author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Harrison v. Oates.
    5-2505
    351 S. W. 2d 431
    Opinion delivered December 4, 1961.

      Clark, Clark & Clark, for appellant.

      Ecldy & Eddy and Robinson, Sullivan & Rosteck, for appellee.
   Paul Ward, Associate Justice.

Appellant filed a complaint in Chancery asking for specific performance of an oral contract whereby Samuel C. Oates agreed to sell him a farm consisting of 285 acres of land in Conway and Faulkner Counties. Defendants were Mr. Oates and his wife, and also Morris W. Gray who claims to be an innocent purchaser of the same land from the Oates after the alleged oral contract was made.

In his answer Oates denied making the oral contract to sell; admitted writing a letter acknowledging a rental agreement, hut denied that the letter constituted a contract to sell; admitted deeding the land to Gray, and; pleaded the Statute of Frauds. Gray, in his answer, admitted receiving a deed to the lands from Oates on November 25, 1958, but claims as an innocent purchaser without notice. By way of cross-complaint against Oates he asked, in case of specific performance, to recover the money paid on the purchase price and damages.

After a full hearing the trial court found that appellant “has failed to prove that he had a valid and binding-contract to purchase the lands involved in this action and his complaint should be dismissed for want of equity.” The court accordingly found that Gray was entitled to immediate possession under his deed from Oates. From the above decree appellant prosecutes this appeal for a reversal.

We have concluded that the trial court was in error in dismissing appellant’s complaint. Numerous issues are discussed by all parties to support their relative contentions, but, under the view we have taken, it will be unnecessary to discuss most of them. After a careful examination of the entire record we think the evidence clearly and convincingly shows: (a) that appellant had an oral contract with Mr. Oates to purchase the land; (b) that Mrs. Oates knew or should have known of the contract; (c) that the contract was made before appellant went on the land; (d) that, relying on the contract, appellant made valuable improvements on the land; (e) that such possession and improvements preclude operation of the Statute of Frauds, and; (f) that appellant’s occupancy prevented Gray from being an innocent purchaser.

Factual Background. Mr. and Mrs. Oates live in Little Rock and appellant lived between Martinville and Damascus in Faulkner County. In the fall of 1957 appellant went to see Mr. Oates about renting the land for the year 1958 when (as claimed by appellant) Mr. Oates offered to sell him the farm (and also rent it for 1958) on definite terms. The farm had been overflowed ini 1957. Accordingly appellant occupied the farm, improved it, paid 1/3 of crops rent, and in the fall of 1958 offered to make the agreed down payment which Mr. Oates refused. Immediately thereafter Mr. Oates deeded the farm to Mr. Gray.

(a) We are bound to conclude from the testimony that there was an oral agreement whereby Mr. Oates was to sell appellant the farm for $12,500 with the first payment of $1,000 in the fall of 1958 and the balance to be paid by installments of $1,000 each year thereafter. This was the positive testimony of appellant and it was not denied by any witness. Confirmation of appellant’s contention is found in the letters written by Oates. In the first letter written on January 23, 1958 there appears the following: “However, I do hereby agree to sell to you, and enter into contract anytime prior to Jan. 1st, 1959, at the sum and price mentioned, viz: $12,500.00 when ever you are able to make the initial down payment of $1,000.00 with annual like payments for the balance.” The evidence further shows that appellant lived up to the agreement by offering to pay Oates $1,000 in October, 1958 and that this payment was refused' by Mr. Oates. In fact, appellant stated he was ready, able and willing to pay the full amount of $12,500 at that time but it was also refused. It is undisputed that just a few days later Mr. Oates wrote appellant a letter (dated October 28, 1958) stating he had a better offer for the place from another party and that he had “decided to let him have it.” Later Oates deeded the land to Gray for the price of $15,000.

(b) The evidence shows that Mrs. Oates knew of and consented to her husband’s agreement to sell the land to appellant, because she admits she either wrote or knew the contents of two letters written to appellant in February, 1958. In the first letter there appears the following sentence: “Just hoping that you can make so much money that you’ll have $1,000 at the end of the year to pay down on the place and we would go from there on.” In the second letter we find this: “Let’s look forward to getting together at the end of the year on an outright deal on the whole place.”

(c) In view of the next two matters to be discussed we deem it pertinent to know when the oral contract of sale was made. The undisputed evidence is that Oates’ offer to sell was made before (or at least at the same time) the lease contract was made, and this date was before appellant went on the farm. The testimony of appellant, as before stated, shows it was made in the fall of 1957, before appellant took possession of the farm on or soon after January 1, 1958.

(d) The testimony clearly shows appellant made valuable improvements on the farm, in excess of what would be expected of the usual tenant. The substance of appellant’s testimony relative to improvements is set out, at some length, below:

Q. “What improvements did you make on the land other than what an ordinary tenant would make?

A. “Well, I cleaned up land that I wouldn’t have cleaned up at all if I hadn’t had a chance to have bought it.”

I cleaned up close to 30 acres on the south side of the creek where the sprouts, as big as your arm or bigger were as thick as they could stick on the ground; also cleaned around the edges of the fields where it had grown up for years — cut back from 20 to 40 feet. I figure it would have cost $300 to $400 to do that cleaning job. I also cleaned logs and “stuff” off the land that had been left by the overflow the year before. Also I graded a mile of roads on the farm which had washed so bad they were almost unusable. On the north side I cleared off and dug up oak and elm trees, some six inches in diameter, and put the land in cultivation. The land is now in a good state of cultivation. I also built a quarter of mile of fence near the house and furnished most of the wire; I put 19 acres in lespedeza for a permanent pasture, and paid about $50 for the seed, and also put four ditches, each about 1/4 mile long, across the land for drainage. Also, I cleaned about 700 bales of rotten hay out from under the shed, and across the creek I sowed 600 pounds of seed that cost me about $100. In addition I sowed 25 acres of oats in the fall of 1958, and they are growing now.

When appellant was asked the value of all improvements he had made to the farm his estimate was around $2,500. Appellant’s two sons and two other witnesses, all familiar with the farm and the improvements made, corroborated in varying degrees the testimony of appellant as to improvements.

Only two witnesses attempted to contradict appellant’s testimony concerning the extent and value of the improvements. One witness who lived 3/4 of a mile from the farm stated that the county road grader made a trip over one particular road, but the others he didn’t know about. Also, a brother of appellee (Mr. Oates) testified in substance:

I am acquainted with the farm, and am on the land two or three times a year — was over it ten days ago; I heard appellant’s testimony about improvements. When asked about the 30 acres in bushes and sprouts, he testified in substance:

I was fishing by the edge of the land in 1957 before the flood — I drove my car over the road down to the creek and saw no obstructions — the land was heavily sprouted, and they are still there; I know nothing about the lespedeza land; I did see 17 acres of oats — I have not traveled the road since the 1957 flood; I didn’t know the condition of the fence rows before appellant went on the place but they are clear now; appellant did some work there, but I didn’t see any new fences.

All the testimony indicates, with nothing to the contrary, that appellant made these extensive improvements in reliance on Oates’ agreement to sell. Appellant makes the positive statement that this is true, and no one disputes it. Moreover, Mr. Oates is bound to have known his conduct might have misled appellant into thinking he could make the improvements with impunity, and thereby, he would stand to profit by such deception. In a letter from Mr. Oates to appellant, dated January 23, 1958, there appears this significant sentence: “This assures you of being able to looking forward to buying the place, and puts you in position [to] make any improvements or repairs this year that you want to without possible sacrifice.”

(e) The vital question for decision is whether appellant’s action in this case is barred by the Statute of Frauds. We have concluded that it is not under the facts and circumstances of this case. In reaching this conclusion we by-pass a decision on whether the three letters heretofore referred to constitute sufficient memoranda to circumvent the statute. Appellant contends the letters do and appellees take the opposite view. The reasons upon which we base our announced conclusion are set out below:

The Statute of Frauds, which is Ark. Stats. § 38-101, in all parts pertinent here, reads:

“No action shall be brought ... to charge any person upon any contract for the sale of lands . . . unless the . . . contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith. . . . ”

Since the early case of Pindall et al. v. Trevor & Colgate, 30 Ark. 249, this Court has consistently held that the delivery of possession under an oral contract for the sale of real estate will take the case out of the Statute of Frauds. We do not cite other cases because we understand appellees recognize this general rule of law. This Court also recognizes that a significant equity aspect arises where the one in possession makes improvements on the land. This is obvious, otherwise the owner would be in position to reap unjust benefits. In the ease of Moore v. Gordon, 44 Ark. 334, 342, the court quoted, with approval, this statement:

“the making of valuable improvements on the land by the vendee or lessee, in pursuance of the agreement, and with the knowledge of the other party, is always considered to be the strongest and most unequivocal act of part performance by which a verbal contract to sell and convey, or to lease is taken out of the statute.”

See also: Young v. Crawford, 82 Ark. 33, 100 S. W. 87: Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; Hunt v. Boyce, 176 Ark. 303, 3 S. W. 2d 342, and Dillard v. Kelley, 205 Ark. 848, 171 S. W. 2d 53.

We think the rule above announced takes this case out of the statute. We are not unmindful of appellees’ strong insistence that appellant went into possession solely as a tenant and not under an oral contract to purchase. If the facts were as contended by appellees their contention would have to be conceded. However, as we have already set out, that is not the factual situation here. Trying this case de novo we find that appellant took possession of the farm not only as a tenant but also under an oral contract to purchase and that he, as a purchaser, with the knowledge and sanction of Mr. Oates, made valuable improvements thereon. There is no logical or sensible reason why a court should recognize the rental agreement to the exclusion of the purchase agreement.

Almost the exact situation obtaining here was presented in the case of Grant et al. v. First Nat. Bank of City of Superior et al., 224 Wis. 463, 272 N. W. 363. There the purchaser was originally in possession solely as a tenant, but later the owner orally agreed to sell him the land. After that the purchaser made certain improvements, relying on the oral promise. The Court posed the issue as follows:

“The only question is whether, since the Grants were at the time of this contract in possession as some sort of tenants, their continued possession can be considered to be referable solely to the oral contract.”

The Court then held the improvements were referable to the oral- agreemnt to sell, and took the agreement out of the Statute of Frauds.

Also in the case of Herbstreith et al. v. Walls et al., 147 Neb. 805, 25 N. W. 2d 409, there appears this statement:

“ ‘Thus, in cases where a tenant continues in possession under an alleged agreement for a new tenancy, the purpose is answered by proof of any act on his own part, done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of the parties— as when he makes improvements upon the premises, this fact is of great weight to show a change in the holding. ’ Underwood v. Underwood, 48 Mo. 527. See Bresnahan v. Bresnahan, 71 Minn. 1, 73 N. W. 515.”

(b) Finally, again trying the case de novo we are bound to deny Gray’s claim to be an innocent purchaser. Under well established principles of law Gray was charged with the knowledge that appellant was in possession of the farm. It was his obligation to inquire of appellant the nature of such possession. This he failed to do. He did not contact appellant until after he received his deed from Oates, and he was then advised of appellant’s interest in the farm.

Particular attention should be given to one of appellees ’ contentions. In the first letter Mr. Oates wrote appellant, dated January 23, 1958, there appears this paragraph:

“I have been studying a lot about our land deal since I was up there a few days ago. It has been hard for me to decide just what I want to do in the matter of selling, yet I do prefer to sell. But I have come to this decision, i. e., we will not enter into any definite contract, in writing, as to the sale at this time.”

Appellees attach much significance to the sentence we have emphasized, contending it shows there was no oral agreement to sell. In our opinion, however, this sentence must be construed together with other written statements later made by Mr. Oates. When so construed the conclusion is inescapable that Mr. Oates did agree to sell the farm to appellant for a fixed sum on definite terms of payments. The facts and circumstances have already been enumerated. The subsequent written statements (in the letters) are, in substance, as follows: (a) In the first letter he said, “I do hereby agree to sell to you”; (b) Further on in the same letter he told appellant he could make improvements “without possible sacrifice”; (c) In the second letter (written 16 days after the first letter) he said he hoped appellant would be able to make the $1,000 down payment on the place by the end of the year; and, (d) In the last letter (written one week after the second letter) he said to appellant they' would be looking forward to making “an outright deal on the whole place.” So, even though Mr. Oates was not ready to make a written contract in January, 1958, he clearly shows that his intention was to make an oral agreement to sell, conditioned only on appellant’s being able to make the down payment, which payment appellant offered to make even sooner than the date fixed by Oates. For us to reach any other conclusion would amount to lending the offices of a court of equity to assist in perpetrating deception.

The decree of the trial court is accordingly reversed, and the cause is remanded for the entry of a decree in accordance with this opinion, and also for any other necessary proceedings relative to Gray’s cross-complaint.

Reversed and remanded.

Robinson, J., not participating.

McFaddin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. The Trial Court found that the appellant “has failed to prove that he had a valid and binding contract to purchase the lands involved in this action . . .”; and with that finding of the Trial Court I thoroughly agree. I summarize my reasons for dissenting.

(1) Mrs. Oates did not sign anything, and the proof is insufficient to show that she, in any way, authorized or empowered her husband to bind her, or ratified, in anyway, any sale contract as claimed by appellant. I cannot see how she can be held to specific performance.

(2) Harrison’s possession of the land was as a tenant and not as a purchaser; so his possession is not such, part performance as would take the contract out of the Statute of Frauds. In order for possession to take the contract out of the statute, the possession must be delivered solely under the oral contract of purchase. In this case, Harrison went into possession as a tenant and not as one who had purchased the property. Furthermore, improvements do not take a contract out of the Statute of Frauds. Therefore, I find no merit in the claim of possession, part performance, and/or improvements.

(3) Coming, then, to the correspondence as constituting a definite contract, on which to support the action for specific performance, I am thoroughly convinced that the correspondence is entirely insufficient to support the claim. See Kromray v. Stobaugh, 212 Ark. 377, 206 S. W. 2d 171; and Wyatt v. Yingling, 213 Ark. 160, 210 S. W. 2d 122. The writings relied on by the appellant as sufficient to take the case out of the Statute of Frauds are Oates’ letters of January 23, 1958 and February 6, 1958. I copy these in full, with the exception of one paragraph in the second letter:

“Little Bock, Ark.
Jan. 23rd 1958
“Mr. Worth Harrison and two Sons
B. F. D. No. 2
Damascus, Ark.
‘ ‘ Gentlemen:
“I have been studying a lot about our land deal since I was up there a few days ago. It has been hard for me to decide just what I want to do in the matter of selling, yet I do prefer to sell. But I have come to this decision, i. e., we will not enter into any definite contract, in writing, as to tbe sale at this time.
“However, I do hereby agree to sell to yon, and enter into contract, anytime prior to Jan. 1st 1959, at the sum and price mentioned, viz: $12,500.00, when ever yon are able to make the initial down payment of $1000.00 with annual like payments for the balance. For the year 1958, I give you your choice standing rent of $350.00, with your receiving all government soil bank payments for corn and cotton acreage with my having no part of fertilizer expense. Alternate plan, my sharing third and fourth with you on all marketable products, with your being responsible for the marketing or sale into cash of the products.
“This assures you of being able to looking forward to buying the place, and puts you in position (to) make any improvements or repairs this year that you want to without possible sacrifice. Might inform you that the amount (of) standing rent, $350.00, is a bargain for I received over $500.00 in 1957 rent, notwithstanding the loss by flood. But I am doing this to help you make the DOWN payment this fall or when we close the deal. That is, I’m making the rent for this year less than it ought to be. My rent for last year would have been $750.00 or $1000.00, had it not been for the flood.
‘ ‘ I hope you folks are all well, and that I have made all the above understandable. As for the rent plan, I will expect you to make a choice by early spring or planting time. So I will know which plan you are operating on.
“With best wishes, I am,
“Yours truly
/s/ Sam’l C. Oates”
“Little Rock, Ark.
Feby 6th 1958
“Mr. Worth Harrison
RFD No. 2
Damascus, Ark.
“Dear Mr. Harrison:
“Just received your letter of yesterday and now I’m a bit confused about our deal.
“In my recent letter I made you a flat offer of $350.00 for the entire farm for standing rent (cash) or I would take the 3rd and 4th of the production and you market the same f. o. b. Damascus or any other point. You to take your choice of the two methods. I was making you the excessively low cash rent in order to help you have more cash money at the end of the year to make the down payment. As (I) told you, I got over $500.00 rent off the place last year and it wasn’t half a crop year. Yes, I would like to sell the place and am still figuring on you taking it at the end of this year. But this year it is on a rent basis.

(Paragraph omitted which consists solely of discussion of governmental agricultural regulations.)

“Kindly let me hear from you a little more fully about the 26 (acre) limitation. I am willing to let you have the place on a 3rd and 4th basis but the 3rd and 4th is my rent for the use of the land for the year. Just hoping that you can make so much money that you’ll have a $1000. at the end of the year to pay down on the place and we would go from there on. That was my understanding of your proposition. If you haven’t made the $1000, then we don’t have to enter into a contract.

“Hoping that you will give me a reply by return mail, as I have done, I am,

“Yours very truly,
Sam’l C. Oates
3122 W. 12th St.
Little Rock, Ark.”

It will be observed that in the letter of January 23, 1958, Oates begins by saying: “We will not enter into any definite contract in writing as to the sale at this time.” All the remainder of that letter was a mere discussion of what might be the basis of subsequent negotiations. The letter of February 6th relates largely to rent matters. So I confidently assert that there is no written contract sufficient to take the ease out of the Statute of Frauds, and I think the Majority Opinion in the present case is in the teeth of Kromray v. Stobaugh and Wyatt v. Yingling, supra. I, therefore, respectfully dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Harrison v. Harrison.
    5-2518
    351 S. W. 2d 441
    Opinion delivered December 4, 1961.

      Sydney S. Taylor, for appellant.

      Ben J. Harrison, pro se; E. C. Thacker, for Arkansas National Bank; Bay Mitchell, for Shriner’s Hospital.
   Paul Ward, Associate Justice.

We are bere concerned with, the allotment of a widow’s dower and with the jurisdiction of the Probate Court to construe a will.

Ben F. Harrison of Hot Springs died testate in December, 1959 survived by his widow, Myrtle Harrison (appellant), a son, Ben J. Harrison, and a daughter, Natalie (Harrison) Gleaton, both appellees. His personal property was valued at about $16,000 and his real property was valued at about $80,000. That portion of his real estate which is involved here is a two-story business building valued at about $72,000, producing $1,425 per month in rentals. Also involved are two $5,000 U. S. Bonds not listed in the inventory.

The deceased’s will left his property as set out below:

1. Widow: 1/3 of all personal property, and 1/3 of the net income from the real property during her lifetime.

2. Son and daughter each: 1/3 of all personal property; 1/3 of the net income of real property for and during the lifetime of the widow.

3. It was provided that upon the death of the widow 1/3 of real estate went to each of the following: his son, his daughter, and the Shrine Crippled Children’s Home, Shreveport, Louisiana.

4. It was further provided: (a) The Arkansas National Bank of Hot Springs would be executor of his estate if his wife predeceased him, or (b) If he predeceased his wife, said bank would be Trustee with power “to take complete control of my real property and to manage said property for the best interest of my estate,” with power to mortgage or sell the real estate if it be for the preservation and benefit of the estate.

The will was duly ordered to be admitted to probate and record on December 14, 1959. On April 8, 1960 the widow (appellant) filed her election to take against the will, i. e.: “to take from the estate of Ben F. Harrison that property which I would have received if Ben F. Harrison had died without leaving a will.”

On July 14, 1960 appellant filed a Petition of Allotment of Dower, asking that “dower be allotted to her in the above described real estate,” referring to the said two-story building. On November 2, 1960 she amended her petition to ask that the ‘ ‘ executor be directed to rent the real estate until further orders of the court, in the manner directed by tbe court and that a third of the net rents be paid to Mrs. Myrtle Harrison’.”

On July 23, 1960 Ben J. Harrison (the son) filed an answer in which he questioned the jurisdiction of the Probate Court to allot appellant an undivided 1/3 interest for life in the building. The prayer was that the property be sold and dower allotted out of the proceeds as provided by law. In an Amended Answer it was alleged that the real estate consisted of commercial rental units in one building, indivisible, and not susceptible to dower allotment under the provisions of Ark. Stats. §§ 62-711, 62-713 and 62-716, except with great prejudice to the widow and remaindermen. The prayer was that the property be sold free of dower, and that dower be allotted out of the proceeds of such sale as provided by law.

On October 3, 1960 the bank (as executor) and the son filed a Petition to Construe the Will in which they asked the court to construe the will to determine if, by reason of appellant’s renunciation, the interests of the remaindermen have been accelerated so that the bank can proceed as Executor (and not as Trustee) to file a Pinal Account and be relieved of further services, or to file in Chancery to have Trusteeship perfected.

On March 8, 1961 the Probate Court considered the foregoing pleadings without hearing testimony and made the following findings:

(a) Since the widow has elected against the will her interest in her husband’s real estate is the same as if no will existed, and the real property is vested, subject to the widow’s dower, in the remaindermen, their estates having accelerated by virtue of the widow’s election.

(b) The “widow is entitled to a one-third interest for life in all real estate owned by Ben P. Harrison at the time of his death,” but the widow is not entitled to dower in the manner requested in her petition.

(c) The decree was in accordance with the above finding, stating that the remaindermen (the son, the daughter, and the children’s home) “are entitled to enter into the enjoyment of their estates subject to the satisfaction of the widow’s dower interest”; and that the widow is “entitled to one-third of the net income from said real property until her dower interest is satisfied.” The court retained jurisdiction to effectuate its orders.

We have set out the foregoing pleadings and orders to shed all possible light on the issues here involved. To sum up the situation, as we see it, appellant still wants the same thing (respecting real estate) that she was given under the will. That is, she asked to be given one-third of the net rentals from the building as long as she lives. Appellees want to sell the building and satisfy appellant’s dower rights out of the proceeds. The trial court agreed with appellees, but provided that appellant should receive one-third of the net rentals until and if the building is sold.

As before stated no testimony was taken, but from the pleadings we are convinced that the building cannot be divided so as to set apart a separate portion for dower. As we view the findings of the trial court, it was likewise convinced. Under these circumstances, it is our opinion that this case is controlled by Ark. Stats. § 62-716 which reads:

“Rental of lands where indivisible. In cases where lands [or] tenements will not admit of division, the court, being satisfied of that fact, or on the report of the commissioners to that effect, shall order that such tenements or lands be rented out, and that one-third part of the proceeds be paid to such widow, in lieu of her dower in such lands [and] tenements.”

To the extent that the trial court failed to follow the provisions of the above section it was in error.

The trial court did have jurisdiction, under Ark. Stats. § 60-416, to construe the will. When appellant elected to take against the will that posed the question of whether such action accelerated the vesting of the estates of the remaindermen which had to be resolved. In onr opinion the trial court correctly found that the estates did vest the same as if the widow had died, subject, of course, to the dower rights of appellant.

U. S. Bonds. Decedent left two $5,000 U. S. H. bonds: one bond was issued to deceased payable on death to Natalie Harrison Gleaton, and the other bond was likewise issued to Ben John Harrison. It is our opinion that the trial court correctly held that these bonds belong to the persons above named, and that the bond never became a part of decedent’s estate. This, of course, means that appellant has no dower interest in the bonds. The question of the ownership of government bonds under various circumstances has been the subject of much litigation in this and other states.

It seems that ownership of bonds, issued as these were, has been settled in this and other jurisdiction in accord with the decision of the trial court in this case. This same issue was before this Court in Myers v. Hardin, Administrator, 208 Ark. 505, 186 S. W. 2d 925. It was there stated:

“The power of the Federal Government to issue United States savings bonds and to promulgate regulations governing their ownership, transfer and payment, is, we think, unquestioned.”

In that case the Court, in holding that the bond belonged to the named payee, said:

“ It is our view in the circumstances here, and we so hold, that all of these bonds, with the exception of all those wherein the named beneficiary predeceased the testatrix, became the absolute property of the said beneficiary named, immediately upon the testatrix’s death. . . .”

To the same effect is our decision in the case of Roman v. Smith, 228 Ark. 833, 314 S. W. 2d 225. In both cases the bonds were issued in the same manner as in the case under consideration. For like decisions in other jurisdictions see: In re Kalina’s Will, 184 Misc. 367, 53 N. Y. S. 2d 775; Superat v. Dylawski, 196 Misc. 707, 93 N. Y. S. 2d 40, and H. H. Myers v. Laird, et al., 230 Miss. 675, 93 So. 2d 828.

For the error heretofore indicated the order of the trial court is reversed and remanded with directions to enter an order consistent with this opinion. In all other matters the order of the trial court is affirmed.


author: Sam Robinson, Associate Justice.

text:
    Williams v. Wood.
    5-2499
    351 S. W. 2d 444
    Opinion delivered December 4, 1961.

      Edward V. Trimble and L. H. Mahon, for appellant.

      Eldridge & Eldridge, by George P. Eldridge, for appellee.
   Sam Robinson, Associate Justice.

The only issue here is whether the evidence is sufficient to support the verdict.

On the 28th day of May, 1959, appellant, Bruce Williams, while driving north on a side road, approached Highway No. 38 in Woodruff County near Cache River. When Williams drove onto the highway, appellee, Jack Wood, driving east at about 60 miles per hour, swerved to his left and ran into a ditch, demolishing his car. Bruce Williams and Walter Williams, his son, were engaged in farming, either as partners, or Bruce was the agent of Walter. Bruce had been to a field to see if it was dry enough to plow.

Appellee, Wood, alleged in his complaint and testified that Bruce Williams stopped the truck before driving onto Highway No. 38, and let another car going east on that highway, pass, but then drove directly out on the highway in front of Wood, when Wood was so close that it was necessary for him to swerve his car and go into the ditch in order to avoid a collision. Williams claims that he did not drive onto Highway No. 38 so far as to canse Wood to drive in the ditch; that Wood’s action in going into the ditch was due to his own negligence. Just who was negligent was clearly a question for the jury, and Wood’s testimony that Williams drove out in front of him when he was so close that he had to take to the ditch to avoid a collision was sufficient testimony to support the verdict. There is no contention that the judgment in the sum of $480.00 is excessive.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Feibelman v. Trunkline Gas Co.
    5-2540
    351 S. W. 2d 447
    Opinion delivered December 4, 1961.

      W. K. Grubbs, Sr., for appellant.

      O. C. Burnside, Harry E. Meek and Winston Hampton, Houston, Texas, for appellee.
   Jim Johnson, Associate Justice.

This is an action in eminent domain brought by appellee, Trunkline Gas Company, against appellant, Karoline Feibelman, for the acquisition of an easement for pipeline purposes across land owned by appellant.

The strip of land condemned for the construction of the pipeline ran diagonally across a sizeable portion of appellant’s property and cut across a canal leading from a deep well which carried irrigation water from the well to other parts of the farm.

At the time of the construction of the pipeline, the land was being farmed in rice and the crop was almost ready for harvest. It was stipulated that the value of appellant’s interest as landlord in the crop of rice on the right-of-way which was destroyed by construction was $371.25. In addition to this stipulated amount, the jury returned a verdict for damages to the land in favor of appellant in the sum of $1,267.50, making a total judgment in favor of appellant in the sum of $1,638.75.

From this judgment appellant appeals.

For reversal, appellant contends, inter alia, that the trial court erred in sustaining the objection to the question and answer of J. C. Emenhiser.

The witness, J. C. Emenhiser, after being qualified as a person who knows the land here in question, [he has farmed it; he owns land in the area which was bought in fairly recent years], testified on direct examination that the “before” value of this land was, in his opinion, $66,000, and the “after” value was $48,000, for a difference of $17,000. Immediately after this statement he was asked the following:

“Q. Upon what do you base your opinion? What factors do you consider?
“A. You mean on the . . .
“Q. Why do you feel the market value has been reduced?
“A. Well, on the condemned line, now I’m a rice farmer, and on a condemned line, the pipeline is not going to pay no damages whatsoever from here on and for that reason. . . .”

Condemnor’s Attorney:

“We object to that testimony. That expression, and ask it be stricken.”

The Court:

“At this time I will tell the jury to disregard that question and answer. Objection sustained.”

Landowner’s Attorney:

“No further questions.”

Condemnor’s Attorney:

“No question, Your Honor.”

Landowner’s Attorney:

“Before resting, the Defendant objects to the ruling of the Court for denying the question and answer.”

The Court:

‘ ‘ The jury will disregard the entire testimony of the witness. ’ ’

Landowner’s Attorney:

“The Defendant objects to the ruling of the Court in striking the last question and answer and makes this offer of proof from the witness Emenhiser. What he would have given if allowed to answer, would have been substantially in accord with previous testimony of previous witnesses as to factors affecting the value. . . . The factors and considerations upon which he bases his opinion goes to its credibility under the instructions of the Court, and the Plaintiff has the right to cross-examine and bring out those factors if he so desires, and disqualify that witness’ opinion in that manner. The above goes to the questions of the before and after damages. . . .”

Certainly it was proper for appellant to offer evidence as to the “before and after” value of the land, but as here correctly recognized by the attorney for appellant in his objection to the ruling of the court, the statement by a witness of naked figures alone will not meet the test of the rule laid down in State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738, wherein it was held that a mere statement of the before and after value without stating and taking into consideration the related factors upon which that opinion is based is no evidence of damages. See also: St. Louis Southwestern Railway Co. v. Braswell, 198 Ark. 143, 127 S. W. 2d 637. Following this rule in the instant case, the witness should have been permitted to state the related factors upon which his opinion was based and to otherwise explain his reasons for testifying that the market value of the land had been reduced because of the taking. The question was absolutely proper. The answer from the portion we have before us prior to the interruption appears to be laying a proper foundation for a competent answer to the question propounded.

Therefore, the judgment is reversed and the cause is remanded. Other alleged errors are of such a nature that they will probably not occur in the event of a new trial.

George Rose Smith and Robinson, JJ., not participating.


author: Neill Bohlinger, Associate Justice.

text:
    Ben M. Hogan & Co. v. Krug.
    5-2549
    351 S. W. 2d 451
    Opinion delivered December 4, 1961.

      Wright, Lindsey, Jennings, Lester é Shults, for appellant.

      Catlett & Henderson, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant, Ben M. Hogan & Company, is a partnership which occupied a piece of leased ground in Pulaski County at the intersection of two County Roads which are known as the Carmichael Road and the County Line Road. The Carmichael Road runs east and west and the County Line Road runs north and south. Upon the leased premises the appellant had for more than eight months prior to June 11, 1960, operated a gravel business where it crushed, assembled and maintained a stockpile of gravel which was from 25 to 30 feet high and, according to some witnesses, extended west from within three or four feet of the western edge of the County Line Road for approximately 100 feet.

From this business and stockpile of the appellant, Fred R. Rood, who was a defendant in this action, was engaged in the business of hauling gravel from the appellant’s location. The operation of Rood was that of an independent contractor, independent of the appellant. Among other employees of Rood was a truck driver, one R. G. McNeeley, who was also a defendant in this case in the lower court.

There was an exit road from the property occupied by the appellant that divided into two prongs shortly before its junction with the County Line Road. The plan of operation of the appellant’s business seems to have been that whenever it was planned to load a truck, the operator of the blender or loading plant would sound one blast of a whistle. When the truck was loaded, two blasts were sounded and the truck would then move out from the loading station.

When the loaded truck moved out from the Hogan loading point, Rood and the driver were on their own and moved without direction or control of the appellant. While operating upon this line of procedure, McNeeley moved away from the loading station and taking a fork in the exit road, which had been suggested by, Hogan’s employees as a means of avoiding a mudhole in the County Line Road, McNeeley drove his truck upon the County Line Road where it struck a car driven by Mrs. Lea Nevin, the impact of the collision being such that Mrs. Nevin, Larry Krug and Mrs. Eugenia Krug, the occupants of the car and appellees here, were gravely injured.

To recover damages for their injuries the appellees filed their complaint in the Pulaski Circuit Court against Hogan, Fred Rood and R. Gr. McNeeley, alleging Rood and McNeeley were negligent in operating the truck and semi-trailer at an excessive rate of speed, failure to keep a proper lookout for persons and property rightfully using the County Road; failure to keep the truck and trailer under proper control; failure to stop the truck and trailer before entering a public highway, and failure to yield the right-of-way to the automobile operated by Lea Nevin.

As against the appellant, Hogan, negligence is asserted in the following items: The assembling and maintaining of a stockpile of gravel 25 feet high and 35 feet wide extending from a point 40 feet west of the road up to the boundary of the road which completely obstructed and cut off the view of the appellee and prevented her from seeing the Rood and McNeeley truck; that Hogan had failed to cut and remove trees, bushes and vines which had grown on the leased property of the appellant in such a manner that it had obstructed appellee’s view to the west and prevented her from seeing the RoodMcNeeley truck and trailer; that the appellant had negligently failed to maintain a guard or flagman where the haul road intersects the County Line Road; that it further negligently failed to erect and maintain a sign, signal or other device of any kind, character or description to warn operators of vehicles on such road of the intersection of the haul road and the County Line Road; failed to erect and maintain signs, signals or other devices along the County Line Road that trucks or other vehicles were operating on the haul road which intersects the County Line Road; that the appellant had further negligently failed to warn and instruct other persons hauling of the operation of the gravel plant as to the danger in driving onto the highway without first stopping to ascertain that such move could be made safely.

Prior to the calling of the case for trial the appellees dismissed their complaint as to Fred R. Rood and R. Gr. McNeeley, the dismissal being with prejudice as to these defendants but expressly reserving their action as to the defendant Hogan. At the hearing on the motion to dismiss as to Rood and McNeeley there were introduced covenants not to sue executed by the appellees. A number of points are argued by the appellant for a reversal of the judgment found against it by the Pulaski County Jury in this case but for the reasons hereinafter stated we find it necessary to consider but one here.

Considering first the allegations of negligence against the appellant for failure to maintain a guard or flagman near the point of intersection of the haul road and the County Line Road; to erect and maintain signs and signals to inform operators of vehicles on the County Line Road of the operation of the gravel plant and the exit from the gravel property over the haul road; failure to warn and instruct the haulers from the gravel property of the danger of driving onto the highway before first stopping to ascertain that the move could be safely made, it is clear from the record before us that the operation of Rood and McNeeley was independent of Hogan in every respect and that when the Rood trucks had been loaded and moved away from Hogan’s plant, Hogan’s entire connection with the truck and its load was severed in every way. There was approximately 100 feet between the loading plant and the County Line Road. The loaded trucks could have stopped at any point therein and never gone onto the County Line Road as far as Hogan was concerned. McNeeley, being Rood’s employee and not Hogan’s, no duty devolved on Hogan to instruct him in the manner in which he should operate the truck.

Neither does it appear that there existed any necessity for Hogan to leave his own premises for any purpose. So far as we know, Hogan’s use of the County Line Road was but casual and since he was not hauling over it as a part of his business, we fail to see where any duty devolved on him to place a guard or warning signs or devices of any kind. If such a duty devolved on any person it was on Rood who was the one making use of the road. We find no merit in these allegations of negligence.

That brings us to a consideration as to whether or not the appellant was negligent in maintaining on its-property a gravel pile which it is alleged obscured the vision of the appellee as she drove the car toward the intersection of the haul road and the County Line Road where the accident occurred. This lessening of her sight distance by the gravel pile and the presence of growth of various kinds is alleged by the appellees to have brought about the accident.

The piling of the gravel on his own property by Hogan was not of itself negligent and the only time that the gravel itself could have brought about an injury would have been if Hogan had negligently piled it on the County Road in such a way that a car might strike it or had it been stacked so close to the County Road that part of it had sloughed off and damaged vehicles or persons on the County Road. So far as the gravel piling is concerned, it could have remained in that spot at that height indefinitely without causing any damage. Therefore it cannot in any way be said that the gravel pile was of itself the proximate cause of the injuries of which the appellees complain.

The law in this cause is stated in Arkansas Law Review, Yol. 1, p. 152, as follows:

“In determining whether an act of a defendant is the proximate cause of an injury, the rule is that the injury must he the natural and probable consequence of the act — such a consequence, under the surrounding circumstances of the case, as might and ought to have been foreseen by the defendant as likely to flow from his act; the act must, in a natural and continuous sequence, unbroken by any new cause, operate as an efficient cause of the injury. If a third person intervenes between the act of the defendant and the injury, and does a culpable act, for which he is legally responsible, which produces the injury, and without it the injury would not have occurred, and the act of the defendant furnished merely an occasion for the injury, but not an efficient cause, the defendant would not be liable.” [Citing Gage v. Harvey, 66 Ark. 68, 48 S. W. 898, emphasis ours.]

More succinctly stated the rule is that if a new cause has intervened subsequent to the original negligent act and this new cause is of itself sufficient to stand as a cause of injury, the original negligence is too remote.

Therefore, no negligence attaches to Hogan’s piling his gravel on his own land and it is abundantly clear that after Hogan piled the gravel a new cause, which was the hauling of gravel by Rood, intervened and that the operation of Rood’s truck and trailer was sufficient to stand as the cause of the injury. Considering a parallel case in Goodaile v. Board of Commissioners of Cowley County et al, 111 Kan. 542, 207 P. 785, we have a case in which the owners of land permitted high hedges to grow along public roads which crossed at the corner of their property. The hedge obscured the view of one road from the other. A woman driving a horse and buggy along the road approached the crossing and her horse became frightened at an automobile that appeared suddenly at the crossing of the roads, and when the horse ran, the woman was thrown from the buggy and injured. The court held that the owners of the land were not liable for her injuries, saying:

“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

Even if it be admitted that the high hedges were in part of the cause of the accident which resulted in the plaintiff’s injury, it cannot be said that they were the efficient intervening cause of the accident. The horse was frightened by an automobile. That was what caused the accident. In Eberhardt v. Tel. Co., 91 Kan. 763, 139 P. 416, it was held that a telephone guy wire extending into the public highway was not the cause of an injury to one who was riding in a wagon with her husband, who was driving a span of mules that ran away, and ran into the wire and thereby injured the plaintiff in that action. The latter case is closely parallel to the present one. The proximate cause of the injury to the plaintiff in this action was the frightening of her horse, and not the condition of the hedges. Railway Co. v. Bailey, 66 Kan. 115, 122, 71 P. 246; Norris v. Ross Township, 98 Kan. 394, 161 P. 582. The petition did not state a cause of action against the owners of the land.”

In the case of West v. Wall, 191 Ark. 856, 88 S. W. 2d 63, there was before this court a case in which a motor company was arranging the sale of a truck to a partnership of Jacobs and Rose. The brakes on the truck were in very bad condition and Jacobs knew of this fact but he thereafter drove the truck on the public ways at a high rate of speed. In a resulting accident J. T. Wall suffered damages and brought a suit against Jacobs and the motor company who had given Jacobs the truck to try but this court reversed the cause as to the motor company and said:

“* * * The proximate cause of the injury was negligence of Rose upon the business errand for the partnership of which Rose was a member.

As was said by this court in the case of Pittsburg Reduction Company v. Horton, 87 Ark. 576, 579, 113 S. W. 647: ‘It is a well-settled general rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The difficulty arises in each case in applying the principle to a given state of facts.’

We think in the proposition before us there can be no difference of opinion upon the matter that Bose’s negligence was in itself sufficient to cause the injuries suffered, and necessarily was the proximate cause of them. Gage v. Harvey, 66 Ark. 68, 48 S. W. 898; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816.

Therefore whatever may have been the negligence of the appellants, that negligence was too remote and cannot be treated here as a concurring cause. Bose and Jacobs were both machinists, both experts, both knew of the condition of the truck. Neither was connected in any particular with the West-Hornor Motor Company. They were not demonstrating for that company. They were testing the truck for themselves, looking after their own business interests for their own profit.

Many authorities could be cited supporting our conclusions above set out. Bizzell v. Hamiter, 168 Ark. 476, 270 S. W. 602; Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229; Keller v. White, 173 Ark. 885, 293 S. W. 1017.”

In the case of Arkansas-Louisiana Gas Co. v. Tuggle, 201 Ark. 416, 146 S. W. 2d 154, Tuggle brought a suit for personal injuries sustained by him alleging that Arkansas-Louisiana Gas Company and the trustees of the Missouri Pacific Bailroad had been negligent; that while he was engaged in unloading a car of tile on the track of the railroad, another car on the track was released and rolled down by gravity and struck the car in which he was working with great force. The allegation of negligence against the Gas Company in this case was that the brakes on the second car had been released by an employee of the Gas Company. It developed during the trial that Hursey was an independent contractor and the relationship of master and servant did not exist. In commenting upon the asserted negligence of the Railroad Company in this case, the court said:

“ * * * But, assuming that the cars should have been placed farther down the track, such negligence was not the proximate cause of the injury. There was an active intervening cause, that of Hursey in releasing the brakes, and the Railroad Company is not liable for the acts of -Hursey who was not its employee. It is said the Railroad Company knew the cars had to be moved. If so, it was its duty to move them and spot them where they could be unloaded. But the mere fact of spotting the ears where they were, assuming that it was negligence to do so, did not cause the injury and could only be said at the most to be the remote cause. In Booth & Flynn v. Pearsall, 182 Ark. 854, 32 S. W. 2d 404, it was said that, 'in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.’ In Pittsburg Reduction Co., v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A., N. S., 905, it was said: ‘It is a well settled rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote.’ So here, if we assume that the Railroad Company was negligent in spotting the car, that fact did not cause the injury, except for the intervening act of releasing the brakes.”

We have examined appellee’s authorities and many more and find that none of them support the contention that there was any negligence on the part of Hogan in placing the stock pile of gravel on private property alongside the road. We can find no causal connection between piling the gravel and the accident that occurred between appellee’s car and Rood’s truck. The gravel pile was merely one of the conditions or surrounding circumstances that were present at the time of the accident. It was one of the “circumstances” to be considered in applying the rule of reasonable care “under the circumstances ’ ’ in determining the fault or lack of it on the part of the drivers of the vehicles involved. It was no more a “cause” of the accident than was any of the other conditions present, such as: the underbrush and trees which obscured the view — the dirt and gravel road with less traction for stopping than one of a different material — the hill which did not allow an adequate view down the road — the great distance from the bumper to the windshield of the truck which prevented the driver from seeing down the road without pulling out on it. Certainly we are not going to hold liable every property owner who has a tree alongside the road — -the city, county, or state for not providing the most efficient road surfacing material — the city, county, or state for failing to level all hills or straighten out all curves — and manufacturers of vehicles for not shortening truck noses.

The location of the gravel pile and all of these things to which we make reference here are circumstances that should have been considered by Rood and McNeeley in applying the rule of reasonable care.

Neither do we think it devolved upon Hogan to assume that Rood might have hired incompetent or careless drivers or further to assume that Rood’s driver would move without the care that devolved upon him in the operation of the loaded truck-trailer.

At the close of all the testimony in the trial court, the appellant moved for a directed verdict which was overruled by the trial court. This was error. The motion should have been granted and this cause is therefore reversed here and dismissed.


author: Carleton Harris, Chief Justice.

text:
    Rosenbaum v. Cahn.
    5-2538
    351 S. W. 2d 857
    Opinion delivered December 11, 1961.

      Coelcrill, Laser <& McGehee and Floyd, Cameron & Deen, Meridian Miss., for appellant.

      Wood, Chesnutt é Smith and House, Holmes, Butler & Jewell and Gaillard Pitts, Meridian, Miss., for appellee.
   Carleton Harris, Chief Justice.

This is a will contest. Carrye Rosenbaum Burgauer, age 79, died on September 18, 1959, exactly four months and one day after the death of her husband, David Burgauer, leaving a will naming her sister, Mrs. Ruth Cahn, and her nephew, A. L. Cahn (son of Ruth Cahn), as principal beneficiaries. The Burgauers were childless. A petition contesting the will was filed by Willard L. Rosenbaum, S. A. Rosenbaum, and Mrs. Pauline R. Korman. Willard Rosenbaum was a brother of Mrs. Burgauer, and S. A. Rosenbaum and Mrs. Korman are the children of a brother who predeceased the testatrix. These appellants were left no property under the provisions of the will. On hearing, the court dismissed with prejudice the petition and complaint contesting the probate of the will, and confirmed its order earlier entered, wherein the will of Mrs. Burgauer, dated July 18, 1959, was admitted to probate. From this judgment, appellants bring this appeal. For reversal, appellants rely upon two points, vis., “The trial court erred in ruling that the proffered will was not the product of undue influence”, and “The purported will was not attested by two or more credible, competent, and disinterested witnesses as required by law.”

This is quite an unusual case in one respect, in that it is contended that Mrs. Burgauer was subjected to undue influence from two different persons, though these people, as far as the proof relied upon by appellants is concerned, acted entirely independently of each other. They were not related, were not good friends, and had no apparent common interest. Appellants admit they are unable to establish any connection. The alleged users of undue influence are Marie Schnebelen, co-executor of the will, and a beneficiary to the extent of $1,000, and Mrs. Ruth Cahn, sister, and a principal beneficiary. Miss Schnebelen is trust officer of the Arkansas Trust Company, and had served as Mr. Burgauer’s personal secretary for thirty years. She, of course, was well and favorably known to Mrs. Burgauer. Mr. Burgauer died on May 17, 1959, but his will was not read until June 6th. The will was read at his home, and as Mr. Cooper Land, attorney for the estate, and Miss Schnebelen left the home, the latter asked Mrs. Burgauer if she did not think she should execute a will. Approximately two weeks later, Mrs. Burgauer asked Miss Schnebelen to bring Mr. Land to the home the following day for discussion of terms of the will. At the time of that visit, Miss Schnebelen took notes on the information furnished, in the presence of Mr. Land, and she subsequently gave to the attorney a typewritten summary. A few days later, according to the testimony of Miss Schnebelen, Mrs. Burgauer phoned and stated she had additional data to be furnished the lawyer, and the witness noticed Mrs. Burgauer had not appointed an executor or an attorney, and asked if the latter desired to do so. The response was that Wootten, Land & Matthews, handling the estate of her deceased husband, should be named. The witness went to the Burgauer residence, and at that time, Mrs. Cahn, who had stayed with her sister since Mr. Burgauer’s death, was still in the home. Miss Schnebelen testified that she started reading the summary of bequests which Mrs. Burgauer had previously given her, and appellee got up to leave the room; when she read a bequest to Mrs. Cahn in the amount of $15,000, the testatrix directed that she make it $25,000, and she heard Mrs. Cahn give a sigh as she went out the door. This is the only instance in regard to the will where Mrs. Cahn and Miss Schnebelen came into contact.

Appellants contend that Miss Schnebelen occupied a position of trust and confidence as the business ad-visor of Mrs. Burgauer; in other words, she stood in a fiduciary capacity, and under our holding in Orr v. Love, 225 Ark. 505, 283 S. W. 2nd 667, the burden of proof was upon the proponents to establish the validity of the proffered will; i.e., the instrument was executed voluntarily and free of undue influence. The language relied upon from that case is as follows:

“Where the beneficiary plans the will and causes it to be executed, the same rule applies as where he drew the will.”

Further:

“When a will is written or proved to be written by a person benefiting by it, or by one standing in the relation of attorney or counsel and is also benefited by it — these are circumstances to excite stricter scrutiny and require stricter proof of volution and agency.”

We do not agree that that case or language has any application herein. An examination of the case reflects many differences from the one at bar. For one thing, in the Orr case, Mrs. Love was one of the principal beneficiaries ; for another, the will was actually executed under the instructions of that beneficiary; for another, Mrs. Love was present when the will was executed; for another, the testatrix had previously made a will prepared by her own lawyer, but the will in question was prepared by the beneficiary’s lawyer. Numerous other examples could be given, but these will suffice to show the difference in the circumstances surrounding the making of the wills.

Appellants’ contention is based on the argument that Mrs. Burgauer had handled but few business matters, had reached an advanced age, was dependent for business advice, and was suffering at the time from extreme grief due to the passing of her husband. It is pointed out that the suggestion for a will was made by Miss Schenebelen, but, under the circumstances, we do not find this strange or unusual. Miss Schnebelen had, as previously stated, been closely associated with Mr. Burgauer during his lifetime for thirty years, and it would seem natural for one, whose daily business activities were connected with estates, to make such a suggestion to one who, according to appellants, was in need of business advice. Certainly, the suggestion of making a will is normally good advice. Appellants point out that the will named Miss Schnebelen as a specific legatee, but they emphasize the fact that she was named co-executor. From the brief:

“Examining the proof, it appears that Miss Schnebelen, with justification, anticipated a substantial executor’s fee. At the time the initial inventory of the estate was prepared and filed, it reflected as assets, in addition to the personal estate of Mrs. Bnrganer, which exceeded a quarter of a million dollars, the entire estate of David Burgauer on the theory that his property became a part of her estate by reason of the exercise of the power of appointment in her will. The inventory as thus filed, reflected an estate subject to the statutory executor’s fee well in excess of a million dollars. Simple arithmetic shows that the executors reasonably could expect a fee of approximately $35,000. ”

It seems logical that if Miss Schnebelen was contemplating chicanery, and was in a position to overreach Mrs. Burgauer, she would not have settled for a thousand dollar legacy and a co-executorship, leaving a vast estate to people that she hardly knew. After all, there is not any showing that Miss Schnebelen even asked to be named co-executor. Nor do we find anything unusual in the fact that Mrs. Burgauer did name Miss Schnebelen to act in that capacity, and named the latter as beneficiary of a bequest of $1,000. What was more natural than for Mrs. Burgauer to name her husband’s bank and his secretary as her co-executors, particularly when the latter had, as she knew, during Mr. Burgauer’s lifetime, assisted in matters relating to Mrs. Burgauer’s properties? Mr. Burgauer himself had demonstrated his affection for his long time secretary by leaving Miss Schnebelen $2,500 in his will, a fact well known to his widow. Appellants make mention of the fact that Miss Schnebelen, soon after the death of Mrs. Burgauer, when questioned by some of the contestants, denied that she had suggested that the will be made, but had stated instead that the suggestion had come from the attorney. Miss Schnebelen testified that her reason for doing this was simply a matter of trying to avoid a contest of the will, and she thought if she told that the attorney advised it, the contestants would be discouraged from instituting the litigation. This is the only “off-color” act of Miss Schnebelen in the entire matter, and certainly, it is insufficient to establish undue influence. It is very evident from the proof that Miss Schnebelen did not plan the will; rather, the evidence shows that all items were furnished by the testatrix ; nor was the will written by Miss Schnebelen; neither was she a principal beneficiary — and she was not present when the will was executed. As previously stated, this case does not fall within the category of the holding in Orr v. Love, supra.

The principal target of appellants’ contest is Mrs. Cahn. The proof upon the part of appellants is as follows. Mrs. Floy Faulkner, a resident of Hot Springs, was called into the Burgauer home as a nurse during Mr. Burgauer’s last illness. Following his death, she stayed on as a companion to Mrs. Burgauer, until the latter’s death. Mrs. Faulkner testified that Mrs. Burgauer was terribly grief stricken, and despondent, following the death of her husband; that she cried each day, or talked about his passing; she would go to the cemetery every day except Saturday, stating that she felt closer to him there than at any other place; according to the witness, at the cemetery she would stand, cry, talk, and wonder how she was going to go on without him; a chair was taken to the cemetery and Mrs. Burgauer would sit for long periods of time.

The following testimony by this witness is relied upon by appellants as indicating undue influence exerted upon the testatrix: (a) She heard Mrs. Cahn tell her sister that “Dave made his will like he wanted it, and it’s time that you do something about yours.” (b) When the witness and Mrs. Burgauer visited relatives in Meridian, Mississippi (home of Mrs. Cahn), in August, Mrs. 'Burgauer took a copy of her will to Meridian to show her sister, (c) The testatrix had told her that Mrs. Cahn had said that Mr. S. A. Rosenbaum and Pauline Korman, the nephew and niece “had plenty, and they didn’t need anything. ” (d) While in Mississippi, Mrs. Burgauer stated to her (Mrs. Faulkner) that she wanted all of her relatives to share alike, (e) In Meridian, Mrs. Burgauer purchased a sweater for the witness’ granddaughter from a store operated by people Mrs. Cahn did not like, and the testatrix told the witness not to say anything to her sister about it — that Mrs. Cahn would not approve, (f) While in Meridian, Mrs. Burgauer had shown the witness her jewelry, and stated that Mrs. Cahn had plenty of jewelry, “quite a bit that she didn’t wear” and “She felt like that Mrs. Cahn had sufficient without hers, * * * and she said, ‘there’s you and Marie, you and Miss Marie don’t have any jewelry,’ and she said, ‘I could give you some of it.’ I didn’t reply in any way because I felt like it was just conversation, she just wanted to talk.” (g) The day before her death, Mrs. Burgauer told the witness that she was going to change her will; that Miss Schnebelen would be there on Sunday night for dinner, and she would talk to her at that time. On cross-examination, Mrs. Faulkner did state that Mrs. Cahn and Mrs. Burgauer seemed to be devoted to each other.

With the exception of Dr. Francis J. Scully, who apparently was called during the trial for the purpose of endeavoring to establish mental incompetency on the part of Mrs. Burgauer, the remaining proof on behalf of appellants was offered by two of the contestants, S. A. Rosenbaum and Willard Rosenbaum. The former, 45 years of age, is a nephew, and resides in Meridian, Mississippi. He testified that he had, throughout the years, visited in Mrs. Burgauer’s home numerous times, probably once or twice per year. He is the father of two little girls, who were left $500 each in the decedent’s will. He testified that he had, for a number of years, looked after Mrs. Burgauer’s business interests in Mississippi, though he always corresponded and discussed these business matters with Mr. Burgauer. The deceased, in her lifetime, was interested in partnerships and other business ventures in that state, including the Rosenbaum Realty Company, which was owned by the estate of Mrs. Burgauer, Mrs. Cahn, and Willard L. Rosenbaum. S. A. Rosenbaum’s mother has a life interest in the property, and the same is managed by the witness. Mr. Rosenbaum contended that Mrs. Burgauer was subject to the influence of her sister, to whom she had been very fond. Instances that he stated occurred and indicated undue influence were as follows:

(a) In negotiating a lease with Woolworths for space in the Rosenbaum building, it became necessary to make improvements in the amount of approximately $250,000. All parties signed the lease, but Mrs. Burgauer did not want to sign the note to the bank. Mrs. Cahn told Mrs. Burgauer that she should sign with the other members of the family, and her sister did so.

(b) An employee, who had worked for both Mrs. Cahn and her mother for many years, was retired, and given a pension of $20 per month. Mrs. Cahn insisted that this amount should be paid by the realty company. The father of the witness and Willard Rosenbaum did not feel it to be their obligation, but agreed, to avoid argument with Mrs. Cahn. The latter persuaded Mrs. Burgauer that it should be handled in that manner.

(c) According to the witness, about a year or two before the death of his father, Mrs. Cahn showed the father a check, purported to be signed by her mother, in the amount of $5,000, dated some years before, which Mrs. Cahn had never cashed. Mrs. Cahn wanted the Rosenbaum Realty Company to pay the check. The two Rosenbaum brothers refused to honor the check, though Mrs. Burgauer was of the opinion that Mrs. Cahn ought to be paid the money, and '‘ she wrote my Father urging him to pay his part of the money to Mrs. Cahn on this check. My Father and Willard did not pay it.” According to this appellant, while he and his Uncle Willard were in the Bnrganer home awaiting the funeral, A. L. Cahn came into the bedroom, and informed him that the witness’ father had promised to leave Cahn’s mother $25,000, and that Charles Rosenbaum, an uncle of S. A., had promised to leave her $10,000, but neither had made the bequests. A. L. Cahn then remarked, “Now Aunt Carrye is going to rectify all that and I just want you to understand it.”

(d) Mrs. Burgauer told him during his father’s lifetime that upon her death, everything would go to Mr. Burgauer for life, and the remaining estate would go equally to his father, Mr. Willard Rosenbaum, and Mrs. Cahn.

Rosenbaum testified that Mrs. Burgauer made trips to Meridian from time to time, and always stayed in the home of Mrs. Cahn, but visited his home for dinners and family gatherings. He stated his net worth to be approximately $347,000.

The deposition of Willard Rosenbaum, brother of decedent, 78 years of age, was taken. Mr. Rosenbaum reiterated the matters set out in his nephew’s testimony, and said that his sister was a high tempered woman, quite dictatorial, and was always trying to “beg somebody out of something or hog something. That’s been her nature.” He stated that from his observation of Mrs. Burgauer (melancholy, nervous, and upset), she was not in any mental condition to make a last will and testament. Finally, he testified relative to a purported telephone conversation with Mrs. Cahn that took place in October, 19591

“It was the latter part of October after we come back from over there in October, and she says, ‘I understand you have been to Hot Springs and you’re dissatisfied with Carrye’s will.’ That’s Mrs. Burgauer. I says, ‘Yes, I have been to Hot Springs, and I am dissatisfied with it.’ She says, ‘Well, it took me a long time to put it over but I finally made it. None of you gave me credit for having as much sense as I have got.’ I says, ‘Have you got anything else to say?’ and she says, ‘No.’ And I hung up, and that’s exactly what she said.”

The witness estimated his net worth at $300,000.

We turn now to the proof on behalf of appellee. Cooper B. Land, prominent attorney of Hot Springs* and who had served as Mr. Burganer’s attorney, testified that he prepared Mrs. Burganer’s will in the early part of July, 1959, and that she executed the will at herbóme on July 18th. He went to her home, together with Oscar Lnebben, a certified public accountant, who had done tax work for Mr. and Mrs. Burganer, primarily relating to her interests in partnerships and joint ventures in Mississippi. The attorney stated that they were-admitted to the Burganer home by Mrs. Gabe Meyer of Pine Bluff; he did not recall that any other person was in the home, and Mrs. Meyer was not in the room when the will was signed. According to his testimony, the terms of the will were discussed, and Mrs. Burgauer then signed the will in their presence and they witnessed same at her request. Mr. Land testified that from his dealings, with Mrs. Burgauer, he would state that she had the-capacity to retain in memory, without prompting, the-extent and condition of her property, to comprehend to-whom she was giving it, and to comprehend who was being excluded. Mr. Land had previously, on June 20th* discussed with Mrs. Burgauer the provisions to be placed in the will. He stated that on that occasion she appeared normal, although she was suffering grief from her husband’s death.

Mr. Lnebben verified Mr. Land’s testimony relative to the execution of the will.

Mrs. Doris Cohen, a resident of Little Rock for approximately thirty-two years, and a niece of Mr. Burgauer, stated that she had visited in the Burgauer home, probably as often as every other week, for her entire life. Following Mr. Burgauer’s death, she and her husband would go to Hot Springs to the home every other weekend, and would alternate with the Gabe Meyers of Pine Bluff. The witness testified that although- Mrs. Burgauer was very sad, she did not observe any drastic change in the latter’s outlook toward life. She was of the opinion that Mrs. Burgauer was entirely capable of knowing the extent of her properties and to know to whom she was giving it, and she did not feel that Mrs. Burgauer was dominated by Mrs. Cahn. She testified that her aunt was not easily influenced. Her husband, Louis Cohen, concurred in his wife’s testimony.

Mr. Gabe Meyer, nephew of Mr. Burgauer, testified that over the years, he had visited in the Burgauer home about once a month until his uncle’s illness, and he then visited every week or so. He stated that he had looked upon Mrs. Burgauer as a mother from the time that his own mother passed away in 1944. The witness noticed no change in his aunt after Mr. Burgauer’s death, other than grief. He considered her very alert, and capable of making her own decisions. Mr. Meyer’s wife testified that she saw Mrs. Burgauer frequently following the death of Mr. Burgauer, and alternated with Mrs. Cohen in staying with her. Mrs. Burgauer spent one week in Pine Bluff with the Meyers, and requested the latter couple to invite some friends of Mrs. Burgauer (who lived in Pine Bluff) to the Meyers’ home so she could visit with them. Witness stated she was present in the Burgauer home when Mr. Land and Mr. Luebben came to the house; that Mrs. Burgauer had told her she was expecting the two on a business matter. Mrs. Meyer left the room, and subsequently her aunt called her, and asked her to come in, as the men were leaving. She said that Mrs. Burgauer seemed to be in very good spirits, and after Mr. Land and Mr. Luebben had left, made the remark that she was glad the matter was taken care of. Mrs. Cahn was not present at that time, having already returned to Meridian. Mrs. Meyer stated that she never noticed any evidence of domination by Mrs. Cahn over Mrs. Burgauer, and actually always felt Mrs. Cahn was very retiring in nature.

Norton Meek, banker with the Arkansas Trust Company, related several business matters with Mrs. Burgauer before Mr. Burgauer’s death, and stated that he saw no change after her husband’s death except for normal grief at his passing.

Cecil Cupp, president of Arkansas Trust Company, knew both Mr. and Mrs. Burgauer socially, and in a business way. He testified that he saw her at least a dozen times after Mr. Burgauer’s death, and noticed no change in her personality or ability.

Mrs. Fannie McLaughlin, administrator of the Levi Hospital Nurses Home in Hot Springs, stated she had known both Mr. and Mrs. Burgauer as long as she could remember. Mr. Burgauer had served as treasurer of the hospital, beginning with its inception in 1914. She related the kindnesses of Mrs. Burgauer when her (Mrs. McLaughlin’s) husband was ill. She testified that she talked with Mrs. Burgauer over the telephone almost daily after Mr. Burgauer’s death, except for the periods when Mrs. Burgauer was visiting in Meridian. She noticed no change in her friend except that she was very grief stricken. Based on her close association, she was of the opinion that Mrs. Burgauer made her own decisions, and mentioned instances during Mr. Burgauer’s lifetime when his wife made decisions contrary to her husband’s ideas. The witness visited in the home while Mrs. Cahn was staying there, and stated that she had never observed any domination of Mrs. Burgauer by her sister. In fact, it was her opinion that Mrs. Burgauer possessed the more dominant personality of the two.

Both A. L. Cahn and his mother testified, but we see no point in detailing the testimony. Mr. Cahn testified that he knew nothing about the contents of the will until he heard it read. He testified that he had always been very close to his aunt, and she had been quite fond of his daughter, Melanie Renee Cahn, to whom she left the sum of $1,000. His net worth was estimated at approximately $300,000. Mrs. Calm, 74 years of age, had been a widow since 1924, her husband dying at the time her son was one and one-half years old. After Mr. Burgauer’s death, she stayed in the home of her sister until June 18th, at which time she returned to Meridian, and remained there until Mrs. Burgauer’s death. She denied discussing with her sister the disposition of the latter’s property, other than a discussion in 1951 with Mrs. Burgauer about a fur cape. She testified that she did not know the financial condition of the appellants until she heard it mentioned in the testimony of the case, and estimated her own net worth at 104,000.

We are of the opinion that the weight of the evidence definitely prexjonderates in favor of appellees, though for the appellants to prevail, the preponderance would have to be contrariwise. Most of the incidents relied upon by appellants are rather meaningless. Certainly, it is not out of the ordinary for sisters to advise with each other, and all witnesses agreed that these two sisters had been very close throughout the years. We think it noticeable that on Mrs. Burgauer’s visits to Meridian, she always stayed with her sister, rather than with the other relatives. This, in itself, indicated a preference for Mrs. Cahn, and a stronger affection for the sister, than for the appellants who were residing there.

All persons are influenced to some degree by the opinions of those to whom they are devoted, but as was stated as far back as 1887, in McCulloch v. Campbell, 49 Ark. 367; 5 S. W. 590:

“As we understand the rule, the fraud or undue influence, which is required to avoid 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 that deprives the testator of his free agency in the disposition of his property. And the influence must be specially 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 relations with them at the time of its execution.”

This statement of the law has been reiterated in numerous cases since that time. In some respects, this litigation is similar to that of Dunklin v. Black, 224 Ark. 528, 275 S. W 2d 447. There, the elder daughter was left the vast bulk of her mother’s estate, practically to the exclusion of a younger daughter, and it was contended that Mrs. Black was not accustomed to handling business, and since she was suffering extreme grief because of the death of her husband, was easily subjected to the undue influence of the elder daughter. We held that undue influence was not established. In the case before us, appellants point out that during the thirty days Mrs. Cahn stayed at the Burgauer home (following Mr. Burgauer’s death) she had every opportunity to overpersuade her sister in the disposition of her property, but in theBlack case, the mother and the favored daughter lived together, which, of course, gave daily opportunity. We are not, after all, concerned with the opportunities to exert undue influence; for that matter, if one connives, the opportunity can generally be afforded.

It might be here mentioned that there was evidence that Mrs. Burgauer, prior to executing the will in litigation, had executed a previous will in 1949, leaving her entire estate to her husband. On July 11,1957, Mrs. Burgauer signed a typed letter addressed to her husband asking, in event that she should die first, that he immediately make a new will leaving all that portion of her estate “which you may still have at the time of your death” in the manner set forth in the letter. The disposition mentioned therein was very similar to the disposition in the present will of Mrs. Burgauer, including the naming of Mrs. Cahn and her son as residuary legatees, and the failure to leave any property to appellants herein. This letter was excluded by the court, but, if inadmissible as affirmative evidence to show Mrs. Burgauer’s testamentary intent at a time when there could be no claim of undue influence, it was clearly admissible to rebut tbe testimony of S. A. Rosenbaum, wbo testified that Mrs. Burgauer had told him her remaining estate would go equally to his father, Willard Rosenbaum, and Mrs. Cahn.

In the case before us, Mrs. Cahn was not in the Burgauer home, and had not been there for a month, when the will was executed; rather, she was in Meridian, Mississippi. Undue influence would have been indeed difficult to exert at that distance. We think the evidence was particularly strong that Mrs. Burgauer was clearly capable of knowing the parties to whom she left bequests — and the parties whom she excluded from her estate. This was established by persons who had no pecuniary interest in the result of this litigation.

In Dunklin v. Black, supra, we stated:

“This is no case of a stranger inheriting to the exclusion of natural and loved relatives; here, a daughter, loved, and respected for her ability, is the beneficiary. This is no case of the one being given everything, and the other left destitute and penniless. The evidence shows that in addition to a marriage in a family whose finances are ‘substantial’ (Elizabeth’s expression) and exclusive of her rights in the L. A. Black estate, that Elizabeth has an annual income of over $50,000.00.”

The same reasoning applies here. No one has been left penniless or destitute by Mrs. Burgauer’s action. All parties are independently wealthy. Members of the family were not “cut-off” in favor of strangers; here, a widowed sister, loved and respected throughout the years, and her only son, are the principal beneficiaries. We are not concerned with Mrs. Burgauer’s reasons for the manner of the testamentary disposition. She had every right to dispose of her property as she saw fit, and a study of the testimony convinces us that the instrument was, as stated in Dunklin v. Black, supra:

“* * * her will, arrived at by her own mental processes, and for reasons known, absolutely, only to her.”

We turn now to appellants’ contention that the will was not attested by two or more credible, competent, and disinterested witnesses as required by law. This contention is directed to the fact that Mr. Cooper Land, named as one of the attorneys for the estate, witnessed the execution of the will, along with Oscar Luebben. Appellants contend that Mr. Land was incompetent and incapable as a matter of law in acting as an attesting witness because he had a material personal interest under the provisions of the will. This is a reference to the fact that the law firm with which he is associated was named to represent the estate. Likewise, they contend that Mr. Luebben was not a competent and disinterested witness, pointing out that he was already employed to handle tax matters in the David Burgauer estate, and, “At the time of execution of the will, Mr. Luebben had immediate expectation of being employed also in Mrs. Burgauer’s estate to render accounting and tax services. ’ ’ Of course, Mr. Luebben was not mentioned in the will in any manner. Section 60-402, Ark. Stats., deals with the qualifications of an attesting witness to a will. Subsection (c) provides: “No attesting witness is interested unless the will gives to him some beneficial interest by way of devise.” In being appointed attorney for the estate, Mr. Land was not a legatee or devisee, i.e., he was not given anything. As appellees point out, attorneys are generally pleased to accept such employment in order to earn a fee — but they will earn the fee Section 62-2003 defines “devise”'as “disposition of real or personal property, or both, by will.” Actually, this Court had previously expressed itself in the case of Fontaine v. Fontaine, 169 Ark. 1077, 277 S. W. 867. The question in that case was whether an executor of an estate is a competent attesting witness to the will.

We said:

“The general rule established by the authorities is that an executor of a will is competent as a subscribing witness to its execution (citing cases from other states). Our statute does not change the general rule, for the word ‘appointment’ used therein necessarily refers to some appointment coupled with, a beneficial interest. All the benefits which accrue to an executor on his appointment are derived from the statute prescribing the fees, and not by way of a gift or bequest under the will. In other words, the interest which an executor has in the appointment is indirect, and he has no interest within the meaning of the statute prescribing the qualifications of witnesses.”

Of course, the Probate Code was enacted subsequent to that decision, but we think the Legislature clearly expressed itself by declaring that an attesting witness is not interested unless he receives a beneficial interest by way of devise.

Affirmed.

       Item seventeen provided: “I am giving no material legacy, but love and affection, to my brother, Willard Rosenbaum, my nephew, Sy Rosenbaum, both of Meridian, Mississippi, and my niece, Pauline Korman, of Teaneck, New Jersey, nor the members of the family of my deceased brother, Marx Rosenbaum, as I realize they are well endowed with material possessions. This token of affection is an expression of my love for them.”

       David Burgauer, in his lifetime, was president of the Arkansas Trust Company.

       This remark certainly would not indicate any fraudulent conspiracy, for the statement would not be calculated to help Mrs. Cahn.

       Mr. Burgauer, in his will, left the greater portion of his estate to his wife for life, with the power of appointment by will, naming, in the event she failed to exercise that power, certain beneficiaries who were to receive the remainder. Mrs. Burgauer did exercise the appointment, naming the same beneficiaries as set forth in Mr. Burgauer’s will, apparently not knowing that his beneficiaries would receive the properties if she did not exercise the power. Subsequently, it was determined by the attorneys for the estate that the David Burgauer properties did not merge in the Carrye Burgauer estate.

       The will contains twenty-one items, including specific bequests (to be paid from Mrs. Baugauer’s estate) to fourteen different people, and one hospital association.

       Under the will, Mrs. Cahn received the Burgauer jeweler.

       Mrs. Burgauer died on Friday.

       Dr. Scully stated that Mrs. Burgauer was much grief stricken, probably more so than the average person, but he did not believe her husband’s passing affected her mental capacity.

       Mr. Land properly withdrew from representation of the estate in this litigation.