author: Ed F. McFaddiN, Associate Justice.

text:
    Slade v. Gammill.
    5-944
    289 S. W. 2d 176
    Opinion delivered April 16, 1956.

      Grumpier & O’Connor, J. Hugh Wharton and Jabe Haggard, for appellant.

      Henry 8. Yocum, J. R. Wilson, T. 0. Abbott, Surrey E. Gilliam, and Rolivar L. Allen, for appellee.
   Ed F. McFaddiN, Associate Justice.

This suit involves a portion of an old cemetery in El Dorado. In effect, it is a three-cornered lawsuit between (a) Trustees of the First Methodist Church of El Dorado (hereinafter called “Church”); (b) Trustees of Warner Brown Cemetery (hereinafter called “Cemetery Trustees”) ; and (c) certain heirs of Warner Brown, hereinafter named. The Church brought the suit against the Cemetery Trustees and Warner Brown heirs as a class, and prayed that the title of the Church be quieted to a strip of land that had formerly been a portion of the Warner Brown Cemetery. From a decree awarding the Church the prayed relief, certain Warner Brown heirs have appealed. The appellants here are Joe Slade, Pattie Goodwin Wharton, Nell Goodwin Smith and Lena Goodwin Trimble.

In 1848 Warner Brown, a citizen of the then recently incorporated Town of El Dorado, deeded certain property to the Methodist Church and deeded adjoining property to three Trustees of the Warner Brown Cemetery. Two of these Trustees were Peter D. Goodwin and John H. Askew. The name of the third Trustee has been forgotten. Unfortunately the deed from Warner Brown to the three Trustees was never placed of record and its contents are necessarily left to the recollection of the witnesses. Warner Brown died in 1853, and his grave is in the Cemetery. At all events, the parcel of land became a cemetery and burials in it continued to be made at irregular intervals until 1938. Whether it was originally intended as a public cemetery is not known: there is no record of any lots being sold, but over the years it was used by people of various religious affiliations, and by those in no wise related to Warner Brown; so it may be conceded that the public nature of the cemetery has been established (see 10 Am. Jur. 489).

In 1892 the original Cemetery Trustees hád died without naming any successors; and seven persons, representing themselves to be some of the lineal descendants of Warner Brown, executed and recorded an instrument naming William W. Brown, J. S. Frost and Hugo W. Goodwin to be the Trustees of the Warner Brown Cemetery, and providing that the survivors of the said three Trustees should have power to select successor Trustees. .In 1930 William W. Brown, as the sole survivor of the 1892 Trustees, appointed Thomas Goodwin and W. W. Brown, Jr. to act with him as Trustees. In 1952, W. W. Brown, Jr., being the sole survivor of the 1930 Trustees, named Alta Goodwin and Dan Lee Staples to act with him as Trustees; and these three are the presently acting’ Trustees of the Warner Brown Cemetery named in this suit. ,

In 1954 the said Trustees realized (a) that burials had ceased in the cemetery since 1938; (b) that the cemetery was without any money for maintenance; (c) that the monuments over the graves were falling down; and (d) that some effort should he made to obtain perpetual care. Thereupon the Cemetery Trustees made a contract with the First Methodist Church of El Dorado, which needed land on which to erect an educational building. The contract was that the Trustees of the Warner Brown Cemetery conveyed to the Church the West 86 feet of the cemetery property and, in return, the Church agreed, inter alia, (a) to construct and maintain a steel fence at least six feet high on all sides of the cemetery not enclosed by a brick wall; (b) to move all bodies from the 86-foot strip into the other portion of the cemetery; (c) to erect a suitable monument in the cemetery to the memory of Warner Brown; (d) to erect a plaque designating the cemetery as the “Warner Brown Cemetery”; (e) to have the cemetery suitably landscaped; and (f) to provide it with continuous care.

After the contract was made and the deed delivered and all the graves moved from the 86-foot strip and, just as the Church was about to commence the erection of a $400,000.00 educational building on the 86-foot strip, some question arose as to the validity of the conveyance by the Cemetery Trustees to the Church. Thereupon, the Church brought this suit, which resulted in the decree previously mentioned. The appellants here are some of the named heirs of Warner Brown resisting the suit. They were sued as representatives of all of the other heirs of Warner Brown; and on appeal they make the three points now to be stated.

I. The appellants say: “This is not the character of action contemplated by Section 27-809 Ark. Stats., and therefore plaintiffs were not entitled to maintain the same as a class action.” Section 27-809 Ark. Stats, reads:

“Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the Court within a reasonable time, one or more may sue or defend for the benefit of all.”

Our Statute is a recognition of the equity idea of class representation and we have a number of cases bearing on the matter of class representation. A few of them are: Connor v. Thornton, 207 Ark. 1113, 184 S. W. 2d 589; and Holthoff v. State Bank, 208 Ark. 307, 186 S. W. 2d 162. Appellants rely on the case of Hunt v. McWilliams, 218 Ark. 922, 240 S. W. 2d 865, rather than the cases on class representation. We hold that the case at bar affords a classic example of the application of our Statute on class representation. Here the evidence showed that no one was able to name all of the heirs of Warner Brown. One of his descendants, who was a witness in this case, was Walter W. Brown, Jr. He testi■fied that Warner Brown died.intestate on December 3, 1853, having been married three times and having been the father of twenty-six children; that descendants of Warner Brown had been located in nearly every State in the Union; and that it was impossible to determine the names and addresses of the many heirs of Warner Brown.

Mr. Joe K. Mahoney testified that .he had lived in Union County for more than seventy years and had practiced law in El Dorado for many years; that 'some of his ancestors were buried in the Warner.Brown Cemetery; and that he had occasion in his practice to attempt to determine the heirs of Warner Brown. Mr.. Ma-honey said that he did not ¡know any person who could make an affidavit as to who were all the heirs of Warner Brown; and that they were literally scattered to the four corners of the world.

Under these facts, we think that a sufficient showing was made for the application of our Statute on class representation. The appellants, Slade, et al, defended the action in good faith and, as far as we can envision, made all possible defenses that anyone could have made: thus, they fulfilled the spirit of the class representation Statute. In 39 Am. Jur. 919, cases from this and other jurisdictions are cited to sustain this statement:

“The doctrine of class representation applies to defendants as well as plaintiffs. In cases where the persons who have a common interest or a common right and who properly should be made parties defendant to an action are too numerous to be conveniently brought into court, equity allows the suit to be brought against one or a few individuals who are in fact the representatives of the larger class.”

II. The appellants say: “The surviving trustee was without authority to malee the appointment of the successor trustees and therefore the successor trustees were not the duly qualified and acting trustees on the date the quitclaim deed was delivered.In the argument on this point, appellants point out that no record has ever been found of the terms ■ of the original deed made by Warner Brown to the Trustees of the Cemetery and, therefore, there is no showing that the surviving heirs of Warner Brown had the authority to appoint any trustees, as was done by the November, 1892 instrument. Appellants continue their argument by saying that the alleged trustees in 1954 had not been duly appointed as trustees and therefore had no power to make the contract with the Church and convey the 86-foot strip that had been a portion of the Cemetery. It is unfortunate that the original conveyance by Warner Brown to the three trustees was never placed of record, but that is the condition that confronts us in this record. If the three original trustees had no right to appoint successor trustees, then ever since 1892 people have been acting as trustees without authority. But the point is that persons have acted as trustees and that the court of equity in this case has sanctioned such actions.

It is elementary law that a court of equity will appoint trustees in any proper case in order to prevent a failure of the trust. This was recognized by our Court in the early case of Conway, et al., ex parte, 4 Ark. 302 (Loc. Cit. 361):

“But even suppose that the ten trustees, who signed the deed, were incompetent to take, still, the other five being competent, a court of equity would not permit the trust to fail; for it is a rule in equity which admits of no exception, that a court of equity never wants a trustee. Whenever a trust is created, either by deed or will, or by operation of law, and no person is appointed trustee, equity will follow the estate, and cause the trust to be executed. If no trustee is named, or he dies, or the trust devolves upon an incompetent person, the trust shall prevail, and the Chancellor will appoint -trustees. White v. White, Bro. C. C. 12, Atty. Gen’l v. Rupin, 2 Peere Wms. 425, Ellison v. Ellison, 6 Ves. 663, 2 Story’s Equity 241, Co. Lit. 113 a. n. 1. McCarty v. Orphan Asylum Society, 6 Cowen, 337.”

Again, in Vaughan v. Shirey, 212 Ark. 935, 208 S. W. 2d 441, we said:

“It is familiar law that equity will not permit a trust to fail through the failure of the named trustee to serve, but will, in that event, appoint another trustee ...”

When Warner Brown conveyed the cemetery to Trustees in 1848, a trust was created. So, even if W. W. Brown, Jr., Alta Goodwin and Dan Lee Staples were not the duly appointed, qualified and acting Trustees of the Warner Brown Cemetery at the beginning of this suit, they certainly were such after the decree of the Chancery Court in this case, because the decree not only recognized them as the Trustees, but recites: “ ... and their appointment are approved and confirmed; . . .” Thus, the Chancery Court, which at all events had the residual power to appoint trustees, approved and confirmed the appointment of the said Trustees and likewise approved the execution of the deed which they made.

III. The appellants say: 11 The trustee grantors named in the deed were without the power or right to execute, acknowledge and deliver said conveyance and in so doing their actions were in violation of the original purposes of the trust and constituted a breach thereof.” This is the most serious question presented by the appeal. If we knew what the original conveyance made by Warner Brown recited, we would know whether the trustees were empowered to make a conveyance of a portion of the property and our question would be answered one way or the other. But, in the absence of such positive information, we have to apply general principles of law. At the outset, we state that what the Trustees did in this case was a very fine, common-sense solution of serious difficulties. In 1848 Warner Brown could hardly have seen that in the next hundred years El Dorado would become an oil metropolis and grow from a town of several hundred people to a large and flourishing city; he could hardly have seen that the little cemetery by the Church would be abandoned for cemetery purposes (the evidence shows that there have been no burials in this cemetery since 1938); and he could hardly have seen that in a hundred years some of the graves would be obliterated and some of the monuments destroyed by time.

What Warner Brown wanted was the permanent maintenance of the burial places of those whose bodies might be interred in the cemetery. The Cemetery Trustees in 1954, by executing the contract and deed with the Church, have accomplished that evident purpose: for all of the bodies theretofore interred in the 86-foot strip have been removed, and the remaining portion of the cemetery is guaranteed continuous care. A very fine and sensible solution has been made by the Trustees. We find no case exactly in point with the situation here, but equity should be as alert to approve common sense solutions as parties are to make them. In Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657, we said:

“ A court of conscience must keep the granted relief abreast of the current forms of iniquity. We should never naively refuse relief against fraud simply because there is no similar instance of such fraud in any of the books.”

The converse of the quoted statement applies here: a good sensible solution has' been made which carries out the evident purpose of Warner Brown; and equity should approve such a solution, even though no case like this one appears in the books.

The Trial Court rested its-, decree on the Cy Pres Doctrine; and that seems very reasonable. There is a splendid recent volume entitled “The Cy Pres Doctrine in the United States,” written by Edith L. Fisch. It is therein stated that the phrase “ cy pres” comes from the French expression t(cy pres comme possible/’ which is translated: “as near as possible.” Bogert, in “The Law of Trusts and Trustees,” Volume 2, A, section 431, says that the Gy Pres Doctrine is:

“. . . the principle that equity will, when a charity originally or later becomes impossible or impracticable of fulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible. It is the, theory that equity has the power to mould the charitable trust to meet emergencies.”

Arkansas, along with twenty-eight other States in the American Union, has approved the Gy Pres Doctrine. Here are some of our cases involving it: State National Bank v. Bann, 202 Ark. 850, 153 S. W. 2d 158; State ex rel Attorney General v. Van Buren School Dist., 191 Ark.. 1096, 89 S. W. 2d 605; and McCarroll v. Grand Lodge, 154 Ark. 376, 243 S. W. 870.

In the case of Bossen v. Women’s Christian National Library Assn., 216 Ark. 334, 225 S. W. 2d 336, we said:

“In 10 Am. Jur. Charities, Sec. 51, it is said: ‘The American Law Institute takes the position that the trustee of a charitable trust can properly sell trust property if a power of sale is conferred in specific words, or such sale is necessary or appropriate to enable the trustee to carry out the purposes of the trust, unless such sale is forbidden in specific words by the terms of the trust or it appears from the terms of the trust that the property was to be retained in specie. Even a prohibition against the sale will not prevent the court from authorizing the trustee to make sale, in case of necessity arising from unforeseen change of circumstances, and to apply the proceeds to the purposes of the trust. Thus, where the circumstances.existing at the time of the creation of a charitable trust have changed to such an extent that in order to carry out properly the charitable intention of the donor, it is necessary to dispose of the trust property and devote the funds to the acquisition of a more suitable location, a court of equity will authorize the sale of the property.’ See, also, Restatement, Trusts, Yol. 2, Secs. 380, 381 and 399; Bogert, Trusts and Trustees, Vol. 2, Sec. 438.”

We reach the conclusion that the decree of the Chancery Court should be affirmed under the Gy Pres Doctrine.

Affirmed.

       This instrument, omitting only signatures, reads as follows: “Know Ye That we lineal descendants of Warner Brown have met in an informal family meeting to consider and give shape to a revival of Trusteeship to a certain Cemetery lot situated in the Town of El Do-rado, Ark. The original Trustees, viz: Peter D. Goodwin, John H. Askew and .. having died without any revival of other Trustees for said Lot and as we can find no record of the work & management of said Trustees but only know that the said Warner Brown, appointed them about the year 1848 to act for the Heirs and descendants of himself, in controlling said lot to be kept and used for a burial place for him & them forever. Knowing these facts we undertake to and hereby revive the Trusteeship by appointing William W. Brown, J. S. Frost and Hugh W. Goodwin as Trustees to assume and take control of said lot. It being all of Lot No. 21 Town Plat of the Town of El Dorado, except that part sold to the Trustees of the Methodist Episcopal Church South see Record Book E, p. 424. And our desire and wish is that the Trustees for Warner Brown Heirs act in concert with the Trustees of the M. E. Church South acting for the Church situated on said Lot in improving, fencing and beautifying said cemetery & church lot and such other matter as may insure to the benefit of both sets of Trustees and as others not heirs of Warner Brown have been permitted to bury their friends on said lot we direct and request that the Trustees herein appointed recognize and make good such permits and if they see proper to grant or sell other like privileges, the proceeds to be kept in trust for repairs of said grounds or to the erection of a suitable mark at the grave of the Donor Warner Brown or both & should either of the Trustees mentioned herein refuse to act, or die, to perpetuate a Trusteeship to said Cemetery property it shall be the duty of the other two to select some one to act as Trustee and in this manner keep up the full corps of Trustees for all time, and to the end that all may know the situation of this property we recommend that the trustees have this placed upon the Record of Deeds in the County Clerk’s Office and also made of record in the books of minutes kept by Trustees of the M. E. Church situated on part of said lot.”

       The records in the office of the State Board of Health do not list the Warner Brown Cemetery as registered in keeping with § 82-402 Ark. Stats.

       There is a conflict in the cases as to the power to sell cemetery lands for other purposes. In 14 C. J. S. 80 the text says: “The power to alienate cemetery lands is restricted, but the fee of a cemetery may be sold subject to the rights of lot owners.” (Here there is no showing that any cemetery lots were ever sold.) Among other cases which sustain the quoted text are: City of Tacoma v. Tacoma Cemetery, 28 Wash. 238, 68 Pac. 723; McDonald v. Monongahela Cemetery (Pa.), 75 Atl. 38; and Laurel Hill Cemetery v. Sargent (Calif.), 238 Pac. 732. Contrary to the above quoted text, there is an Annotation in 130 A. L. R, 250 wherein cases are cited to sustain this text: “Where land has been appropriated for use as a private cemetery, title thereto cannot thereafter be transferred by sale, lease, devise, or descent in any manner so as to affect the rights incident to the Private Cemetery.” A fortiori, the foregoing text would apply also to public cemeteries. But we do not have to decide in this case which rule is correct, because our decision is based on the doctrine of cy pres, which is not considered as a sale but a kindred use of the trust property.

       Quite apart from the Cy Pres Doctrine, we cite for information purposes an Annotation in 168 A. L. R. 1018, and particularly that portion on page 1031 dealing with charitable trusts.


source: Caselaw Access Project

author: MiNob W. Millwee, Associate Justice.

license: Public Domain

text:
    Omohundro v. Saline County.
    5-897
    289 S. W. 2d 185
    Opinion delivered April 16, 1956.
    Appellant Pro Se, for appellant.

      H. B. Means, W. B. Thrasher and Bichará M. Mart, for appellee.
   MiNob W. Millwee, Associate Justice.

Appellee, Saline County, condemned about 1.75 acres of land belonging to appellant for highway purposes along U. S. Highway 167 on a petition filed by the State Highway Department. Appellant’s claim for $15,000.00 in damages was allowed by the Saline County Court in the sum of $102.54. On appeal to circuit court the jury fixed appellant’s damages at $300.00 and she has appealed from a judgment based on this verdict.

Able and competent attorneys represented appellant in circuit court but she represents herself on this appeal. Appellee has very obligingly furnished us with a proper abstract of the record and statement of the issues involved, all of which is understandably lacking in the brief of appellant, who is not an attorney.

According to a stipulation and the proof adduced by appellee, the 1.75 acres were taken from the western edge- of a 50-acre tract owned by appellant. The entire tract is low, unimproved wooded land that is traversed by creeks and subject to considerable overflow. An experienced real estate agent placed a value of $30.00 per acre on the entire tract and stated that the value of the remaining lands had not been diminished by the taking nor had such lands suffered any special damage thereby. A drainage engineer testified that a slight change in the channel of a creek resulting from the highway construction improved rather than injured the drainage of said lands. The lands were assessed for tax purposes at $3.00 per acre.

Appellant was the only witness in her own behalf. She testified that she paid $2,500.00 for the 50 acres about 35 years ago; that there was a knoll or high place where the lands were taken which constituted a prospective house site and without which the balance of the land was rendered worthless to her; and that there had been a total loss in value of the entire 50-acre tract of $300 per acre. She had cut some timber from the lands and admitted she had about the same amount of timber as when she first bought it. By agreement the jury was permitted to view the lands in question.

Appellant first contends the transcript lodged by her is inaccurate and does not contain a true record of the proceedings below. Upon the same contention being made in circuit court, a hearing was conducted pursuant to Ark. Stats. Sec. 27-2129.1. A record of this hearing fully supports the trial court’s conclusion that there were no errors or deficiencies in the transcript of the proceedings. In this connection appellant also argues that six or seven acres of her land were actually taken instead of the 1.75 acres as stipulated by counsel of the parties at the trial. Even if this issue could be raised for the first time on appeal, there is nothing in the record to substantiate this assertion or to show that the stipulation as to the quantity of land taken was either inaccurate or improvidently entered into by the attorneys.

Proper objection was made to evidence offered by appellee as to the assessed valuation of the lands in question for tax purposes. This evidence was admissible under Ark. Stats. Sec. 76-521. While the statute is not controlling, the jury had a right to consider evidence of the assessed valuation along with all the other evidence in ascertaining the value of the lands taken. Washington County v. Day, 196 Ark. 147, 116 S. W. 2d 1051. The award of $300 damages made by the jury was several times the amount fixed by witnesses for appellee. Viewed in the light most favorable to appellee, as we must in determining its sufficiency, the evidence is substantial and sufficient to support the verdict. The judgment is accordingly affirmed.


author: G-bobge Rose Smith, J.

text:
    Ball v. Messmore.
    5-916
    289 S. W. 2d 183
    Opinion delivered April 16, 1956.

      John B. Driver, for appellant.

      W. J. Cotton, for appellee.
   G-bobge Rose Smith, J.

This is a suit by the ap-pellee to quiet his title to 170 acres of land. The appellants intervened and asked that they he permitted to show title in themselves to part' of a twenty-acre tract that was claimed in its entirety by the appellee. The suit became in substance a boundary line dispute and resulted in a decree fixing the boundary along an old fence line that crosses the tract. The appellants contend that the line should have been fixed along a branch that runs through the. tract.

The decree is in accordance with the weight of the evidence. Neither side established, or even attempted to establish, a perfect record title to the land. The chancellor, in rejecting the appellee’s assertion of title to the entire twenty-acre parcel, found that the appellants and their predecessors in title had been for more than seven years in adverse possession of that part of the tract lying south and east of the fence line. The decree accordingly quieted the appellants’ title to that portion of the land. The chancellor confirmed the appellee’s title to the unimproved portion lying outside the fence upon proof of tax payments for more than seven years under ■color of title. Ark. Stats. 1947, § 37-102. ¡v: i

In claiming more land than the chancellor awarded them the appellants rely upon the testimony of several witnesses who say that the branch has long been understood to be the line. This testimony may be true, but it falls short of establishing a record title, or adverse possession, or an agreed boundary line, or any other fact of substantive importance. It shows at most the existence of a general belief about the line, but of course such a belief could not have the effect of vesting or divesting the title to real property.

The appellants think the chancellor erred in allowing the appellee to use affidavits as proof, in spite of the fact that the appellants intervened and contested the case. Ark. Stats., § 34-1906. It is true that affidavits were attached to the complaint; but the trial was heard upon testimony adduced in open court, and there is nothing to indicate that the chancellor gave any weight to the affidavits in the record. In any event we try the case de novo, and without regard to the affidavits the decree is supported by the preponderance of the testimony.

A third contention is that equity does not have jurisdiction to quiet the title to land not in the plaintiff’s possession. The land outside the fence, however, either was in the plaintiff’s possession or was wild and unimproved, so that the case necessarily falls within the court’s jurisdiction. Ark. Stats., § 34-1901.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Graham v. Hill.
    5-920
    289 S. W. 2d 186
    Opinion delivered April 16, 1956.

      Lawrence Dawson and Coleman, Gantt & Ramsay, for appellant.

      Brockman & Brockman, for appellee.
   Paul Ward, Associate Justice.

Virgil Finley Graham died in Pine' Bluff, Arkansas, October 20, 1954, leaving a will by which his entire estáte was left to certain-friends and relatives. Appellants, Elnora Graham 'arid Házel Báffety Lemons, were named esecutrices. The deceased was thought to be unmarried and childless, and his will did not mention either a wife or a child.

When the will of Mr. Graham was offered for probate, appellees, Virgil Hill and Ada May Graham, intervened and claimed the estate as the adopted child and widow, respectively, of the deceased.

Testimony was introduced with respect to the above mentioned claims, and at the conclusion the Probate Judge found that appellees had sustained their claims, and accordingly entered a final order declaring Virgil Hill [or Virgil F. Graham, Jr.,] to be tbe adopted son of the .testator and entitled to inherit the entire estate,’ subject to the dower interest and statutory allowances' of Ada May Graham who was found to be the widow of the testator.

From the above order appellants prosecute this ap-, peal, seeking a reversal on three separate grounds which we discuss below.

1. The first ground relied on by appellants is stated in these words: “Appellees did not discharge the burden of proof which rested on them to establish their respective claims.” In our opinion the great weight of the testimony shows that the testator and Ada May Graham were married in Illinois in 1907 and lived together as husband and wife for several years, and that there is no, evidence that they were ever divorced. It is also conclusively shown that Mr. and Mrs. Graham adopted ap-pellee, Virgil Hill, on May 12, 1919. We do not believe appellants can seriously question the above statements. An Illinois marriage license was introduced showing it was issued November 25, 1907, and that the marriage of. Virgil Finley Graham and Miss Bosa May Whitlock was solemnized on the same day. Appellee, Ada May Graham, testified that they were so married, and she and several witnesses living in Pine Bluff said they lived together in that City as husband and wife. The testimony shows that there was an order entered in the Probate Court of Jefferson County, dated May 12, 1919, showing the adoption of one Orbett Hale by V. F. Graham and Ada May Graham. Introduced also was a copy of the petition of adoption, signed by V. F. Graham and Ada May Graham, dated April 18, 1919, asking to adopt Or-bett Hale, a male child, under the name of Virgil F. Graham, Jr. Numerous witnesses stated that they knew of the adoption and knew that the boy lived in the home of Mr. and Mrs. Graham. There is however some conflict in the testimony as to how long Virgil Hill lived in the home of Mr. and Mrs. Graham, but that feature will be discussed presently. We, tbinjk the’testimony sustains: the trial court on this point. ' .

2. Appellants next contend that “the jurisdictional defects in the order of adoption were not cured by Act 408 of 1947.” The basis for this contention is as follows: It is conceded that the order of adoption fails to show Virgil Hill was a resident of Jefferson County or that the consent of his parents or parent was obtained; and it is further conceded that these defects would have rendered the order of adoption void [under numerous decisions of this court] prior to 1947. Section 3 of said Act 408 provides, generally, that a decree of adoption, theretofore or thereafter made, is not subject to attack “for irregularities or jurisdictional defects” after two years, provided the child has lived with the adoptive parents for that length of time.

Section 3 above mentioned was construed in Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623, and Brunk v. Merchants National Bank, Executor, 217 Ark. 499, 230 S. W. 2d 932, and held to be a valid statute of limitations. In the latter case we said: “. . . an attack on the original order of adoption is barred by limitations under the provisions of Section 3 of Act 408 of the Acts of 1947.”.

We cannot agree with appellants’ contention that the greater weight of the testimony does not support the trial judge’s finding that Virgil Hill lived with his adoptive parents for two years after the date of adoption. While the testimony is not entirely definite and harmonious regarding dates and periods of time, as might be expected after a lapse of nearly. 30 years, yet we think it clearly supports the court’s finding. One witness who lived across the street from the Grahams about 1919 says they had the child for as long as two years. Mrs. Graham said they kept the child about 4 years, that she took him with her to St. Louis in 1925, and then turned him back at the age of five and one-half years, and that she and Mr. Graham lived .together until about 1924 or 1925. Mrs. Watts, who, with her husband, seemed to have had custody of the child before adoption, stated that Mr. and Mrs. Graham kept him until he was five and oné-half years old, and for more than two years after the date of adoption. Mr. Watts said he could not remember dates very well but thought Mr. and Mrs. Graham kept the child more than a year. W. E. Bobo said Mr. and Mrs. Graham were living together in 1922 or 1923 and that they had the child with them at that time.

Mrs. Wooten, however, testified that the Grahams were married in 1918, and that Mrs. Graham left for St. Louis in 1920 when the child was turned back. Mrs. Cameron stated that she knew Mr. Graham in 1920, that he was not married, and that he had no child living with him. Mrs. Lemons thought, but couldn’t swear, that Mr. Graham was not in Pine Bluff from 1920 to 1925.

In view of the discrepancies in the testimony we cannot say that the trial judge, who heard and observed the witnesses, was not justified in finding that the Grahams kept the child two years after the date of adoption.

3. We do not agree with appellants’ contention that “the Probate Code has made a change in the law with regard to the pretermission of children,” as applied to this case. As before noted, Yirgil Finley Graham did not mention his [adopted] son in his will, and appellants take the position that this fact did not render him intestate as to this son, due to a change in the law made by the [new] Probate Code — Act 140 of 1949. Appellants concede the law was otherwise before the enactment of the Probate Code in 1949.

The statutes applicable to pretermitted children, be-1 fore the enactment of the Code in 1949, were Ark. Stats. § 60-119 and § 60-120. The former applies where the will is made before a [pretermitted] child is born and. the latter where the" will is made after the child is born, as in the case under consideration. The above statutes were replaced in the 1949 Code by Ark. Stats. (:Sup.) § 60-507(a) and § 60-507(b). Appellants’ argument is grounded on the change of the wording in said sec1' tion 60-507(a). A comparison of this section with its counter part, § 60-119, reveals-that the former-mentions an “adopted” child while the latter does not. It is reasoned therefore by appellants that, since no reference is made to an “adopted” child in Section 60-507(b) [the section applicable here], the legislature meant to express a difference.between a “natural” child and an “adopted” child, and so meant to exclude the latter. •

We áre not convinced by appellants’ argument, for two reasons.. First, we have many times held [as conceded by appellants] that the word “child” includes an “adopted child” in this kind of a situation. Second, there appears to be a good reason for the above mentioned change in wording. In Section 60-119 it is not literally correct to include an “adopted” child in the phraseology “When a testator shall have a child born . . . ” Although an “adopted” child may occupy the same legal status as a “natural” child, yet it is not correct to say the “adopted” child is born to its adoptive father. We think, therefore, the only significance attached to the change made in Section 60-507(a) is the indication of an effort to use correct phraseology.

Affirmed.


author: Sam BobiNSON, Associate Justice.

text:
    Minge v. Minge.
    5-945
    289 S. W. 2d 189
    Opinion delivered April 16, 1956.

      S. L. Richardson, for appellant.

      Herrn Northcutt .and Óscar É. Ellis, for appellee.
   Sam BobiNSON, Associate Justice.

On December 6, 1954, appellee, Wanda Ya Minge, was granted a divorce from appellant, Lehman M. Minge, and she ¡ was, awarded custody of their five children, ranging in age from thirteen months to seven years. Appellant was ordered to pay $115.00 per month as support for the. children. Only about four months later, on April 12, 1955, appellee filed a petition alleging that appellant was $486.00 behind in 'the payment of support as ordered by the court; and asked that he be cited for contempt. In response, appellant asked that the monthly payments of $115.00 be reduced, or that he be given custody of the children' The chancellor denied a reduction of the $115.00 per month, denied change of custody of the children, and committed the appellant to jail for contempt. The court also ordered that appellant’s parents be allowed to have the children two Sundays out of each month, provided a bond was made in the sum of $1,000.00 for their return, as directed by the court.

Appellant purged himself of the contempt by paying the delinquent support money, and was released from jail; hence, the question of whether the court erred in holding him in contempt is moot. Ex Parte Rubly, 222 Ark. 423, 261 S. W. 2d 4. No facts are shown that would justify a change in custody of the children. As to. whether the court erred in denying a reduction in the $115.00 per month support for the five children, appellant has married again since he was divorced by appellee, but iit appears his present wife is self-supporting. He earns a salary of about $275.00 per month; after he sends ap-pélleé $115.00 per month for the children, hé has remaining about $160.00, and he says he cannot live on that amount. But, thére is no showing that -he cannot live on $160.00. as well as his five children can live on $115;00 per-month pin-fact, it appears that.on $115.00 per- month the children can have .only the barest necessities,, and. the monthly payments cannot be. reduced. without causing the ehildiren.-actual .suffering. • .yn :...

We cannot say .there was an abuse of discretion on the,part of the trial court in requiring a $1,000.00 bond guaranteeing that when the children aré tafeen oh Sunday they will he returned to the mother, as directed by the court.

Affirmed.


author: Lee SeamsteR, Chief Justice.

text:
    Mitchell v. Miller.
    5-902
    289 S. W. 2d 523
    Opinion delivered April 23, 1956.

      Ilerrn Northcutt and W. G. Wiley, for appellant.

      W. E. Billingsley and Chas. F. Cole, for appellee.
   Lee SeamsteR, Chief Justice.

John T. Mitchell died testate in Izard County, Arkansas, on January 24, 1954. Thereafter, on May 23,1955, an instrument dated May 1, . 1946 was admitted to probate by the Izard Probate Court as Mitchell’s last will and testament. The appellant, Forrest Mitchell, has appealed from said order admitting the will to probate.

This is the second appearance of the instant case héfore this court. The first case is found in Miller v. Mitchell, 224 Ark. 585, 275 S. W. 2d 3, whereby this court held .that the will in question was properly executed. The 'appellant now contends that the deceased did not have mental capacity to make a will, at the time of its execution; also that the deceased was unlawfully coerced and influenced to execute said will/

•The record .discloses that the deceased had been married twice, Susie Mitchell being his first wife and the mother of the deceased’s only child, the appellant herein. The deceased and the appellant’s mother were separated when appellant was about two years old and they remained separated for a period of fourteen years. When- the appellant was sixteen years old his parents were' re-united and he lived with them until he was twenty-one years of age.

In 1934, a short time after the death of the appellant’s mother, John T. Mitchell married Martha Mitchell, who is now his widow. There were no children horn of this union, however, Martha Mitchell had two sons',1‘John F. Miller, the appellee here, and L. E. Owens. These two step-sons worked the Mitchell placé and farmed it until the time of John Mitchell’s death, a period of twenty years.

Witnesses for appellant testified that deceased was injured by a runaway team in 1944 and was accidentally shot in the back of the head in 1945: that the two im cidents affected the deceased’s mind so that thereafter he was not mentally capable of transacting his business; that deceased was dominated by his second wife to the extent that she took over and managed his business affairs; that at times the deceased would not recognize them, however, when they identified themselves he would be glad to see them. One witness testified that he reached an oral agreement with the deceased to buy some of the deceased’s- land, however, the wife stopped the sale by saying that the deceased had no land. fpf sale. A similar incident occurred when the wife stopped the sale of two heifers.

Appellee presented evidence to the effect that the deceased. was mentally competent at the time he made and executed his will and that ho one coerced him of interfered with his making of the will. Three disinterested witnesses testified that the deceased was satisfied with the preparation of his will by an attorney and that he was mentally competent at the time of the execution of the will; that thereafter, the deceased continued to transact his own business until shortly before the time of his death in 1954.

"We think the evidence as to the condition of the deceased’s mind, at the time he executed the will, preponderates in favor of his competency. The evidence of undue influence and coercion is inconclusive and of a spotty nature. It must be concluded that the deceased knew the provisions of his will and that these provisions were satisfactory to him. He had ample opportunity to change the provisions of the will, if he had so desired.

This court has held many times that the burden of proving mental incapacity to make a will rests on the one alleging it. Thiel Special Adm. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507. There is no evidence of undue influence being exercised by the principal beneficiaries upon the deceased, at the time of the execution of the will. Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695. The testimony reveals that the beneficiaries took no part in the preparation of the deceased’s will nor did they make any suggestions to the deceased as to the disposition of his property.

The Chancellor saw and heard the witnesses and admitted the will to probate. We cannot say his findings are against the preponderance of the evidence.'

Affirmed.


author: J. SeaborN Holt, Associate Justice.

text:
    Kelley v. Coldren.
    5-929
    290 S. W. 2d 424
    Opinion delivered April 23, 1956.
    [Rehearing denied June 11, 1956.] '

      Giles Bearing, for appellant.

      James Robertson, for appellee.
   J. SeaborN Holt, Associate Justice.

This is a-suit for specific performance of an option, contract to purchase real estate. Appellant, Mrs. Bertha Kelley , (as vendor) and Mrs. Sarah Coldren (as vendee) on April 7, 1947, entered into an option agreement containing these provisions: “That Vendor is the owner of the following real estate situated in Cross County, Arkansas, described as follows, to-wit: Part of the West Half (W %) of the West Half (W %) of Section 34, hounded and described as follows: [then follows a complete'.metes and hounds description]. It is the understanding of,the parties to this contract that the Arkansas State Highway Department contemplates moving Highway No. 64 to a route North of its present location, and possibly said Highway will cross the land and lots set out above. For and in consideration of one ($1.00) dollar cash in hand paid by Vendee, the receipt of which is hereby acknowledged, Vendor agrees with Vendee that if said Highway No. 64 crosses her land or lots above described, she will sell Vendee an acre of land on the South side of said Highway to be selected by Vendee for the sum of Five Hundred ($500.00) Dollars, provided said Highway is built within seven (7%) and one half years from this day. It is agreed that when said highway shall have been completed and opened for use, then within a reasonable time thereafter the vendee shall select said parcel of land on the south side of said highway, notwithstand-mg the fact that the time limit mentioned in this agreement may not then have expired. Yendee agrees that if vendor plats said lands adjacent to said highway, when and if it is built across said lands that lots as set out above she will accept lots and parts of lots according to said plat sufficient to make one acre, provided she shall have at least Two Hundred (200) feet frontage on said highway.”

Appellant, in her answer to appellee’s complaint for specific performance of this option contract, admitted the execution of the above option and also that the route of Highway No. 64 was changed so that it does cross her lands described therein, but denies that said Highway was completed or built and opened to the public for use within the 7% years after the date of the option.

On a trial the chancellor entered a decree on the following fact findings: ‘ ‘ The court finds that the route of Highway No. 64 was changed and the new route crossed the lands of the defendant set out in the Option Contract and said Highway was built within 7% years from the date of the signing of said Option Contract, and that the plaintiff has performed those conditions imposed upon her under the Option Contract within a reasonable time after her rights had accrued and the happening of the contingency upon which the Option Contract was conditioned, plaintiff having on the 6th day of October, 1954, exercised her option and selected the following acre of land on the South side of said Highway No. 64 to-wit: . . . And after the refusal of the defendant to execute and deliver her deed to plaintiff for said acre of land, plaintiff did on the 18th day of February, 1955, file this suit for specific performance of said Option Contract, and paid into this court $500.00 as a tender to the defendant in full consideration for the payment of said acre of land, and the court finds that specific performance of said Option Contract should be directed herein.”

■ ' For reversal appellant earnestly contends that the court' erred' in finding that the highway had been built ■¿bid ;was' 'open for use within- 7% years from the date of the option, and also that the court erred in finding that appellee had exercised her option and selected the acre of land in question as required under the terms of the option agreement.

After a review of all the testimony, which we do not detail, we have concluded that the findings of the chancellor were not against the preponderance thereof. It appears clear to us that the relocated Highway No. 64 across appellant’s property had been substantially built or completed when the appellee, within a reasonable time thereafter, exercised her option to select and buy the one acre tract in question, on October 6, 1954. It was then graveled and in use by the public. We find no provision in the option requiring black-top paving in building the highway, as appellant insists was contemplated. In fact, we find in it no provision for any kind of paving.

While it is true, as appellant argues, that the cited $1.00 consideration was not a valuable consideration, but merely nominal, and that appellant’s offer to sell the one acre tract here might have been withdrawn by her had she acted before appellee’s acceptance of October 6, 1954, however, the evidence shows that she did not act to withdraw said offer before appellee accepted. “It is the acceptance, while outstanding, which gives an option not given upon a consideration vitality,” Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299 and Lion Oil Refin. Co. v. Flocks, 199 Ark. 871, 136 S. W. 2d 163.

Appellant also argues there was no description of the one acre tract in the Option Contract sufficient to warrant specific performance. We do not agree. The option contained a complete description of all of the land out of which the one acre tract was to be selected, and carved, and provided that appellee should select this one acre tract “on the South side of said Highway. . . . and have at least Two Hundred (200) feet frontage on said highway.” This was exactly what appellee did. We hold that this description was sufficient, along with proof adduced, to furnish the key to identify the one acre tract, and in accord with our long established rule that, “the contract [for specific performance] must ■disclose ;a description which:in'itself in definite and cer-.tp.inj.iop one .which is capable of being made certain by other-¡ proof, the'-contract itself' furnishing the key by which the property may be identified,” Routon v. Walthour-Flake Co., Inc., 221 Ark. 354, 253 S. W. 2d 208.

finding no errors the. decree is affirmed.


author: Ed: F. McFaddin, Associate Justice.

text:
    Manila School Dist. No. 15 v. Sanders.
    5-896
    289 S. W. 2d 529
    Opinion delivered April 23, 1956.

      Oscar Fendler, for appellant.

      Bruce Ivy, for appellee.
   Ed: F. McFaddin, Associate Justice.

' The appellant, Manila School District No. 15 of Mississippi County (hereinafter designated as “School District”), filed this action against Earl Sanders, the Johns-Manville Sales Corporation, the Hartford Fire Insurance Company, and five other insurance companies. The complaint alleged .that Sanders contracted to put a Johns-Manville roof on the gyinnasium building of the School District; that the ■roof leaked and was defective, for which Johns-Manville .Corporation was liable;.that the School District-carried insurance on the gymnasium building with the Hartford Company and the other five insurance companies, containing coverage against windstorm and hailstorm, and that the insurance companies were liable for some of the plaintiff’s damages; that, after several unsuccessful efforts to fix the leaks in the roof, Sanders removed several sections of the roof from the gymnasium building, without taking proper precautions against possible rain; and that a rainstorm damaged the floor of the gymnasium to the extent of several thousand dollars, for which Sanders was liable.

Before trial, the Johns-Manville Sales Corporation paid the School District $274.00, and the action was dismissed against that company. Likewise, the School District, after conceding certain payments to have been received, dismissed its complaint against all of the insurance companies. Thus Sanders remained as the sole defendant. In his answer and cross-complaint, Sanders claimed, inter alia: (a) that he put the roof on the gymnasium according to the plans and specifications furnished him; (b) that he did extra work on the roof in the amount of $473.00 for which he prayed judgment; and (c) that he did not fail “. . . to take any precaution to protect the roof or interior of the gym from being flooded with water either before or after the roof was exposed, and denies that his crew rushed off the job and allowed the water to pour into the gym and flood the floor of the gym.”

The case was tried to a jury and resulted in a verdict for Sanders and the School District has appealed, presenting the points to be later discussed, after we have first made some observations on the record before us.

I. The Record Before Us. When the appellant gave notice of appeal, it also designated the points upon which it would rely on appeal and designated that portion of the record which it desired. Such action on the part of the appellant was in full compliance with Act ,555 of 1953, which, is the applicable practice Act in such .cases. If appellee, Sanders, had desired any additional portion of the record to be brought np, he had only to follow the provisions of Act 555. He did not designate any additional record to be furnished, and so he cannot now be heard to say that some portion of the testimony not before us caused the Trial Court to. make certain rulings. Section 12 of Act 555 says in part:

“Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record.” (Italics supplied.)

:, -\Ye dwell on this matter, in detail because appellee insists in several places in his brief that certain testimony not before us would explain away arguments that the appellant makes: The answer to such insistence of appellee lies'in the fact that the appellee should have designated Such additional portions of the omitted evidence as he thought material and that it is too late now for him tó urge before us that certain omitted evidence was material. In the recent case of Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486, we held that we can no longer in a “poiiit-designated-short-record-appeal,” indulge any presumption that something omitted explains away the'- point which the appellant aptly designated.

II. Instructions Relating to “Act of God.” The Court gave to the Jury the Court’s Instructions Nos. 4 and 5, which read:

“COUNT’S INSTRUCTION NO. 4. On the other hand, if you find that the alleged damage to the gymnasium floor of February or March* 1954, of the plaintiff School District was not caused by the negligence of the defendant Sanders, but was -caused by an Act of God or from some other cause or causes, your verdict will be for the defendant.
“COURT’S INSTRUCTION NO. 5. Under the law an ‘Act of God’ is a violent disturbance of the elements, such as a storm, tempest or flood, and it must be the immediate, proximate and sole cause of the loss or damage, not concurred in by the negligence of the defendant, his agents, servants or employees. The Act of God which excuses must be not only the proximate cause,- but the sole cause. ’ ’

To these instructions the School District objected generally and specifically, claiming, inter alia, that the Court should further instruct the Jury regarding the Act of God as follows:

‘ ‘ Therefore, unless you find that the defendant Sanders and his employees were free from fault and that their acts of negligence, if any, did not contribute to or corroborate with an alleged rainstorm in causing the damages here sued upon, your verdict would he for the plaintiff.”

Although the quoted language was lifted from an instruction approved by us in Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79, the Court refused to give the language as requested by the School District. We hold that the Court committed error in failing to give the cautionary instruction as just copied. There is nothing in the pleadings to show that Sanders pleaded that the sudden rainstorm which came up was the act of God; but something must have happened in the course of the trial to cause the Court to give Instructions Nos. 4 and 5 which the Court gave and which we have copied; and when the Court gave those Instructions it should also have instructed the jury as requested by appellant, because, where the negligence of a party concurs with the act of God, then the act of God is no defense. > Mitchell v. Hahn, 131 Ark. 286, 198 S. W. 528; Arkansas Land & Lbr. Co. v. Cook, 157 Ark. 245, 247 S. W. 1071; Hope Basket Co. v. Thomasson, 190 Ark. 956, 82 S. W. 2d 241; and Lee v. Crittenden Co., 216 Ark. 480, 226 S. W. 2d 79.

III. Instruction On Amount Paid By Insurance Companies. The School District asked the Court to instruct the Jury as follows:

“PLAINTIFF’S PROPOSED INSTRUCTION NO. 2. You are further instructed that any recovery that the Manila School District might have received from an insurance company or from a number of insurance companies was,...upo:fL a private contract of indemnity that existed solely between the plaintiff School District and-those insuianee companies, with the premiums paid by the plaintiff School District, and with such recovery being for the sole and exclusive benefit of the plaintiff School District and not for the benefit of the defendant Sanders; and that any payment made by any of the insurance companies to the School District is not a credit upon anything that this jury might find is owed by the defendant Sanders.” , .

The Court refused this instruction and the point was duly preserved. The Instruction should have been given. The only testimony brought before us is that of the witness, Fincher, who was an adjuster for some of the insurance companies; and that witness testified that he paid the School District for his insurance companies a total of about $700.00 because of windstorm and hailstorm damage.

The purpose of the plaintiff’s Instruction No. 2 was to tell the Jury that any money the School District had received from the insurance companies had nothing to do with the liability of Sanders to the School District for leaving the roof exposed. We have already recited that the Johns-Manville company was at one time a defendant and six insurance companies were at one time defendants, and that they all went out of the case by payment and settlement. Without Instruction No. 2 being given, the Jury might have concluded that the only damage to the gymnasium floor-was $700.00 or less and that the School District had received that amount from the insurance companies and could have concluded that the School District had received full compensation. The Instruction No. 2 was a cautionary instruction that should have been given.

For the errors indicated, the judgment is reversed and the cause is remanded.

Mr. Justice Millwee dissents.

       We copy below the designation of the record on appeal and statement of points, as made by appellant, at the time notice of appeal was given: “In accordance with §§ 8 and 11 of Act 555, Acts of the Arkansas General Assembly, 1953,1, Oscar Fendler, as attorney for the plaintiff, Manila School District No. 15, of Mississippi County, Arkansas, which has filed its Notice of Appeal-, do hereby designate the contents of record on appeal and make its- statement of the points on which it intends to rely on the appeal. ■ . . .

        “Designation of Contents

      “I. All pleadings and other written matter that has been filed with the Clerk.
      “II. The instructions to the jury given by the Court and all instructions to the jury offered by the plaintiff, or proposed by the plaintiff whether given by the Court or refused by the Court. Also all objections that plaintiff made to instructions as finally given by the Court, together with any other objections or reasons offered by plaintiff’s counsel in regard to any instructions.
      “III. The testimony of R. C. Fincher.

        “Statement of Points

      “I. The Court erred in giving Court’s Instruction No. 4, because this Instruction does not correctly state the ■ law relating to ‘Act of God’; and because that there was no substantial evidence of any damage being caused by ‘Act of God’ or by ‘some other cause or causes’ on and after March 1, 1954, the date that the Court and parties agreed was the time of alleged damage to the gymnasium floors.
      “II. The Court erred in giving Court’s Instruction No. 5, as modified; because same is only a partial statement of the law relating to ‘Act of God’; because the Court should have added to this Instruction the words specifically requested by the Plaintiff; and because the Instruction made no reference to the defendant Sanders having the burden of proving this defense.
      “III. The Court erred in refusing to give plaintiff’s Instruction No. 3, because this proposed Instruction correctly defined the law of ‘Act of God’ and placed the burden of proving same upon the defendant who relied thereupon.
      “IV. The Court erred in declining to give plaintiff’s proposed Instruction No. 2, because this Instruction correctly stated the law of indemnity under insurance policies, and its omission could have easily confused the jury in concluding that plaintiff has already been paid fully for this alleged tort of defendant Sanders.
      “V. The Court erred in refusing to admit the testimony of R. C. Fincher in regard to the reasons for.the Insurance Company’s making any payments to the plaintiff for alleged storm damage.”

       The following appears in appellee’s brief: “Appellant did not file with this Court an abstract of the testimony of the witnesses. It will be presumed that all the testimony supported the verdict of the jury, and the judgment of the Court. It is also presumed that the Court gave proper instructions covering the pleadings and the issues as developed from the testimony of .witnesses.”

       Parts of the- specific objections were as follows: “The plaintiff now objects to the Court’s Instruction No. 5 on the ground that it is merely a partial statement of the law relating to Act of God and that the court should specifically tell the jury, just as in the case of Lee v. Crittenden County, 216 Ark. 480; in other words, the Court should further instruct the jury, that therefore, this should be added to Instruction No. 5: ‘Therefore, unless you find that the defendant Sanders and his employees were free from fault and that their 'acts of negligence,.if any, did not contribute to. or corroborate with an alleged rainstorm in causing the damages here sued .upon,- .your verdict would be for the plaintiff.’” .. • ■ " ■ ;•


author: MjNob W. Millwee, Associate Justice.

text:
    McCutcheon v. McCutcheon.
    5-942
    289 S. W. 2d 521
    Opinion delivered April 23, 1956.

      Ben C. Henley, for appellant.

      J. Loyd Shouse, for appellee.
   MjNob W. Millwee, Associate Justice.

Under a decree of divorce granted appellant, Betty McCutcheon, from appellee, Kenneth McCutcheon, on April 15, 1954, she was given custody of their six year old son and by mutual agreement was awarded $91.00 per month for the child’s support. On June 29, 1955, appellee filed his petition for modification of the original decree by reducing the monthly support payments. This appeal is from a decree reducing said payments to $50.00 per month.

Appellee is twenty-four years of age and has been in the military service since some time prior to his divorce from appellant. He has remarried and has a young child by his second marriage. His present wife and child live with appellee near his military base. Appellee’s gross military pay at the time of the trial was $274.50 which is slightly more than he was' receiving at the time of the divorce. Deduction of the $91.00 government allotment for the support of his first child left a total net income of $183.50 to appellee which includes an allotment of $65.90 for the second wife and child. Appellee testified that the ádded responsibilities of supporting his second wife and child made it impossible to properly maintain them and also meet the monthly support payment for his first child, the amount of which was agreeable at the time of the divorce. His father testified he had to send extra mo-ney for appellee and his second wife and child to live on.

Appellant testified that her earnings were slightly less than at the time of the divorce and that there had been a slight increase in the child’s expenses since he had attained school age. Her conclusion that it now takes more than $100.00 monthly to keep the child is hardly supported by her attempt to itemize expenses. She now lives on a farm with her parents who have cows and chickens and make a garden. In reducing the support payments, the chancellor found that a continuation of the payments at $91.00 would work a hardship on appellee and his present family, and that the sum of $50.00 monthly for support of his first child represented the amount usually awarded in that jurisdiction for parties similarly situated.

For reversal, appellant contends the remarriage of appellee and birth of his second child did not constitute such a changed condition as would warrant a reduction of the monthly support payments. The amount allowed for child support is subject to modification when required by the changed condition of the parties by increasing or reducing the amount according to the necessity of the one and the ability of the other party. Watnick v. Bookman, 209 Ark. 696, 192 S. W. 2d 131. While the fact that a divorced husband has remarried is not alone ordinarily a ground for reducing the amount of the allowance for child support, it is a circumstance that may be considered in weighing the equities of the situation. 27 C. J. S., Divorce, 1245; 17 Am. Jur., Divorce and Separation, Sec. 703. We have applied this principle in suits for modification of alimony payments. In Lewis v. Lewis, 213 Ark. 262, 209 S. W. 2d 874, we held the trial court properly declined to consider a .husband’s additional obligations created by his remarriage- where other attendant circumstances; very different from those present here, justified such refusal. On the other hand, in Boniface v. Boniface, 179 Ark. 738, 17 S. W. 2d 897, where attendant circumstances were different, this court ordered a substantial reduction in alimony payments to give a second wife and- child something approaching equal treatment with the first wife.

In Dobrzeniecki v. Dobrzeniecki, 223 Ark. 828, 270 S. W. 2d 891, a' contributing factor in the denial of a divorced wife’s request for increased child support payments, where the former husband’s earning power had increased since the original decree, was the fact of his remarriage and the assumption of additional family obligations by reason thereof. In Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409, relied on by appellant, a reduction was denied where both parties had remarried and the soldier husband’s increased net income was nearly twice that received by appellee here.

Appellee had a legal right to remarry and it is not for us to say whether he should or should not have done so under the situation presented here. The fact remains that many young divorced husbands do remarry and additional children are born to the second marriage whose interest and welfare is of as much concern to the courts as those of the first marriage. So we conclude that the chancellor had a right to consider appellee’s remarriage and the fact that he has a child by the second marriage as a material circumstance in determining whether the changed condition of the parties warranted a modification of the allowance for the support of his first child. Under all the circumstances, however, we have concluded that the original award should be reduced to $60.00 per month. So modified, the decree is affirmed.

Ward, J., concurs.


author: Paul Ward, Associate Justice. J. Seabork Holt, J.,

text:
    Rock-Ola Manufacturing Corporation v. Farr.
    5-905
    290 S. W. 2d 2
    Opinion delivered April 23, 1956.
    [Rehearing denied June 4, 1956.]

      Arvey, Hodes & Arnold & Arnold and Mantynbanlc, for appellant.

      Shaver, Tackett & Jones, for appellee.
   Paul Ward, Associate Justice.

Appellant, Rock-Ola Manufacturing Corporation, filed a complaint against appellee, Lynn Farr, d/b/a Lynn Farr Music Company, upon the following allegations: Appellee executed to appellant a note for $2,296.83 on April 4, 1953, [upon which note three payments were made] and also a note for $864.72 on August 20, 1953; Both notes are past due, and demand for payment has been made, and; Appellee has failed and refused to pay. The prayer was for judgment on the notes for the balance due with interest, costs, and attorney fees [as provided in said notes]. For answer, appellee admitted the execution of the notes, but denied all other allegations, and for other defenses stated: (a) The notes were executed'for three automatic record phonographs [and related equipment] which appellant warranted to be fit for. the. purpose intended, but which were not, and; (b) In connection with the purchase 'of said merchandise appellant promised appellee' an exclusive dealership in specified territory but failed and refused to carry out said promise.

After the introduction of testimony by both sides, the issues were submitted to a jury, under the court’s instructions, and the jury returned a verdict in favor of appellee. Appellant now prosecutes this appeal.-

For a reversal of the judgment in.favor of appellee, appellant sets out three points, all of which amount to a contention that there is no substantial. evidence to support the verdict of the jury.

After a careful examination of appellant’s abstract and the testimony set forth, therein [together with the testimony abstracted by appellee], we have reached the conclusion that (a) a jury question was raised by the testimony, and, further, that (b) appellant did not make objections in the trial court adequate to raise, on appeal, the question of the sufficiency of the evidence.

(a) Since we are affirming the judgment of the trial court on two grounds, as indicated above, it would serve no useful purpose to set out the testimony at length. It suffices to point out: The record, as abstracted, shows appellee defended on the ground .of fraud in that his purchase of the merchandise was a part of an oral agreement, whereby appellant was to give him an exclusive dealership in a specified territory in Arkansas and Texas, and that appellant failed and refused to carry out this promise; The testimony clearly supports the above defense, and; The only disputed question of fact is whether appellee waived appellant’s breách of contract by using, and making payments, on the machines after he knew of the breach. While the question is a close one, we cannot say, as a matter of law, that there was no substantial evidence to support the jury’s verdict.

(b) Appellant’s abstract does not show that any proper motion or objections were presented to the trial court to raise, here, the question of the sufficiency of the evidence to support the jury’s verdict.

No instructions or objections thereto and no motion for an instructed verdict at the close of the testimony were shown. Thus, appellant allowed the issues to be presented to the jury without making any objection. Not only did appellant allow the fact issues to be presented to the jury, but, by reference to the record [not abstracted], we find appellant requested instructions [given by the court] on the questions of fraud and breach of warranty. By such action appellant waived the question oif the sufficiency of the evidence. See Bank of Hatfield v. Clayton, 158 Ark. 119, 250 S. W. 347. In this case we said:

“It is further insisted by counsel that appellant, by requesting the court to give instructions submitting the issues to the jury, not only waived the error in submitting the issues at the request of appellee, but waived the right to assign as error the insufficiency of the evidence to support the verdict. Counsel is correct in the first contention, for we have often held that a request for an instruction submitting an issue operates as a waiver of the error in giving an abstract instruction on the same issue.”

In St. Louis, Iron Mountain & Southern Railway Company v. Jacobs, 70 Ark. 401, 68 S. W. 248, it was stated:

“The questions as to whether or not the provision was reasonable and fair requiring suit to be brought within ninety days after the injury, and whether or not such provision had been waived by appellant, were submitted to the jury upon the evidence, at the request of appellant. Appellant, therefore, cannot now complain of the verdict on these questions.”

Again, in Berman v. Shelby, 93 Ark. 472, 125 S. W. 124, this court said:

“Appellant, in his prayer for instruction number II, asked the court to submit to the jury the question as' to whether or not appellees had waived the right to eaneel the lease because of any failure that might have been bn the;part .of appellant to put the water heater in the bath room. Appellant therefore cannot complain of the finding of the jury that there was no such waiver.”

"We find the same announcement in Morris v. Raymond, 132 Ark. 449, 201 S. W. 116, in these words:

“We need not consider whether or not there was sufficient testimony to establish the allegations of undue influence, for as we have already seen, both parties asked for instructions on this question, and appellant can not now complain that there was no testimony upon which to predicate such instructions.”

We note further however it was held in the Clayton case, supra, and in Missouri Pacific Railroad Company et al., v. Lamb, 195 Ark. 974, 115 S. W. 2d 864, that even where no motion for an instructed verdict was requested, the point could be raised in a motion for a new trial which questioned the sufficiency of the evidence. That rule is of no avail to appellant in this case however because no motion for a new trial was made. Act 555 of 1953, Section 11, permits but does not require a motion for a new trial. Section 21 of said Act does require an aggrieved party to “. . . make(s) known to the court the action which he desires the court to take ... ” This was not'done by appellant in this instance.

We deem it proper to dispose of another point argued by appellant. The record shows that after the jury had returned a verdict appellant made the following oral motion to the court: “We wish to move the court for a judgment notwithstanding the verdict of the jury.” This motion is not abstracted by appellant but is merely referred to in the brief.' Assuming [though not deciding] that this reference is sufficient to call for our consideration of the motion, we hold it was not sufficient for the purpose contended. The motion was insufficient, if for no other reason, because it did not call to the court’s attention the [now]- alleged insufficiency of the evidence. By the., wording of this motion the. trial court could only guess why appellant thought the verdict should be set aside and judgment, rendered in. its favor.

.It follows that the judgment of .the trial.court should be, and it is hereby, affirmed. . . .;

Affirmed. ’

Justice Holt dissents.

J. Seabork Holt, J.,

dissenting. As I read the record the primary and decisive question is whether appel-lee, with full knowledge of any alleged defects or alleged fraud, failed to rescind the sales of the material in question and thereby ratified them in their entirety. I am convinced that he did, and, therefore, this court should not permit him to escape his just liability on the notes sued on. The undisputed testimony, as I read it, is to the following effect. Appellee received the equipment involved in February 1953 and executed the notes on April 4,1953 and August 20,1953, to pay for the equipment. Appellee made three payments to appellant of $127.60 each, the last of which was made on September 10, 1953 and knew of the alleged defects in the machines a few days after he first put them on location. He made his first complaint to appellant regarding the alleged defectiveness of the machines in January 1954 and appellant’s engineer repaired the machines in January 1954. Appellee expressly affirmed the sales in January 1954 by offering to return the machines to be sold by appellant, with appellee’s account to be credited with the amount so received. Appel-lee waited until August 1954 before making known any complaint regarding the termination of his dealership or any other alleged ground of fraud. The first trial of this case was held in December 1954 which resulted in appellant being awarded, the relief it sought and appellee put the machines out on location after the first trial in February and March of 1955.

Our governing rule, on facts such as are here presented, is re-announced in the recent case of Teare, et al. v. Denniis, et al., 222 Ark. 622, 262 S. W. 2d 134, “Fraud inducing a contract may be waived, and a contract obtained by fraud, being voidable and not void, may be ratified by the party who was induced by the fraud to enter into the contract. Ratification or its equivalent is shown where with actual or constructive knowledge of the true facts a party by acts of commission or omission shows a clear intent to affirm the contract despite the fraud, as where he accepts the benefits thereof or acts in a manner inconsistent with repudiation. After the defrauded party with knowledge of the facts has elected to treat the contract as valid, he cannot change his position and assert that it is invalid. 17 C. J. S., § 165 b, page 520. See Smith v. Bank of Marianna, 176 Ark. 1146, 5 S. W. 2d 335.” In the more recent case of Advance Aluminum Castings Corp. v. Davenport, 224 Ark. 440, 274 S. W. 2d 649, we held: “Headnote 1 — Sales — Fraud—-Payment as waiver of. — Purchaser of cooking utensils, by making monthly installment after knowledge of defects therein, waived any fraud that might have been practiced on him by vendor. ’ ’

The majority opinion points out that our examination of the record discloses that immediately following the jury’s verdict appellant made the following motion: “We wish to move the court for a judgment notwithstanding the verdict of the jury,” and the majority seem to imply that since this motion was not abstracted it should not be considered even though we actually discovered it in the record. The majority goes further and says that in any event this motion was not sufficient to bring to the trial court’s attention the sufficiency of the evidence to support the verdict. I do not agree. In justice and in all fairness, I think that what appellant did was sufficient to call to the court’s attention the sufficiency of the evidence. It seems to me that it would be entirely too technical to hold otherwise.

I, therefore, would reverse the judgment and remand the cause with direction to the trial court to enter a judgment in accordance with the prayer of appellant’s complaint.


author: Sam Eobinson, Associate Justice.

text:
    Johnston v. Widener.
    5-947
    289 S. W. 2d 520
    Opinion delivered April 23, 1956.

      Kirsch, Cathey & Broivn, for appellant.

      Foster Clarke and Penix & Penix, for appellee.
   Sam Eobinson, Associate Justice.

The appellant, Shirley Johnston, was granted a divorce from the appel-lee, Sylvia Johnston, now Sylvia Widener, in the Craig-head Chancery Court on December 31, 1949. By agreement, the father, Shirley, was given custody of the three children. Later, Sylvia married Widener, and lives in Chicago with her husband. On March 3, 1954, she filed, a petition in the Arkansas court where the divorce was granted, alleging changed conditions, and asked that she be given custody of the children. Three children are involved: Donna Jean, at that time seven years of age; Shirley, age fourteen; and Walter Eay, age twelve. The mother’s petition was granted by the chancellor to the extent of awarding her the custody of the youngest girl, Donna Jean. The father, Shirley, who works in St. Louis, had placed the children with his father and mother who live in Arkansas, and they were allowed to retain custody of the two older children. On appeal, Johnston v. Widener, 225 Ark. 453, 283 S. W. 2d 151, this court held that the father and his parents should be allowed to retain custody of all three children, but said further: “The appellee [Sylvia] shall have at all times the right of reasonable visitation. She will have to win back, if she can, the affection and respect of the children.” On remand, the parties were unable to agree as to what would constitute “reasonable visitation,” and it'became necessary for the chancellor to decide, that point. The chancellor reached the conclusión that the mother should he permitted to have all three children with her in Chicago during the months of June and October each year; the school attended by the children is hot in session during those months. It was further provided that the mother should make bond to return the children as directed. The father, Shirley, has appealed, contending that the chancellor has given the mother custody of the children for part time, which is not in accordance with the reasonable visitation privilege granted by this court.

At the hearing in the Chancery Court on the mother’s petition for custody of the children, it has shown rather conclusively that she was not allowed to see the children at all except under the most difficult circumstances; that she had been accorded no privacy with the children, and, by reason of having been denied a normal relationship with the children, she had lost their affection to some extent. This court suggested that the mother should endeavor to win back the affection of the children, and the trial court was justified in reaching the conclusion that this could be done only by the children being with the mother, as indicated. In these circumstances, we cannot say that the trial court’s order is anything other than a grant to the mother of reasonable visitation privileges.

Affirmed.


author: Lee Seamster,' Chief Justice.

text:
    Smith v. Powell.
    5-909
    289 S. W. 2d 689
    Opinion delivered April 30, 1956
    . Mann & McCulloch,-for appellant:

      Ja.ch P. West and E. J. Butler, for appellee.
   Lee Seamster,' Chief Justice.

The appellants, Mr. and Mrs. T. E. Smith, and the appellee, H. E. Powell, own adjoining farms in St. Francis county, Arkansas. On February 21, 1955, the appellee filed the instant suit alleging that appellants had constructed a fence between their properties, a portion of said fence extending a considerable distance into appellee’s property. The appellee prayed for a mandatory injunction against the appellants, compelling them to remove said fence and fence posts from the appellee’s property, and the restoration of his property to its former condition, with a fence placed on the old fence line between the properties. Upon trial of the issues, the trial court rendered a decree in favor of appellee, whereby, appellants were ordered to remove the new fence and restore the old fence line (true boundary line) to the same condition that it was prior to the relocation of the new fence. The trial court found that appellee was the owner, by adverse possession, of the property north of the old fence line. This appeal follows.

For reversal, the appellants contend: (1) That the new fence is the true boundary line; (2) no adverse possession was acquired by appellee; and (3) there was no binding agreement, between the parties, to move the new fence. . .

The appellants and their witnesses testified that the true boundary line is north of the new fence, based upon a survey made by H. L. Frank, an 82 year old engineer employed by appellants to make a survey. Mr. Frank had been employed for over 50 years as a surveyor for lumber companies in east Arkansas. He started his survey from the road at the southwest corner of appellants’ property running north — then east and back south on the east line of appellants’ property. According to one witness, Frank lacked 10 or 12 feet in.getting back to appellants’ fence at the southeast corner. The south line of appellants’ property was the middle of the road south of his fence. The engineer1 then ran/another survey starting 6 miles north of the line at a known corner and arrived at a point within four feet of the line that h¿ first established as the true boundary line. This line was 33 links north of the new fence line, on the west side, and either 31 or.51 links north of the new fence line on the east side. Prank testified that he had established the true boundary line between the properties.

Appellant, T. E. Smith, and his witnesses, testified to the following: That the old fence line was not straight; that the gaps in the old fence line had been changed several times within the last seven years; that the old fence had not been maintained continuously in one location.

The testimony of the appellee and his witnesses was to the effect that a fence, denoting the boundary line between the properties, had been maintained continuously at approximately the same location since 1906; that in 1927, a surveyor ran the line and found the true boundary line to be the old fence line.

A witness, G-eorge Southall, testified that he had been surveyor of St. Francis County for a period of 33 years; that he had previously surveyed this boundary in 1930 and found the true boundary line to be the location of the old fence line; that after appellants built the new fence and by agreement of the parties, he resurveyed the properties and found the true boundary line to be the same as the previous survey, the old fence line; that the new fence that had been erected by appellants was north of the true boundary line, by 6 inches on the west end graduating to 26 feet 5 inches north on the east end.

Southall further testified that the new fence runs in a northeasterly direction from west to east; starting on the west side it runs north 88 degrees and 43 minutes east, to the east side; that the true line is parallel with the south line of the southwest quarter and this line, according to the Government survey in the State Land Commissioner’s office, runs from west to east on a variation of one degree — it is described as north 89 degrees east. Southall stated that after this survey was made, the appellants agreed to move the new fence to the previous location, but later refused to perform. .

- The evidence reveals that the land north of the old fence line had been enclosed as appellee’s property, for more than 35 years. The appellee had rented the property from 1929 until 1941, at which time he purchased it and used it for farming and pasture during all of said time.

We have had many occasions in the past to pass upon boundary line disputes. It is principally a question of fact. While it is the duty of this court to try chancery cases de novo, the findings of the Chancellor will not be disturbed where they are not against the preponderance of the evidence. England v. Scott, 205 Ark. 47, 166 S. W. 2d 1014.

We find the evidence in this case preponderates in favor of the trial court’s findings and decree, no error appearing, the decree is affirmed.


text:
    Christy v. Smith, Administrator
    5-953
    289 S. W. 2d 885
    Opinion delivered April 30, 1956
    [Rehearing denied May 28, 1956.]

      Courtney C. Crouch and Lewis D. Jones, for appellant.

      A. L. Smithj ioT appellee.
   J. SeaborN Holt, Associate Justice.

Bertha L. Allen died testate leaving the following holographic will: “Siloam Springs, Arkansas Dec. 27-1946. Let this be my last will — After all Dr. bills, hospital and nurse bills, funeral bill and all other debts have been paid set aside $1,000.00 for inscription on stone that should be there up to date and the rest of the $1,000.00 one thousand dollars to be used on the Box and A. M. Allen lot and the I. N. Allen lot for perpetual care — Then pay Albert Allen the son of F. Melvin Allen, deceased and wife Clara Allen $1,000.00 One Thousand Dollars— Then pay Robert Milton Petty Jr. son of R. M. Petty Sr. and wife Lela Petty $3,000.00 Three Thousand Dollars— Then pay Bertha L. Allen’s sisters and brothers One-half (1/2) of the remainder. — each to share equally — and then pay Albert M. Allen’s sisters and brothers the other one-half (1/2) of the remainder — each to share equally.

Bertha L. Allen.”

August 17, 1955 appellants, R. F. Christy and Elizabeth Christy Allen, filed a petition in the Benton Probate Court asking for a construction of the will and alleging: “1. That an instrument dated the 27th day of December, 1946, was on the 24th day of February, 1955, admitted to probate as the Last Will and Testament of Bertha L. Allen, deceased. 2. That A. L. Smith of Siloam Springs, Arkansas, is the duly appointed administrator with Will annexed. 3. That the petitioners herein are the sole and only heirs at law of Edna Etta Box Christy, who was a sister of the said Bertha L. Allen, deceased. 4. That Edna Etta Box Christy died on the 19th day of December, 1929, predeceasing the said Bertha L. Allen, and predeceasing the date of the execution of the instrument admitted to probate as the Last Will and Testament of the said Bertha L. Allen. 5. The petitioners further state that it was the manifest intention of the said Bertha L. Allen that they, the petitioners herein, should be beneficiaries of a portion of her estate in the manner hereinafter set out. 6. That the said Bertha L. Allen, after making certain specific bequests, devised and bequeathed one-half of the residue of her property to her brothers and sisters in words as follows: ‘Then pay Bertha L. Allen’s sisters and brothers one-half (1/2) — each to share equally . . .’7. That at the time the will was executed, the said Bertha L. Allen had only one living sister, viz: Lela Petty. 8. That the said Bertha L. Allen well knew Edna Etta Box Christy to be deceased, and that with the intention that the children of her deceased sister, the petitioners herein, should take their mother’s part, the said Bertha L. Allen used the ‘Sisters’ to indicate that not only should the living sister share in her estate, but also that the children of her beloved deceased sister should share in her estate as beneficiaries of this portion of her estate. 9. That the said Bertha L. Allen well knew the petitioners herein, was exceedingly fond of them, and desired that they should be recipients of her estate along with her other relations. 10. That it is, therefore, manifest that the intention of the said Bertha L. Allen was that the said R. F. Christy and Elizabeth Christy Allen, children of the said Edna Box Christy, should take what would have been their mother’s share had she been living at the time of the execution of the Will, and stand in her place per stirpes in relation to the class. Further, that it was the manifested intention of the said Bertha L. Allen that the devise made to the said Edna Etta Box Christy should not lapse, but should go to her issue . . . [the will was made a part of this petition] WHEREFORE, the petitioners pray that the court construe the said Will and order that the administrator of the said estate distribute to the petitioners whatever part of the said estate that Edna Etta Box Christy, their mother, would have received under the provisions of said Will were she alive at the time of the distribution of said estate.”

Appellee, administrator, demurred to this petition on the grounds, “that the facts set forth in said petition are not sufficient to authorize any construction of said will by this Court; that said petition with the exhibit thereto show on their face that petitioners have no interest in the estate of said deceased; . . . that there is no ambiguity or uncertainty in the language of said will calling for granting of the petition of petitioners for construction of said will and that said petition should be dismissed.” On a hearing the court sustained the demurrer and directed partial distribution of the estate. This appeal followed.

For reversal appellants contend, in effect, that the court erred in holding that the will needed no construction and then proceeding to construe the will without observing the necessary rules of construction, “without holding a hearing on the petition”, and also erred in excluding appellants' (petitioners) from participating in the estate.

We hold that the’ court was correct in sustaining the demurrer. The provisions and language used by the testatrix in the above will are plain and unambiguous and her intention as to the disposition of her property seems to us clear. The substance and effect of appellants’ argument appears to be that Bertha L. Allen, after she had made certain specific bequests, then divided and bequeathed one-half (1/2) of the residue of her property to her sisters and brothers by using this language “then pay to Bertha L. Allen’s sisters and brothers one-half (1/2) of the remainder — each to share equally”, and that in doing so it was Bertha’s intention that appellants, the two children of Bertha’s deceased sister, Edna Etta Box Christy, should stand in their mother’s shoes and take her share. We do not agree. Our rule appears well settled that a legacy or devise lapses when the legatee or devisee died before the testator. There is but one exception to this rule and that is where the legacy or devise is to a child or other descendant of the testator, § 60-410 Ark. Stats. 1947 Supp. Here it is undisputed that Bertha Allen never had but two sisters, one, the mother of the two appellants here, died before Bertha Allen made her will and at her death she had but one living sister. Obviously, from a mere reading of the will, the names of appellants are not mentioned directly or indirectly. There is no uncertainty or ambiguity as to the designation of all beneficiaries under the will. On the question of interpretation: and construction of wills, the.rule announced in a long line of. our cases is. that it is only where there is some ambiguity or doubt as to the meaning of the lan-. guage used in the will that recourse to judicial interpretation and construction is justified, Quattlebaum v. The Simmons National Bank, Administrator, 208 Ark. 66, 184 S. W. 2d 911. In the Quattlebaum case we said: ‘ ‘ The purpose of construction and interpretation being the ascertainment of the testator’s intention, it follows that where such intention is expressed in the will in clear and unequivocal language, there is no occasion for judicial construction and interpretation, and it should not be resorted to or allowed, . . . The cases all agree that the testator’s intention can be gathered only from the will itself and that extrinsic evidence is not admissible to prove an intention in regard to the disposition of the property not expressed in the will. . . . . The rule is established beyond controversy, except when changed by statute, that a legacy or devise lapsed when the legatee or devisee dies before the testator. See, also, Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90. . . . In the absence of a statute to the contrary, the death of a beneficiary before the testator caused the gift to lapse, and it was immaterial whether or not the testator had knowledge, in his lifetime, of the death of such beneficiary.”

In Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546, citing the Quattlebaum case above, we said: “Before the necessity for judicial interpretation of a will may arise there must be found in the language of the will an ambiguity or uncertainty; and where no such ambiguity or uncertainty is found, there is no need for the application by the court of any of the rules for construction.”

Our case of Combs v. Combs, in 172 Ark. 1073, 291 S. W. 818, is in point here, there the question for decision was, as here, whether the complaint stated cause of .action and from a ruling of the trial court sustaining the. demurrer to the complaint and dismissing the case was that appeal. In the Combs case it appears that the testator in his will made a limitation in favor of the sons of “my three brothers Alfred, Sewell and Isaac Combs” when in fact he had only two brothers, bearing the names given. A suit was brought seeking to establish that A.1fred Combs and Sewell Combs, carried in the will, were not his brothers but were nephews. We there said: “Appellants’ next contention is that, the complaint having alleged that C. F. Combs and H. H. Combs are the sons of Sewell Combs, named in the will of Nathan Combs, and that Nathan Combs never had a brother named Sewell, but that said Sewell Combs, of which said appellants were sons, was in fact a nephew of Nathan Combs to designate the sons of his nephew, Sewell Combs, instead of his brother, Sewell Combs, states a cause of action. But the language of the will of Nathan Combs was: ‘ To the sons of my three brothers, Alfred, Sewell and Isaac Combs.’ The contention of appellants is that Nathan Combs intended only to mention the sons of one brother, Isaac Combs, and intended to mention his two nephews, Alfred and Sewell Combs, instead of his two brothers Alfred and Sewell Combs. To do so, we would have to change the language of the will to read: ‘ To the sons of one brother, Isaac Combs, and to the sons of two nephews, Alfred and Sewell Combs.’ We cannot do this, and we cannot hold that the testator intended to name the sons of two nephews instead of the sons of two brothers named. This clause of the will, upon this allegation of the complaint, would be void for uncertainty. 40 Cyc., 1445, announces the rule of the law on this point as follows: ‘In order that a beneficiary may take under a will, he must be designated therein, either by name or by description, with such certainty that he can be readily identified and distinguished from every other person, otherwise the devise or bequest is void for uncertainty.’ . . . there is no uncertainty or ambiguity in the designation, ‘to the sons of my three brothers, Alfred, Sewell and Isaac Combs. ’ It does not read to the sons of one brother and two nephews, but to the sons of three brothers. Therefore parol evidence would not have been admissible in proof of the allegation in the complaint. ’ ’

It would have been a simple matter had the testatrix desired appellants (children of her deceased sister) to share in her estate to have so stated and named them in her will. As pointed out, they were not even mentioned. We think it makes no difference that appellants ’ mother was not living at the time the will was executed, the fact remains that she predeceased Bertha L. Allen, and before the will came into effect on the date that Bertha Allen died. Having concluded that it was the clear intention of the testatrix, Bertha L. Allen, that only such of her two sisters and brothers who survived her should share in her estate, we must and do affirm the judgment.