disposition of the property are so related to each other that the one is dependent on the other that the will is contingent. Barber v. Barber, 368 Ill. 215, 13 N. E. 2d 257 (1938); Capps v. Richardson, 215 S. C. 34, 53 S. E. 2d 876 (1949).

Unless the terms of the will clearly show that it was intended to be contingent it will be regarded as absolute and unconditional. 1 Page on Wills (New Rev. Treatise), 423, § 9.5; 94 C. J. S. 940, Wills § 152; 57 Am. Jur. 454, Wills § 672; In re Desmond’s Estate, 223 Cal. App. 2d 211, 35 Cal. Reptr. 737, 1 A. L. R. 3d 1043 (1963); Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832 (1919); Skipwith v. Cabell, 19 Gratt. 758 (Va. 1870); In re Moore’s Estate, 332 Pa. 257, 2 A. 2d 761 (1938). If the language used can reasonably be construed to refer to a possible danger or threatened calamity only as a reason for making a will at the time, rather than as a condition precedent to the will becoming operative, it will not be construed to render the will conditional. Annot. 40 A. L. R. 2d 698, 731 et seq.; 57 Am. Jur. 454, Wills § 672; 94 C. J. S. 940, Wills § 152; Walker v. Hibbard, supra; In re Taylor’s Estate, supra; Skipwith v. Cabell, supra. See also 1 Page on Wills (New Rev. Treatise) 424, § 9.5; Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. 730 (1904).

As a corollary of the rule requiring that a will be given an interpretation which avoids intestacy, long recognized in Arkansas, a will must be construed as unconditional in case of doubt. 57 Am. Jur. 454, Wills § 672: Walker v. Hibbard, supra; Watkins v. Watkins, 269 Ky. 246, 106 S. W. 2d 975 (1937); In re Trager’s Estate, 413 Ill. 364, 108 N. E. 2d 908 (1952); Succession of Gurganus, 206 La. 1012, 20 So. 2d 296 (1944).

Appellees rely upon Wilson v. Higgason, 207 Ark. 32, 178 S. W. 2d 855, to sustain the judgment of the trial court. The language contained in the instrument in that case was very different from that involved here. In one sentence the testator there stated, “Now Lillie since I have made you my beneficiary in all my insurance, I want you, in the event I should die anytime soon, to collect all my insurance and if I have any money left anywhere I would want you to get it all together and divide it equally among your mother, Eddie, Mattie, Myrtise’s heirs, Bill, Lauree and yourself.” In another sentence, he said, “Now in case of my death anytime soon, I would want Myrtise’s part or part of it anyway to go towards paying some of the expenses of her sickness and death, but should these bills be already paid I -would want it to go to Ned and Olive...” The writer of that letter certainly did not desire that the addressee collect his insurance and money and make the division directed unless he died “anytime soon.” Nor did he intend for his other desires to be carried into effect except in case of his death soon. In other words, the conditions there stated could have only been construed as stating the conditions under which the testamentary document became operative and not as the reason for making a will. On the other hand, the language “'This is my will if I die at once” can be construed as stating the reason for the making of the will, i. e., that possibility of impending death which provokes much testamentary action. Since it can be so construed, it should be.

The decision in the Wilson case is not contrary to the rules for determining whether a will is contingent or absolute. Most of these rules are specifically stated or recognized in Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832 (1919), cited as authority in the Wilson opinion, as will appear from citations above. Walker v. Hibbard is also cited in Kentucky as authority for most of these rules. See, e. g., Watkins v. Watkins, 269 Ky. 246, 106 S. W. 2d 975 (1937).

In resolving doubtful cases, parol evidence of extrinsic circumstances is admissible to show that the testator’s intention was to make an absolute, rather than a contingent will. In re Desmond’s Estate, 223 Cal. App. 2d 211, 35 Cal. Rptr. 737, 1 A. L. R. 3d 1043 (1963); In re Moore’s Estate, supra; In re Trager’s Estate, supra; Barber v. Barber, 368 Ill. 215, 13 N.E. 2d 257 (1938); 57 Am. Jur. 457, Wills § 677; 94 C. J. S. 940, Wills § 152; Annot., 1 A. L. R. 3d 1048, 1051. Such evidence may be considered in interpretation of wills, not to show what the testator meant as distinguished from what his words express, but for the purpose of showing the meaning of the -words used. Eagle v Oldham, 116 Ark. 565, 174 S. W. 1176. Extrinsic circumstances which may be considered include: (a) those surrounding execution and delivery of the document In re Del Val’s Estate, 159 Cal. App. 2d 600, 323 P. 2d 1011 (1958)] (b) instructions upon delivery of the instrument [In re Del Val’s Estate, supra; In re Taylor’s Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953)] (c) subsequent declarations of the testator (In re Del Val’s Estate, supra; In re Taylor’s Estate, supra) (d) lack of a subsequent will or revocation [In re Del Val’s Estate, supra; Succession of Gurganus, 206 La. 1012, 20 So. 2d 296 (1944); In re Taylor’s Estate, supra] (e) lack of any alternative disposition of his property (In re Del Val’s Estate, supra) (f) whether disposition is of entire estate or part thereof (In re Del Val’s Estate, supra).

Delivery of a will to someone for preservation is evidence a testator intended it to be unconditional. In re Taylor’s Estate, supra. The fact that a long term of years passed between the writing and the testator’s death without revocation is significant. Succession of Gurganus, supra.

It is not inappropriate that we also take into consideration the fact that appellant was a natural and proper object of the decedent’s bounty. Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. 730 (1904); Skip- with v. Cabell, 19 Gratt. 758 (Va. 1870). Previous association of the testator and the beneficiary of the will indicating that the former desired the latter to be the recipient of his property whenever death occurred tends to show that testator’s statements concerned the reason for making a will. Wood v. Greimann, 165 F. 2d 637 (1948);

If resort is had to the extrinsic evidence offered, there is ample support for a finding that it was absolute, in spite of the fact that Fannie Vaught, one of appellees, testified that Otey told her in 1960 that he had never made a will.. Bob Vaught, son of appellant, testified that he took Otey Vaught to a hospital on two different occasions, the first time for surgery and the second because of a stroke. Bob said that on the first occasion his uncle told him to get the instrument in question and a certain deed from a trunk and to take them to appellant. On the second occasion (apparently in 1959), according to this witness, he asked Otey Vaught if this instrument should not be “notarized,” but the latter said that it was all right and to tell appellant to just keep it. Appellant testified that her son brought the paper to her after Otey’s first hospitalization and told her to keep it and not let anyone have it. Willard R. Bowling testified that when he attempted to purchase a 40-acre tract of land from Otey Vaught, Mr. Vaught stated that he had “willed” the property to appellant and wanted her to have it when he died. When this testimony is considered along with evidence showing that appellant, her deceased husband and their two sons, cared for and provided a home for the decedent on various occasions, the length of time intervening between the writing,of the will and Otey’s death without revocation or attempt to recover the instrument, and the fact that the will disposed of all his property, the conclusion that the will is absolute rather than contingent is amply supported.

We reverse, with directions to admit the paper writing to probate as tbe last will .and testament of Otey E. Vaugbt.

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

Lyle Brown, Justice,

dissenting. The chancellor had a right to conclude from the evidence that Otey E. Vaught executed the will at a time when he was preparing to enter Veterans Hospital in Little Eock for an operation. Bob Vaught, son of the appellant, Marie Vaught, testified to this effect:

Q. Will you tell the court how you came into possession of this piece of paper that’s been offered as a will of Otey' Vaught?
A. Well, I took him to the VA Hospital and he made this out the night before or sometime— shortly before that, and when I got ready to come home to leave him over there to the VA Hospital he told me about where it was at — the deeds and everything — he told me to get them and give them to my mother, and when I got back from over there I got them and gave them to her.
Q. After that time did Otey get well and leave the VA Hospital?
A. Well, he never did get well, but he come home for — I don’t remember just how long it was. He had a stroke and he was an invalid for around eight years. He was took to my aunt and uncle’s home at Crystal Hill, and then he was later placed in the Eosa’s Nilrsing Home and that was where he was at when he got real bad sick. He died at the Polk County Memorial Hospital.

The appellant corroborated her son. Eeferring to the time when the will came to her hands from her son, she testified:

A. Well, I don’t know whether I could tell you exactly what year that was, but it was when he had his first operation. When he was going to Little Eock to have his first operation. I couldn’t say what year it was to save my neck.

Concededly there is some evidence to the contrary, but I am convinced the record preponderantly shows that the testator was in ill health and facing an operation at the time he wrote these words: ‘ ‘ This is my will if I should die at once.” To my thinking the statement is susceptible of but one meaning. As here used and according to all the reliable dictionaries, the word “if” has a most simple meaning: “in case that,” “granting or supposing that,” “on condition that.” The same authorities tell us that “if” implies a condition on which something depends and the typical synonym is “provided.” It was aptly stated in the will case of Robnett v. Ashlock, 49 Mo. 171 (1872): “‘If’ may be a small word, but all know its meaning, and instead of a more formal phrase it is used in common language to express condition or limitation ...”

For the reasons recited I am convinced that there is a clear showing of a contingent will. Certainly the finding of the chancellor is not against the preponderance of the evidence.

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

      See Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014; Bradshaw v. Pennington, 225 Ark. 410, 283 S.W. 2d 351.