author: Carleton Harris, Chief Justice.

text:
    Othal Warren GRIFFIN et ux v. Carl W FLEMISTER et ux
    5-5930
    481 S.W. 2d 718
    Opinion delivered June 26, 1972

      Edgar R. Thompson, for appellant

      Spitzberg, Mitchell & Hays, for appellee.
   Carleton Harris, Chief Justice.

This is a suit for specific performance. Carl W. Flemister and Jeanette Flemister, his wife, appellees herein, are owners of a lot and house in Little Rock which, according to the contention of appellees, appellants Othal Warren Griffin and Jamie Ellen, his wife, agreed to purchase for the sum of $80,000, $30,020 to be paid to them in cash, and the balance to be' paid by assuming an obligation to the Pulaski Federal Savings & Loan Association. The events leading up to this litigation are as follows:

According to Margaret Weatherford, a salesman with National Realty Company of Little Rock, Mrs. Griffin contacted her and requested that she be shown the Flemister property. Later in the afternoon, Mr. and Mrs. Griffin were shown the house by Mrs. Weatherford who told them that the price was $85,000. Mrs. Weatherford stated that appellants asked if a $72,000 offer would be considered, and a written offer for that sum was executed by Mrs. Griffin, who had received her husband’s approval to make the offer for the two of them. Thereafter, Mrs. Weatherford had no contact with Mr. Griffin, but Mrs. Griffin called and said that they (the Griffins) might be able to pay as much as $80,000 and the real estate agent was requested to contact Mr. Flemister and inquire whether he would take that amount. Flemister stated that he would consider $80,000 but would have to have $2,500 earnest money. When this message was conveyed to Mrs. Griffin, she executed a check for the $2,500, executed the offer to purchase on behalf of her husband, and stated that her husband had authorized her to make the $80,000 offer. This offer was accepted, but Mrs. Griffin said that her husband was out of town and she would have him “out there Saturday”. The abstract was brought up to date, and Mrs. Weatherford stated that she waited for instructions as to where, or to whom, the abstract was to be delivered. About three weeks later, Mr. Griffin called Mrs. Weatherford and told her that he had no money with which to “close out”. She also talked to Griffin’s brother who told her that “they had the money to close out, that they had just decided they didn’t want to buy the house”. Thereafter, the Flemisters instituted suit in the Pulaski Chancery Court seeking specific performance from the Griffins. It was asserted that appellants had been notified by Mrs. Weatherford that the offer had been accepted, and that she had requested instructions with respect to whom the abstract of title should be delivered for examination; that appellees had been willing at all times since March 30, 1971, to convey the property but appellants had failed and refused to comply with their contract. Appellants answered and admitted the making of the offer but denied that the offer had been accepted by appellees or that appellees had offered or tendered to appellants a certificate of title insurance or an abstract of title as alleged in the complaint. A third party complaint was filed against Mrs. Weatherford asserting that the latter had enticed Mrs. Griffin “by undue influence to execute an offer on the property contrary to the instructions of the defendant, Othal Warren Griffin”. The return of the $2,500 was sought, and $25,000 punitive damages were prayed for based on the alleged misconduct of Mrs. Weatherford in stating that she had offered an abstract of title, such assertion being untrue, and further, in enticing Mrs. Griffin to execute the offer. After the filing of an answer by Mrs. Weatherford denying the allegations, the case proceeded to trial, the evidence being presented through depositions. The court held that the parties had entered into the contract, finding specifically that Mr. Griffin had authorized his wife to execute the offer on his behalf. It was further found that the Flemisters were ready, willing, and capable of complying with the contract and that Griffin, without just cause, had refused to perform his obligations. Griffin was ordered to specifically perform the contract by paying into the registry of the court, within twenty days, the sum of $28,-087.82, and the clerk of the court was directed to deliver, upon payment of this sum, a warranty deed to appellants, “subject to recorded restrictions and easements, if any, which said deed shall provide that the grantee therein named shall assume and agree to pay the balance due and outstanding upon the aforesaid secured note held by Pulaski Federal Savings & Loan Association”. From the decree, appellants bring this appeal. For reversal, it is first asserted that Mrs. Griffin did not have the authority to make the offer in behalf of her husband, and the court erred in so holding, and it is then contended that Griffin does not have the ability to perform the contract.

There is no dispute about certain facts. Admittedly, Mr. Griffin never personally made any offer to anyone wherein he agreed to pay $80,000 for the property. Likewise, admittedly, Mrs. Griffin did have full authority to make the offer of $72,000 on behalf of her husband, Mr. Griffin himself so testifying. Accordingly, the sole question is whether Mrs. Griffin was authorized by her husband to make the $80,000 offer.

Mr. Griffin testified (by deposition) that he could have arranged to acquire the $72,000 from the bank at Cabot, but he did not arrange for such a loan because he was told the $72,000 offer would not be accepted. He said that he learned about the offer executed by his wife four or five days after it had been made, and he testified he told Mrs. Weatherford that he would not pay $80,000 or any amount over the $72,000 figure, though he could not remember the date on which Mrs. Weatherford was so informed. Griffin said that he had no knowledge as to whether his wife had been coerced or unduly influenced; that his wife was a woman of good judgment.

What is the law with reference to the authority of a spouse to bind the other spouse in contractual matters? In Cooper v. Cooper, 225 Ark. 626, 284 S.W. 2d 617, this court said:

“The husband is not an agent for the wife solely by reason of the marital relationship. ‘But slight evidence of actual authority is sufficient proof of the agency of the husband for the wife in matters of domestic nature.’ 41 C.J.S. 549. Agency may be established by circumstantial evidence. Williams v. O’Dwyer & Ahern Company, 127 Ark. 530, 192 S.W. 899; Sidle v. Kaufman, 345 Pa. 549, 29 A. 2d 77. In the Sidle case, the court said: ‘The relationship of agency cannot be inferred from mere relationship or family ties unattended by conditions, acts, or conduct clearly implying an agency’. . .; but such relation is competent evidence when considered with other circumstances as tending to establish the facts of agency and where there has been other competent evidence tending to the same end.’ And, it is said in Restatement of Agency, § 22: ‘Neither husband nor wife by virtue of the relationship has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority may indicate it in the case of husband and wife.’ ”

With further regard to agency, in the early case of Johnson v. Arkansas Foundry Co., 292 S.W. 373 (omitted from Arkansas Reports because “of no value as a precedent”), this court stated:

“As we have said, the only question in the case is a question of agency, a question of fact, and Ruby Johnson testifies that she was the agent; and this court has said:
‘The existence of an agency cannot be shown by proving the acts and declarations of the agent, but the agent may himself testify in regard to his agency and the extent of his authority.’ De Camp v. Graupner, 157 Ark. 578, 249 S.W. 6.
This court has held many times that, while you cannot prove agency or the extent of an agent’s authority by the declarations or the acts of an agent, you can prove agency by the agent himself.”

Applying these precedents to the case at bar, what are the facts? In the first place, Mrs. Griffin testified that the $72,000 offer which she signed on March 19, 1971, was executed on behalf of her husband (and this is agreed to by the husband). She testified that after this offer had been rejected, the matter was discussed between the two of them, and Mr. Griffin agreed to the $80,000 offer, which she thereafter made. Mrs. Griffin said that her husband decided that he did not want the house and he so advised Mrs. Weatherford. According to the witness, she was not overreached or unduly influenced, and she further testified that there had been no serious trouble or disagreements with her husband because of the making of the offer.

Let us remember that this is not a case wherein the husband and wife were separated — or having domestic difficulties. There is nothing in the record to indicate animosity or any trouble between them whatsoever before the offer was made, and only minor irritations after the making of the offer. It is most unusual, of course, for a wife, who is living amicably with her husband, to deliberately testify to facts contrary to the testimony of her husband, and this fact itself adds considerable weight to her testimony. In fact, such testimony goes beyond what might be termed “slight” evidence. Unquestionably, the fact that she admittedly had the authority to execute the $72,000 offer, adds credence to the evidence given by the witness that she was authorized to make the $80,000 offer.

It is also noticeable that the answer filed on behalf of appellants admits that an offer was made but asserts that appellees did not accept the offer. The answer then sets out that appellants were not tendered a certificate of title insurance, or an abstract of title, and accordingly, the appellees had violated the contract. It is not until the third party complaint against Mrs. Weatherford is reached that appellants make any assertion that Mrs. Griffin did not have the authority to execute the instrument in behalf of her husband. It is asserted that undue influence was exercised on Mrs. Griffin to execute the offer on the property “contrary to the instructions of the defendant, Othal Warren Griffin. That she at the time knew that his permission to execute this said agreement had been denied ***”. At any rate, we certainly cannot say that the chancellor’s findings were against the preponderance of the evidence.

It is next asserted that Mr. Griffin does not have the ability to perform the contract. This allegation was not pleaded nor was any testimony offered in support of this defense. The court found that Mr. Griffin was capable of performing the contract, and there is no evidence that would establish a contrary finding. Of course, if one could finance a $72,000 transaction, it might be considered a circumstance to indicate that he could finance one only $8,000 more. Be that as it may, we cannot say that the chancellor’s finding on this point was against the preponderance of the evidence.

Affirmed.

Jones, J., dissents.

      Mr. Griffin was associated with his brother in the insurance business.

      The offer of $80,000 was executed by Mrs. Griffin on March 29.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    A. B. HERVEY Jr., Commissioner of Revenues v. INTERNATIONAL PAPER COMPANY et al
    5-5927
    483 S.W. 2d 199
    Opinion delivered June 26, 1972
    [Rehearing denied August 28, 1972.]

      R. David Lewis, Walter Skelton and John F. Gautney, for appellant.

      Bridges, Young, Matthews ir Davis, for appellees.
   George Rose Smith, Justice.

The appellees, two companies engaged in the manufacture of paper in Arkansas, brought these suits (consolidated in the court below) to enjoin the Commissioner of Revenues from collecting either the sales tax or the use tax upon the appellees’ purchase of certain chemicals and other substances that are used in the manufacture of Kraft paper. The appellees base their claim to an exemption upon those sections of the statutes defining and exempting sales for resale. Ark. Stat. Ann. §§ 84-1904 (i) and 84-3106 (b) (Repl. 1960).

Before the trial the parties narrowed the issues by stipulating that the appellees’ purchases of some of the substances in question are exempt and that their purchases of certain other substances are not exempt. After an extended trial, at which the process of making Kraft paper was described in detail, the chancellor sustained the taxpayers’ claimed exemption with respect to all substances not covered by the stipulation.

There is very little dispute about the essential facts. The Kraft process is used to make paper out of the cellulose in wood. In its natural state the wood used in paper making is about 50% cellulose, 30% lignin, and 20% carbohydrates, proteins, resins, and fats. In the Kraft process the wood, having first been shredded into chips, is “cooked” at high temperature in a chemical solution called white liquor, which separates the cellulose fibers from the rest of the wood. In that separation treatment the white liquor turns black in the course of absorbing the lignin and other unwanted components of the wood.

After the cooking procedure the black liquor is separated from the cellulose and is subjected to extensive recovery operations by which the chemicals in the black liquor are extracted for reuse. Ideally, all the black liquor would be separated from the cellulose, but such a 100% separation is too expensive to be economically possible. Consequently traces of the chemicals used in the liquor remain in the cellulose and can be detected by chemical analysis as being present in the finished Kraft paper.

The appellees’ claims to exemption actually rest upon the presence of those chemical traces in Kraft paper. The statute provides that the purchase of property to be used in manufacturing is exempt, as a purchase for resale, only if the property so purchased “becomes a recognizable, integral part” of the manufactured product. Section 84-1904 (i). In seeking to bring the Kraft process within the exclusionary language of the statute the appellees rely upon two basic facts established by their proof: One, the various chemicals and other substances in the cooking liquor are necessary to the manufacture of Kraft paper, and two, traces of the substances in question can be recognized by chemical analysis as being present in the finished product.

We find two flaws in the appellees’ contention. First, the legislative intent is plainly to exempt purchases that are made for the purpose of resale, to the end that the same property will not be twice subjected to the same tax. Yet the appellees have not shown that they buy the chemicals in controversy for the purpose of reselling them, as distinguished from using the chemicals in the manufacturing process.

In fact, the proof is to the contrary. The appellees had the burden of proof, not only because they were the plaintiffs but also because they were asserting an exemption from taxes. Bangs v. McCarroll, 202 Ark. 103, 149 S.W. 2d 53 (1941). Yet, for the most part the appellees failed to adduce proof indicating that anything in the nature of a resale is actually involved.

With respect to sulphur the appellee did introduce relevant testimony, but it actually refutes their contention. Various chemical compounds containing sulphur are used in the cooking liquor. The appellees’ witness Trahan testified that about 75% of the sulphur is recovered for reuse from the black liquor. Yet only minute traces of sulphur are to be found in Kraft paper. It necessarily follows that about 25% of the total sulphur in each batch of white liquor is consumed in the manufacturing process, presumably being discharged into the atmosphere or lost in some other way. Thus it is certain that the sulphur is not resold. To the contrary, it is consumed in the process of manufacturing Kraft paper.

The second flaw in the appellees’ reasoning lies in its disregard of the statutory requirement that, to be exempt, property used in manufacturing must become an integral part of the finished product. The word “integral,” as an adjective, has only a few closely related meanings. A primary and commonplace meaning, especially applicable to a part in its relation to the whole, is “constituting an essential part of a whole; necessary to completeness.” Funk & Wagnalls New Standard Dictionary (1949). Other similar definitions are “essential to completeness,” and “necessary to the completeness of the whole.” Webster’s Second and Third New International Dictionaries (1939 and 1961); Random House Dictionary of the English Language (1966).

Most of the chemical substances in dispute cannot be said to be physical components of the paper essential to its completeness. Rather, they are found in the paper only because it is not economically practical to remove them. For instance, there is a defoaming agent that is used simply to inhibit the formation of foam on the liquor in the cooking process. Traces of that defoaming agent can be found in Kraft paper, but they add nothing to the quality of the paper. Similarly, acetic acid is used to make dye more solvent, but, as the witness Trahan said: “We would not buy acetic acid to put in the paper —just to put acetic acid in it.” Soap chips are used primarily to prevent the pulp from sticking to rolls used in the papermaking process. There is some indication that the soap chips add to the finish of the paper, but that effect appears to be merely incidental.

It does appear that eight of the substances not covered by the stipulation qualify for the statutory exemption, in that, according to the evidence in this record, they are added to the paper for the purpose of improving the finished product and become recognizable integral parts of it: Aluminum sulphate, sodium aluminate, Kelgin, Ludox, polyethylene, aluminum foil, titanium dioxide, and Zeolex. The decree is affirmed with respect to those substances.

We have not found it necessary to discuss the many out-of-state cases cited in the briefs, for the various statutes are so different from ours that those decisions are not helpful. Nor do we think that the exemption provided by Act 113 of 1967, during the short period of its existence before its repeal, has any bearing upon this case, for the exemptions created by that act had to do with machinery and equipment used in the further processing of certain products.

Affirmed in part and reversed in part.


author: George Rose Smith Justice.

text:
    Mary E. TURNER v. Estate of W. E. (Buck) FLETCHER
    5-5965
    483 S.W. 2d 176
    Opinion delivered June 26, 1972
    [Rehearing denied August 28, 1972.]

      Frank J. Wills, for appellant.

      John B. Moore Jr., for appellee.
   George Rose Smith Justice.

This petition to the probate court for a construction of the will of W.E. (Buck) Fletcher presents in typical form a problem that has given rise to much litigation; that is, the proper interpretation of a testamentary gift of a house together with the personal property contained in it. This appeal is from a judgment holding that the language of the testator’s will did not have the effect of bequeathing to the appellant certain intangible personal property that was found in the testator’s home.

The testator, single and without descendants, died in June, 1971. At his death Fletcher, a farmer, owned about 1,400 acres of farm land, inventoried at a value of $130,000, and intangible personal property valued at $287,-000. In language to be quoted in a moment Fletcher left to the appellant his homeplace, comprising 120 acres, together with the personal property contained in it.

The intangible personal property now in controversy was found in the testator’s home. The record does not show just where the property was kept in the house, though there is a statement in the record that it had been in the home for a number of years. The property in dispute, valued at about $10,000, consisted of $300 worth of American Express Company traveler’s checks, 55 1/2 shares of bank stock, a few shares of stock of nominal value in three private corporations, a $500 insurance trust certificate, and about 3,500 shares of stock in agricultural co-operative associations.

The testator’s will contained a number of specific cash bequests to relatives, friends, and charitable institutions, and a residuary gift to a privately supported educational institution in Phillips county. The present controversy turns upon the construction of this provision in favor of the appellant:

I hereby give and bequeath to Mary Elizabeth Turner, a resident of Pulaski County, Arkansas, a friend of mine for many years and who has on many occasions extended many kindnesses and much comfort and help to me if she be living at the time of my death, for her lifetime, my home place where I now reside in Lonoke County, Arkansas, being my residence and the land on which it is situated and all other lands which I own contiguous thereto and lying south of U.S. Highway No. 70, and containing 120 acres, more or less. I also give to her, absolutely, all furnishings, fixtures, appliances, silverware, utensils, jewelry, sporting goods, personal effects, and every other kind of personal property of any kind or nature that may be contained in my said home at the time of my death, together with my personal automobile. . . The Devisee may immediately enter upon and in my home upon my death to take charge of and preserve the property. She shall, however, cooperate fully with the Executor and Trustee hereinafter named in the furnishing of any records or information that may be contained in my said home and which pertains to property owned by me and not covered by the bequest in this paragraph. She shall have the right to occupy said home and farm the said lands, or shall have the right to rent the same on such basis as she may determine, and to otherwise fully enjoy the possession and income during her lifetime from said real estate.

The parties rely primarily upon two of our earlier cases. The appellee stresses our holding in McLane v. Chancey, 211 Ark. 280, 200 S.W. 2d 782 (1947), where the will devised “my home place, together with all the personal property therein.” We held that the term "personal property, in its usual and common meaning, carried only the usual and ordinary household effects,” and did not include an insurance policy and postal savings certificates, which were choses in action.

The appellant in turn stresses our holding in McCollum v. Price, 213 Ark. 609, 211 S.W. 2d 895 (1948), where the bequest, not tied to a devise of a house, included “all of my household and all other personal possessions, of whatsoever kind and wherever located.” We mentioned the rule of ejusdem generis, by which a general description of property, when coupled with a specific enumeration, is presumed to refer only to things of the same kind as those enumerated. We concluded, however, that the reference to “all other personal possessions, of whatsoever kind and wherever situated,” was not limited to household possessions and included savings accounts in two banks.

Although we quite appreciate the forceful and persuasive arguments presented by each side in the case at bar, we are decidedly of the opinion that the language of the bequest must be construed to include the personal property in controversy. We are impressed at the outset by the unusually sweeping and comprehensive language selected by the testator: “. . . all furnishings, fixtures, appliances, silverware, utensils, jewelry, sporting goods, personal effects, and every other kind of personal property of any kind or nature that may be contained in my said home at the time of my death.” It will be noted that the testator, after having first specifically enumerated the various kinds of tangible personal property that would normally be found in a home, then added the inclusive phrase, “personal effects.” Yet he did not stop there. He went on to refer to every other kind of personal property of any kind or nature that might be contained in the home at the time of his death. Unless the language just emphasized is construed to refer to the intangible property now in controversy, we fail to see that it accomplished anything at all. Needless to say, we must if possible give meaning and effect to all the words and phrases chosen by the testator.

There are other aspects of the will that point to the same conclusion. The specific reference to jewelry and sporting goods shows that the testator had in mind something more than ordinary household effects, which distinguishes this will from that construed in the McLane case, supra. Also, there was an understandable reason for Fletcher to leave to the appellant the shares of stock in the agricultural co-operatives, which would presumably be needed in the operation of the 120-acre farm that was devised to her for life. Finally, the reference to records and information pertaining to other property owned by the testator, but not covered by the bequest to Miss Turner, suggests rather clearly that Fletcher had in mind all the contents of the house, and not merely the tangible personal property, when he chose the language of the will. Upon the record as a whole we are convinced that Mr. Fletcher intended for the appellant to have the property now in dispute. It is our duty to give effect to that intention.

Reversed.


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

text:
    Albert WILSON Jr. et ux v. Steven BRANDENBURG et al
    5-5932
    481 S.W. 2d 715
    Opinion delivered June 26, 1972

      Frank W. Booth, for appellants.

      Batchelor & Batchelor, for appellees.
   Lyle Brown, Justice.

The appellants are Albert Wilson, Jr., and Linda Wilson, his wife. The appellees are Steven Brandenburg and Marla Brandenburg, his wife, Ramona Ivey, and Odell Patterson and Ruby Patterson, his wife. This is a boundary line dispute between appellants, the Wilsons, on the one hand, and the three neighboring landowners, the Brandenburgs, Ivey, and the Pattersons. The chancellor held in favor of the appellees except that an easement was granted appellants across the land of Ramona Ivey, from which the latter cross-appeals. On the direct appeal the sufficiency of the evidence is attacked and the form of the decree is alleged not to be in conformity with the actual findings of the chancellor.

In 1970 appellants purchased a contiguous tract of 52.70 acres in Crawford County. Appellee Ivey joins the appellants’ tract on the northwest corner; appellees, the Pattersons, join appellants on the southwest corner; and appellees, the Brandenburgs join appellants at appellants’ southeast corner. Each of the appellees lives on their respective tracts. Not long after appellants purchased their tract they had it surveyed. As to the Ivey home, it was allegedly some ten feet over on Mrs. Ivey, splitting a well house, and taking in part of her back yard. As to the Patterson tract, Patterson contended that the new line closed off a small area of his land which had been used as a garden. According to Mr. Brandenburg the new line came through the center of their house and well site. That survey started the litigation. We summarize the findings of fact of the chancellor with respect to each tract.

The Survey. The chancellor discounted the survey. The court said it was clear that the exact position of a definite corner originally fixed by the Federal Government Survey was not actually located or checked; that the surveyor commenced from some points which he felt had previously been indicated on charts and plats and measured until he was satisfied that he had found particular locations; that there was considerable confusion about the exact locations of any exact stone or markings and that none of them were checked against existing Federal markings; and that for those reasons absolute reliance on the survey could not be had. We are unable to say that the findings of the chancellor with respect to the survey were against the preponderance of the evidence.

The Ivey Tract. Mrs. Ivey has owned, cleared, and occupied her tract of land since 1962 and until this date. Her cleared land extends over to the wooded area of appellants’ property, that being some ten feet beyond the. new fence erected on the surveyed line. It was found that she had been in undisputed and uninterrupted possession of the land continuously since 1962, with the exception of a lane which we will later mention.

The Patterson Tract. The evidence was clear that the Pattersons had a deed to, and had occupied the property in litigation, for some twenty-two years. The court found, upon viewing the property, that there is a cleared area north and east of the fence line installed by appellants, that being part of a garden grown by the Pattersons for a number of years. It was found that an old fence line, covered with honeysuckle, was the actual boundary up to which the Pattersons claimed title for all the years they lived there.

The Brandenburg Property. The chancellor found that the Brandenburgs and their predecessors in title had been in adverse possession of a clearly defined tract for some twenty years, a part of which appellants claim under their survey. The new survey line would split the Brandenburg house and well.

As is usual in cases of this type there is an abundance of testimony on both sides. We have certainly not overlooked the testimony of appellants and their witness; but when we compare it with the testimony supporting the chancellor’s findings we are unable to say that his conclusions are clearly against the preponderance of the evidence (except for the easement). Not only did the chancellor hear considerable evidence — he viewed the property.

The Easement. Appellants claimed an easement for a passageway from the public highway, across Mrs. Ivey’s front yard and onto appellants’ land. Prior to Mrs. Ivey’s purchase, the land she bought was wild and unimproved. For a number of years the owners of the Wilson tract cut across that unimproved tract at times during the year when the creeks were swollen. When Mrs. Ivey cleared the land and placed improvements thereon she continued to permit the use of the land across her front yard. She testified that she told the parties that she had no objection to them using the traveled way when the creeks were high. The county road employees would occasionally blade the road up to Mrs. Ivey’s yard, then skip over to the Wilsons’ tract to continue their blading. There was no contention that this alternate road was a part of the county highway system. To acquire a private way by prescription it is generally the rule that some circumstances or act in addition to the use of the way tending to indicate that the use is not merely permissive is required. LeCroy v. Sigman, 209 Ark. 469, 191 S.W. 2d 461 (1945). Circumstances other than continued use must “bring home to the servient owner a clear notice of hostility”. Williams v. Fears, 248 Ark. 486, 452 S.W. 2d 642 (1970). “Easement by prescription may be created only by adverse use of privilege with knowlege of person against whom easement is claimed, or by use so open, notorious, and uninterrupted that knowledge will be presumed, and exercised under claim of right adverse to owner and acquiesced in by him.” Craig v. O’Bryan, 227 Ark. 681, 301 S.W. 2d 18 (1957). We do not think a preponderance of the evidence established those elements rigidly adhered to by this court throughout the years.

Appellants say the court erred in allowing the decree to be filed in the form in which it was presented to the court. It is argued that the decree does not conform to an extensive opinion letter filed by the court. We cannot compare the opinion letter with the decree because the letter is not abstracted. Additionally, we do not find where this point was raised in the trial court. If there is an apparent discrepancy in the land descriptions in the decree we see no reason why that cannot be corrected by the trial court.

Affirmed on direct appeal, reversed on cross-appeal.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur for the same reason I found it necessary to do so in City of Ft. Smith v. France, 250 Ark. 294, 465 S.W. 2d 315, i.e., I must defer to the chancellor’s holdings, because I am unable to follow critical testimony without the reproduction in the abstract of a plat from which one could see the relative location of the tracts involved and the boundaries claimed by the parties. There is really a much stronger compulsion to defer to the chancellor’s findings in this case, because his understanding of the evidence was bolstered by a view of the tracts.


author: Lyle Brown, Justice.

text:
    Ruby DAVIS et al v. Dr. Karlton KEMP
    5-5947
    481 S.W. 2d 712
    Opinion delivered June 26, 1972

      Harkness, Friedman ¿r Kusin, for appellant.

      Wright, Lindsey ¿r Jennings, for appellee.
   Lyle Brown, Justice.

This is a medical malpractice case. Ruby Davis brought suit for personal injuries and her husband sued for loss of services. The trial court directed a verdict for Dr. Kemp after appellants rested their case. Appellants produced no medical testimony, and essentially that was the reason given for the directed verdict. Appellants contend that the alleged negligence was within the comprehension of the average juror and that expert testimony was not needed.

Appellant Ruby Davis suffered an injury to an ankle when a pickle relish jar fell and shattered, lacerating her right ankle. The pickle company sent her to Dr. Kemp for treatment. Her ankle did not respond to the first two treatments. On the third visit the doctor probed the wound and discovered a piece of glass approximately one inch by one-half inches wide at one end and one-fourth of an inch at the other end. Mrs. Davis was the only witness for appellants. The thrust of the issues revealed by her testimony was that on the first visit: (1) the doctor failed to irrigate the wound; (2) he failed to make x-rays; (3) he failed to administer antibiotics; and (4) he failed to find the piece of glass.

The applicable rule is well settled in this State. Graham v. Sisco, 248 Ark. 6, 449 S.W. 2d 949 (1970):

The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.

In Gray v. McDermott, 188 Ark. 1, 64 S.W. 2d 94 (1933), we held that whether it was proper or improper to open up a wound “or probe into it” on the first visit of the patient requires scientific knowledge to determine. In Walls v. Boyett, 216 Ark. 541, 226 S.W. 2d 552, we applied the same rule as to the making of x-rays. In harmony with the recited views of those two cases we hold that whether it was proper or improper on the first visit to irrigate the wound and to administer antibiotics would fall in the same category. In other words these factors would not be a matter of common knowledge to the jury. The failure to find the piece of glass on the first visit would, insofar as negligence is concérned, hinge upon whether or not good medical practice required the probing of the wound on the first visit.

There is still another reason why the trial court was correct in entering a directed verdict. As we read the abstract we find no evidence which establishes a causation between the alleged negligence of appellee and the damage of which appellants complain. If there were any complications they are not abstracted. In other words, the law requires more than a mere possibility that certain injuries resulted from negligence; a reasonable probability must be established. Appellants have failed to meet that burden. We would have to invade the realm of conjecture to say that any suffering endured by appellant Mrs. Ruby Davis was directly attributable to appellee as opposed to the original injury, even if we were to find that she established a case of negligence.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Lela Jean HUTCHESON, A Minor by Billy Dick HUTCHESON, Her Father and Next Friend v. Dean PACE and Cliffie PACE
    5-5950
    481 S.W. 2d 710
    Opinion delivered June 26, 1972

      Jeff Duty, for appellant.
    /. Wesley Sampler, for appellee.
   John A. Fogleman, Justice.

Appellant contends that the probate court erred in construing the will of Hannah Hammack to deny her the proceeds of a bank account of the testatrix. We agree with the trial court.

The pertinent parts of the will follow:

I bequeath to Lela Jean Hutcheson all of my household furniture, household equipment and personal effects of every nature. All the residue and remainder of my estate I will, devise and bequeath to Dean Pace and Cliffie Pace, either or survivor, * * *
I am not unmindful of the existence and welfare of others related to me by blood or marriage, but in view of the fact that my estate will be so very small, and my brother Dean and his wife Cliffie are assuming so much responsibility for my care during my old age, I feel obligated to make this disposition of my estate. The fact that I do not share my estate with others does not mean that I love them less, I am merely trying to carry out my reasonable obligations in view of my financial condition. In order to further simplify administration upon my estate I certify that I am a widow without descendants, * * *

Appellant states that the words “personal effects” have been construed to carry money and to pass choses in action and securities, citing 96 C.J.S. 185, Wills § 778. The same text, in an earlier passage, however, recites that the term has no fixed meaning and is to be interpreted in accordance with the context of the whole will, and may be thereby restricted with narrower limits, as when another specific or pecuniary legacy is given the same legatee or when more restricted words are joined to the general words. Our decisions are in accord with this latter language. In Brandon v. Yeakle, 66 Ark. 377, 50 S.W. 1004, we said that the phrase, without qualifying words, generally includes such tangible personal property as is worn or carried about the person, but, for the most part, in wills derives its meaning from the description of articles and classifications immediately preceding. Thus, when we look to the preceding words “household furniture” and “household equipment,” we can come to no conclusion except that reached by the probate judge, i.e., that the testatrix did not intend to bequeath the bank account to appellant.

We do not agree with appellant that the words “of every nature” following the term “personal effects” have the effect of broadening the scope of the words to include the bank account. Appellant relies upon language in El lege v. Henderson, 142 Ark. 421, 218 S.W. 831, to the effect that the words “personal effects” are not limited as a matter of law to tangible property worn or carried on the person. Even though a contract of sale, rather than a will, was the instrument construed in that case, we do not perceive any real difference in the applicable rules of construction on that account. In Ellege, we held that, in construing these words, particular regard must be given to the connection in which they are used. We said that when the enumeration of a particular class is immediately coupled with the words “personal effects,” these words must be applied to articles ejusdem generis with those specified in the preceding part of the sentence in which they are contained. Our holding in that case lends support to the judgment of the probate court, for we cannot conceive of a bank account being of the same kind, class or nature as household furniture and equipment.

If there were any doubt about the correctness of the probate judge’s construction of the will, on the basis of the particular words, support could be found in the words “devise and bequeath” in the residuary clause in light of the fact that it is conceded that nothing except real estate would pass under the residuary clause if appellant’s construction were accepted.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Hazel SMITH et al v. Fred MacDONALD, Special Administrator et al
    5-5918
    481 S.W. 2d 741
    Opinion delivered June 26, 1972

      Daggett ir Daggett, for appellants.

      Carroll C. Cannon, Dan P. Kennett, Reinberger, Eilbott, Smith if Staten, by: Eugene S. Harris, for appellees.
   J. Fred Jones, Justice.

Julian Leland Rutherford died on March 4, 1971, and this is an appeal by his collateral heirs (cousins) from an order of the Monroe County Probate Court admitting a handwritten instrument to probate as the holographic will of Julian Leland Rutherford. Neither the testamentary capacity of the decedent nor the total disposition of his property under the terms of the instrument is in issue. The sole issue is one of law as to whether the instrument was admissible to probate as a holographic will. The probate judge held the instrument admissible as the last will and testament of Julian Leland Rutherford and the appellant heirs contend on appeal that the trial court erred because the instrument was not properly signed by the decedent as required by law.

The record indicates that in June of 1970, following a medical examination in Little Rock, Mr. Rutherford became rather disturbed over the state of his health and consulted his attorney, Fred MacDonald, relative to a will. He did not want his attorney to prepare a will for him but did request and receive from the attorney two forms for a will after the attorney advised him that he could execute a valid will in his own handwriting. Mr. Rutherford showed the will forms to different witnesses and told them he was going to prepare his will. The will forms prepared by Mr. MacDonald were placed in one of Mr. MacDonald’s white professional envelopes and delivered unsealed to Mr. Rutherford by Mr. MacDonald. Some days later Mr. Rutherford delivered to attorney MacDonald the envelope in which the will forms had been delivered to Rutherford. The envelope was sealed when Mr. Rutherford delivered it back to Mr. MacDonald and Mr. Rutherford advised Mr. MacDonald that the sealed envelope contained his will and he requested Mr. MacDonald to safely keep the instrument. The sealed envelope when delivered to Mr. MacDonald, bore the notation on the outside of the envelope in Mr. Rutherford’s handwriting, “Bill Rutherford — Will.” Mr. MacDonald placed the sealed envelope with contents in his safe where it remained until after Mr. Rutherford’s death on March 4, 1971, in the Forrest Memorial Hospital in Forrest City, Arkansas. The will forms which Mr. MacDonald had prepared for Mr. Rutherford were found in Mr. Rutherford’s wallet following his death and when the envelope was opened in Mr. MacDonald’s office, it contained the instrument which is the subject of this controversy. The above factual background only goes to the proof that Mr. Rutherford intended to make a will and thought he had done so. No one questions Mr. Rutherford’s intentions, the question is whether the instrument he prepared in his own handwriting met the statutory requirements for admission to probate as a holographic will. The pertinent part of the instrument admitted to probate appears as follows:

“Page 1
Will of Julian Leland Rutherford
I Julian Leland Rutherford of Monroe County, Arkansas, being over the age of twenty one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills here-to-fore made by me at any time.
1. I direct that all my just debts be paid as soon after my death as may be practicable.
2. I hereby nominate, constitute and appoint as Executor of my estate to serve without bonds Fred MacDoanld.
3. I make the following specific bequests. . .”

The instrument then sets out under alphabetically arranged paragraphs, separate bequests not germane to the issues before us, and after the last bequest the instrument ends in the decedents handwriting as follows: “Witness my hand and seal this 11 day of July 1970.”

The appellants argue that the trial court erred in admitting the will to probate and argue that the instrument is not a legal testamentary instrument because it is not signed by the testator. The appellants further argue that a . holographic will must be signed by the testator at the end of the instrument notwithstanding the dicta expressed to the contrary in Weems v. Smith, 218 Ark. 554, 237 S.W. 2d 880.

The appellees point out that the decedent’s signature clearly appears in his own handwriting in two places on the face of the instrument and also on the envelope in which the instrument was sealed. The appellees also argue that either of these signatures, but in any event the three of them combined, completely satisfy the statute as to signature under Ark. Stat. Ann. § 60-404 (Repl. 1971). The probate judge agreed with the appellees and we agree with the probate judge in this particular case.

Prior to the enactment of our present probate code, by Act 140 of 1949, the legal requirements for the mode in the execution of all valid wills were set forth in five separate paragraphs under § 14512 of Pope’s Digest, vol II, as follows:

“Mode. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner,
First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request.
Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his will and testament.
Fourth. There shall be át least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no. attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act.”

It will be noted that this statute specifically refers to “every last will and testament” and specifically requires as the first requirement, that it must be subscribed by the testator at the end of the will or by some person for him at his request. Then requirement No. 5, as above set out, was the only provision pertaining to the holographic will and only had to do with the proof of the will where the entire body, as well as the signature thereto, was in the handwriting of the testator or testatrix. By Act 140 of 1949, Ark. Stat. Ann. §§ 60-403-60-404 (Repl. 1971) holographic wills were excepted from the section pertaining to other wills, and holographic wills were given a separate section in the Digest. Under § 60-404 the requirements pertaining to holographic wills were completely removed from the requirements in the execution of other wills as provided in § 60-403. These two sections of the present probate code are as follows:

“60-403. Execution. The execution of a will, other than holographic, must be by the signature of the testator and of at least two [2] witnesses as follows:
a. Testator. The testator shall declare to the attesting witnesses that the instrument is his will and either
(1) Himself sign; or
(2) Acknowledge his signature already made; or
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
• (4) At his discretion and in his presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator); and
(5) In any of the above cases the signature must be at the end of the instrument and the act must be done in the presence of two [2] or more attesting witnesses.
b. Witnesses. The attesting witnesses must sign at the request and in the presence of the testator.
60-404. Holographic will. — Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three [3] credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to such will.” (Emphasis added).

Thus, it is seen that the 1949 statute still retains the original primary requirements as to wills other than holographic and subsection 5 of § 60-403, supra, requires that in the execution of wills (other than holographic) the instrument must still be signed by the testator or acknowledged by him in the manner set out in the statute and “the signature must be at the end of the instrument.”

Turning now to the requirements for holographic wills under § 60-404; it is clear, as we have already said, this section does not require a signature of the testator at the end of the instrument. Weems v. Smith, supra. In comparing § 14512 of Pope’s Digest, supra, with the two sections, §§ 60-403 — 60-404 of the present code, there is considerable room for speculation as to the legislative intent in completely removing holographic wills from the requirements as applied to other wills and leaving other wills (other than holographic) to be executed “by the signature of the testator. . .at the end of the instrument. . .”

We shall not indulge in surmising as to the legislative intent in separating holographic wills from the requirements pertaining to other wills, for regardless of legislative intent, there is no question that Act 140 of 1949 separated holographic wills from the strict requirements as to manner and place of signature required in the execution of wills other than holographic under § 60-403, supra. Such relaxation as to holographic wills does not appear illogical when we consider that the purpose of a will is to make disposition of property to take effect upon death, and the purpose of the statute relative to signature, is to protect against.fraud. Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W. 2d 321.

The appellants recognize the question involved in this case as one of first impression in Arkansas, and they urge us to follow the decisions of the California courts where similar cases have been decided under a statute similar to our own. The appellants quote extensively from the 1917 California case of In re Manchester’s Estate, 174 Cal. 417, 163 P. 358, and. point out that the facts in Manchester were almost on all fours with those in the case at bar and they urge us to adopt the rule laid down in Manchester and reach the same conclusion the California court reached in that case. We find no fault with the reasoning expressed by the California court in announcing its “true rule” in Manchester, but we are of the opinion that the Califormia courts made better application of the rule in the cases following the Manchester decision. A review of these decisions points to a trend toward logic in determining the intention of the testator in placing his signature at a particular place on his will even under the “true rule” announced in Manchester.

The Civil Code of California under which the Manchester will was written, then as now, provided as follows:

“A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and need not be witnessed.”

The pertinent portion of the will in Manchester recited as follows:

“January 14th, 1914
I, Matilda Manchester, leave and bequeath all my estate & effects, after payment of legal, funeral & certain foreign shipment expenses (as directed) to the following legatees, viz.”

The instrument ended as follows:

“Whereunto I hereby set my hand this fourteenth day of January, 1914.”

The name of the decedent did not appear on the paper anywhere except in the opening clause as above shown. The document was folded by the decedent and placed in an envelope, which was then sealed and indorsed by the decedent in her own handwriting with the words, “My will, Ida Matilda Manchester.” At her direction the instrument was placed in her safety deposit box where it was found after her death. The instrument was admitted to probate by the trial court but the Supreme Court of California reversed, holding that under the California Code and Webster’s Dictionary, the required signature under the code.

“means the signature of the testator in his own handwriting written somewhere in or upon the document, with the intention by so writing it to authenticate the document. The name written at another place than the end of the document, and not for the purpose of authenticating it and indicating its completion, but merely to identify the person who is making the will, cannot be deemed to be a name ‘signed’ to the document, unless that word is given a meaning entirely different from that which it is generally understood to have.”

The court then pointed out that the closing words, “Whereunto I hereby set my hand this. . .” were apt words to a signature in attestation of a will or deed and intended to show that the decedent intended to sign immediately below but failed to carry out that intention. The court then distinguished the cases wherein different pages of holographic wills were written at different times, some of which were signed and some not, but properly admitted to probate under the theory of integration.

The court in Manchester also distinguished a will in the Estate of Camp (66 P. 227) where the final clause and signature of a holographic will was torn off and destroyed after the death of the testator and proof was made by two credible witnesses under the provision of the Code of Civil Procedure. The court in Manchester points out that the initial clause of the will in Camp also contained the name of the testator, and the court in Camp said that this also established the fact that the document was intended by the decedent to be his last will, and that “the writing by him of his name in that clause was itself a sufficient signature.” The court in Manchester then announced the rule above referred to as follows:

“The true rule, as we conceive it to be, is that, where-ever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature.”

The court in Manchester concluded that:

“[T]he document in question was not signed by the testator, as required by section 1277, and that it is not entitled to probate.”

In the later 1927 California case of In re Morgan’s Estate, 253 P. 702, the proffered instrument recited as follows:

“Last will and testament of Ynez Morgan February 21, 1925
I, Ynez Morgan, hereby will and bequeath all that I possess in real and personal property to my cousins, Kenneth and Alma Prior.
It is my wish that my aunt, Mrs. A. G. Prior, be executrix without bond.”

This instrument was found among the effects of Ynez Morgan after, her death and after contest the probate court found it to be a valid holographic will, entirely written, dated and signed by the testatrix, and the instrument was admitted to probate as the last will and testament of the decedent. In affirming the probate court the Supreme Court of California said:

“The name, Ynez Morgan, appears twice in the instrument, and the only question before the court on this appeal is whether or not the decedent, by writing her name in either, or both, of said places, thereby ‘signed’ the will.”

The court then quoted and adhered to the “true rule” as laid down in Manchester, supra, and then said:

“The will here in question makes complete disposition of the property of the decedent and designates the person who shall have charge of the administration of her estate. It in all respects appears to be a completed document. . .If the words, ‘Last will and testamarie of Ynez Morgan,’ appeared at the end of ,.the will, all doubt that the signature was intended to be and was aclopted as the final executing signature in authentication of and in execution of the document as a completed testamentary act would be removed. Looking at the instrument as a whole, we are of' the view that, by the use of those words in the beginning of the instrument, it was the intention of the testatrix to thereby execute the document as a . will..
So recently has this court discussed this question and reviewed the authorities that nothing further need be added. We are satisfied that the finding of the probate court to the effect that the testatrix duly authenticated and executed the instrument as her last will and testament is sustained by the inferences arising from an inspection of the document itself.
The order appealed from is affirmed.”

In the still later 1964 case of In re Rowe’s Estate, 41 Cal. Rptr. 52, the holographic will of Ethel C. Rowe was admitted to probate. The will simply recited as follows:

“Will of Mrs. Ethel C. Rowe Jan. 16th 1962
I appoint Mr. Emil R. Walter and Atty James Abercrombie as administrators without Bond.
I bequeath my orange and olive groves to Emil R. Walter.
I bequeath all other real estate to my sister Mrs. Edith Cairns Russell if she survives me. Any bank deposits I have on my death can be used by Emil R. Walter to pay taxes.
I consider all other relatives financially able to take of themselves. If any one/
other than those named in this will claims any part of my possessions they are to receive one dollar.
Signed this day Jan 16th 1962”

This document was found in a desk drawer in the decedent’s home after her death. A sister of the decedent filed a petition for revocation of the probate order admitting the will to probate. She contended that the decedent failed to dispose of all of her property under the instrument and relying on Manchester, supra, she argued that the instrument was not subject to probate because if was not signed by the author. She contended that the failure of the decedent to dispose of all of her property indicated a lack of intention to execute the instrument as a will. The petition was denied by the probate court and the sister appealed to the District Court of Appeals for the Fifth District of California. In sustaining the probate court in admitting the instrument to probate as the last will and testament of the decedent, the appellate court recited the "true rule” as laid down in Manchester, supra,,and distinguished the two cases by pointing out that in Manchester the recitation “Whereunto I hereby sign my hand this fourteenth day of January 1914” was in the present tense and indicative of intention to sign. Whereas the instrument in Rowe appeared to be a completed will; that the last sentence fixed the date of execution and used the past tense of the word “sign,” i.e. “signed,” to indicate that the instrument had already been signed. The court in Rowe then cited a number of California cases since Manchester including the very interesting 1952 case of In re Bloch’s estate, 248 P. 2d 21, in which the California Supreme Court upheld the probation of an instrument in the handwriting of Helene I. Bloch. The instrument was found in the lock box of Helene I. Bloch after her death and consisted of an envelope with writing on both sides. It named an executor, disposed of the property belonging to Helene I. Bloch and the only place where the decedent’s name appeared on the instrument was in reference to a part of her property as follows:

“Bonds belonging solely to Helene I Bloch 8000.00”

The Supreme Court in that case said:

“The language of the document involved here is plainly dispositive in character, and the document was dated and was admittedly written by the hand of the decedent. The sole question is whether the decedent’s name, which appears only in the body of the instrument, constitutes a signature within the meaning of the statute.
It is settled in California that the signature need not be located at the end but may appear in another part of the document, provided the testator wrote his name there with the intention of authenticating or executing the instrument as his will.”

After citing a number of California decisions, the Supreme Court then continues:

“The instrument involved in the present case, as we have seen, discloses a testamentary intent, and, in our opinion, constitutes a complete testamentary document under the foregoing decisions. The writing, on its face, indicates that the testatrix did everything that she intended to do: She specified that the bonds which belonged solely to her were to be distributed equally among seven named individuals; she excluded her husband from sharing in this bequest, giving reasons for doing so; and she appointed her sister executrix and directed her to resist any action which might be taken by the husband. The document, after giving the reasons of the testatrix for exclusion of her husband, ends, in a natural manner by stating: ‘Therefore I feel he does not participate.’ * * *
Since it appears that the holographic document written by Mrs. Bloch is a complete testamentary instrument, it follows, under the decision in Estate of Kinney, supra, 16 Cal. 2d 50, 56, 104 P. 2d 782, that her name is to be regarded as having been written in the body of the instrument with authenticating intent. The order is affirmed.”

Justice Traynor wrote a dissenting opinion in Bloch, supra, reciting his view that the mere name of the decedent used in describing her property did not fulfill the statutory requirement. Justice Traynor’s minority opinion is of value in that it points out the following distinctions:

“Regardless of where the name may appear in the instrument, there is always the possibility, of course, that it was intended as a signature. The mere existence of that possibility, however, is not enough to permit a reasonable inference that it was so intended. When the name is used to identify the decedent as the author of the alleged will as in Estate of Kinney, 16 Cal. 2d 50, 104 P. 2d 782 (‘I Anna Leona Graves Kinney, do bequeath all my possessions to my four sisters’) or to identify the instrument as decedent’s will as in Estate of Brooks, 214 Cal. 138, 4 P. 2d 148 (‘This is my will — Elizabeth Ryan Brooks’), and in addition the instrument appears to be a complete testamentary document, it may reasonably be inferred that the name was placed where it was with the intention of executing the instrument. In such cases the name is linked to the alleged testamentary act and the probabilities that it was intended as a signature are strong. In the present case, on the contrary, decedent’s name appears only in the description of her property.”

Returning now to the case at bar, there is no question that Mr. Rutherford intended to make a will and there is no question that he attempted to do so. There is no question of fraud involved in this case and there is no question that Mr. Rutherford thought he had executed a valid holographic will. There is no question that Mr. Rutherford completely disposed of all of his property under the instrument offered in probate, even to a provision for taking care of his dogs after his demise. Looking now to the language employed, the first line on page one of the instrument defines the instrument in the handwriting of the decedent as follows: “Will of Julian Leland Rutherford.” The first paragraph then recites: “I Julian Leland Rutherford. . .do hereby make, publish and declare this to be my last will and testament.” The last line of the instrument then recites: “Witness my hand and seal this 11 day of July, 1970.” There is no evidence in the record that Mr. Rutherford did not write “Witness my hand and seal . . .“ on the same day he wrote “I Julian Leland Rutherford. . .do hereby make, publish and declare this to be my last will and testament.” (Emphasis added).

Even if we should adopt and strictly apply the California rule announced in Manchester as urged by the appellants, the instrument signed by Rutherford would qualify as a holographic will subject to probate under the subsequent decisions of the California courts. But in this case Mr. Rutherford delivered the sealed envelope to his attorney and told him that it contained his will. All other evidence clearly indicates that when Mr. Rutherford delivered the instrument to his attorney, he had fully carried out his announced intentions of disposing of his property by will to the exclusion of the appellants.

In Page on Wills, vol. 2, § 20.9, p. 294, is found the following:

“There is a conflict of authority concerning the admissibility of evidence of testator’s declarations and acts, together with surrounding circumstances, to determine whether his name which was written by him in the body of the will was intended as a signature. The weight of authority .permits introduction of such evidence for the purpose of determining the intention with which testator wrote his name.”

We conclude, therefore, that the trial court did' not err in admitting the instrument to probate as the last will and testament of Julian Leland Rutherford, and that the judgment of the probate court should be affirmed.

Affirmed.

Harris, C. J., not participating.

      The attorney was named executor without bond.


author: Conley Byrd, Justice.

text:
    Earl W. PETRON and Robert Lee BAKER v. STATE of Arkansas
    5724
    481 S.W. 2d 722
    Opinion delivered June 26, 1972

      Chambers & Chambers and McKay, Chandler & Choate, for appellants.
    Ray Thornton, Atty. Gen., by: Jay N. Tolley, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellants Earl W. Petron and Robert Lee Baker were convicted of burglary and grand larceny committed on Thanksgiving day 1971. For reversal they contend:

"1. The court erred in ruling that the consent to search was valid;
2. The trial court erred in refusing a severance;
S. The value of the stolen goods was not proven;
4. The testimony of the accomplice was not corroborated as to appellant Earl W. Petron; and
5. The court erred in giving Instruction No. 3.”

POINT 1. The record shows that Thomas Bryan had rented a house at 915 North Jefferson, Magnolia, Arkansas. At the time the stolen goods involved were recovered from Bryan’s residence it was occupied by Earl W. Petron and Robert Lee Baker and his wife. Petron slept on a couch in the living room and Baker and his wife occupied one of the two bedrooms. The officers had been looking for Bryan’s station wagon from the time the burglary was discovered on November 25th, until the early morning of November 29, when it was observed at his house. When Bryan started after some beer for his father-in-law, he was stopped by some officers who observed a flashlight in the back seat which was identified by Mark Hanson as one taken from his home in the burglary. Bryan testified that after the officers gave him the Miranda warnings, they told him they would have to get a search warrant to search his house. He told them that was not necessary because he would give them permission. When the officers and Hanson entered the house they saw several items recognizable as belonging to Hanson — one of which was a sewing machine in the bedroom occupied by the Bakers, but readily observable through an open door.

Testimony at the hearing to suppress leaves some doubt as to the status of Petron and Baker — i.e., whether they were subtenants or guests. It is clear from the testimony, however, that the portion of the house searched by the officers, other than recovery of the visible sewing machine, was that part of the house used in common by all the occupants or exclusively by Bryan. Thus so far as the record is concerned the officers entered no place for search that they would not have been entitled to enter as guests of Bryan.

In Asher v. City of Little Rock, 248 Ark. 96, 449 S.W. 2d 953 (1970), we held that one having co-equal authority over premises may authorize a search of them. We uphold the search in question for the same reason.

Appellants also suggest that Bryan’s permission was coerced. In this connection they point out that Bryan was also charged with the burglary and grand larceny; that he became a witness for the State; and has not yet been brought to trial. However, there is evidence by Bryan showing that his permission was voluntarily given without fear of punishment or hope of reward. On the record we cannot say that the trial court’s finding on the issue of voluntariness is contrary to the evidence.

POINT 2. Witness Hanson was present when the officers entered Bryan’s house where appellants were arrested and some of the goods taken in the burglary were recovered. The following occurred on direct examination:

“Q. Would you tell me as to the defendant Baker? What was his response?
“A. His response was that “I done it.’ He robbed my house.
“MR. CHANDLER:
I object to that, your Honor.
“THE COURT:
The objection will be overruled.”

In a “Denno hearing,” the voluntariness of Baker’s confession had been determined. Appellants now argue that there was no protection furnished Petron because the jury was not admonished that the statement could be considered only as to Baker. In Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453 (1969), we pointed out that the granting of a severance is within the discretion of the trial court and in Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577 (1970), that one who failed to ask for a cautionary instruction was not in a position to claim error. Appellants here failed to ask for a cautionary instruction. Thus the trial court did not err in failing to give such instruction.

POINT 3. The contention that the State failed to prove the value of the articles taken is not supported by the evidence. Mr. Hanson identified a World War I rifle which he valued at $35 or $40, a sewing machine at $200 and an assortment of tools having a value of $60 to $70. Under Ark. Stat. Ann. § 41-3907 (Repl. 1964), the State was only required to show that the value of the items taken exceeded $35 to make the crime grand larceny. The evidence here more than sustains that burden.

POINT 4. Appellant Petron points to Ark. Stat. Ann. § 43-2116 (Repl. 1964), urging that since Bryan was an accomplice there is not sufficient corroborating evidence in the record to sustain his conviction. Under that statute the corroboration is ordinarily considered sufficient when testimony other than that of the accomplice, is sufficient to establish the commission of the offense and a connection of the accused therewith. When viewed from that standpoint, we hold the evidence sufficient.

The proof shows that the burglary was committed on Thanksgiving day sometime between 3:00 p.m. and 9:00 p.m. Petron was observed about a city block from Hanson’s home about 6:00 p.m. by Ritchie Barker who testified that Petron had raised the hood of his station wagon, described as similar to the one driven by Bryan. When Ritchie asked if he needed help, Petron said, “Its just a loose wire and I found the problem.” Hanson testified that property having a value of $12,000 was removed from his home. Hanson’s home is eleven miles from Magnolia. When asked how to get to the property Hanson stated:

“You go out on the Taylor highway, turn back on —go through by Rudds’ crossing, on out toward Cook’s crossing, back about two miles to your left, this side of Cook’s crossing, go towards the creek to the third house on the left.”

When the remote location and isolated nature of the residence is considered in connection with Petron’s presence in the area on a Thanksgiving holiday and his subsequent possession of the property, we find that there is sufficient evidence to show the commission of the crime and Petron’s connection therewith.

POINT 5. The appellants now contend that Instruction No. 3 was misleading. This objection was not raised in the trial court. We will not consider it for the first time on appeal.

Affirmed.


author: Frank Holt, Justice.

text:
    Frank B. FOLLETT v. Vivian JONES, as Administratrix of the Estate of Chauncy G. JONES, Deceased, and Vivian JONES and Harold JONES
    5-5936
    481 S.W. 2d 713
    Opinion delivered June 26, 1972

      Jones & Segers, for appellant.

      Charles L. Gocio and Donald B. Kendell, for appellees.
   Frank Holt, Justice.

This is an action for wrongful death. The deceased, Chauncy G. Jones, was driving a pick-up truck when a collision occurred between it and a car driven by appellant. Jones sustained three non-displaced broken ribs, contusions, abrasions, and a blow to his head as a result of the accident. He was taken to a hospital where he died 17 days later. Prior to the date of the accident, Jones had regularly worked at his job, and, also, on his farm. However, it is undisputed that on the date of the accident, unbeknownst to the deceased, he had terminal cancer of the lung. The cancerous condition was discovered from the x-rays taken to determine the extent of the injuries to his chest. An autopsy report listed the cancer as the cause of his death. A jury found, as alleged by appellees, that appellant was negligent in causing the accident and that appellant’s negligence was the proximate cause of Jones’ death. The jury awarded $3,867.89 damages to Mrs. Jones as administratrix and $8,000.00 to her individually. Damages were disallowed to appellee, Harold Jones, decedent’s son. From a judgment on that verdict the appellant brings this appeal.

We first consider appellant’s assertion for reversal that the trial court erred in not directing a verdict in his favor as to the wrongful death because the evidence failed to establish that the “accident was the proximate cause of the decedent’s death.” Medical testimony from two physicians was presented to establish that the death was proximately caused by the accident. One of the doctors testified that “the injuries received in the automobile accident hastened his death” and, further, the death was a result of "a combination” of the injuries and the cancer. However, decedent would have eventually died of the cancer had the accident never occurred. The other medical expert testified: “I believe that his injuries hastened his death.” This evidence when viewed most favorably to the appellees, as we must do on appeal, is sufficient to present a question of fact for a jury’s determination as the whether the accident proximately caused Jones’ death. Woodward v. Blythe, 249 Ark. 793, 462 S.W. 2d 205 (1971), Ellsworth Bros. Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724 (1969); see, also, Owen v. Dix, 210 Ark. 562, 196 S.W. 2d 913 (1946).

We next consider appellant’s contention that the jury’s award for wrongful death is based upon speculation in that the record is void of any evidence relating to the “period of time that the accident shortened the life span of the decedent.” Although the evidence as adduced is sufficient to present a jury question as to proximate causation, there is no evidence as to decedent’s normal life span or otherwise from which the jury could determine the relative time span that this accident “shortened” Jones’ life. In the absence of such evidence the jury’s award is without a reasonable basis and is, therefore, speculative. Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S.W. 2d 5 (1961). However, one expert witness was able to estimate medically the length of time that this cancerous, condition had existed. Therefore, we are of the opinion that upon a retrial it is not impossible that the deficiency of proof as to decedent’s “shortened” life span could be supplied. In such a situation a remand in law cases is proper. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969); St. L. S. W. Ry. Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967); Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W. 2d 784 (1969). Medical science, like the law, is not an exact science. American Life Insurance Co. v. Moore, 216 Ark. 44, 223 S. W. 2d 1019 (1949).

Appellant, also, contends that the testimony was insufficient to allow a recovery for mental anguish. Appellant cites us to Peugh v. Oliger, Admx., 233 Ark. 281, 345 S.W. 2d 610 (1961), where we held that in order to recover for mental anguish something more than normal grief occasioned by the loss of a loved one must be proven. In the case at bar we deem it unnecessary to discuss the sufficiency of the evidence to justify the award of $1,000 inasmuch as the cause is being remanded and because, upon retrial, the proof will likely be more definite as to the asserted deficiency.

Appellant, also, asserts that the court erroneously allowed testimony which was outside the scope of the pleadings. The appellees adduced testimony, in addition to physical injuries, about the latent, existence of decedent’s cancerous condition. The court limited the issue as to the alleged wrongful death to one of causation from the sustained injuries and would not permit the appellees to assert the unalleged aggravation of a preexisting condition. We find, as abstracted, no plea of surprise to this testimony nor a motion for continuance. In the circumstances, we hold there is no prejudicial error in the court’s action.

We have considered and find no merit in appellant’s two other contentions; also, they are not likely to arise upon a retrial.

Inasmuch as the deficiency in the proof, as previously discussed, could possibly be supplied upon a retrial, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frankie INKLEBARGER v. STATE of Arkansas
    5721
    481 S.W. 2d 750
    Opinion delivered July 3, 1972

      Donald Poe and Donald Goodner, for appellant.

      Ray Thornton, Atty. Gen., by: Jay N. Tolley, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Frankie Inklebarger brings this appeal from a conviction of indecent exposure. Several points are alleged for reversal which we proceed to. discuss.

' It is first asserted that the court should have instructed a verdict of not guilty, this contention really being that there was not sufficient evidence to sustain the conviction. We disagree. Vicky Crowley, 14 years of age, testified that as she was fixing to cross a street near the McConnell Funeral Home in Booneville, a yellow and black Dodge passed and stopped. As she proceeded along Main Street on the sidewalk, this man raised up, exhibiting his privates. Vicky, who was riding a bicycle, then went around the car, but he started up and again passed her, stopping the automobile, and apparently waiting on her to come up to where he had stopped. However, she reached her home before arriving at that point, and went into the house and told her mother. The driver of the automobile then drove back in front of the house, and lookéd into it, both the daughter and mother seeing him. Vicky identified Inklebarger as the man who had exposed himself! According to the evidence, the act of exposure occurred around 11:50 a.m. Other evidence reflected' that Inklebarger drove a yellow and black Dodge. As his defense, Inklebarger offered an alibi, i.e., he was taking a nap at a friend’s home from about 11:00 a.m. until approximately 1:00 p.m. on the date of the alleged offense. This alibi was corroborated by three other witnesses. Of course, we have said so many times as to need no citation of authority, that the jury is the fact finder, and we do not disturb their findings on fact issues, unless there is no substantial evidence to support the verdict. The testimony of Vicky was sufficient to sustain the conviction,. and we find no merit in this point.

Complaint is made that the information was deficient in that it failed to disclose certain pertinent facts, viz, the names of the witnesses, the approximate time of the offense, and the date of the offense. The information was amended to supply these defects prior to the jury being sworn and the trial court made a record thereof. If there had been any defect in the information, it was cured by this action. See Murray v. State, 249 Ark. 887, 462 S.W. 2d 438. It is also mentioned that the name of one of the witnesses, an officer, was not furnished. It appears that a mistake was made in giving the name of the officer, but certainly no prejudice resulted for the officer only testified that the man was pointed out to him as having passed the Crowley house. He knew nothing at all about the alleged offense, and he said that Inklebarger was not doing anything out of the ordinary when he observed him; that appellant was driving at a normal rate of speed and did not try to get away from him (the officer) in any way..

It is also contended that reversible error was committed during the cross-examination of Inklebarger’s wife. The record reflects that the prosecuting attorney asked Mrs. Inklebarger the question “You do know that he has a problem, this Inklebarger?” An objection was made by counsel and this objection was sustained by the court. Certainly, under these facts no error was committed. Finally, it is contended that reversible error was committed during cross-examination of the appellant. The prosecuting attorney asked appellant if he had been convicted in April for indecent exposure. Counsel moved for a mistrial which motion was denied. Inklebarger first answered that he was charged with that offense, but when again asked “Were you convicted of it?”, replied, “Yes”. He was also asked if he had not exposed himself to another female member of the community about a year ago. Appellant replied “No, sir.” There was no error in these proceedings. The court, in overruling the objection, stated that the prosecuting attorney had a right to ask appellant about these acts as affecting the credibility of the witness, and we have so held numerous times. It is true that one cannot be asked if he has been charged, or indicted, or accused, of other crimes, but we have upheld the right of the prosecuting attorney, as a matter of going to the credibility of the witness, to ask a defendant if he has been convicted of other acts, or if he committed other acts. See Johnson v. State, 236 Ark. 917, 370 S.W. 2d 610, and cases cited therein.

Finding no reversible error, the judgment is affirmed.

      The officer also explained to Mrs. Crowley the procedure to follow in obtaining a warrant.

      Actually, the offense being an “unnatural” sex offense, the evidence may well have been admissible during the state's presentation of its case. See Ward v. State, 236 Ark. 878, 370 S.W. 2d 425, and cases cited therein.


text:
    Dale CLINE, Director of Labor v. PLAZA PERSONNEL AGENCY, Inc.
    5-5981
    481 S.W. 2d 749
    Opinion delivered July 3, 1972

      J. R. Nash and John T. Lavey, for appellant.

      Hale, Hale & Fincher, for appellee.
   George Rose Smith, Justice.

The appellee, Plaza Personnel Agency, applied to the State Director of Labor for a license authorizing Plaza to operate a private employment agency in the state. The Director refused to issue the license. Plaza then brought this action for a writ of mandamus to compel the Director to issue the license. This appeal is from a judgment granting the writ.

. For reversal the Director relies upon the rule that a writ of mandamus will not be issued to require an executive officer to perform a discretionary act. Hardin v. Cassinelli, 204 Ark. 1016, 166 S.W. 2d 258 (1942). Here, however, the Director’s duty is ministerial rather than discretionary. The statute merely requires the applicant to pay a $200 license fee and to make a $1,000 bond to guarantee the applicant’s compliance with the terms of the statute. Ark. Stat. Ann. § 81-1001 (Repl. 1960). The statute contains no language investing the Director with discretionary power to deny the application. It is true, as the Director points out, that he may revoke a license after a hearing at which a violation of the statute is shown; but we fail to see how the authority to revoke a license for cause supplies discretionary power to deny the application in the first instance.

It is also argued that the naked authority to issue a license carries with it, by implication, the power to exercise reasonable discretion in granting or refusing to grant such a permit. The fallacy in that argument lies in its assumption that the licensing officer may decide for himself what is a reasonable basis for rejecting an application. Discretionary power may be delegated by the legislature to the licensing authority, but it is essential that reasonable guidelines be provided in the statute. Walden v. Hart, 245 Ark. 650, 420 S.W. 2d 868 (1967). Inasmuch as the statute now in question affords no guidance whatever for the licensing authority, we must conclude that no discretion in the matter has been invested in the Director. The circuit court was therefore right in directing that the license be issued.

Affirmed.


text:
    Tennie PORTER et al v. ARKANSAS WESTERN GAS CO. et al
    5-5911
    482 S.W. 2d 598
    Opinion delivered July 3, 1972

      Ralph W. Robinson, and Harden, Jesson & Dawson, for appellants.

      Daily, West, Core ir Coffman, Ball, Gallman ir Martin, and N. D. Edwards, for appellee.
   Lyle Brown, Justice.

This action was commenced by Arkansas Western Gas Company as a bill in interpleader following the successful completion of a gas well in Crawford County near the Arkansas River. All the landowners in the area were joined as defendants. The dispute as to ownership is primarily between the Cooks and the Humphreys, the riparian owners on the south or Sebastian County side of the river, and the appellants, who are the landowners on the north or Crawford County side. At the point in question the river forms, roughly, the shape of a horseshoe. From 1827 until 1961 the river moved northward, which action caused a considerable portion of the land on the north bank to be washed into the river. At the same time a sand bar of considerable size formed in the river between the north and south bank and it is that area which is in dispute in the case. The appellants on the north side contend that the formation was an island within their original boundaries, or that it was formed by avulsion. Appellees dispute that the area in litigation is an island, contending that it is a gravel bar. Appellees also contend that the area in the bend became non-navigable in 1962 when the United States Government constructed a cut-off from one side of the “horseshoe” to the other, that the old channel became non-navigable and title reverted to the riparian owners. The thalweg, or main thread of the flow of the river, was near the north bank which of course places the gravel bar on the south side of the thalweg.

The chancellor found in favor of appellees on all points and on appeal it is urged that the chancellor was in error in finding that the land in question was not formed as an island within the original boundaries of the appellants, or that the same was not formed by avulsion.

After hearing several witnesses, viewing numerous maps, and touring the area in question, the court made extensive findings on the questions of avulsion and the nature of the land in dispute:

“The history of the Arkansas River and the area concerned is that it moved to the north from the period 1832 to September 1962, and at some times faster than at others. As the river moved to the north, it eroded the north bank, but did not do so by sudden avulsion, nor change channels by avulsion as was argued herein. In so moving to the north, the boundary between the counties moved with the channel of the Arkansas River, as this was the designated boundary between Crawford and Sebastian Counties in the area concerned. Therefore, as the river moved to the north, the boundary between the counties moved to the north as well. In addition, lands of the riparian owners to the north, or on the north side of the river which were eroded by its movement were erased by the river, and were, therefore, lost both actually and as to call and description.
“There were no islands, and no land formations as such, in the area concerned in September 1962 (the date of construction of the cut-off) . . .There was, however, a sand bar which was the principal formation in the area concerned and in controversy in the old river channel, and it is apparent that had it been allowed to continue to develop and form that it would have been an accretion to the south bank of the river in this area, following the pattern indicated by the maps, charts, and aerial photos. However, at this time, i.e. September 6, 1962, this principal sand bar had no permanent character, no permanent vegetation, no fast land, and was simply a part of the river bed, i.e., sand bar.
“At the moment of, or upon the closing of the old river channel and the opening of the new cut-off, the old river channel ceased to be navigable, as was intended; and thus the State lost its claim or title thereto; and title to the old river bed vested in the then riparian owners.”

With reference to all the findings of facts detailed in the trial court’s excellent opinion we find that they are not against the preponderance of the evidence. It is our duty to affirm unless we conclude that the chancellor’s findings are against the preponderance of the evidence. Simpson v. Martin, 174 Ark. 956, 298 S.W. 861 (1927).

Likewise, we find the legal conclusions of the chancellor to be appropriate. With respect to the nature of the formation in dispute — whether an island or sand bar — the subject was treated in Crow v. Johnston, 209 Ark. 1053, 194 S.W. 2d 193 (1946):

It may be said that to constitute an island in the river the same must be of a permanent character, not merely surrounded by water when the river is high, but permanendy surrounded by a channel of the river, and not a sand bar, subject to overflow by the rise of the river and connected with the mainland when the river is low.

On the question of avulsion as opposed to accretion, there was ample evidence which meets the test laid down in Yutterman v. Grier, 112 Ark. 366, 166 S.W. 749 (1914):

The only dispute is that some of the defendant’s witnesses testified that the greater part, if not all, of the land was formed during the overflow of 1898, and that the change was perceptible, in that the caving on the east side was perceptible. Some of the witnesses testified that they saw or heard the bank caving in. This circumstance does not, we think, take the facts of the case out of the operation of the general rule applicable to lands formed by accretion.
The term "avulsion”, on the one hand, and "gradual and imperceptible accretion”, on the other, are used by writers on alluvion to contradistinguish a sudden disruption of a piece of ground from one man’s land to another’s, which may be followed and identified, from that increment which slowly or rapidly results from floods, but which is utterly beyond the power of identification.

Likewise, the finding of the chancellor that title to the old, non-navigable river bed created by the cut-off, vested in the riparian owners with the thalweg being the dividing line is supported by Ark. Stat. Anno. § 10-204-205 (Repl. 1956); Parker v. Moore, 222 Ark. 811, 262 S.W. 2d 891 (1953); Gill v. Porter, 248 Ark. 140, 450 S.W. 2d 306 (1970).

The judgment is in all respects affirmed.