text:
    CHEROKEE VILLAGE HOMEOWNERS PROTECTIVE ASSOCIATION v. CHEROKEE VILLAGE ROAD AND STREET IMPROVEMENT DISTRICT NO. 1
    5-5295
    455 S. W. 2d 93
    Opinion delivered June 15, 1970

      Highsmith, Harkey &r Walmsley, for appellant.

      Sullivan ér Causkie; Ponder & Lingo; John Mac Smith ir Richard Smith and Smith, Williams, Friday & Bowen, for appellee.
   Frank Holt, Justice.

This is an appeal from a circuit court order, dated June 16, 1969, establishing a suburban improvement district under Act No. 41 of 1941, as amended [Ark. Stat. Ann. §§ 20-702, -703, -705— 715. -717-742 (Repl. 1968), §§ 20-701, -704, -716 (Supp. 1969).]

Numerous identical petitions were filed in the circuit court requesting the creation of a suburban improvement district to encompass certain described lands totaling 13,190.58 acres of which slightly more than one-half is located in Sharp County, -the remainder be-ing in Fulton County. The petitions were signed by owners of the land representing 62.98% of the total acreage and asked that John Cooper, Jr., Joe Basore and Jim Napper be named as the three commissioners for the district. Cooper and Basore are officers and stockholders of the John A. Cooper Company which is one of the petitioners and holder of record title to more than 50% of the land to be included in the proposed district, both as to area and assessed valuation. The establishment of the improvement district was opposed by the Cherokee Village Homeowners Protective Association,- appellant, which consists of 163 remonstrants who own property within the boundaries of this proposed district.

The trial court set a hearing, at which time the remonstrants challenged the constitutionality of the legislation authorizing the creation of the improvement district and contested the proposed appointment of Cooper and Basore as commissioners in that such an appointment would constitute a conflict of interests between their duties as commissioners of the district and their interest in the John A. Cooper Company, majority property owner of the lands to be included within the district.

The trial court found that there was no conflict of interests presented which would disqualify Cooper or Basore as commissioners and adjudged that the petition is proper and in accordance with the provisions of Act No. 41 and is, therefore, valid and not violative of- any rights of the remonstrants or other property owners within the boundaries of the district under either the State or Federal Constitution. The court adjudged that Act No. 41 does not constitute an unconstitutional delegation of legislative powers- or deprive remonstrants of any rights or property without due process of law. The court then denied the protests of the remonstrants, ordered the establishment of the Cherokee Village Road and Street, Recreational and Fire Department, Suburban District No. 1, and appointed John A. Cooper, Jr., Joe N. Basore, and Jim Napper as commissioners of the district.

For reversal appellant contends: (1) Act 41 of 1941 is an unconstitutional delegation of legislative authority; (2) the Act deprives appellant of property rights without due process of law; and (3) the trial court erred in appointing John Cooper, Jr. and Joe Basore as commissioners because of their patent conflict of interests.

The gist of appellant’s first argument is that the legislature can delegate the responsibility of designating the lands to be included in the district, the authority to select the improvements to be created, and the power to levy taxes and issue negotiable notes, bonds and other evidences of indebtedness only to sóme other subordinate governmental agency and not to private individuals. Appellants contends that under Act 41 of 1941, any individual landowner, or group of landowners, as in the case at bar, could select boundaries in such a manner that he or they would own a majority in area and assessed valuation and thus be able at will to establish ah improvement district. This argument overlooks the fact that the proposed purposes for such a district must be submitted to and approved by the county or circuit court. See § 20-701. Furthermore, the various improvements for which a district may be organized and the powers which it may exercise are succincdy set out by statute. Section 20-704. See, also, Page v. Highway No. 10, Water Pipe Line Imp. Dist. No. 1, 201 Ark. 512, 145 S. W. 2d 344 (1940). Once an improvement district is lawfully created, it assumes the status of a de jure governmental agency [see Sloan, Improvement Districts in Arkansas, § 17 (1928)], and the power of the district to then further designate property to be included does not constitute a delegation of legislative authority. Merritt v. No Fence Dist. No. 2, Jefferson County, 205 Ark. 1129, 172 S. W. 2d 684 (1943). As to the power of an improvement district to levy assessments, we have had occasion, in Board of Improvement v. Pollard, 98 Ark. 543, 136 S. W. 957 (1911), to note:

“It has been repeatedly held that special assessments for local improvements can be made and collected only on account of special and peculiar benefits which such improvements bestow upon the property which is assessed. * * * The principle upon which these assessments for local improvements are made is that by reason of the benefits received no pecuniary loss can be suffered by the owner of the property in paying therefor.
* * *
The power to form improvement districts and to levy assessments for the payment of improvements made therein belongs primarily to the Legislature; but the Legislature has the authority to exercise this power directly or through local agencies which it may establish. * * *”

See, also, Arkansas-Louisiana Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355 (1925). We find no merit in appellant’s contention that Act 41 of 1941, as amended, is an unconstitutional delegation of legislative authority.

In regard to the second point for reversal, i. e., that the Act deprives appellant of property rights without due process of law, we likewise find no merit. We have previously upheld the validity of the taking of property by an improvement district for a public purpose. Cannon v. Felsenthal, 180 Ark. 1075, 24 S. W. 2d 856 (1930). See, also, Hale v. Southwest Ark. Water Dist., 244 Ark. 647, 427 S. W. 2d 14 (1968), where the acquisition of property was approved as being for public purposes, even though it was contended that it served primarily private ends or purposes. Appellant, however, insists that Act 41 of 1941, as amended, does not limit the right of eminent domain to public purposes, since provision is made for acquisition of recreational facilities. The acquisition and improvement of public parks are proper purposes for which improvement districts may be organized and assessments levied. Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651 (1902). The ownership and operation of a swimming pool by a governmental agency, a city, is proper. Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S. W. 2d 529 (1957). See, also, Todd v. McCloy, 196 Ark. 832, 120 S. W. 2d 160 (1938). And municipal recreational facilities can be- supported by an appropriation from public funds. Ark. Stat. Ann § 19-3629 (Repl. 1968). However, the answer to appellant’s contention is that the district must act for the benefit of all the affected property owners; and if any property owner feels aggrieved, he has the right to have the decision of the improvement district judicially reviewed. Ark. Stat. Ann. §§ 20-708, -720, -721, -728, -734, -740 (Repl. 1968), and Act 16 of 1970 (First Extraordinary Session).

Constitutional attacks have previously been unsuccessfully leveled against the validity of Act 41 of 1941. See Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330 (1941).

Appellant next contends that the trial court erred in authorizing Cooper and Basore to serve as commissioners. It is asserted that they have a patent conflict of interests since they are officers and stockholders of the John A. Cooper Company which has as its objective the development and sale of lands with various improvements. The appellant observes that Act 41 (§ 20-703) requires that commissioners of a district “will not be interested directly or indirectly in any contract let by the board * * We do not reach this contention since the record before us does not demonstrate that the appointed commissioners have acted in violation of the statutory provisions.

Affirmed.

Byrd, J., not participating.


source: Caselaw Access Project

author: A. F. House, Special Chief Justice.

license: Public Domain

text:
    Sidney Marvin BILSKY v. Beverly BILSKY and Malcolm BILSKY
    5-5149
    455 S. W. 2d 901
    Opinion delivered June 15, 1970
    [Rehearing denied August 3, 1970.]

      Sam S. Cole, Jr., for appellant.

      Eugene Harris and William C. Bridgeforth, for appellees and cross appellant.
   A. F. House, Special Chief Justice.

A trust was created by the Will of William Bilsky, deceased. The Trustee in Succession of the trust filed a Petition in the Probate Court of Jefferson County asking that the trust provisions be construed with respect to the present and future rights of all interested persons. The provisions which are pertinent here are contained in a single paragraph of the Will. For convenience in reference we have divided that paragraph into five numbered paragraphs and, as rearranged, it reads as follows:

(1) When my son, Sydney Bilsky, will have attained the age of twenty-five years, the trust insofar as the same related to my said son, Sydney Bilsky, shall forthwith terminate and two-thirds of the trust estate then held by the Trustee shall be promptly transferred and delivered to him, the trust in all other respects to remain in force and effect for the benefit of my sons, Zecil Bilsky and Malcolm Bilsky, until the death of my son, Malcolm Bilsky, whereupon, if the said Zecil Bilsky survives Malcolm Bilsky, the trust estate then in the hands of the Trustee shall be transferred and delivered to the said Zecil Bilsky.
(2) Should my son Sydney Bilsky, die without issue before attaining the age of twenty-five years, then, and in that event, the trust estate shall be held for the benefit of Zecil and Malcolm Bilsky, each of whom shall participate in the rents, profits and income as the Trustee in his discretion may prescribe.
(3) Should my son, Zecil Bilsky, die without issue before the termination of the trust and the said Sydney Bilsky survive him until he will have attained the age of twenty-five years, then, and in that event, the said trust estate then held by the Trustee shall be promptly transferred and delivered to the said Sydney Bilsky.
(4) In. the event my son, Sydney Bilsky, shall die before he attains the age of twenty-five years, but shall be survived by issue, then my said Trustee, or his successor, shall hold the trust estate for the benefit of such issue, together with Zecil and Malcolm Bilsky.
(5) In that event, too, the trust shall, terminate upon the death of Malcolm Bilsky, and two-thirds of the trust estate shall thereupon be-delivered to the children of the said Sydney Bilsky, and one-third to Zecil Bilsky, if he survives; otherwise all of the trust estate shall be transferred and delivered to the children of Sydney Bilsky in fee simple and absolutely.

The Will was executed in 1955. William Bilsky died in 1959. He was survived by three sons, Zecil, Malcolm and Sydney. The first two were born during testator’s first marriage. Sydney was born during testator’s second marriage. Malcolm, an incompetent, has been confined in an institution for many years. As shown by the trust provisions, two thirds in value of the trust assets were to be delivered to Sydney when he reached the age of twenty-five. He reached the age of twenty-five some time ago and duly received that portion. William Bilsky also created an insurance trust for Malcolm, not involved here, and in that trust Sydney was designated as the residuary beneficiary.

In 1952, Zecil and his wife adopted, in Illinois, an infant daughter, Beverly Rose. The testimony indicates that the testator was very fond of Beverly, gave her presents, and obtained an educational life insurance policy for her. Zecil died in 1966 and left surviving him his wife and Beverly.

After the Trustee in succession filed the Petition for construction of the trust provisions of the Will, Sydney intervened asserting that the trust terminated on the death of Zecil, and that he was entitled to have the remaining assets distributed to him. A guardian ad litem was appointed to protect the rights of Malcolm. Beverly appeared by her mother and next friend, Ruth Bilsky, and contended that the trust would not terminate until the death of Malcolm; she was entitled to a portion of the current income; in making advances to Malcolm the Trustee could not encroach on the corpus, and on termination all of the trust properties should be distributed to her.

Based on the findings made by the Probate Judge, a judgment was entered construing the Will as follows: Malcolm is entitled to all the trust income; the trustee may encroach on the corpus for Malcolm’s maintenance if absolutely necessary; the word “issue” as used in paragraph (3) includes Beverly, and on the death of Malcolm she will be entitled to receive all the trust properties. From such judgment Sydney appealed and Beverly cross-appealed.

It is to be observed that Paragraphs (2), (4) and (5) were conditioned on events which never occurred. Paragraph (2) would have become effective only if Sydney had died without issue before reaching the age of twenty-five, and Paragraphs (4) and (5) would have become effective only if Sydney had died before reaching that age and was survived by issue. As stated above, Sydney did not die before reaching the age of twenty-five.

Paragraphs (1) and (3) deal specifically with events that did occur. Sydney reached the age of twenty-five and received two-thirds of the trust estate, and at that point there arose two alternative contingencies: First, under the second clause of Paragraph (1), if Zecil survived Malcolm then Zecil would receive the remaining one-third of the trust estate, which, of course, would ternimate the trust. Secondly, under Paragraph (3), if Zecil died without issue (before Malcolm’s death) then the remaining one-third of the trust estate would go to Sydney, which also would terminate the trust.

We are of the opinion that the appellant is right in his insistence that inasmuch as the event made a condition to the effectiveness of Paragraph (3) did occur, the trust terminated on the death of Zecil, and Sydney is entitled to receive the remaining one-third of the trust estate.

The appellee, Beverly, contends, however, that Paragraph (3) is not controlling because Zecil did not die “without issue”. Her reasoning is that the word “children” includes an adopted child; that the testator used the words “issue” and “children” interchangeably in his Will, and that, therefore, the word “issue” must be construed to include an adopted child.

We do not find such reasoning persuasive. “Issue” is a technical term of well understood meaning in the law. As such it will ordinarily be given its technical meaning. Crittenden v. Lytle, 221 Ark. 302, 253 S. W. 2d, 361 (1952). In a somewhat similar case we have held that the words “heirs of the body” do not include adopted children. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d, 739 (1951). In that case we said, “Terms such as bodily heirs, issue, etc. have long been defined in the law, and the definition does not include adopted children. Rest. Property, Sec. 265. A foster child being a stranger to the blood is the antithesis of an heir of the body.”

The Probate Judge, in concluding that an adopted daughter is included in the term “issue” seems to have attached much weight to the testimony showing the testator’s affection for Beverly after she became a member of Zecil’s family. We find nothing ih the Will that even faintly suggests an intention on the part of the testator to make Beverly a beneficiary of the trust, and extrinsic evidence concerning the testator’s fondness for her cannot supply the missing requisite.

In view of our ruling with respect to Paragraph (5), all questions concerning apportionment of income and the right of the Trustee in Succession to encroach on the corpus of the trust for the maintenance of Malcolm have become moot.

The judgment is reversed and the case is remanded with direcdons to order a termination of the trust and a distribution of all of its assets to appellant Sydney Bilsky.

Harris, C. J., not participating


author: James E. Hyatt, Jr., Special Justice.

text:
    Ida HILER, Mrs. S. P. Black, Etta Searley, Barton Deck, Paul E. Sarver and Barbara Sarver v. Archie CUDE as Executor of Estate of Rose N. Gordon, deceased, and as Intervenor
    5-4970
    455 S. W. 2d 891
    Opinion delivered June 15, 1970
    [Rehearing denied August 3, 1970.]

      Shaw ¿r Shaw, for appellants.

      Joe Hardegree, for appellee.
   James E. Hyatt, Jr., Special Justice.

This is a Will contest and comes here on appeal from the Order of the Polk County Probate Court admitting to probate the Will of Rose N. Gordon, dated January 7, 1968, and the codicil thereto dated January 23, 1968, (hereinafter called Will 2) offered for Probate by the Appellee, and dismissing the Appellants’ objections to and contest of that Will and their offer to probate an earlier Will dated October 3, 1967, (hereinafter called Will 1).

The undisputed facts are: Rose N. Gordon, a 72 year old widow, who lived a more or less secluded life on her 80 acre farm in Polk County, Arkansas, following the death of her husband in 1965, died testate on March 17, 1968. She had no children, but was survived by three sisters, a brother and a niece, all of whom were non-residents and with whom she had had little or no association for the past twenty or thirty years. She was also survived by a 40 year old foster son, whom she never adopted, Paul E. Sarver, sometimes referred to as Earnest E. Sarver, who was in the Navy stationed in California, with his wife and four children. At the time of her death the decedent owned an 80 acre farm in Polk County on which she lived (which she and her husband had acquired in 1956), the household furnishings situated therein, certain cattle, farm machinery and motor vehicles, shares of stock in various corporations and cash on deposit in a bank.

Mrs. Gordon, in the approximately 5 months preceding her death, made two different Wills and a Codicil to the latter, each of which was prepared by a highly respected member of the Bar. The first Will, which we shall call Will 1, was dated October 3, 1967, and was prepared by Mr. Nabors Shaw, the family attorney since 1956, at his office at Mena, Arkansas, and was duly executed there by Mrs. Gordon and attested as required by law, and left in the attorney’s vault, for safekeeping. Under this Will, Mrs. Gordon devised and bequeathed her entire estate to the foster son Paul E. Sarver and his wife for their lives, and then on their death, to this couple’s four children in fee simple, naming a local banker as Executor.

This Will remained in the attorney’s office five or six weeks until the middle of November 1967, when Mrs. Gordon sent for it and had it brought to her home. Upon receiving it, she read it before the people present, then tore the Will proper from the attesting Affidavit and handed it to one of the persons present asking him to put it on the fire to burn in the fireplace in front of which she was sitting, which he did. The Will was burned at her direction and she retained only the Affidavit.

The second Will, which, together with the Codicil thereto hereinafter mentioned dated January 23, 1968, we shall call Will 2, was made approximately six weeks after Will 1 was burned and dated January 7, 1968. This Will was prepared by Mr. Max Witt, an attorney of Mount Ida, for whom she had sent, in the home of Mrs. Gordon on that date, a Sunday, and was duly executed there by Mrs. Gordon and attested as required by law. Later a Codicil to this Will was prepared by Mr. Witt at his office and sent to Mrs. Gordon on January 23, 1968, at the Mena Hospital, where she was then a patient, where it was executed by Mrs. Gordon and attested as required by law.

Under this Will, which contained a standard revocation clause, and the Codicil thereto, Mrs. Gordon bequeathed her household furnishings, cattle, farm machinery and motor vehicles, except one car, which she left her Executor, to Clark Cude and Wayne Cude, two neighboring teenage boys, to whom she had previously deeded her 80 acre farm (in which deed she had reserved unto herself a life estate), the sons of a friend and neighbor who had assisted or worked for her about her farm during the last several years of her and her husband’s life, and who had assisted in caring for her during the last months of her life. She disposed of the remainder of her property by specific bequests of a baby grand piano to a niece, Margaret Stimsman; 100 shares of common stock in the Polk County Farmers Association to the Seventh Day Adventist Church in Hutchinson, Kansas; 318 shares of stock in the El Paso Electric Company to the Salvation Army in El Paso, Texas; 120 shares of stock in the El Paso Natural Gas Company to a sister, Anna Black of Teague, Texas; and the cash on deposit in the bank to her Executor to pay the taxes and farming expenses on the farm which she had previously deeded to Clark Cude and Wayne Cude.

In Will 2, which not only revoked all 'prior Wills, Mrs. Gordon specifically excluded the foster son, to whom she had devised and bequeathed her entire estate in Will 1, by the following provision, and we quote:

“Eight-. I have helped raise a boy, EARNEST E. SARVER, and he has already been provided for, and IT IS MY WILL, AND I EXPRESSLY STATE THAT EARNEST E. SARVER RECEIVED ABSOLUTELY NOTHING, FROM MY ESTATE OR PROPERTY.”

She named Archie Cude, a neighbor and the father of Clark and Wayne Cude, the principal beneficiaries under Will 2 and the persons to whom she had deeded her farm, as Executor of her estate without bond, and provided that in the event that he was unable to serve as such Executor, that her attorney, Max Witt, was to serve as Executor without bond.

Upon Mrs. Gordon’s death on March 17, 1968, Archie Cude, as the person nominated as Executor in Will 2, filed and offered for Probate Will 2 (the Will dated January 7, 1968, and the Codicil thereto dated January 23, 1968) together with the required proofs of attesting witnesses, with the request that he be appointed Executor of Mrs. Gordon’s estate as directed by said Will. Mr. Cude also filed a separate intervention requesting the Probate of Will 2 and the denial of the Petition for the Appointment of a Successor Guardian to administer Mrs. Gordon’s estate filed by John W. Gordon and Earnest E. Sarver (which said .Petition does not appear in the record).

The three sisters- and brother of Mrs. Gordon, the foster son and his wife and four children, contestants below and Appellants herein, filed objections to the Probate of the proffered Will dated January 7, 1968, and Codicil thereto dated January 23, 1968, contesting mainly on three grounds: that Mrs. Gordon was mentally and physically incapable and unduly influenced by Archie Cude to make a new Will and in attempting to revoke the Will which she had made on October 3, 1967; that Mrs. Gordon was mentally and physically incapable of making either the October 3, 1967, Will, or the January 7, 1968, Will and the Codicil thereto, and that the Court should make a determination that she died intestate; and that the proponents of Will 2 exercised undue influence over the Testatrix and fraudulently and deceitfully obtained the execution of Will 2 and deprived Testatrix of the assets of her estate.

The contestants (Appellants) urged the probate Court to refuse to Probate the January 7, 1968, Will and Codicil thereto dated January 23, 1968, by reason thereof and' make a finding that the decedent was mentally and physically incapable . and unduly influenced in attempting to revoke the Will which she had made on October 3, 1967, and, in the event the Court determined that the deceased was mentally and physically incapable of making either the October 3, 1967, or January 7, 1968, Will and the Codicil thereto, make a finding that the deceased died intestate; and for attorney fees, etc.

After an extensive hearing thereon consisting of the oral testimony of 25 witnesses, with exhibits, the deposition of 1 witness, numerous exhibits and the excellent Trial Briefs by Counsel for both sides, the Probate Court rendered its Order and Judgment admitting to Probate Will 2, the Will dated January 7, 1968, and the Codicil thereto dated January 23, 1968; found that the objections raised and relief asked for by the contestants to the Probate of that Will and Codicil should be and were denied and dismissed; appointed Archie Cude, the party nominated in the January 7, 1968, Will, Executor and directed the Clerk to issue Letters Testamentary to him.

From that Order comes this appeal.

For reversal, Appellants contend that the lower Court’s finding (1) that decedent did not lack testamentary capacity at the time she executed the Will and Codicil thereto is not supported by a preponderance of the evidence; (2) that the decedent executed the Will and Codicil thereto of her own free will and act and not as a result of coercion, fraud or undue influence is not supported by a preponderance of the evidence; and (3) the Court erred in failing to recognize that the burden of proof shifts from will contestants to the will proponents where the proponent procures the making of the Will, and that then the proponent must show beyond a reasonable doubt that testatrix had both such mental capacity and such freedom of will and action as are requisite to render a valid will.

We cannot agree with counsel for Appellants in these contentions. Simply stated, the issues raised are (1) the rule of this Court on de novo hearings on appeal, (2) mental or testamentary capacity to revoke or make a will, (3) undue influence, and (4) burden of proof in will contest cases.

General Testimony: Mrs. Gordon lived alone on her farm after her husband’s death with her cattle, numerous birds and cats, and operated it herself with the help of friends and neighbors. She was a strong willed person, with certain peculiarities. From 1962, after an operation, to November 1967, she had a friend and companion named Alice Ferguson, who normally drove her. She had little or no contact with her sisters and brother, and had been visited by the foster son only five times since she came to Arkansas in 1956 to the time of her death in 1968.

In the fall of 1967, Dr. Calvin Austin discovered she had advanced caricnoma of the rectum, without hope of cure. When she learned of this, she sent for the foster son to come to Arkansas and visit with her, and after he arrived explained her situation to him and attempted to persuade him to come live with her, but he did not choose to do so.

On October 3, 1967, she and the foster son went to her family lawyer where she made Will 1 leaving all of her property to the foster son and his wife and. children. She left the Will and other papers with the attorney for safe keeping. After that the son returned to California.

Surgery was recommended for Mrs. Gordon by Dr. John Wood, and on October 17, 1967, she entered the Mena Hospital, where Dr. Wood performed a colostomy. During this time the foster son and his wife came back to Arkansas to be with her, at which time they stayed on the Gordon farm.

When the foster son was home and Mrs. Gordon in the hospital, she requested he bring her a package from the home which she contended contained money. When the package was delivered to her she contended some $1,500.00 or $1,600.00 Dollars supposedly in the package was missing from it, and accused the foster son of taking it. Some silverware, a violin and furs also were alleged to have disappeared from the home. This was extremely vexing to Mrs. Gordon and caused her to be distrustful of the foster son.

After the operation in October, Dr. Wood recommended that Mrs. Gordon go to a nursing home until she could adjust to the colostomy and care for herself. At first Mrs. Gordon accepted the idea, but later rebelled. The surgeon recommended that a guardian be appointed for her to look after her affairs and place her in a nursing home. Unknown to her, the foster son went to the family lawyer, who had prepared Will 1, and had him prepare a Petition to have Mr. Crowell the Executor named in Will 1, appointed guardian for Mrs. Gordon so she could be placed in a nursing home.

Mrs. Gordon was served with notice of the application for appointment of a guardian for her in the hospital and without prior notice. She became infuriated at the foster son, the family lawyer and the nominated guardian and suspicious of all connected therewith, as all being a conspiracy against her to get her in a nursing home. She from that point until her death was distrustful of those named, stating she was not going to a nursing home, but wanted to return to die with her birds and cats in her own home.

Archie Cude, a friend and neighbor for a number of years, whose wife was in the hospital at the same time, with his wife visited Mrs. Gordon at this time. Mrs. Gordon expressed to him her fear and apprehension of the action taken by the foster son and the others and told him of her desire to go home rather than to a rest home. She was very upset. She asked him to see what he could do to help her. The hearing was to be the next day and she was upset about that as well as the missing money. Cude contacted the lawyer to get him to postpone the hearing for a week until she could do something, and it was put off indefinitely. Mr. McMillan also intervened in her behalf. When Alice Ferguson refused to help her, Cude offered to look after her and her property and help her until she could get someone or hire somebody. Mrs. Gordon’s attitude towards the foster son, doctor, lawyer and Alice Ferguson changed from that point on. After this Cude and his family helped Mrs. Gordon with them doing the physical work and her making the decisions and managing things.

Mrs. Gordon remained in the hospital until November 4, 1967, during which time Charlie McMillan, a close friend and fellow church member of Mrs. Gordon, at her request, obtained from the proposed guardian all the papers given him by the foster son after the Petition for his appointment as her guardian was filed and also her first Will (Will 1) from the attorney who was holding it and delivered them to Mrs. Gordon.

After Mrs. Gordon returned home and received the papers from the proposed guardian and the first Will, she burned the Will in the presence of witnesses stating that she was through with it, but retained the Affidavit as that was the first attorney’s opinion that she was competent. She then wrote notes to and called several attorneys outside of Mena, stating she wanted one totally unconnected with her former friends, to get their assistance in making a new Will and disposing of her property.

After several unsuccessful attempts to obtain a lawyer who could come to her home, she finally sent a note by Archie Cude to Max Witt at Mount Ida, who with his wife drove to Mrs. Gordon’s home one Sunday, where, on January 7, 1968, he prepared Will 2, and a Warranty Deed conveying the farm to Clark and Wayne Cude, the minor sons of Archie Cude, retaining a life estate unto herself, both of which were executed as required by law. The Deed was recorded January 8, 1968. On January 22, 1968, Max Witt, at the written directions of Mrs. Gordon, prepared a Power of Attorney authorizing Archie Cude, her nominated Executor in Will 2 and the father of Clark and Wayne Cude, to manage her property and affairs and another Warranty Deed of the farm to the Cude boys to correct and make clear her intent in the January 7th deed, both of which were duly executed and acknowledged as required by law and then recorded.

It would unduly burden this opinion to further detail the testimony and would serve no useful purpose, but briefly stated contestants offered proof that Mrs. Gordon was competent when she made Will 1, but that when she attempted to revoke it by burning it five or six weeks later she was incompetent due to mental incapacity and the undue influence of Archie Cude, who they further contend was a beneficiary and the procurer of the making of Will 2.

The proponents offer the testimony of twelve (12) witnesses including the attorney who prepared Will 2 and his wife and the attesting witnesses to both the will and codicil, each of whom clearly and unequivocally testify as to the normalcy of the facts and circumstances surrounding Mrs. Gordon at the time she dictated the terms to be inserted in her Will, and executed it, and the deed, as well as at the time the Codicil, Power of Attorney and new deed were made and to the complete competency to make a will .under the rules followed by this Court as hereinafter set out, as well as to the absence of fraud or undue influence on the part of Cude. Even Mrs. Gordon’s regular physician, called by contestants, testifies that in his opinion she was competent, although he does question her business judgment.

The contestants offer the testimony of ten (10) witnesses including that of the beneficiaries under Will 1 and the Deposition of a sister, all of whom had become more or less alienated from Mrs. Gordon, either by their long period of absence from her or because of what Mrs. Gordon felt their actions towards her warranted. Little of this testimony bore directly upon the mental condition of Mrs. Gordon at the date and time of the execution of the Will, Codicil, Power of Attorney and Deeds, or immediately before and after that date and time so as to be persuasive. Some testimony is offered to try to establish a relationship and plot on the part of Archie Cude to Mrs. Gordon to raise a presumption of fraud and undue influence, but there is no positive testimony on these points and that offered is not persuasive or convincing.

After carefully weighing and analyzing all of the testimony presented in this record (834) pages) and the excellent briefs of counsel and opinion of the Trial Judge, who had an opportunity to personally observe and weigh the testimony of each witness and thus was in a better position than this Court to determine the weight to be given such testimony, we 'think the clear preponderance of the testimony supports the finding and Order of the Trial Judge.

The rules of law applicable to the contentions and subjects in this case, and which guide us in reaching a decision herein are set out in the following separate headings.

FIRST — TRIAL DE NOVO.

The rule is well established that will contest cases on appeal come before this Court for trial de novo, and unless this Court can say that the Order of the lower Court is NOT supported by a preponderance of the testimony, it will be the duty of this Court to affirm. Welch v. Farber 188 Ark. 696, Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441, Thiel, Special Administrator, v. Morley, 223 Ark. 175, 265 S. W. 2d 507, Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 655, Short v. Stephenson, 238 Ark. 1048, 386 S. W. 2d 501.

SECOND — MENTAL OR TESTAMENTARY CAPACITY

Mental or testamentary capacity as must be possessed by a testator in order for him to make a valid will has been defined by this Court many times in two lines of cases, which are:

The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Boone v. Boone, 114 Ark. 69, 169 S. W. 779; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917D, 713; Griffin v. Union Trust Company, 166 Ark. 347, 266 S. W. 289; Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695; Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Tatum v. Chandler, 229 Ark. 864, 319 S. W. 2d 513; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665; O’Dell v. Newton, 228 Ark. 1069, 312 S. W. 2d 339.

Complete sanity in a medical sense is not essential to testamentary capacity, provided power to think rationally exists when a will is made.

A will executed in a lucid interval is valid. Thus, the time to be looked into in determining a testator’s mental capacity to make a will is when the document was executed. In dealing with this subject, this Court in Scott v. Dodson, Executor, 214 Ark. 1, 214 S. W. 2d 557, said:

“Fifth — The Applicable Law. — The test is whether Mrs. Boykin, on September 13, 1938, had a fair comprehension of the nature and extent of her property, of her relationship to those who had claims upon her, of their situation as it affects financial need, or financial sufficiency; and of other obligations existing at the time she acted.
Complete sanity, in a medical sense, is not essential; provided, that the power to think rationally exists when the individual’s will to act is exercised. The word ‘will’ of itself connotates purpose, intent, deliberation, violation, freedom from unreasonable restraint, voluntariness, desire, the power to choose, discretion.”

In 56 Am. Jr., page 89, under subject of “WILLS” and under the sub-head of “Lucid Intervals” it is stated: which is quoted with approval in Thiel, Special Adm’r v. Mobley, 223 Ark. 167, 265 S. W. 2d 507, “A will executed in a lucid interval by one who was before and after a confirmed lunatic is valid. .” The following section, also in point here, states that “The time to be looked to in determining the capacity of a testator to make a will, in reference to his mentality, is the time when the will was executed”. See also Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695.

The same degree of mental capacity is necessary to revoke a will as to make one.

Revocabil'ity is an essential characteristic of a will. Except where a testator subsequently becomes incompetent, he retains the power of revocation as long as he lives. Thus the same test of mental capacity applies to the revoking of a will as to the making thereof. See 57 Am. Jur. 458, Wills, page 322.

We adhere to these rules and find that the lower Court’s finding of competency of the decedent at the time of the revocation of Will 1 and execution of Will 2 is supported by a preponderance of the evidence.

All of the witnesses for the proponents testified to facts, according to these rules, which established the competency of the decedent at the time she made the Will and other documents. Witnesses for contestants testified that in their opinion she was not able to make a will,- but did not testify to facts or acts which supported their opinion. True she may have had peculiarities or eccentricities, but these are not sufficient to indicate mental incapacity.

As heretofore stated, we have examined the entire record and have reached the conclusion that the Order is supported by a preponderance of the evidence, and, therefore, the Order should not under this rule be disturbed.

THIRD — FRAUD AND UNDUE INFLUENCE.

The fraud and undue influence which the law condemns as voiding a will is defined by this Court in Thiel, Special Adm’r v. Mobley, supra, when it quoted with approval from Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695:

“ ‘As we understand the rule, the fraud and undue influence which is required to -void a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause which deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution’ ”.

See also also McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, and Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.

The charge of fraud and undue influence is based primarily upon the fact Mrs. Gordon revoked her Will of October 3, 1967, in which she left all of her property to a foster son and his family and by deed and her Will of January 7, 1968, deeded or devised all of that property to her neighbors, Archie Cude and his sons.

It is evident from the testimony that after the episode in which the foster son sought to have a guardian appointed for Mrs. Gordon and the subject of the missing money and other articles from the home, Mrs. Gordon became estranged from the foster son and alienated from his family and sought new friends for help and solace, the Cudes. The Cudes cared for Mrs. Gordon and apparently abided by her wishes with respect to seeing to her health and physical needs as well as looking after and managing her property.

The rule in this State has been for many years that so long as a testator has the required capacity to make a will he may leave his property to whom he chooses no matter how capricious or frivolous it may seem to others.

In Parette v. Ivey, Executor, 209 Ark. 364, 190 S. W. 2d 441, this Court said,

"The undue influence which avoids a will is not the influence which springs from natural affection, or is acquired by kind offices, but it is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of is property. And it must be directly connected with the execution of the will and specially directed towards the object of procuring a will in favor of particular parties.

“See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, wherein this court said: 'Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection or resentment, by which they naturally may be influenced, are not subject to examination and review by the Courts. Barricklow v. Stewart, 163 Ind. 438, 72 N. E. 128; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681. If one has the capacity indicated to make a will then he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate. Schneider v. Vosburgh, 143 Mich. 476, 106 N. W. 1129; In re Spencer’s Estate, 96 Cal. 448, 31 Pac. 453; Rivard v. Rivard, 109 Mich. 98, 66 N. W. 681.

“There was other testimony that tended to show that an estrangement had grown up between appellant and his deceased sister, and indifference and neglect on appellant’s part. Many facts- and circumstances may be considered in determining-whether the deceased at the time she made her will was conscious of the ‘deserts and claims’ which her relatives had upon her. No hard and fast rule may be employed. In - this connection, the testator may take into account, when considering his duties to relatives-, past neglect, indifference, estrangement, and the like.”

The testimony does not support the contention that Archie Cude held a confidential relationship with Mrs. Gordon at the time of the execution of the Will and other -documents, or that he was a beneficiary thereunder within the meaning of these rules, but shows that he was her helper, messenger or benefactor.

FOURTH: BURDEN OF PROOF.

It is well established in this State that the burden of proving mental incompetency, undue influence or fraud which will defeat a will is on the party contesting it: Werbe v.Holt, 218 Ark. 476, 237 S. W. 2d 478; Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264; Thiel, Special Adm’r v. Mobley, 223 Ark. 265, McDaniel v. Crosby et al, 19 Ark. 533, Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665.

And just as in Sullivant v. Sullivant, supra, the appellants in this case, attempt to shift the burden of proof to the proponents (appellee) of the Will 2 by relying on the rule in Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667, where this Court said:

“When it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.”

In that case the testatrix made four wills in less than a month. The proponent of the last will, the daughter-in-law, was one of the principal beneficiaries who had her own lawyer prepare the will according to her individual instructions and contrary to the terms of the first will.

In the case at bar, Mrs. Gordon dictated to the attorney the terms she wanted in her will, specified that certain property and stocks go to particular beneficiaries and dictated the terms of a deed, a clear reading of which in itself shows the decedent to have the capacity to retain in her mind without prompting the extent and condition of her property and to comprehend to whom she is giving it, and that the only part Archie Cude played in this was acting as her messenger. The testimony does not show him to be the procurer or beneficiary so as to raise a presumption of undue influence.

Appellants also contend that under the Orr rule, not only did the burden of proof shift to the proponent but also that the proponent must prove beyond reasonable doubt that the testatrix had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.

We do not agree with Appellants in either contention.

We adhere to the rule that the burden of proving mental incompetency, undue influence and fraud which will defeat a will is upon the party contesting it. We hold this burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant. This does not however, conflict with the rule concerning the burden of going forward with the evidence or burden of evidence. As stated in 29 Am. Jur. 2d, 156, Evidence Section 125: “In short, the burden of proof, in the sense of the ultimate risk of nonpersuasion, never shifts from the party who has the affirmative of an issue, although the burden of going forward with the evidence may shift at various times during the trial from one side to the other as evidence is introduced by the respective parties.”

From all of the testimony we are unable to say that the findings and Order of the Probate Court were against the preponderance and contrary to the law as herein stated.

The Order of the Probate Court is affirmed.

Harris, C. J., and George Rose Smith, J., dissent.

Jones, J., not participating.


text:
    Graddy S. DUNCAN and Margarett Lucille Duncan, his wife v. Joyce HENSLEY
    5-5217
    455 S. W. 2d 113
    Opinion delivered June 15, 1970

      Thomas D. Ledbetter, for appellants.

      Moore ir Ligan, for appellee.
   Eugene A. Matthews, Special Chief Justice.

This appeal is from the decree of the Newton County Chan-eery Court cancelling a deed to Appellant Graddy S. Duncan, conveying 440 acres of real property situated in Newton County, Arkansas, and a bill of sale conveying to him certain personal property, both executed and delivered to this Appellant by. Appellee on February 4, 1969. The complaint of, the Appellee, Joyce Hensley, filed in the Newton Chancery Court on May 26, 1969 alleged that said instruments were executed as a result of threats of great bodily harm and injury to the plaintiff, and were without consideration, and prayed that the same be cancelled.

Appellee and Appellant Graddy S. Duncan (who will hereinafter be referred to as Appellant) were married September 16, 1964 at Kingsville, Georgia, while both were apparently residents of the State of Florida, and at a time when Appellee was conducting negotiations for the purchase of certain real estate known as the Long J Ranch in Covington, Louisiana. Thereafter the purchase was consummated, title being taken in the name of both Appellee and Appellant. The parties operated a ranching operation on these lands for approximately three years. The Louisiana lands were then sold for Seventy-nine Thousand ($79,000.00) Dollars, and a portion of the proceeds of the sale were used in purchasing the Newton County lands sometime during the latter part of 1967, in the purchase of a house trailer in which they lived upon the Newton County lands, and the Appellant and Appellee began a ranching operation upon such lands.

On June 26, 1968, the Appellee and Appellant entered into a property settlement agreement, in contemplation of divorce, under the terms of which Appellee was to receive the 440-acre farm located in Newton County, Arkansas, together with the household furniture located in Newton County, Arkansas, cattle and horses upon the Newton County farm and a 1968 Volkswagen automobile. The agreement recited that a 1961 Volkswagen registered in the name of Appellant would be transferred to Larry B. Hensley and further recited that any other automobiles, trucks or equipment registered in the name of the husband should be his sole and exclusive property. On the same date, Appellant executed a quitclaim deed to Appellee covering the Newton County lands.

Thereafter, on August 1, 1968, Appellee was granted a divorce from the Appellant in which decree it was recited that the property settlement agreement filed therein should be approved and incorporated as a part of such decree. On February 4, 1969, Appellee, Joyce Hensley, executed and delivered to the Appellant a quitclaim deed conveying to him the Newton County lands and a bill of sale covering certain cattle, quarter horses, farm machinery, implements and tools situated on the Newton County lands and the house trailer, also situated thereon. The deed recited a consideration of Ten ($10.00) Dollars and other valuable consideration paid; and the bill of sale a consideration of Ten ($10.00) Dollars and other legal considerations paid. Both instruments were recorded on February 4, 1969.

On May 28, 1969, Appellee filed her suit to cancel these instruments and the decree from which this appeal comes was entered on September 4, 1969.

Appellants rely upon the following points for reversal:

I.
The Chancellor erred by allowing, over timely objection, testimony and evidence to be presented not related to issues contained in the pleadings, and further erred by allowing testimony and evidence to be presented going to issues, including relative assets of the parties, pre-dating August 1, 1968, when the divorce decree was entered.
II.
The Chancellor erred in finding clear and convincing evidence sufficient to decree cancellation of the instruments involved herein on grounds of physical duress.

Point I. On the day set for trial of this case and after the parties had announced ready the Appellants, in response to an inquiry of the Court as to preliminary matters made the following motion:

"Yes, Your Honor, the original petition in the matter describes the two instruments that are involved in the case and we would like to have a ruling of the Court in advance; it is our feeling that the petitioners will attempt to introduce evidence that will not be germane to the questions of grounds for rescission of these two documents, and we would like to have the ruling of the Court to limit their scope of evidence.”

In response to this motion the Court stated:

“We will pass on any objections that you have at the time any testimony is offered, and I will not try to anticipate anything that is going to be offered for purposes of clarification.”

This ruling was correct upon the grounds stated by the Court. Thereafter the trial Court permitted evidence to be introduced going to the financial condition of the parties and the relationships existing between them prior to the divorce decree of August 1, 1968. Appellants argue that in response to their motion this testimony should have been excluded on the ground that the Court had lost jurisdiction over the subject matter and persons of the Appellee and the Appellant in the divorce action between them because the term in which such divorce decree was entered on August 1, 1968, had expired. They further argue that the Court erred in permitting testimony to be introduced related to facts and occurrences prior to February 4, 1969 under the doctrine of res judicata.

Neither of these arguments has merit. This litigation has nothing, whatever, to do with the divorce decree of August 1, 1968] except as the relationships between the parties prior to and at the time of such decree threw light upon the state of mind in which Appellee found herself on February 4, 1969, at the time of the execution of the instruments here in question. The issues in this action are not those embraced in the divorce action terminating in the August 1, 1968 decree and the doctrine of res judicata is not applicable in this case. Nor did the Court err in treating the pleadings in this cause as amended to conform to the proof, over the objection of Appellants. In the case of Bonds v. Littrell, 247 Ark. 577, 446 S. W. 2d 672, this Court held that when the trial court permits the introduction of evidence in the face of an objection that the point at issue was not raised by the pleadings, the effect of its ruling is to treat the pleadings as amended to conform to the proof. In so doing the Chancellor did not abuse his discretion.

Point II. Appellee was required to prove her case by clear, cogent and convincing testimony. Bryan v. Thomas, 226 Ark. 646, 292 S. W. 2d 552. In the case of Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524, this Court held that fraud may be proved by circumstantial evidence or by a combination of direct and circumstantial evidence. In the case of Brimson v. Pearrow, 218 Ark. 27, 234 S. W. 2d 214, this Court approved the following statement from the earlier case of Hightower v. Nuber, 26 Ark. 604, 611:

‘And in a court of equity, where bad faith and unconscionable acts can have no allowance or favor, the strength of mental capacity of the parties, the circumstances surrounding them, their relationship, etc., make up the grounds upon which the court can find the real influences that produced the conveyance. And when it is discovered that the party in whose favor the conveyance was made possessed an undue advantage over the grantor, and in person, or by agent, exercised an improper influence over such one, and to the advantage of the grantee, it is an act against conscience and within the cognizance of a court of equity.’ ”

We have no hesitancy in applying this same rule to this case where duress is alleged.

In Burr v. Burton, 18 Ark. 214, at page 233, this Court said:

“A contract made by a party, under compulsion, is void; because consent is of the essence of a contract, and where there is compulsion, there is no consent, for this must be voluntary. Such a contract is void for another reason. It is founded in wrong or fraud. It is not, however, all compulsion which has this effect; it must amount to duress. But this duress may be either actual violence, or threat. 1 Parsons on Cont. 319.
“The bill alleges, that Philip P. Burton threatened complainant, and the apprehension of personal violence was one of the inducements to the execution of the notes.
“Duress, by threats, says Mr. Parsons (Id. 320), exists not wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong, as of death, or great bodily injury, or unlawful imprisonment.”

In National Life & Accident Insurance Co. v. Blanton, 192 Ark. 1165, 97 S. W. 2d 77, the rule in the Burton case was re-affirmed and was somewhat enlarged in the case of Perkins Oil Company of Delaware v. Fitzgerald, 197 Ark. 14, 121 S. W. 2d 877, where it is said:

“To the same effect were numerous cases cited and discussed, all of which we have examined and determined that they arrive at, or reach the same uniform conclusions as those wherein such contracts were fairly and openly entered into without fraud, mistake, deception or any form of duress. They were ordinarily held to be good. But in those cases in which these contracts were induced by some form of fraud, by over-reaching, by deceptive promises, relied upon, or by some form of duress, sufficient under all the prevailing facts and circumstances to impair the deliberate judgment to the extent that it might be determined that although the contract had been signed, it had not been agreed to, such contracts have uniformly been held voidable at the instance of the injured party.”

At the conclusion of the testimony, the trial Court made findings and in part said:

“The Court finds and holds that the evidence is clear and convincing that this defendant (Appellant) Graddy Duncan, came from Louisiana and approached this plaintiff (Appellee), on February 4, 1969, with the intention of depriving her of most of the rest of the assets that she had and more particularly this farm and most of the horses and such other items as she still owned, and that he went to her place of business and later threatened her life and finally by use of such threats, which the Court finds were direct and real and of such a nature as to place her in fear of grievous bodily wrong or even death, prevailed upon her to go with him to the office of a realtor and have these papers prepared conveying over to him all of the farm, and she was the sole owner at the time of this four hundred forty (440) acres of land and improvements on it, and these animals mentioned in the bill of sale or agreement that she executed on that date. The Court finds that since the instruments were executed under those circumstances and involuntarily and against her will that they should both be cancelled in their entirety, and the Court so decrees.”

With these conclusions of the Chancellor, wé agree.

The record of the testimony in this case is voluminous and it -would serve no purpose to set it out in detail. It establishes that at the time of the marriage between Appellant and Appellee in 1964 the Appellee had assets approximating One Hundred Thousand Dollars and the Appellant had assets of less than Two Thousand Dollars, he having just a short time prior thereto delivered over all of his assets to a former wife in a divorce proceeding.

The evidence fairly establishes that after the 1964 marriage both of the parties devoted themselves to the ranching operation in Louisiana and later in Newton County; and that at the time of divorce on August 1, 1968 Appellant had made no financial contribution to the business operations of the parties other than his labor and participation in management.

Appellee testified that prior to February 4, 1969, she had seen the Appellant only on two occasions subsequent to August 1, 1968, the date of the divorce decree, these being times when he returned to Newton County to pick up items belonging to him, the last time being in November of 1968; that on the morning of February 4, 1969, the Appellant came to the office of the Boone County Veterinarian Clinic in Harrison, Arkansas, where she was employed and prevailed upon her to enter his truck for the purpose of talking with him and after accompanying her to the Post Office, drove toward Newton County and onto a dirt road where he stated that Appellee was going to sign everything over to him or she was going to be dead; that Appellant also made threats against the life of one Bill Hardin and his daughter who had accompanied her to work that day. She testified that in reaction to these statements she was very scared because she believed Appellant and as a consequence, agreed to sign the papers transferring the farm and the items described in the bill of sale over to Appellant. They then went to the real estate office of Al Hochberger, in Jasper, Arkansas, the real estate man who had sold them the 440-acre ranch, and he prepared the deed and bill of sale which were executed and acknowledged in his presence, and thereafter by the parties taken on the same day to the Newton County Court House and made of record. Appellee further testified that while they were at the real estate office she made a list of the horses on the ranch to be used by Mr. Hochberger in preparing the deed and thereafter while the papers were being recorded Appellant wrote on this piece of paper the words “midnight, March 9, 1969” and told her that unless she was off the ranch by that date that she would be dead. She testified that when she returned to the veterinary office that she was very upset, hysterical and did not have very good control of herself.

Appellee testified she believed Appellant because she had seen him in violent rages specifically referring to an instance when he had beaten a horse in her presence and another time when he had threatened to kill the owner of a bull that had been permitted to get in with the cows on the Louisiana ranch; that this violence was demonstrated in a family argument that arose over the use of a television set; that prior to their marriage Appellant had told Appellee that if she didn’t marry him no one else would and she considered this to be a threat. Mr. Hochberger testified that there was evidence that Appellee had been crying when she came into his office but that she made no oral objection to signing the papers; that the fact she appeared to have been crying did not give him too much concern because he had seen various cases where maybe the people are in disagreement but still they agree in' the end and they are unhappy about it and he didn’t pay too much attention to that at the time; ' that he was contacted several weeks later by Appellee and asked whether he could tell she was under duress at the time she signed the papers and he responded in the negative.

Larry Hensley, son of the Appellee, testified that he went to the veterinary clinic at about 4 o’clock in the afternoon of February 4, 1969, and that his mother was crying and seemed- very nervous. He stated that later he was in Louisiana and talked over the telephone with Appellant and that Appellant told him that if he saw him again after March 9th that he was dead. He testified that he had seen Appellant strike his twenty-one year old son, Stevie Duncan, and knock him to the ground, further stating the Appellee was present at the time this occurred; he testified that Appellant had made threats to hunters on the Newton County property and that this was known to Appellee on February 4, 1969. Appellant testified that he had struck his son saying he was giving him some backtalk and didn’t shut up when he told him to. When asked if he had ever threatened Larry Hensley he said that he might have told him that he would tear him up with a halter or something like that.

Jane Dixon, a childhood friend of Appellee, testified as to various acts of the Appellant of a violent nature including the beating of the horse and an incident when Appellant threatened her and Appellee with a poker stating. that all of these incidents were known to Appellee on February 4, 1969.

Appellant, in his testimony, corroborated some of the incidents occurring prior to February 4, 1969, but stated that he did not threaten his wife on that date. He testified that he came to Newton County on February 4, 1969, for the purpose of picking up the rest of his property specifically including a cattle van trailer, welding outfit, and other items, together with three cattle. He stated that he had previously discussed with Appellee his returning to pick these items up but that she was not expecting him on this date. Fie testified that he went to the veterinary clinic and picked up Appellee and that while they were at the Post Office he observed a 557 Magnum pistol in her purse. Appellee denied this. He said that they were riding around when he told her that he had come to pick up the trailer and had to have it in order to move his other stuff and when she said she didn’t know where the trailer was, he told her that they would ride over and see the Sheriff of Newton County about it. In testifying with reference to the recording of the papers on February 4th, Appellant was asked on direct examination:

“Q. There has been some testimony about the fact her eyes might have been a little red or she might have been crying?
“A. Yes, she was crying. She was kind of huffed at me.
“Q. What do you mean by huffed at you?
“A. Well, I ought not to be so — there was so many cottonpicking people around and you couldn’t talk to her; she was a good person but she is spoiled, whatever she wants that is what she wants and if you take it from her, you might as well take it away from Rastus Ramsey’s baby that was back there a while ago (indicating in courtroom) because she don’t like it.”

Within a week after February 4, 1969, the date of the conveyances here sought to be set aside, Appellee went to the office of her attorney in the divorce proceeding, in Harrison, one Buford Gardner, who testified that Appellee wanted to get a péace bond or restraining order against the Appellant and at that time they discussed briefly his employment for the purpose of recovering the property forming the basis of this action, but that he advised her that if it was a criminal matter that she should go to the Prosecuting Attorney although it appeared that probably her best remedy would be a civil matter; that they then went to the office of the Prosecuting Attorney where she related the circumstances, and who declined to take any action without further investigation; that witness advised Appellee to wait to see what Mr. Dosier had told her about the matter and that possibly she should get her remedy in the civil action but that since he was deputy Prosecuting Attorney and had on occasion represented both of them recommended that she get other counsel. He further stated that she consulted him further and that she was to get some other information for him and he was supposed to make a trip to Newton County to investigate it a little further; that at the same time they were discussing the matter of employing other counsel, that he wanted to avoid a conflict due to the fact there appeared to be some possibility that a criminal action might be involved. The certified copies of Exhibits A and B to Appellee’s complaint, being the bill of sale and deed respectively, show that they were certified as true copies of the originals by the Newton County Circuit Clerk on February 12, 1969.. This action was filed on May 28, 1969.

Appellants argue that even if the Court should determine that Appellee discharged the burden of proof as to establishing duress, and we have held she did, then she is estopped by reason of her failure to make known to any of the persons the parties contacted on February 4, 1969, that she was acting under duress of Appellant arid by her further delay in asserting such duress until the filing of her complaint on May 28, 1969. Appellee testified that she continued under the burden of Appellant’s threats until she left Newton County about March 8, 1969, and we do not find an unreasonable period of delay in filing the suit to set aside the instruments. In Owens v. American Bankers Insurance Co., 242 Ark. 343, 413 S. W. 2d 663, this Court said:

“But there is yet another, and stronger, reason for denying the defense of laches. To sustain that plea the pleador must show that the delay results in a disadvantage. No such disadvantage was suffered by Bankers. ‘Since laches is an equitable doctrine, its application is controlled by equitable considerations. It cannot be invoked to defeat justice; and it will be applied where, and only where, the enforcement of the right asserted would work injustice. 30 A. C. J. S. Equity, par. 115.’ ”

While we have made no attempt to summarize all of the testimony in this case, suffice it to say that after careful examination of the record we believe that. within the rules set forth above, tne competent testimony sustains the findings made by the Chancellor. While we find corroboration of Appellee’s testimony on the issue of duress we also re-affirm our holding in the case of Dodds v. Dodds, 246 Ark. 307, 438 S. W. 2d 54, where it was stated:

“Upon the issues still in dispute the testimony at the trial was in such conflict that the predominant question was that of credibility. Many of the contradictions were between W. P. Dodds on the one hand and either John or James on the other. Where the sole issue is that of credibility as between interested parties, our practice is to abide by the chancellor’s judgment in the matter. Souter v. Witt, 87 Ark. 593, 113 S. W. 800, 128 Am. St. Rep. 40 (1908).”

Other arguments are raised by Appellants, all of which have been carefully considered and found to be without merit.

Affirmed; and the Appellee is allowed the full cost of printing her brief.

Harris, C. J., not participating.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Mrs. James M. KEARBY v. YARBROUGH BROTHERS GIN CO. and Southern Farm Bureau
    5-5285
    455 S. W. 2d 912
    Opinion delivered June 22, 1970
    [Rehearing denied August 3, 1970.]

      Eugene Mazzanti and Nevada Roberts, for appellant.

      Cockrill, Laser, McGehee, Sharp <tr Boswell, for appellees.
   Carleton Harris, Chief Justice.

This is-a workmen’s compensation case, and the only issue is whether there was any substantial evidence to support-an award made by the commission to Mrs. James M. Kearby, appellant herein, and widow of James M. Kearby-, an employee of Yarbrough Brothers Gin Company, who died from a coronary thrombosis, as a consequence of coronary artery disease, on November VJ, 1968. Subsequent to the death of Mr. Kearby, the widow filed a claim for benefits, this claim being heard by a referee on April 7, 1969. In an Opinion filed on June 24, 1969, the referee held that Kearby sustained an accidental injury within the meaning of the compensation act which arose out of, and during the course of, his employment with Yarbrough Brothers Gin Company. An award of $58.50 per week commencing on November 18, 1968, and continuing until the sum-of $14,500 had been paid, was made, and this award was appealed to the full commission. The commission affirmed the order of- the referee, except that the amount of $58.50 per week was reduced to $55.00 per week. Thereupon, the ruling of the commission was appealed to the Lonoke Circuit Court, and on hearing, the holding of the commission was reversed, the court finding that there was no substantial evidence to support the award. From the judgment so entered, Mrs. Kearby brings this appeal.

The proof reflects that Kearby had been employed by Yarbrough Brothers Gin Company, which together with Southern Farm Bureau Insurance Company, -constitute the appellees herein, for approximately twelve years, and it was his responsibility to oversee the entire operation of the gin and to maintain the mechanical years, and it was his responsibility to oversee the entire system.

According to Mrs. Kearby, for more than three weeks before his death, Kearby, 61 years of age, would arise -at 4 a.m., leave the house for work by 5:50 a.m., and would never return from wor-k earlier than 7 p-.m. This was a heavier schedule than was normally followed because the busy season for cotton ginning was in progress. The witness said that on Sunday -morning, November 17, 1968, the two arose, had breakfast, and Kearby remarked that he had to go to the gin to perform a repair job. Mrs. Kearby went to church, and when she returned, her husband had arrived back at the home. After lunch, Mr. Kearby went to the living room where he watched television until about 1:50 P. M. At that time he began coughing, took a dose of couch syrup, but very shortly began coughing again and getting short of breath. He told his wife that he had gone by to see a doctor that morning and had gotten a shot; she added that he had been taking shots for some time due to chronic bronchitis. Mrs. Kearby thought that perhaps he was having a reaction from the shot and she suggested calling the doctor; however, Kearby objected,, but he continued to get worse, very short of breath, and a neighbor took them to the hospital at England, Kearby being admitted about 3 p.m. He died some forty minutes later.

Grover Cleveland Arnold, an employee at the gin, testified that Kearby was the “ginner” and had the duty and responsibility of operating the gin, and repairing breakdowns. He said that it was dusty around the gin, that there were ladders, one rather steep, that had to be climbed; that Kearby repaired the belts and pulleys at the gin, sometimes carrying these belts and oulleys when he climbed the ladders. According to the witness, the belts weighed from twenty-five to approximately fifty pounds. Arnold said he had heard Kearby complain of a shortness of breath on several occasions. The witness stated that he saw Kearby’s truck parked at the gin on the morning of Sunday, November 17th, but did not know whether Kearby actually performed any work while there.

Emmett Arnold, likewise an employee of the gin company, testified to approximately the same facts. Additionally, he said that he worked twelve hours per day, and that Kearby “usually stayed around a little more”. He also said that frequently no lunch break was taken, but one man would eat while another worked in his place; that Kearby always brought his lunch and the job “just kept rolling”.

Dr. Thomas Owen Woods, a practicing physician in England, testified that he treated Kearby on the day that he died.

“I first saw Mr. Kearby about nine-thirty on Sunday morning, with a complaint of shortness of breath. I had never seen this patient before, and I went to the office and got his file and found he had similar complaints previously, and I advised him he should have a more thorough evaluation, and he said he didn’t have time, that he would come back, and he wanted something that he usually got for his shortness of breath, which was his main complaint, and so, I gave him Neothylline, and he left. Then, about three o’clock in the afternoon, he was brought into the emergency room having severe difficulty with breathing, cold and clammy, perspiring profusely, and had hypertension. It was my opinion that he was in cardogenic shock, and I admitted him to the hospital.”

The doctor said that an electrocardiogram was taken, and that he was suspicious of a myocardial, infarction, and it also appeared that he had secondary congestive heart failure. Woods had examined Kearby’s reports, and one was read into evidence as follows:

“This sixty-year-old white male, who expired on November seventeen, Nineteen Sixty-eight, had had a chronic cough for several years, with a diagnosis of chronic bronchitis with pneumoconiosis, which was probably partially related to his chronic irritation related to his working environment. In June, Nineteen Sixty-eight, he was seen by the Little Rock Diagnostic Clinic, Doctor Sexton Lewis, for complete evaluation, They confirmed the diagnosis of chronic bronchitis and pneumoconiosis.”

The doctor testified that this was a respiratory condition, and it was his opinion that conditions in a cotton gin would tend to aggravate the ailments with which Kearby was afflicted. He further testified that this irritation of a chronic condition could tend to place a stress on the heart. The witness stated that the purpose of the Neothylline, a bronchial dilator and a diuretic, was to improve Kearby’s breathing, and to remove fluid from the lungs. He also said that in cases of congestive heart failure, fluid accumulates in the lungs. Dr. Woods also said that, based on the information in Kearby’s record, the latter did have a history of a heart condidon. Though observing that coronary artery disease is a process that occurs over a period of many years, and an attack is more influenced by physiological conditions rather than activities, stress could precipitate an attack. The doctor would not state a conclusion on the causal relationship between the work and the heart attack, stronger than that there could be a connection.

It is this lack of positive statements on the part of the doctor that appellees point out as supporting their contention that his testimony did not constitute substantial evidence, and appellees- mention that the referee stated that, in making the award, he was not relying upon expert medical opinion “simply because there isn’t any”.

We have stated on many occasions that no weight is to be attached to the findings of the referee. Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166. We might also add that a statement was made by the referee that he had taken into consideration personal knowledge to the following effect:

“Cotton ginning is hard work; that conditions surrounding the work are extremely dusty; that dust and lint during the ginning season are constantly in the air, covers the machinery, employees and the entire vicinity of the gin as well as the adjoining neighborhood; and, gas dryers generate a sufficient amount of heat and to the point of creating uncomfortable working conditions.”

Under the facts of this case, there was no proper basis for this statement concerning personal knowledge, but it does not appear, from the order entered, that the commission paid any attention to it, that body making reference to the evidence, and then finding that there was a causal connection between the decedent’s employment and his death.

This is a rather close case, and we, no doubt, would affirm if the finding had been against Mrs. Kearby. On the ottier hand, the commission having decided in favor of her contentions, we do not feel that we can say that there was no substantial evidence to support the award. This court has said on more than one occasion that the strongest rule in - compensation cases, and the one carrying the greatest weight, is that if there is any substantial evidence to support the findings of the commission, we will not disturb those findings. Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.

Here, the evidence clearly establishes that Kearby had been working long hours for several weeks preceding his death; that working conditions were extremely difficult for one who was afflicted with chronic bronchitis with pneumoconiosis; that this chronic condition was related to his working environment; that he was suffering on the morning of November 17 th prior to going to the gin, and received medical attention.

Appellees refer to the indefinite answers given by Dr. Woods, and assert that his testimony is of no aid to appellant. From reading the transcript, it appears that this physician was very conscientious, and was endeavoring to avoid making any statement that he could not completely substantiate. Though he refused to say that the heart attack was occasioned by the employment, he did say that conditions in the gin would tend to aggravate the chronic ailments with which Kearby was afflicted, and that the irritation of a chronic condition could tend to place a stress on the heart. He also said that the purpose of the medicine given Kearby on Sunday morning was to improve the latter’s breathing, and to remove fluid from the lungs. As already set out, he stated that in cases of congestive heart failure, fluid accumulates in the lungs.

We have pointed out in our cases that mathematical certainty is not necessary in stating the cause of death. United States Fidelity & Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266. In Atkinson v. United States Fidelity & Guaranty Co. (Texas) 235 S. W. 2d 509, the trial court, in a workmen’s compensation case, held a claim of appellant not compensable because- there was no evidence of an accidental injury, and no evidence of a causal connection between the work and the death of appellant’s husband. In reversing, the Court of Civil Appeals of Texas (San Antonio) said:

“It is urged that because Dr. Longoria at one point testified that, ‘it is a possibility that the origin (of the disease) was incited through strain and stress and exposure,’ this case comes within the rule that something more than a showing of mere ‘possibility’ is necessary to establish a finding of causal connection, [citing cases] In determining whether or not a showing of mere possibility and no more has been made, all of the pertinent evidence on the point must be considered. The fact that an expert medical witness, in speaking of cause and effect uses such expressions as ‘might cause’, ‘could cause’, ‘could possibly cause’, or phrases similar thereto does not preclude a jury finding of causal connection, provided there be other supplementary evidence supporting the conclusion. Causal connection is generally a matter of inference, and possibilities may often play a proper and important part in the argument which establishes the existence of such relationship.”

We think the above language is pertinent to the cause at hand, and our views might well be summed up by the language used in Hall v. Pittman Construction Co. 235 Ark. 104, 357 S. W. 2d 263. There, wé said:

“Under the substantial evidence rule that prevails in a case of this kind the appellant shoulders a heavy burden in seeking a reversal of the commission’s decision upon an issue of fact. In order to succeed the appellant must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the commission. After studying the record we are unable to say that the appellant is entitled to a reversal; that is, that there is no substantial evidence to support the commission’s findings.”

The judgment of the Lonoke Circuit Court is reversed, and the cause is remanded with directions to reinstate the award made by the commissipn.

It is so ordered.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. Because of a failure of appellant to show causation by medical testimony, I would affirm the circuit court, in spite of the commission’s holding. How the doctor’s testimony can be said to lend substantial support to the commission’s finding is beyond my comprehension. The doctor’s admission that there- could be a connection between the decedent’s work and a heart attack was a reluctant and highly speculative one to say the least. His testimony on this point follows:

Q. I say, in your opinion, is there a relationship between the degree of stress and strain from his occupation and the occurrence of his condition?
A. Well,--
Q. I am referring to the condition of chronic bronchitis and pneumoconiosis, as well as his subsequent fatal heart attack.
A. I think these would have to be separated. I couldn’t give you one answer for both.
Q. Okay. Is there a definite relationship between a degree of stress and strain on his bronchitis and pneumoconiosis and his occupation?
A. I would think so, yes.
Q. And was there a relationship, assuming that he had a heart condition, was there a relationship between what he was called on to do in his occupation as to his condition of heart disease? Was there a relationship with the stress there?
A. I don’t believe I could answer that, because I don’t know how much stress he had.
Q. Could you better answer it, Doctor, if you heard some of these witnesses testify as to what his activities were at the gin?
A. Possibly. Can I make a statement to sort of clarify some _
Q. Yes, go right ahead, Doctor.
A. The coronary artery disease is a process that occurs over many years, and whether a person is working or whatever his activity, the ultimate cause of this or the gradual buildup of these plaques in the arteries are on a physiologic basis, not so much on his activity.
Q. I know that, Doctor, but couldn’t a stress or trauma or sudden exertion cause one of these plaques to dislodge?
A. Could precipitate an attack, yes.
Q. So, then, Doctor, is it correct to state then, if he was engaged in the type of work that tended to create stress or exertion, that it could precipitate an attack? Is that correct?
A. I am afraid I can’t answer that for sure.
Q. Well, Doctor, I am not trying to make you say, Doctor, that he went to work that morning, and this work made him have a fatal heart attack. I am saying he was doing the type of work that there could be a causal relationship between this work and his heart attack. Do you agree with that?
A. You’re saying there could be?
Q. Yes, there could be.
A. I could say there could be, yes.
Q. Now, Doctor, in your opinion, then, did Mr. Kearby’s work at the gin contribute to his heart attack?
A. I am afraid I can’t answer that.
Q. Doctor, now you did state that this fluid in the chest, which was an indication of bronchitis and pneumoconiosis, would place or could place stress on the heart, is that correct?
A. Yes.
* * *
Q. And you know that he had coronary artery disease?
A. I don’t know myself, other than his record.
Q. Well, his record shows that?
A. Yes.
Q. Which is a condition not necessarily caused by any particular activity, is that right?
A. That is correct.
Q. Physiological in nature?
A. That is correct.
Q. And referring to the death certificate, it is your opinion that he had a thrombosis of a coronary artery, one or more, is that right?
A. That’s right.
Q. Producing a' myocardial infarction, is that right?
A. That’s true.
Q. Or what we layman call a heart attack?
A. Right.
Q. And he died?
A.. Right.
Q. Do you know, beyond that, what caused his death, other than that he had coronary artery disease that resulted in-'a thrombosis that resulted in a heart attack.
A. I do not.
Q. You are not telling this Referee that, if indeed he had chronic bronchitis and pneumoconiosis, this caused his heart attack, are you?
A. No.
Q. You are not telling him that?
A. No.
Q. And you -are not telling the Referee that, if he did any work on November Seventeen or the day before or the week before, that that caused his heart attack?
A. No.

I agree that the referee’s finding is- not for consideration by the courts, and that there was no proper- basis for die referee to resort to his personal knowledge. He was correct, however, in his statement that there was no expert medical opinion to rely upon. With all due respect, I suggest that the majority of the commission, consciously or unconsciously,, did the same thing the referee did without saying so, Ú e., make a finding without medical testimony upon which to rely. I do not think that anyone could argue that the question posed on this appeal is not addressed peculiarly to the realm - of scientific knowledge or that it is the sort of determination that the Workmen’s Compensation Commission could make independently upon the basis of its own medical conclusions. See W. Shanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S. W. 2d 68.

I was confident that this court had reached the extreme limits on uncertain medical testimony in heart cases in Bradley County v. Adams, 243 Ark. 487, 420 S. W. 2d 900. I adhere to the views I expressed there, but even if I did not, this evidence is far too conjectural to justify the commission’s finding of fact in a case where the question was peculiarly within the realm of scientific knowledge.

Of course, mathematical certainty is not required to show a causal connection, but reasonable medical certainty should be. Without saying so, we recognized this principle in Georgia-Pacific Corporation v. Craig, 243 Ark. 538, 420 S. W. 2d 854. There we said that the doctor’s testimony was less positive than medical testimony in some cases, but pointed out that he stated his personal opinion that death resulted from the deceased’s long work hours on the day of the attack from which death ensued. We once recognized that there was a difference in a “possibility” and a “probability” in evaluating medical testimony as to causal connection. See Chapman v. C. Finkbeiner, Inc., 230 Ark. 655, 324 S. W. 2d 348. I submit that this is an appropriate distinction. We appear in this decision to be abandoning these appropriate distinctions.

Professor Larson, in 2 Workmen’s Compensation Law 304 § 79.59 (1969), has this comment on the subject:

* * * The increasing tendency to accept awards unsupported by medical testimony should not be allowed to obscure the basic necessity of establishing medical causation by expert testimony in all but- the simple and routine cases — and even in these casés such evidence is highly desirable and is part of any well-prepared presentation.

I regret that this court is applying a rule followed by a decided minority of jurisdictions on the authority of an intermediate appellate court. In addition to authorities cited in my dissenting opinion in Bradley County v. Adams, supra, I should like to call attention to the following:

Award reversed where only medical testimony was that causal connection was remotely possible, because medical evidence must show probability, not mere possibility. Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St. 205, 101 N. E. 2d 897 (1951).
Where causal relationship between injury and alleged accident is not obvious, unequivocal medical testimony is necessary. Lingle v. Lingle Coal Co., 203 Pa. Super. 464, 201 A. 2d 279 (1964).
Claimant must provide expert medical testimony to establish causation as a medical probability. Gammon v. Ebasco Corp., 74 N. M. 789, 399 P. 2d 279 (1965).
Medical evidence that there was a possibility that fatal coronary occlusion was caused or aggravated by work exertion, held not to support an award. Southwestern Bell Telephone Company v. Gregory, 399 P. 2d 484 (Okla. 1964).

With the uncertainty of the testimony of the witness, and his extreme reluctance to even admit a possibility of causal connection, I am unable to fathom the reasoning by which the majority finds substantial evidence to support this finding by a divided commission.

I would affirm the circuit court’s judgment.

Brown, J., joins in this dissent.

      Emphasis mine.

      In Bradley it could have been more easily said that the attack was caused by "accident” or unusual exertion and that the death soon thereafter was logically attributable than in this case.