author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice Paul Ward, J.,

text:
    Orr v. Love.
    5-718
    283 S. W. 2d 667
    Opinion delivered November 7, 1955.
    [Rehearing denied December 5, 1955.]

      Claude M. Williams, Duty & Duty and Bernal Seamster, for appellant.

      Fairchild, Foley & Sammond; Rose, Meeh, House, Nash $ Barron; Vernon W. Thompson, Attorney General of Wisconsin, Roy G. Tulane, Asst. Atty. General of Wisconsin, for appellee.
   Sam Robinson, Associate Justice.

This is a contest of a will of Alice A. Love executed on June 27, 1953, and a proceeding to establish the validity of a will executed by her on May 30, 1953. Appellants, Nellie Orr and other collateral heirs of Dr. George M. Love and Alice Love, are the contestants of the June 27 will and the proponents of the May 30 will; Elaine Love and the Board of Regents of the University of Wisconsin are the proponents of the June 27 will. Alice Love wrote five purported wills. The first was written in 1949, the second on May 30,1953, the third on June 1,1953, the fourth on June 24, 1953, and the fifth and last was executed on June 27, 1953. The last alleged will of June 27 was sustained by the Probate Court. In contesting this will, appellants claim that it was the result of undue influence and fraud, and ask that the May 30 will be probated instead.

George M. Love was a doctor and lived with his wife Alice in Rogers, Arkansas for many years. They had one child, George R. Love, who was also a doctor. In 1923, soon after the son’s graduation from medical school, he married and located in Oconomowoe, Wisconsin, a small city near Milwaukee. George M. Love had made a will years before his death leaving all of his estate, with the exception of $500.00 for his son, to his wife Alice. In 1949, acting on the advice of her son, George R. Love, Alice Love made a will leaving all of her property to her son, or to his estate in the event he predeceased her.

On May 26, 1953, the son, George R. Love, died leaving an estate valued at more than half a million dollars. Four days later, the father, George M. Love who lived in Rogers, died leaving an estate valued at about $125,000. The son, George R. Love, left a will setting up two trusts, one known as the Elaine Love Trust and the other known as the George R. Love Trust. His widow Elaine Love, the appellee herein, is the principal beneficiary. In addition to her rights under the Elaine Love Trust, she is to receive the income from the George R. Love Trust for life. After Elaine Love’s death, the income from the George R. Love Trust goes to her parents for their lifetime; the corpus of the George R. Love Trust then goes to the Board of Regents of the University of Wisconsin to be used to assist athletically minded students in obtaining an education. Elaine Love and Mr. Lynford Lardner, attorney for George R. Love who is now representing his widow, were named as trustees. Under the terms of the will, the trustees have almost unlimited powers; they may move the situs of the trust to any State or foreign country, and are not required to account to anyone for their actions. The George R. Love will setting up these two trusts is very long and involved and consists of over fourteen typewritten pages. For a thorough understanding of its terms considerable study is required.

Mr. Claud Williams, an attorney in Rogers, Arkansas, had represented Mrs. Alice Love for many years. His secretary, Mrs. Jeff a Scott, had looked after business matters for Alice Love and prepared her income tax statements for several years. Elaine Love knew of .the close professional relationship between Mr. Williams and Mrs. Alice Love. When George R. Love died on May 26,1953, Elaine thought it better to let Mr. Williams notify Alice of her son’s death; Elaine therefore had her attorney, Mr. Lardner, telephone Mr. Williams. Four days later on May 30, at about 3 o’clock in the morning, Alice Love’s husband, Dr. George M. Love, died; Elaine was promptly informed of his death. About 10 o’clock that same morning, Alice Love went with Jeff a Scott to Claud Williams’ office where she made a new will leaving the bulk of her estate to her two sisters and to the brother and sister of her late husband. She also left $500.00 to the Rogers Public Library, $500.00 to Cecil Miller, $100.00 to Elaine Love, as well as other bequests of $100.00 each to several nieces and nephews. After Mrs. Love signed this will, she left it in Mr. Williams’ office.

Elaine Love arrived at Joplin, Missouri by plane on May 31 and was met there by Cecil Miller, longtime friend of Dr. Love and his wife Alice. During the trip from Joplin to Rogers by automobile, Miller told Elaine about Alice Love having made a new will. Elaine was extremely displeased upon learning this. She did not go directly to the Love home in Rogers but stopped at a hotel, obtained a room and while there put in a long distance call to Mr. Lardner, her attorney in Milwaukee, to discuss with him the fact that Mrs. Love had made another will. She apparently discussed with Lardner the advisability of having Mrs. Alice Love execute still another will and also talked about obtaining a power of attorney from Alice. Following this conversation Elaine went to the Love home, and the next morning took Alice Love to the office of Mr. Williams where Alice obtained the will she had executed two days before. Although there is some confusion in the testimony as to just exactly what happened next, it appears that Alice Love took the will and put it in her lock box at the bank. Elaine then took Alice to Bentonville to the office of Mr. Vol Lindsey, an attorney of that city. There Alice made a new will leaving her entire estate to Elaine. This will was executed on June 1, only two days after Alice had executed the will drawn by Mr. Williams at her request. Mr.* Lindsey was not told about the May 30 will.

In the meantime, Elaine had again called Mr. Lardner and had instructed him to prepare a power of attorney. Mr. Lardner drafted a general power of attorney and sent it to Elaine in Rogers. This document gave Elaine authority to do anything she might wish with any and all property belonging to Alice, and it was signed by Alice on June 3. On the same day, Alice also changed her bank account, consisting of about $12,000, from a personal account to a joint one with Elaine. On June 4, Elaine returned to Milwaukee. On the 10th day of June she again came to Rogers and returned to Milwaukee on the 13th. A few days later, Alice wrote to Elaine requesting that she return the power of attorney. In the meantime, Alice destroyed the June 1 will which she had executed in Bentonville leaving everything to Elaine, and changed her bank account back into her own name only. On June 24, Alice wrote what purports to be her fourth will, in which she made $1,000 bequests to each of her sisters and to the brother and sister of her late husband, and left Elaine corporate stock apparently valued at about $47,000. This June 24 will then provides: “If any of estate is left then it shall be used to promote my sons education proposition.” As a matter of fact, there would have been under the terms of this document a residuary estate valued at more than $50,-000 after the special bequests. Elaine says that on June 25 Alice called her and asked her to have Mr. Lardner prepare another will. Elaine did this and left Milwaukee on the 27th day of June, taking the new will with her to Rogers. On that same day, while Elaine was present, Alice signed the will. This was the fifth purported will of Alice Love. On June 29, while Elaine was still in Rogers, Alice’s personal bank account of about $12,000 was again made into a joint one with Elaine.

This will of June 27 left the entire estate of Alice Love to the George R. Love Trust. Since Elaine receives the income from this trust for life, she will benefit by approximately $48,000 under the terms of Alice Love’s June 27 will. Elaine was also named executrix to serve without bond.

After Alice signed the June 27 will, Elaine stayed in Rogers for about a week and then returned to Milwaukee. On September 12, Mrs. Alice Love’s health had become, such that it was necessary to move her to a hospital. Elaine returned to Rogers on September 22 and stayed at the Love home until October 10. Mrs. Alice Love died on October 16. The June 27 will was offered for probate and this action contesting it was filed.

We now mentioii some of the rules of law by which we must be guided in reaching a conclusion as to the validity of the will. In a leading case this court said: “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 in confidential relations with them at the time of its execution.” McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. The burden of proving undue influence is on the contestants. Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d. 478; Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d. 433; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264. But, when it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. Page on Wills, Yol. 2, p. 636. Where the beneficiary plans the will and causes it to be executed, the same rule applies as where he drew the will. Ibid., p. 638. This court has said: “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 who is also benefited by it, — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.” The court then quotes with approval from Breed v. Pratt, 18 Pick. R. 115, as follows: “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. ’ ’ McDaniel ad. v. Crosby et al, 19 Ark. 533. The presumption of undue influence is not one of law but is a presumption of fact and subject to rebuttal. Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A. L. R. 942. There is also a similar presumption where one who draws a Avill is named a trustee therein and is to receive large compensation for his services. Page on Wills, Vol. 2, p. 644; Zeigler v. Coffin, 219 Ala. 536. The cause is tried de novo here and the preponderance of the evidence rule prevails. Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d. 1019. The question of undue influence and mental capacity are so closely interwoven that they are considered together. Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d. 352. It is necessary to the validity of a Avill that the testator knoAv its contents. In Meek v. Bledsoe, 221 Ark. 395, 253 S. W. 2d. 369, this court quoted with approval from 68 C. J. S. 606: “It is indispensable to the validity of a will that the testator should know its contents at the time of its execution, knoAAdedge after the execution being insufficient. However, as elsewhere shown, knowledge will ordinarily be presumed from the execution of the instrument, although the presumption is only a prima facie one and may be rebutted. If it appears affirmatively that he did not read the will and that it was not read to him, it must be shoAvn that the contents were in some way known to him.”

We must bear in mind that Elaine is one of the principal beneficiaries named in Alice Love’s June 27 will, and that the will was prepared by this beneficiary’s laAvyer at her request and according to her instructions. Moreover, Mr. Lardner is one of the trustees named in the George R. Love Trust which is incorporated by reference in Alice Love’s June 27 will. In the event of Elaine Love’s death, Mr. Lardner would be the sole trustee. With the broad powers given to him as trustee, he could benefit considerably from the George R. Love Trust and hence from the June 27 mil of Alice Love. Since both Elaine and Mr. Lardner would benefit under the terms of the June 27 will, and since Lardner was acting on instruction from Elaine when he prepared the will, it is the proponents’ burden to prove not only that Alice Love had the mental capacity to execute a valid will but that she was free from undue influence and understood the terms of the will. The proponents of the will have not met this burden.

Elaine attempts to make a reasonable explanation of everything that was done and to show that the will was not made because of any undue influence on her part, and that there was no fraud in failing to fully inform Alice Love about the George R. Love Trust. Both sides offer expert and lay testimony as to the mental capacity of Alice Love. But this is a case where actions speak louder than words.. Undue influence may be inferred from facts and circumstances. Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. “Undue influence is generally exercised in secret, not openly, ... its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes. ” Hyatt v. Wroten, 184 Ark. 847, 43 S. W. 2d. 726. The undisputed facts and the reasonable inferences to be deduced from such facts inevitably lead to the conclusion that Alice Love was not acting according to her own free choice in executing wills at any time after Elaine’s arrival in Rogers on May 31, 1953. In the first place, on May 30 Alice Love had gone to her lawyer’s office and made a will. She had gone to a man she had known and trusted for many long years, the same man who had been selected by Elaine to notify Alice of her son’s death. This lawyer’s secretary had also been Alice’s longtime friend and business advisor. It is argued that Jeff a Scott, the secretary, wrongfully induced Alice to go to Mr. Williams ’ office and execute the May 30 will, wherein Jeff a was named executrix. But we are not convinced at all that Alice went to Mr. Williams’ office due to importunities on the part of Jeff a Scott. On May 27, the day after the son, George R. Love, died, a Mrs. Chandler was present in the Love home in Rogers and heard Alice say to Jeffa Scott: “Now, Jeffa, I want to get that will [the 1949 will] changed and I want to get it right.” And Jeffa replied: “Now, Mrs. Love, there’s plenty of time to do that. You don’t need to rush anything like that.” We are convinced that Alice went to Mr. Williams’ office because she wanted to dispose of the business of making a will as quickly as possible. By the recent death of her husband, she had acquired a large estate and the unexpected death of her only son had changed the situation considerably. In her May 30 will she did the natural thing, the thing that anyone would expect her to do; the large bulk of her estate was left to her two sisters and to the brother and sister of her late husband. The evidence is convincing that the May 30 will was the free and voluntary act of the testator.

It is argued that Alice Love had not been in contact with her two sisters for a long time and was hardly acquainted with the brother and sister of her husband; but she was certainly better acquainted with them than with the parents of Elaine to whom she left a contingent life estate under the terms of her June 27 will. Furthermore, the record indicates that the relationship between Alice and Elaine was not a close one. Alice lived in Rogers, Arkansas, and Elaine in Wisconsin. They had only seen each other on a few visits during their entire lives. There is no evidence of any correspondence written prior to June, 1953, that shows any affection whatever between them, and yet, the day after Elaine’s arrival in Rogers on May 31, she took Alice to an attorney’s office in Bentonville where Alice made a will leaving her entire estate to Elaine. Elaine tries to explain taking Alice to an out-of-town lawyer’s office by saying that she was mad at Mr. Williams, claiming that he had wrongfully prevailed on Alice to make a new will so soon after the death of her husband. The record does not justify a conclusion that Mr. Williams induced Alice to make a new will or any will at all. Actually, May 30 was a holiday, and Williams did not want to come to the office, only doing so after he was called twice. He charged only a nominal fee of $25.00 for drawing the will, and received no other benefits from it. The fact that Elaine took Alice to an out-of-town lawyer on June 1, and not to Mr. Williams, the lawyer who had been Alice Love’s legal advisor for many years and who had written wills for her on previous occasions, is in itself a suspicious circumstance; especially so in view of the fact that Elaine, upon her arrival in Joplin and being told by Cecil Miller about the May 30 will, called Mr. Lardner, her attorney in Milwaukee, with reference to the will and the advisability of obtaining a power of attorney from Alice.

We do not believe there is a shadow of a doubt but that Elaine called Mr. Lardner seeking advice with reference to avoiding in some manner the May 30 will. Elaine attempts to show that the June 1 will, in which Alice left to her the entire estate, was not due to any conniving on her part, and tries to explain that the June 1 will was only a stop-gap to serve until such time as another will could be prepared in which Alice would leave the bulk of her estate to the George R. Love Trust. It is explained that Mr. Lindsey, the lawyer who prepared the June 1 will, did not have sufficient information about the trust to make a will whereby Alice would leave her estate to that trust. Mr. Lindsey is an able lawyer. He lives in Bentonville, a town very near Rogers, and yet, at no time subsequent to June 1, was he furnished with the necessary information about the George R. Love Trust so that he could prepare another will for Alice Love. Also, when Elaine was in Rogers from the 10th to the 13th of June, she did not mention the will business to Alice, or bring with her from Milwaukee a copy of the George R. Love will.

Another circumstance which carries great weight in establishing the fact that Alice Love was unduly influenced by Elaine is that Alice signed the power of attorney. This power of attorney is very broad. It was prepared by Elaine’s lawyer in Milwaukee and signed by Alice on June 3, just four days after the death of Dr. Love, Sr., and only four days after she had executed the May 30 will, of her own volition, leaving Blaine only a token $100.00. Bnt that is not all. On June 3, Alice’s bank account, consisting of about $12,000, was changed to a joint account for herself and Elaine. Prom the record, we can conclude that Alice Love was very frugal and careful about any expenditure of money, and the evidence in this case is far from convincing that Alice would, of her own free will, give power of attorney or joint account privileges to Elaine. Subsequently, Alice revoked the power of attorney and changed the bank account back to her own name. But the bank account was again changed to a joint one when Elaine next came to Rogers.

Moreover, the record is replete with evidence to the effect that at all times following May 30, Alice Love was using habit-forming drugs that produced both a sedative and hypnotic effect. She was weak physically and mentally. She was worn out from caring for her husband who had been bedfast for several years prior to his death. She was 77 years of age, and lived only three and a half months after the deaths of her husband and only son.

Although there is a rebuttable presumption that Alice knew the effect of her will when she left all of the estate to the George R. Love Trust, 57 Am. Jur. 573, this presumption is overcome by a preponderance of the evidence. Por one thing, Elaine never told Alice about her life estate in the George R. Love Trust or the interest of her mother and father in the trust. Elaine testified that Alice understood her money was to go to the George R. Love Educational Fund and not to Elaine in any way. Elaine even states in the petition for probate of the June 27 will that she has no interest in Alice Love’s estate, when as a matter of fact, under the terms of this will she has a very large interest amounting to about $48,000. Also, Alice never saw a copy of the George R. Love will setting up the trusts, although it is claimed that she read newspaper articles explaining the will. However, the only article that described the terms of the George R. Love will was not published until June 18, and it appears that all the clippings referred to by witnesses which Alice Love saw were published prior to that date.

The record does not lead one to believe that Alice had any idea that she was leaving a life estate to Elaine and then to Elaine’s parents before her money would ever go to an educational fund. There is nothing in Alice’s June 27 will to indicate that she herself had any knowledge of the actual results of the terms of that will. Elaine testified that both she and Alice thought that, under the terms of the June 27 will, Alice’s estate would go directly to the educational fund and that none of it would go to Elaine. This shows conclusively that Alice did not understand the contents of the will.

We have concluded that the May 30 will was the free and voluntary act of Alice Love. Due execution of this will was established. The same evidence which is convincing that subsequent wills grew out of undue influence persuades us that the May 30 will was destroyed as a result of that same undue influence. The making of one and the destruction of the other were parts of one transaction.

In 57 Am. Jur. 323, it is said: “When a testator in destroying his will acts under fraudulent and undue influence, the will is considered not to have been revoked, and may be admitted to probate on establishing facts showing the existence and due execution of the will and its destruction by reason of such improper influence. The execution of a will and the destruction of a former will may be so closely connected in point of time as to constitute one transaction, indivisible as to inducement and purpose, so as to render inescapable the conclusion that undue influence sufficient to invalidate the later will rendered the destruction of the former will ineffective as a revocation. ’ ’ In support of the text there is cited In re Simmons’ Estate, 166 Minn. 65, 207 N. W. 189, and Neal v. Caldwell, 326 Mo. 1146, 34 S. W. 2d 104, 109. In the Simmons case, 28 R. C. L. 168 is quoted with approval as follows: “A will destroyed by the testator himself in his lifetime, acting under fraudulent or undue influexice, is not considered as having been revoked, and may be admitted to probate on establishing facts showing the existence and due execution of the will, and its destruction by such improper influence. ’ ’

It appears that when Mrs. Elaine Love took Alice to Mr. Williams’ office on June 1 to get the will Alice had executed May 30, Alice had not been completely influenced to revoke that will. This is indicated by the fact that the will was not destroyed immediately, but was taken to the bank in Rogers and placed in Alice’s lock box. Later, when Elaine and Alice returned from Bentonville where Alice had executed the June 1 will, they again went to the bank and obtained the May 30 will. There Elaine says that Alice tore it into pieces; but Elaine kept the pieces and delivered them to her lawyer, Mr. Lardner, in Milwaukee. Mr. Lardner kept the torn pieces in his files. They were put back together and later introduced as evidence in this case. The May 30 will is not so badly mutilated that its terms are not clear. Moreover, the notebook of Mr. Williams’ secretary containing the terms of the May 30 will was available as evidence.

Proponents of the will further contend that even if the June 27 will was the result of undue influence, the testator ratified it by not changing the will between the time it was made and the time of her death some three months later. In support of this contention there is cited Cude v. Culberson, 30 Tenn. App. 628, 209 S. W. 2d 506. However, in the Cude case there was a republication of the will in the nature of a codicil executed some fifteen years after the making of the original will. In Page on Wills, Vol. 1, p. 392, it is said: “Since a will must be either valid or void and cannot be voidable, the doctrine of ratification has no application. If the will is invalid when made, the only method by which it can be made valid, in accordance with the statutes of wills, is by re-execution or republication.” In 57 Am. Jur. 257, it is said: “Undue influence, fraud and mistake are recognized grounds for contesting the probate of a will or setting aside probate, except where there has been a valid re-execution or republication of the will.” In the case at bar, there was no republication.

The judgment is reversed with directions to set aside probate of the June 27 will and to admit to probate the will of May 30.

The Chief Justice and Mr. Justice George Bose Smith not participating.

Mr. Justice McFaddin concurs.

Mr. Justice Ward dissents.

Ed. F. McFaddin, Associate Justice

(concurring). By an entirely different process of reasoning I have finally reached the same conclusion as that stated by Mr. Justice Bobinson, who is joined by Justices Holt and Millwee. Since my vote is necessary to make the Constitutional requirement of four Justices voting for the same result, I think it incumbent on me to state my course of reasoning.

I. Mental Capacity Of Mrs. Alice Love. The evidence convinces me that — absent any fraud or undue influence ■ — • Mrs. Alice Love was mentally capable of executing a will at any time from May 30th to June 27th. Neither her grief, use of drugs, age, or anything of that kind, impaired her mental faculties so as to prevent her from executing a will if she was at such time free from fraud and undue influence. The evidence convinces me: (a) that Mrs. Alice Love’s will of May 30th was her free and voluntary act without any undue influence or fraud of any kind; (b) that when she executed the instrument of June 1, 1953, she was under the undue influence of her daughter-in-law; and (c) that Mrs. Alice Love was a victim of fraud when she executed the will of June 27th.

II. The Fraud In The Will Of June 27th. This is a most serious charge, but I am convinced of the correctness of my position. After the death of her only son, George, Mrs. Alice Love was anxious to let her estate go to the educational enterprise that he favored. Iii her attempted will of June 24th she said: “If any of estate is left then it shall he used to promote my son’s education proposition. . . Mrs. Elaine Love knew of Mrs. Alice Love’s desire that her estate go to the “education proposition.” On June 8th Mrs. Alice Love wrote Mrs. Elaine Love: “When you come bring me lots of data of George’s instructional. ... I thought Vol Lindsey would be interested and I would like to know more myself.” Again Mrs. Love wrote her daughter-in-law: “I don’t remember much of will either — only he didn’t put in that trust clause”. In another letter, Mrs. Love wrote her daughter-in-law: “I wonder if that will is good even if William scratched some of the school trust;” and in another letter Mrs. Alice Love wrote her daughter-in-law: “Have your lawyer make us a will . . . and give name and object of George’s project.” The foregoing excerpts — and there is much other testimony to like effect — show that Mrs. Alice Love was interested in the “education proposition” that her son George had started.

But does the will of June 27th accomplish what Mrs. Alice Love wanted? Does it give her estate to the “educational proposition?” The answer to these questions is in the negative. The June 27th will leaves her estate to the George R. Love Trust instead of to the George R. Love Educational Fund; and the fraud consists in making Mrs. Alice Love believe that the George R. Love Trust was in fact the George R. Love Educational Fund. The George R. Love will was never shown to Mrs. Alice Love. She was led to believe that the “George R. Love Trust,” as mentioned in her will of June 27th, was the Education Fund ‘which her son had established in his will. In truth and in fact, the ‘ ‘ George R. Love Trust ’ ’ was vastly different.

The George R. Love will introduced in evidence in this case shows that he set up two trust funds. The first was the “Elaine Love Trust,” which consisted of a large portion of his estate. The second was the “George R. Love Trust” and it provided: (a) that Elaine Love should receive the entire annual net income of the George R. Love Trust as long as she lived; (b) that after her death the net income of the George R. Love Trust would go to Mrs. Alice Love and to Mrs. Elaine Love’s mother, Christiana Lundblad, and to Mrs. Elaine Love’s father, Oscar Lundblad, as long as any of them lived; and (c) that, upon the death of Mrs. Elaine Love and the parents of George R. Love and the parents of Mrs. Elaine Love, the Trustees would transfer the residue of the “George R. Love Trust” to the “George R. Love Educational Fund,” which was to he administered by the Board of Regents of the State of Wisconsin. In short, the will that was drawn and presented to Mrs. Alice Love on June 27th gave all the income of her estate to Elaine Love aiid Elaine Love’s parents as long as any of them lived and then the residue of Mrs. Alice Love’s estate would go to the George R. Love Educational Fund.

Mrs. Alice Love was led to believe that when she executed her attempted will of June 27th her estate was going' to the George R. Love Educational Fund and certainly not to Mrs. Elaine Love’s parents. The actual information was withheld from her, and so she executed an instrument on representations which amounted to fraud. Fraud vitiates everything it touches. In 57 Am. Jur. 267, in discussing fraud as an independent ground of will contest, the holdings of the many cases are summarized in this language:

“A will procured by fraud or deceit is void, except where there has been a valid re-execution or republication of the will. Fraud in the sense of deceit is a ground of contest separate and distinct from that of undue influenee. To make a case of undue influence, the free agency of the testator must be shown to have been destroyed; but to establish a ground of contest based on fraud, the free agency of the testator need not be shown to have been destroyed. Fraud is present to invalidate the will if by misrepresentations and deception the testator is led into making a will different from what he would have made but for the misrepresentation and deception. ’

So I conclude that the will of June 27th was void because of fraud, even if the language in the instrument was sufficient to incorporate by reference the provisions of the will of George R. Love. It is unnecessary for me to dwell on this matter of incorporation by reference.

III. Directive On Remand. This is the point that has given me most serious concern. Justice Robinson’s opinion concludes with this directive:

"The judgment is reversed with directions to set aside probate of the June 27th will and to admit to probate the will of May 30th.”

I have wondered if the May 30th will was not destroyed sufficiently to constitute revocation; but I have concluded that the appellees have nothing to gain on that score, so this question can be answered in the negative. The will of May 30th was proved as validly executed. The will of June 1st fails because it was executed under the undue influence of Mrs. Elaine Love. The will of June 24th was never proved by the attesting witnesses. In the oral argument before this Court I repeatedly questioned counsel for appellees as to why no effort was made to prove this June 24th will as an alternative to the June 27th will. I received no satisfactory answers. The fact remains that one of the attesting witnesses of the June 24th will never testified in the case and the other attesting witness was not interrogated as to the facts surrounding the attestation of the June 24th will. The will of June 27th fails because of fraud.

In the light of all the above, the will of May 30th remains as the last valid will of Mrs. Alice Love. In the Trial Court the issue was sharply drawn between the May 30th will and the June 27th will; and a transcript containing over 1,000 pages is before us in this case. The printed abstracts and briefs in this Court contain 1131 pages, besides typewritten briefs agreed to be furnished at the time of the argument here. To remand the case “for further development” would be wrong, in view of the full development that has already been made. Therefore I concur with the directive on remand, as contained in Mr. Justice Robinson Is opinion.

Paul Ward, J.,

dissenting. A careful consideration of this case forces me to a different conclusion from that of the majority.

Mrs. Alice Love made a will in 1949 leaving her estate to her only son. On May 30, 1953, four days after the death of her son and seven hours after the death of her husband Mrs. Alice Love made a will [revoking her 1949 will] leaving the bulk of her estate to her two sisters and the brother and sister of her husband, some of whom she had not seen in years and one of whom she said she would not know if she met her on the street. This last will Mrs. Love destroyed with her own hands, and on June 27, 1953 she executed another will — the one here contested.

The majority opinion voids the June 27th will and reinstates the May 30th will — just the opposite of what the Chancellor did. To justify such action on the part of the majority compelling reasons should appear.

I submit that no such reasons are set forth in the majority opinion and that none appear in the record.

Under the record in this case it is obvious that the June 27th will can only be set aside by establishing at least one of these things; (a) Mental incapacity,- (b) Undue influence, or (c) Fraud. These will be discussed in that order.

(a) Mental Capacity. We do not understand that the majority or the appellants lay much, if any, stress on the lack of mental capacity of Mrs. Love to execute the June 27th will. At the end of the first paragraph in the majority opinion appears this sentence: “In contesting this will appellants claim that it was the result of unclue influence and fraud. . . .” Nothing is said of lack of mental capacity. The only allegation in the complaint relating to lack of mental capacity is a statement to the effect that Mrs. Love, “on account of her advanced age, her failing health and the grief” [recent loss of husband and son] was on June 2nd, 1953, in the hands of Elaine Love . . . “as clay in the hands of the potter.” This statement by appellants must be weighed in the light of the following facts: Appellants claim [and the majority hold] that on May 30, 1953 Mrs. Love had mental capacity to execute a will, but now contend that three days later she had advanced in age and deteriorated in health to such an extent that her mind had deteriorated. Nor can we understand why her grief would be less on the day her husband died than it was three days later.

In an attempt to show that Mrs. Love lacked mental capacity shortly before and on June 27, 1953 appellants showed that Mrs. Love had been taking sedative tablets. It was claimed that the continued use of these tablets rendered her incompetent and that, if she left them off, she would be worse off mentally. Again this contention is wholly lacking in force. The record is that Mrs. Love did take such tablets, but she had been doing so long before the May 30th will was executed, and they were given to her by her family doctor and her doctor son. Appellants must concede Mrs. Love’s mental capacity was not impaired on May 30, 1953 just 29 days before the contested will was executed. Moreover I for one would not like to intimate that Mrs. Love’s son and her family doctor either ignorantly or intentionally destroyed her mind by giving her drugs which would do so if she took them or if she quit taking them.

There can be, I think, no question about Mrs. Love’s mental capacity on June 27, 1953. The record is replete with evidence that she transacted business as usual from the death of her husband until June 25, 1953.

(b) Undue Influence. Much of what has already been said refutes the charge that Elaine unduly influenced Mrs. Alice A. Love to make the will in contest. To my mind the entire record refutes such a charge under the rules announced in the majority opinion.

1. The foundation of appellants’ contentions and the majority opinion, it seems to me, must rest on the assumption that Elaine is a strong willed, unprincipled, and selfish woman. In the Petition it is alleged that Mrs. Alice Love knew her to be “strong and forceful and to be selfish and greedy,” and that Mrs. Love feared Elaine. The record does not justify this appraisal of Elaine’s character, but, on the contrary, it shows the exact opposite. The only testimony in the record about Elaine’s character is that given by Attorney Lardner who had known her intimately from her childhood. According to him Elaine, a woman 50 years old, is friendly and likeable. He said of her: “She is sensitive and I believe a very gentle person, so gentle she is almost fragile, . . . nor can I picture her coercing anyone nor exercising the slightest degree of influence over anyone in a business or financial matter.” Of course this could possibly be the picture of a biased friend, but it is the only picture we have based on the record, and it is not unlike the woman you would expect a man of George E. Love’s character to select for a wife.

2. Did Mrs. Alice A. Love “fear” or did she love and respect her daughter-in-laAV, Elaine? Though it is true she had not had the opportunity to Iuioav Elaine well prior to May, 1953 due to the fact they were both wives of busy doctors in different states, yet the record reflects nothing but love and respect after that time. The record contains six letters written by Mrs. Alice Love to Elaine, between June 6 and June 24, 1953, which show only love and respect for Elaine. The record also contains nine such letters after the will was made.

3. The Power of Attorney, the joint bank account, and numerous will. Somehow, appellants profess to believe, all these things indicate a weak mind on the part of Mrs. Alice A. Love and undue influence on the part of Elaine. The record explains these things and disputes the justification for any such belief. The Power of Attorney and joint bank account were executed by Mrs. Alice A. Love, with her full knowledge and consent, at a time when she was sick and grief stricken, with the idea that Elaine could help her better manage her extensive business activities and especially in the event she should become incapacitated. It soon developed that she got better and was able to transact her own business, and so, using good business judgment, she revoked them. The salient point is, Elaine never tried to exercise any authority under them although she had the time and opportunity to do so.

The record gives a rational explanation for the different wills. The first was executed in 1949 [estate to son] before her husband and son died. The second one was executed May 30, 1953 seven hours after her husband died, in which she gave her estate to her and her husband’s sisters and brothers, some of whom she had not seen in years. Later she went to the bank, got this will and tore it in pieces. After two days reflection she executed the third will to Elaine. It was explained that this was a “stop gap” will until a proper one could be made to give the bulk of her estate to her son’s Educational Fund. The fourth will was made, in her own handwriting, as her own effort when, according to her letters, she could not hear from Elaine who was in Wisconsin. The fifth and last will was prepared, at her request, by the Wisconsin Attorney who wrote her son’s will. This series of events, I submit, reveal a course of meditation and judgment much more than it shows fraud, undue influence or mental incapacity. The last will was witnessed by Mr. and Mrs. Mackey, who said she read it, and that she was mentally alert at the time — • facts not denied. After this will was executed she had 110 days [before her death] to reflect on what she had done and change her mind [in the absence of Elaine] if she desired to do so. She never did.

(c) Fraud. Before discussing this last ground for setting aside the June 27th will it is pertinent to observe that we have the following situation. Three of the judges helping make the opinion base the same on three grounds, viz; lack of mental capacity, undue influence and fraud. The concurring opinion specifically rules out lack of mental capacity and undue influence and rests solely upon the ground of fraud. Since it takes a majority of this court, or four in number, to make an opinion I conclude that now we have an opinion in this case which sets aside Mrs. Love’s June 27th will solely on the ground of fraud. Hereafter I shall refer to the majority opinion as the combined opinion of the four judges.

As I read the record and the majority opinion only one incident is relied on to show a “fraudulent representation” on the part of Elaine. I shall now discuss this question of fraud.

In the second paragraph of Mrs. Alice A. Love’s will [being contested] she stated: “My only son, George It. Love, having preceded me leaving one-half his estate to an educational trust fund and to aid and assist worthy, ambitious and needy young men . . . it is my desire to further his wishes and intentions in this regard by adding my own estate to the funds which his worthy objects are to be fulfilled.” Following this she gave her estate to the “George R. Love Trust which is created under the last will and testament of George R. Love dated May 26, 1953. . .

The George R. Love will gave one-half his estate to his wife, Elaine, and the other half to the “George R. Love Trust” — the fund to which Mrs. Alice A. Love’s estate was added by her will. The “fraudulent representation” relied on by appellants is that Elaine did not tell Mrs. Alice A. Love that she, Elaine, would, under the terms of George R. Love’s will, get the income during her life time from this Trust.

It will be noted that Elaine is not charged with any fraudulent misrepresentation, but, in effect, she is charged with fraudulently concealing vital information which she, Mrs. Alice A. Love, did not have or know.

The charge against Elaine of concealing valuable information from Mrs. Love at the time she made her June 27th will really consists of two parts which are: (a) The motive of self gain and (b) The act of concealment. The majority profess to believe that Elaine unjustly profited to the extent of, as they say, approximately $48,000 which she would receive during her life time or expectancy. I take it this would amount to a cash value of not more than $25,000.00. The alleged act of concealment consists of this: Mrs. Love, it is charged, wanted her estate to go directly to the educational fund created by her son and not the George R. Love Trust Fund, and that Elaine Love fraudulently concealed from Mrs. Love the fact that she [Elaine] would [under George R. Love’s will] for her life receive the income from the George R. Love Trust Fund and also that Elaine’s parents and her husband’s parents would likewise share for life in the income from the same Trust Fund. The only logical deducible conclusion is that the majority believe Elaine was motivated by the desire for financial gain in committing the alleged fraud.

I respectfully submit that the record conclusively refutes (a) the motive and (b) the fraudulent act of concealment.

(a) There was no such motive. It is not disputed that Mrs. Love on June 24th [three days before the questioned will was executed] executed a will in her own handwriting. It is not and can not be contended that this will of the 24th was the result of undue influence or fraud on the part of Elaine, because Mrs. Love, at that time, was in Rogers, Arkansas and Elaine was in Wisconsin. It is pointed out by the majority the June 24th will left Elaine more money [approximately twice the cash value] than she gets under the June 27th will.

(b) There was no fraudulent concealment by Elaine. In the case of Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458, at page 887 of the Arkansas Reports, this court said: “This is a suit to cancel a deed upon the ground that its execution was procured by fraud; which is never presumed, but must be affirmatively proved by testimony which is clear and convincing. ’ ’ I propose to now show by the record that it not only does not reveal any “clear and convincing” evidence of fraud on the part of Elaine, but that it shows conclusively that she did not commit any fraud.

Contained in the record is a copy of a Wisconsin newspaper, properly introduced in evidence, under date of June 18th, 1953. This paper contains an article on the front page entitled “Dr. Love’s Will Provides U. W. Educational Fund.” Under this heading, on the front page, is a paragraph about the George R. Love Trust explaining its provisions, from which I shall presently quote. One witness, Mrs. Mackey, testified positively and without contradiction that Mrs. Love had in her possession a clipping of this same article before she executed the will on June 27, that she knew its contents, that she was proud of -what her son had done, “and she intended putting her money to the same purpose. [Record pages 647 and 649.]

This same newspaper article referred to above, after explaining that Dr. George R. Love had given approximately one-half of his estate to the Elaine Love Trust, reads: “Income from the other half, the George R. Love Trust, will be paid to the %oidow [Elaine] during her life, and upon her death, to any of the couples’ parents still living at that time.” [Emphasis supplied].

Thus it conclusively appears from the uncontradicted record that every item of information which the majority hold Elaine fraudulently withheld from Mrs. Love [inducing her to execute the June 27 will] was in the possession and knowledge of Mrs. Love when said will was executed by her.

With both the motive and the act of concealment being thus refuted by the record, it is beyond my comprehension to understand how the majority opinion can be justified.

       This evidently referred to the fact that Mr. Vol Lindsey had stated that he didn’t know enough about the George R. Love Educational Fund to incorporate its provisions in the will.

       In the oral argument before this Court one of the three attorneys who spoke for the appellees said that Mrs. Alice Love never saw her son’s will and that she would not have understood it if she had seen it. Furthermore, Mrs. Elaine Love testified on Tr. 931: “Q. Now, Mrs. Love, didn’t you feel that sometime, even when you came down here on the 27th of June that it would he a most nice favor, an expression of love and affection, for you to take the will of her only son and read it to her, paragraph by paragraph, didn’t you feel that you should have done that? Didn’t you? A. No, sir, I didn’t, Mr. Duty. Q. She never saw a copy of it, did she? A. No, sir.”

       There are annotations in 28 A. L. R. 787 and 92 A. L. R. 790 containing the cases from which the quoted rules above have been formulated.


source: Caselaw Access Project

author: Lee Seamster, Chief Justice.

license: Public Domain

text:
    Health Betterment Foundation v. Thomas, Administrator.
    5-743
    283 S. W. 2d 863
    Opinion delivered November 14, 1955.
    [Rehearing denied December 12, 1955.]

      Campbell and Campbell, for appellant.
    P. E. Dobbs and M. C. Lewis, Jr., for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by the appellants, from a decree of the Garland Chancery Court, whereby appellee, B. W. Thomas, Administrator of the Estate of A. W. Petersohn, deceased, recovered a judgment against appellants in the sum of $27,000. This judgment was declared a specific lien against the property of the Health Betterment Foundation, appellants herein, and based on a lis pendens filed by the appellee on March 31, 1953.

In early September of 1951, A. W. Petersohn and certain of the appellants became acquainted while attending a medical institute meeting in Michigan. A. W. Petersohn, a man 77 years old, subsequently came to Hot Springs, Arkansas, for a three week visit. Immediately thereafter, he went to Kansas for a two week visit. He returned to Hot Springs on or about October 4, 1951, and entered the New Park Hospital for treatment of an asthmatic heart condition. Dr. Petersohn remained a patient in the New Park Hospital until the date of his death, October 16, 1951. He reportedly signed two deeds on October 12, 1951, in which he conveyed certain properties in Michigan and Kansas, to the appellants. The appellants operated the New Park Hospital. These deeds were recorded on the day of the decedent’s death, and shortly thereafter, the appellants sold the property.

B. W. Thomas was appointed as Administrator of the Estate of Dr. A. W. Petersohn, by the Garland Probate Court on May 14, 1952. On the same day, the court ordered and directed the administrator to prosecute the instant suit against the appellants, for the benefit of the estate.

The appellee instituted this suit in the Garland Chancery Court on May 17, 1952, alleging that the appellants entered into a conspiracy to induce Dr. Petersohn to deed his property to the Health Betterment Foundation, a mutual benevolent corporation, domiciled in Hot Springs, Arkansas. It was further alleged that Dr. Petersohn executed and delivered to the appellants, deeds to properties lie owned in the States of Kansas and Michigan; that said deeds were procured by means of confidential relationship, undue influence, coercion, duress, misrepresentation, fraud, and while the decedent was mentally incompetent. The appellants, all directors and officers of the Health Betterment Foundation, are: Cora Thomson, J. Clay Holmes, Yerna Noble Pape, Campbell E. Holmes and M. Charlotte Holmes.

Evidence was presented by way of depositions, oral testimony and exhibits; the case being continued from time to time for the purpose of procuring further testimony.

On October 20, 1954, the trial court entered judgment upon the complaint for the appellee, and decreed that appellee, as administrator of the estate, was entitled to have judgment against the appellants, jointly and' severally, for the sum of $27,000. This sum represented the proceeds derived by the appellants, from the sale, conveyance and transfer of the decedent’s property. This judgment was declared a specific lien against the property of the Health Betterment Foundation.

The appellants list four points on appeal, for reversal of the trial court’s decree, they are: (1) the decree is against the weight of the testimony, there being little substantial evidence upon which to predicate a finding of duress, lack of consideration, or fraud; (2) the Chancery Court erred in not sustaining appellant’s motion to dismiss; the heirs of Petersohn, deceased, being the real parties in interest; (3) Petersohn’s mental capacity to dispose of his property as he saw fit was established by the great weight of the testimony; and, (4) the Chancery Court erred in impressing a specific lien against appellant’s property in G-arland County, Arkansas.

Initially, we will take up point 2 of appellant’s contentions for reversal of the trial court’s decree, which involves the question of whether the administrator had a right to institute this suit. The instant case does not come within the previous holdings of this court, as handed down in the cases of Jones v. Jones, 107 Ark. 402, 115 S. W. 117, and Cranna, Administrator v. Long, 225 Ark. 153, 279 S. W. 2d 828.

We find the probate court was empowered to order and direct the administrator to prosecute the instant suit, for the benefit of the estate. Full authority for the court’s action is found in Section 94 of Act 140, Acts of 1949; Ark. Stats., 1947, Section 62-2401, pocket supplement. Under the direction of the probate court, the administrator has the right to maintain the suit, whether its object is to recover real estate or the proceeds derived from the sale of real estate, when it has been ascertained that said property has been wrongfully obtained from the decedent. We cannot agree with appellant’s contention, that the probate court had no right to direct the administrator to bring the instant suit.

The appellants have' insisted that the chancellor’s decree is against the weight of the testimony, there being little substantial evidence upon which to predicate a finding of duress, lack of consideration or fraud. They earnestly insist that at the time of the conveyance, Dr. Petersohn possessed sufficient mental capacity to dispose of his property as he saw fit. We cannot say that this finding of the chancellor is against the preponderance of the evidence.

In Hightower v. Nuber, 26 Ark. 604, 611, we said: “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 advantage of the grantee, it is an act against conscience and within the cognizance of a court of equity.” See, also, West v. Whittle, 84 Ark. 490, 106 S. W. 955; Thiel, Special Adm’r. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507.

This court has said: “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 who is also benefited by it,- — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.” The court then quotes with approval from Breed v. Pratt, 18 Pick. R. 115, as follows: “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.” McDaniel v. Crosby et al., 19 Ark. 533.

The record reveals that the deceased was in a dying condition at the time he signed the deeds to convey his property to the appellants. The medical records show that appellants administered drugs and narcotics to the deceased, in order to ease his pain, during the last few days of his life. The medical records also reveal that deceased was irrational, complained of weakness, refused to sign checks and expressed a desire to leave the hospital and return to Battle Creek, Michigan. There was strong indication of physical and mental deterioration.

The deeds were prepared by the secretary of the appellant corporation and were kept readily available at all times, in Dr. Petersohn’s hospital room. The decedent consistently refused to sign these deeds. Testimony of record shows several attempts by appellants to obtain Dr. Petersohn’s signature to the deeds; on the pretense that he was signing a check or giving them his name. After considerable deception and relentless pressure, the appellants were finally successful in getting Dr. Petersohn’s signature to the two deeds; which conveyed to the appellants certain properties located in Kansas and Michigan. Elizabeth Hollenbeck, a niece of the deceased, was instrumental in procuring Dr. Petersohn’s signature to these two deeds; and, on the same date, she obtained his signature to another deed which conveyed to her certain properties located in Battle Creek, Michigan. Shortly thereafter, the appellants disposed of the properties that they had obtained from Dr. Petersohn. The appellants gave Elizabeth Hollenbeck the sum of $2,500, in addition to a deed to 18 acres of land that had been obtained from Dr. Petersohn.

We think the preponderance of the evidence shows the chancellor reached the correct decision on these points.

Finally, we think the chancellor erred in declaring a specific lien on the property of appellants, as described in the lis pendens. Our lis pendens statute (Ark. Stats. Sec. 27-501) is not applicable to an action seeking only a money judgment, since, by its terms, it applies only to actions affecting “title or any lien on real estate or personal property.” Tolley v. Wilson, 212 Ark. 163, 205 S. W. 2d 177. The filing of the lis pendens notice in this action, seeking a money judgment, did not constitute any lien on appellant’s property, since, the appellee has failed to show that appellants have applied the proceeds derived from the sale of Dr. Petersohn’s property, to the acquisition of the property set out in the lis pendens notice.

That portion of the trial court’s decree, assessing judgment against appellants in the sum of $27,000, is affirmed. The portion of the decree declaring a specific lien on appellant’s property, as set out in the lis pendens notice, is reversed.


author: J. Seaborn Holt, Associate Justice.

text:
    Howell v. Ark. Power & Light Co.
    5-756
    283 S. W. 2d 680
    Opinion delivered November 14, 1955.
    [Rehearing- denied December 5, 1955.]

      Kenneth C of felt, for appellant.

      House, Moses S Holmes and William M. Clark, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Howell, sued Appellee, Simon, and tbe Arkansas Power and Light Company for substantial damages for practicing an alleged fraud on Appellant. Appellee, Company, filed a separate demurrer alleging that tbe complaint did not state facts sufficient to constitute an action against it. Tbe trial court sustained tbis demurrer, Howell refused to plead further and elected to stand on bis complaint. Whereupon tbe court dismissed bis complaint and tbis appeal followed.

Tbe case is still pending as to Appellee, Simon. In testing a complaint on demurrer we must assume that all allegations that are well pleaded, are true. Also our rule is well established that pleadings are to be liberally construed and every reasonable intendment is to be indulged on behalf of the pleader in determining whether a cause of action is stated. Rice v. King, 214 Ark. 813, 218 S. W. 2d 91; Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121.

Omitting formal parts material allegations in the complaint were in effect that Howell is a licensed real estate broker in Pulaski County. “In February, 1954, the Real Estate Board cancelled his (Howell’s) license, for the reason that plaintiff had split a real estate commission with the defendant, Simon, in connection Avith the transfer of a block of ground at 9th and Louisiana Streets in Little Rock, Arkansas, to the defendant, Arkansas Power and Light Company.

“In November, 1952, the defendant, Simon, called the plaintiff (Howell) to his office in the Arcade Building, in the City of Little Rock, and held himself out to the plaintiff as a real estate broker, and as a spokesman, with authority, for the defendant, Arkansas Power and Light Company, and advised the plaintiff that they, by Avorking together, could bring about the purchase by the defendant, Arkansas Power and Light Company, of the above described property; that the Arkansas Power and Light Company was interested in the purchasing of said block of ground; that they Avould buy said block of ground, if the said defendant, Simon, and this plaintiff could arrange for the transfer of good title from each of the individual owners of the various subdivisions of said block of property; that at the time, the plaintiff had listed Avith him as a real estate broker, for sale a certain portion of said block of ground; that to verify the said statements of the defendant, Simon, to the plaintiff, the defendant, Simon, took the plaintiff to one of the officials of the defendant, Arkansas Power and Light Company, at his office in Little Rock, Mr. C. Hamilton Moses, and said statements of the defendant, Simon, were, in the presence of the defendant, Simon, and Mr. Moses, and the plaintiff, then and there verified by Mr. Moses, as an official authorized to speak for the defendant, Arkansas Power and Light Company; that pursuant to the said statements of the defendant, Simon, to the plaintiff, and the verification thereof by Mr. Moses . . . The defendant, Simon, and the plaintiff acquired several written contracts in their names, with the various property owners within the block for the sale of their property at certain prices; that all transactions in connection with the acquiring of the block of ground and the subdivisions thereof for the Power Company, were made with the defendant, Simon, and this plaintiff, jointly; . . . was at all times known to the officials of the Arkansas Power and Light Company, and approved by them . . .

“On or about February 5, 1953, by the procedure followed, as hereinabove set forth, the defendant, Arkansas Power and Light Company, acquired title to said block of ground. At that time the defendant, Simon, and the plaintiff were paid a real estate commission fee by the property owners, who conveyed to the defendant, Arkansas Power and Light Company, the sum of approximately $12,500 as brokerage fees, under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff. The plaintiff and the defendant, Simon, split brokerage fees, dividing approximately on a fifty-fifty basis ... It was because of the fact that this plaintiff consented to the defendant, Simon, receiving said money that plaintiff’s real estate license was can-celled, for the reason that it was discovered thereafter that the defendant, Simon, was not a licensed real estate broker, and thereafter not legally entitled to receive said monies as a real estate brokerage fee, and thereby making the plaintiff’s act in consenting thereto an illegal one.

The plaintiff did not know the defendant, Simon, ... was not a licensed real estate broker until a considerable length of time after the said real estate commissions had been collected, and the money therefrom distributed and divided, as hereinabove set forth, between this plaintiff and the defendant, Simon.

“The plaintiff alleges that the defendant, Simon, practiced fraud on this plaintiff when he held himself out to this plaintiff to be a licensed real estate broker at the time of their first meeting, as hereinabove set forth, and at all times during their associations, as herein alleged, in connection with the herein described real estate operations and transactions. The defendant, Simon, at all times mentioned in this complaint, fraudulently held himself out to be a licensed real estate broker to this plaintiff. The defendant, Simon, was never, at any time, a licensed real estate broker. At all times mentioned in this complaint, and at all times the defendant, Simon, practiced and continued to practice such fraud on this plaintiff, as alleged, he, the defendant, Simon, was acting as an agent for the defendant, Arkansas Power and Light Company. . . . The fraud therefore practiced on this plaintiff, as herein alleged, because of the agency relationship between the defendant, Simon, and the defendant, Arkansas Power and Light Company, as herein set forth, is therefore, and by reason thereof the joint and concurring fraud of both the defendant, Simon, and the defendant, Arkansas Power and Light Company, for which the plaintiff herein is entitled to recover from both of the defendants herein.”

We hold that the trial court properly sustained appellee’s demurrer. Giving every reasonable intendment to the pleader’s allegations in his complaint, we hold that he has failed to allege any facts that would justify an inference that Simon was the agent of the power company with authority to bind it by a misrepresentation to the effect that he, Simon, was a licensed real estate broker. While it is alleged that Simon was acting as a real estate broker it is also alleged that $12,500 in commissions was paid by the property owners (not the power company) to appellant and Simon (one-half to each) “under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff (Howell).” This statement negatives the existence of a general agency of Simon for the power company and places the burden on the pleader to allege facts'— not conclusions, — sufficient to show that Simon was such an agent that would bind the power company. As indicated, the only allegations of fact are that Simon was acting as a broker to be paid by the property owners, that “he was acting in the scope of his authority given him by the company, for him to try and bring about the transfer of said block of ground from the owners ... to the Arkansas Power and Light Company, and his said delegated and authorized mission was accomplished as herein alleged.” The principles of law in J. I. Porter Lumber Company v. Hill, 72 Ark. 62, 77 S. W. 905, apply here. We there said: [Headnote 1] “In trespass for cutting timber, an answer to the effect that plaintiff was estopped to recover because his agent stood by and failed to object to the cutting and conversion of the timber is insufficient in failing to allege that such agent had authority to act in the matter.” In holding the answer demurrable this court said in J. I. Porter Lumber Co. v. Hill, 72 Ark. 62, 64, “It is alleged in the answer that one Atwood was an agent of plaintiff, but the answer does not show what kind of an agent he was, nor what his powers were. The mere failure of an agent employed to pay tases and prevent trespassing upon land to perform his duty could not affect the rights of plaintiff in this action, for an agent with such limited powers has no authority to give the timber of his principal away; and if he could not do so directly by permission or agreement, he certainly could not do so indirectly by acts constituting an estoppel.”

The allegation that Simon was acting in the scope of his employment is a conclusion of law, only, and must fall because of lack of factual allegations to support it. It was incumbent on the pleader to allege specifically (which he did not do) that Simon had been authorized by the power company to make the misrepresentation about his license. The judgment is affirmed.

Justices McFaddin and Millwee dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Horn v. White.
    5-750
    284 S. W. 2d 122
    Opinion delivered November 14, 1955.
    [Rehearing denied December 19, 1955.]

      Richard W. Hobbs, for appellant.

      R. Julian Glover, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an election contest; and after disposing of the issues between the parties we will consider which Act is governing as between Act 211 of 1953 and Act 241 of 1953.

Appellant, Amos Horn, and appellee, S. D. White, were rival candidates for the office of County Judge of Montgomery County in the General Election on November 2,1954. On the face of the official returns White received a majority of the votes cast; and thereafter Horn instituted this action as an election contest under § 3-1201 et seq. Ark. Stats. White moved to have the contest dismissed, claiming that Horn had not complied with the law in having his name placed on the ticket as an independent candidate at the General Election. White showed that Horn had filed his certificate of nomination only 20 days before the General Election. That was the minimum time, as provided by § 3-264 Ark. Stats.; but Act 211 of 1953 made the minimum time for such filing to be 45 days, and Act 241 of 1953 made the minimum time for such filing to be 30 days. White claimed that under either of the 1953 Acts Horn’s filing was too late. The Trial Court sustained White’s motion to dismiss; and Horn has appealed.

I. Appellant’s Nominating Petition Was Filed Too Late. Horn’s only argued grounds for reversal are: (a) that said Acts 211 and 241 are so conflicting that they cancel out each other and both are void; and (b) that the law still remains as it appears in § 3-264 Ark. Stats. We find ourselves unable to agree with this argument. Under either of the 1953 Acts Horn’s nominating petition was filed too late; and at all events one or the other of the 1953 Acts is governing. It is true that there is some conflict between the two Acts of 1953 but we hold — as hereinafter developed — that Act 211 of 1953 is the governing law and that Horn failed to file his petition within the 45-day minimum time limit fixed in that Act.

II. Election Law Question. Ordinarily an opinion of this Court need go no further than has been above stated; but we are now constrained to go further because the question posed by the parties (that is, whether Act 211 of 1953 or Act 241 of 1953 is the governing law) relates to an interpretation of certain provisions in our election laws; and it is the policy of this Court to settle such questions for the future guidance of the public. In Carroll v. Schneider, 211 Ark. 538, 201 S. W. 2d 221, after holding that the question raised in the particular case was moot, the late and beloved Justice Frank G. Smith, in declaring what was the election law, said:

There is here a question of practical importance and of great public interest, and if not now decided, some other candidate may be deprived of the right to run for a public office and his right to do so may become a moot question before it could be decided, on account of unavoidable delay in the law.”

So here, with an election to be held before the next regular convening of the Legislature, there will remain the confusion as to which of the Acts of the 1953 Legislature is to govern; and substantial rights of other parties may be lost unless we go further and here decide the question. We recognize that there is a conflict between Act 211 of 1953 and Act 241 of 1953 ; and we first give the germane laws prior to 1953 and then the changes sought to he accomplished by each of the 1953 Acts.

Law Prior to 1953

(a) Section 3-264 Ark. Stats, provided: “... certificates of nomination herein directed to be filed with the County Election Commissioners shall be filed not more than sixty (60) days and not less than fifteen (15) days before the election.”

(b) Section 3-806 Ark. Stats, provided that not less than 18 days before each election the Secretary of State shall certify to all the Election Commissioners full lists of all candidates to be voted for in their Counties as the nomination had been certified to him.

(c) Section 3-807 Ark. Stats, made the same time limit of 18 days for certification of constitutional amendments.

(d) Section 3-824 Ark. Stats, (being Sec. 7 of Act 353 of 1949) provided that the order of the names of the candidates on the ballot would be determined by lot at a public meeting of the County Board of Election Commissioners, but gave no minimum time for the holding of such public meeting.

Changes by Act 211 of 1953.

The Act 211 of 1953 changed each of the aforementioned provisions in the following regards:

(a) Section 3-264 was changed to read, in part: “. . . certificates of nomination herein directed to be filed with the County Election Commissioners shall be filed not more than sixty (60) days and not less than forty-five (45) days before the election.”

(b) Section 3-806 was changed to provide that not less than 42 days before the election the Secretary of State was to certify to the County Election Commissioners the full lists of all candidates to be voted for in their respective Counties.

(c) Section 3-807 was changed to make the minimum requirement for certification on constitutional amendments and other questions to be 42 days.

(d) Section 3-824 was changed to provide that the meeting of the County Board of Election Commissioners to determine the order of the names of the candidates on the ballot should be held “. . . . not less than forty (40) days prior to such General Election.”

In short, Act 211 of 1953 was a fairly comprehensive Act affecting four different sections of the law and fixing a definite uniform minimum time limit for certain acts to be done.

Changes by Act 211 of 1953.

Act 241 did not purport to amend Act 211, but rather to amend only § 3-264 Ark. Stats., and related only to the time for filing certificates of nomination. The portion of said Act 241 here germane reads, in part:

“Certificates of nomination herein directed to be filed with the County Election Commissioners shall be filed not more than sixty (60) days and not less than thirty (30) days before the election.”

Resolving The Conflict Between The 1953 Acts.

The conflict between Act 211 and Act 241 is that Act 211 makes the minimum time for filing certificate of nomination to be 45 days, and Act 241 makes the minimum time to be 30 days. Our problem is to resolve the conflict. The books are filled with cases giving rules for the construction of conflicting statutes, but the primary rule of statutory construction is for the Court to ascertain the Legislative intent; and in ascertaining the Legislative intent, the Courts resort to secondary-rules of construction. Some of these are the “public policy” rule and the “harmony” rule. Illustrative of these, we quote from the early case of Hill v. Mitchell, 5 Ark. 608:

“We lay down this general principle upon the subject: if two statutes passed at the same time, in pari materia, are opposed to each other, and one of them relates to a primary interest of public policy, and the other, to a secondary consideration, that which is greater in principle must govern.”

And in Hackett City v. State, 56 Ark. 133, 19 S. W. 426, Chief Justice Cockrill quoted the language of Judge Brewer:

“ ‘Where there is no way of reconciling conflicting clauses of a statute, and nothing indicating which the Legislature regarded as of paramount importance, force should be given to those clauses which would make the statute in harmony with other legislation on the same subject.’ ”

There is another rule of statutory construction which is that, as between two conflicting statutes passed at the same session, ordinarily the statute last passed is to govern; but this “last passed” rule is admitted to be merely a rule of statutory construction and must and does yield when it is clear that the Legislature intended the earlier Act passed at the same session, to be the governing Act. In 82 C. J. S. 836, in discussing conflicting or inconsistent statutes and, after recognizing the rule of construction that generally “the last Act passed” is the governing Act, the holdings of the various cases are, however, summarized in this language:

“Where Acts passed at the same session contain conflicting clauses, the whole record of legislation will be examined to ascertain the Legislative intent, and such intent, if ascertained, will be given effect, regardless of priority of enactment. ’ ’

’With these rales of construction in mind, we turn to a study of the Acts 211 and 241 to ascertain the Legislative intention. As aforesaid, the only conflict between Act 211 and Act 241 is that Act 211 makes the minimum time — -for filing certificate of nomination — to be 45 days and Act 241 makes the minimum time to be 30 days. Thus the Act 241 affected only one part of the law. But if we give effect to Act 241 and fix 30 days as the minimum time for filing the certificate of nomination, then under Act 211 the Secretary of State must make the certification to the County Election Commissioners 42 days before the election, which would be 12 days before the last day for filing the certificate of nomination. Likewise, under Act 211, the drawing for places on the ticket would be 40 days before the election, which would be 10 days before the last day the candidate’s name could be certified by the Secretary of State under Act 241. Furthermore, under Sec. 5 of Act 211, the absentee ballots for electors in the armed forces might be circulated before the Secretary of State had ever certified out the full list of candidates, if the 30-day minimum in Act 241 of 1953 should be followed.

It is therefore clear that Act 241 of 1953 presents an unworkable Act because it does not attempt to cover all of the matters in Act 211 and leaves the time table in confusion, as hereinbefore stated.

In the light of all of the foregoing, it is clear that the intent of the Legislature was to fix a definite time table schedule. . The Act 211 considered not only the certificates of nominations, but also the certification of constitutional amendments, the drawing of places on the ticket, and the sending out of absentee ballots; whereas the Act 241 merely affected the time for filing certificate of nomination. It would be putting form above substance and the letter above the spirit of the law to hold that Act 241 changed Act 211. We therefore find and declare that the Legislative intent was that Act 211 be the governing Act; and we so declare and hold Act 241 to be nullified by Act 211. See Jackson v. State, 45 Ark. 158; Snow v. Riggs, 172 Ark. 835, 290 S. W. 591; and 50 Am. Jur., p. 484 et seq. This disposes of the election question and provides a guide for the action of officials.

Affirmed.

       For reasons best known to themselves, neither party has mentioned the possible application of the well-known rule that certain provisions of election laws are mandatory before the election and merely directory after the election. See Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280. It might be that the rule stated in 18 Am. Jur. 263 could have been invoked by the appellant. That rule states: “It is a firmly established general rule that objections to irregularities in the nomination of a candidate should be taken prior to election.” But the fact remains that no such suggestion of the mandatory-directory rule has been made by the parties herein: so we decide the case on the issues as briefed. This opinion, however, does not prevent the possible application of the mandatory-directory rule if it should ever be urged in a case like this one.

       Here is the Legislative history of the two Acts:
      Act. 211 (S.B. 26) Act 241 (S.B, 7)
      Introduced: Jan. 14 Jan. 12
      Passed Senate: Feb. 5 Feb. 23
      Passed House: Feb. 20 Feb. 24
      Enrolled: . Feb. 26 Mch. 2
      Delivered to
      Approved by
      Governor: Feb. 26 Mch. 2
      Governor: Mch. 4 Mch. 6

       See McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; and the many other cases collected in West’s Ark. Digest “Statutes,” Key No. 180.

       See Roberts v. Tice, 198 Ark. 397, 129 S. W. 2d 258, 122 A. L. R. 1177.

       This is particularly true when, as here, neither Act contained an emergency clause and both Acts went into effect the same day — that is, 90 days after the adjournment of the Legislature.

       The Illinois Court in Potosi v. Metropolitan, 95 N. E. 2d 529, quoted this language: “The rule that where two conflicting enactments are passed at the same session, the latest enactment in point of time will prevail, as well as all other rules of construction dealing with repeals by implication, are mere canons of construction. Such canons are only aids to the ascertainment of the legislative intent and must yield to such intent if the same be otherwise. They should never be followed to the extent of defeating or overriding the definite intent of the legislature.”
      In the case of Bowles v. Crew, 59 Fed. Supp. 809, the U. S. Dist. Court of California used this clear language: “In resolving claimed conflict between Legislative enactments, it should be our aim to envisage the completeness of the Legislative scheme and to avoid an interpretation which would destroy it as a harmonious whole.”
      To the same effect, see also Southwark Bank v. Commonwealth, 26 Pa. 446.


author: Minor W. Millwee, Associate Justice.

text:
    Callahan v. Farm Equipment, Inc.
    5-767
    283 S. W. 2d 692
    Opinion delivered November 14, 1955.

      Frierson, Cherry, Walker & Snellgrove, for appellant.

      Ponder £ Lingo, for appellee.
   Minor W. Millwee, Associate Justice.

Appellant, Melvin Callahan, was the owner and operator of Callahan Tractor Company in Lawrence County, Arkansas, in November, 1950, when that company became a retail dealer for the sale of farm machinery manufactured by Harry Ferguson, Inc., hereinafter called Ferguson. The dealership was established under a plan customarily employed by Ferguson which enabled the retailer to ‘‘ floor plan” his merchandise and to immediately receive the price of equipment sold by transferring the conditional sales contracts either to Ferguson or its assignees. Under this arrangement, Ferguson and the appellant, as “Owner” of the Callahan Tractor Company, executed a “Dealer Underlying Agreement” on November 20, 1950. In this agreement the Callahan Tractor Company in effect guaranteed the payment of all notes and conditional sales contracts which it transferred to Ferguson, or its assignees, although the assignment of such instruments ■was under a non-recourse endorsement. The agreement was by its terms effective until terminated by either party by 60 days written notice. Appellant also furnished a financial statement to Ferguson prior to issuance of the retail franchise.

On the dates of September 17, 1951, and October 18, 1951, respectively, the Callahan Tractor Company sold certain farm machinery to Bill Kissee and Lester Bilbrey under conditional sales contracts signed by each purchaser and by Harold Callahan, appellant’s brother, for Callahan Tractor Company without any indication as to official title or the capacity in which he acted for the company. Each sales contract, upon issuance, was immediately assigned by Callahan Tractor Company to Ferguson and the assignment was likewise executed by Harold Callahan. Subsequently Ferguson assigned said sales contracts and the ‘ ‘ Dealer Underlying Agreement ’ ’ to Universal C. I. T. Credit Corporation which in turn assigned said instruments to appellee, Farm Equipment, Inc., on December 30, 1953. Appellee is engaged in handling negotiable paper issued in the sale of farm equipment, with its principal office at Memphis, Tenn. Its officers are also the officers of Southland Tractors, Inc., hereinafter called Southland, which was the general agent and distributor for Ferguson in negotiating the dealership with Callahan Tractor Company.

Both Kissee and Bilbrey defaulted in the payments due under the conditional sales contracts. On May 29, 1954, appellee brought this action against Melvin Callahan and Harold Callahan for the balance of $2,710.17 due on the two contracts under the terms of the “Dealer Underlying Agreement” executed on November 20, 1950. The complaint alleged the two brothers were doing business as a partnership under the name of Callahan Tractor Company at the time of the execution of the conditional sales contracts and the underlying agreement sued upon. Each defendant filed separate amended answers. Appellant defended on the grounds that he was not a proper party, alleging he was sole owner of the business until about June 25,1951, when he sold to his brother and that such facts were known to Ferguson and its assignees; and that the business was never operated as a partnership. Similar allegations were made by Harold Callahan who admitted execution of the sales contracts and the assignments to Ferguson but denied any indebtedness to appellee.

At the conclusion of the testimony offered by appellee, the court indicated that a motion for a directed verdict would be granted as to the defendant, Harold Callahan. Counsel for appellee stated that the action was against the defendants both individually and as a partnership; that the pleadings should be amended to conform to the proof and the cause allowed to proceed against appellant individually and as owner of the Callahan Tractor Company. At the conclusion of appellant’s evidence, the court instructed the jury that appellee had been permitted to take a voluntary nonsuit as to Harold Callahan. In requesting an instructed verdict against appellant, counsel for appellee insisted that under the undisputed proof appellant was either still the actual owner of the Callahan Tractor Company or had so conducted himself that he was estopped to deny such ownership and his liability for the debts sued upon. Appellant also requested an instructed verdict on the ground that the undisputed proof showed his brother owned the company when the two contracts were negotiated. Both requests were denied and the cause was submitted to the jury which returned a verdict against appellant for the balance due under the two conditional sales contracts.

Able counsel for appellant, who were employed after the trial, first contend the trial court erred in refusing to direct a verdict for appellant. It is argued that the undisputed evidence showed appellant was not the owner of the business when the two contracts in question were negotiated, and that appellee and its assignors all knew of, and acquiesced in, such transfer. "While we are of the opinion that a jury question was made as to whether appellant was still the owner of the business when the sales contracts were executed, this question was not submitted to the jury nor was it the basis for the jury’s verdict against appellant. Since neither party requested an instruction on this particular issue, neither is in position to complain now of the trial court’s failure to present it to the jury. Jones v. Seymour, 95 Ark. 593, 130 S. W. 560.

Appellant next argues that a verdict should have been directed in his favor because the evidence was insufficient to warrant the submission of the issue of estoppel to the jury. While this point was not urged at the trial, we hold that a jury question was also made on the issue of estoppel upon which the verdict rests. Appellant was in ill health in June, 1951, when Harold took over the operation and management of the business. According to the two brothers the business was then sold to Harold but there is no proof as to the terms or conditions of such a sale. There were other circumstances which tend to refute the sale theory. After Harold took charge of the business, he made periodic financial statements of the Callahan Tractor Company to Southland as required by Ferguson. In none of these did he sign as owner of the business and all were made by him in the name of Callahan Tractor Company as were the two conditional sales contracts sued upon. In each of these several financial statements the individual lands of appellant, valued at $28,000.00, were listed as assets of the Callahan Tractor Company just as in the original statement submitted by appellant in November, 1950. These lands constituted more than 50% of the total listed assets of the business at any time.

Although appellant testified that Southland knew he reserved no interest in the business after June 25, 1951, ho admitted he knew that his lands were still being listed as assets of the Callahan Tractor Company by his brother. He understood this was done “to aid in the financing and floor planning of new equipment” and also stated that Southland knew it was being done for that purpose. Harold gave similar testimony and, in addition, stated that the false statement as to ownership of the lands was made to both Southland and Universal C. I. T., “to satisfy the higher ups” in these corporations. T. D. "Warner, who was secretary-treasurer of both the appellee and Southland, testified that Ferguson relied on the financial statements in handling the instruments sued upon and other paper of Callahan Tractor Company. Appellant admitted his signature to an underlying agreement with Universal C. I. T. dated December 31, 1951, as “owner” of the Callahan Tractor Company. There was no showing that Harold Callahan ever executed a dealer underlying agreement and the one signed by appellant on November 20, 1950, was terminated by written notice of Southland received by appellant and his brother on April 11, 1953.

Under the foregoing evidence, appellant insists that it is undisputed that appellee and its assignors were not only aware of the falsity of the representations in the financial statements but that some of the officers in these corporations actually induced such misrepresentations for the purpose of increasing their business and misleading some of the other officers of such corporations. Since appellant and his brother were interested parties to the litigation, it cannot be said that their testimony to this effect is undisputed. Besides, the testimony of Warner and other circumstances in the case tend to contradict the strange theory advanced to the effect that some of the officers of the various agencies conspired with appellant and his brother in order to mislead certain other officers and thereby defraud said companies. On the whole case, we hold it was for the jury to determine, from the conflicting testimony, whether credit was extended to the Callahan Tractor Company by appellee and its assignors dne to the admittedly false representations in said financial statements. The jury resolved this issue in appellee’s favor upon evidence that is substantial and sufficient to support the verdict.

It is next contended that the trial court erred in permitting the issue of estoppel to be raised by oral amendment of the pleadings either at the conclusion of the evidence on behalf of appellee or that introduced by appellant. Appellant says the court’s action in permitting the pleadings to be amended to conform to the proof on the issue of estoppel amounted to the allowance of an amendment which introduced a new cause of action after commencement of the trial in violation of Ark. Stats., § 27-1160. Appellant relies on the general rule to the effect lhat estoppel must be pleaded to be available as a defense. However, we have held that it is within the sound discretion of the trial court to treat the pleadings as amended to conform to the proof on the issue of estoppel where no objection was made to such proof on the ground that it was not responsive to the pleadings. Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S. W. 2d 433; Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205. The financial statements of Callahan Tractor Company, upon which the issue of estoppel was primarily based here, were introduced without objection. Other evidence relating to the issue was also admitted without any objection on the ground that estoppel had not been pleaded, and there was no plea of surprise. Under these circumstances, the trial judge did not abuse his discretion in treating the pleadings as amended to conform to the proof.

Appellant says the trial court erred in permitting the witness Warner to testify as follows: “Q. Do you know whether in handling paper from Callahan Tractor Company, and in particular the two contracts here of Bilbrey and Kissee, Harry Ferguson relied on the financial statements and on the financial worth of Melvin Callahan: A. Yes, sir; they did.” The objection at the trial was that proper foundation had not been laid for the question, but it is now argued that the question was leading. Warner was an officer of both appellees and Southland and testified that he was ‘ ‘ the internal operations man” of the corporations. Since there was nothing in the question to suggest the answer, which might have been yes or no, it can hardly be classed as leading. Jim Fork Coal Company v. Rhotenberry, 183 Ark. 319, 35 S. W. 2d 590. It is true that the probable effectiveness of the positive answer of the witness was somewhat weakened by further questioning which tended to show that it was based more upon general business practices than actual personal knowledge of particular transactions. But this did not render the previous testimony incompetent in the absence of a renewal of the objection.

It is next argued the court erred in giving Instruction No. 3 which reads: “You are also instructed that if you find by a preponderance of the evidence that credit was extended to the Callahan Tractor Company due to representations made by Melvin Callahan, or his agents, if any, or by any other person with his knowledge and consent, then your verdict should be for the plaintiff. Unless you so find, your verdict should be for the defendant, Melvin Callahan.”

All the instructions were given by the court on his own motion and there was only a general objection to Instruction No. 3. The jury were given the usual admonition to consider the instructions together and there' was no objection to any other instruction by either party. If appellant felt at the trial, as he now contends, that the instruction was abstract and the issue of estoppel was inadequately defined therein and that the instruction was too general in not confining the “credit” extended to that involved in the suit, his duty to the trial court was to point out such alleged defects by specific objection or offer instructions that more clearly defined these issues. American Realty Company v. Hisey, 113 Ark. 78, 167 S. W. 488; Bennett v. Snyder, 147 Ark. 206, 227 S. W. 402. A party is in no position to complain because instructions given by the court are too general where he fails to request correct instructions on the subject. Queen of Arkansas Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771.

The only question now is whether the instruction is inherently erroneous. When considered with the other instructions, we hold that Instruction No. 3 embodied the principle announced in such cases as Graham v. Thompson, 55 Ark. 296, 18 S. W. 58, and Jett v. O. B. Crittenden & Co., 89 Ark. 349, 116 S. W. 665. In the last case cited, the court said : ‘ ‘ The rule broadly stated is that a person, who intentionally or by culpable negligence induces another to act on his representations will be estopped from denying their truth.” In the Graham case it was held (Headnote 1): “One who induces another to credit a third person by representing him to be the owner of certain property will be estopped, as to the creditor, to deny such ownership.” From the appellant’s own viewpoint, it is undisputed that the representations here were known by him to be false and for the purpose of obtaining credit by misleading someone. It was for the jury to determine whether this was done by appellant and his brother in collusion with certain officers of the lending agencies as they contend, or without such collusion as appellee maintains. In these circumstances, we cannot say the instruction is inherently erroneous.

It is finally argued that error was committed in permitting appellee to introduce a second underlying agreement executed by appellant to Universal C. I. T. on December 31, 1951, in which he signed as “owner” of the Callahan Tractor Company. It was, of course, appellant’s theory throughout the trial that he had no proprietary interest in the Callahan Tractor Company after .June 25, 1951. On the other hand, it was appellee’s theory that appellant never disposed of his interest in the business. After appellant had fully testified in support of his theory, he was presented with the second agreement and admitted his signature thereto. It was then offered in evidence to impeach his previous testimony. The instrument was clearly admissible for this purpose under Ark. Stats., §§ 28-707 and 28-708.

We find no prejudicial error, and the judgment is affirmed.