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

text:
    Carolyn Dianne ZACHRY v. STATE of Arkansas
    CR 75-131
    538 S.W. 2d 25
    Opinion delivered July 6, 1976

      Raffaelli & Hawkins, by: Louis J. Raffaelli, Ted Capeheart and Tackett, Moore, Dowd & Harrelson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Carolyn Dianne Zachry, was charged with capital felony murder in the robbery-slaying of her husband, Curtis Eugene Zachry. She was found guilty by a jury, which sentenced her to life imprisonment without parole. From the judgment of conviction so entered, Mrs. Zachry brings this appeal, arguing seven points for reversal.

Appellant first contends that “there was insufficient evidence upon which to base a jury verdict and court judgment finding appellant guilty of capital felony murder.”

Appellant’s husband, Curtis Eugene Zachry, was found dead from gunshot wounds on the morning of January 9, 1975; he had also been robbed. As a result of subsequent police investigations, appellant was taken into custody at the Texarkana police station on January 21, 1975, and she gave a statement, written down by state policeman James Lester, that was introduced into evidence at her trial. In this statement, appellant first mentioned indignities that she had suffered during the last few years of her marriage, referring to being forced to engage in oral sex, constant beatings, and the fact that Zachry would not allow her to visit her parents. Zachry, however, was unwilling to let her obtain a divorce, and in October, 1974, she contacted Monroe Lindsey by telephone, telling him that she wanted to “get rid” of her husband and inquiring what it would cost. According to appellant, he answered that he would have it done for $5,000 and she met him about a week later and gave him this amount in cash. Subsequently, some few weeks later, when nothing had been done, she again reached Lindsey and he told her that the person that he had contacted had “skipped” and that she would have to come up with some more money. Mrs. Zachry said she was contacted by a man named Lumpkin and that this man told her he would kill her husband for $5,000 (Lumpkin said that Lindsey had talked with him), but that she told him to “forget about it.” According to appellant, in the early part of December, 1974, she was contacted at her home by Charlie Bean, who came to her home alone. She said that Bean told her that he would take the contract for $5,000 and would not have to be paid until after her husband had been killed. Appellant stated that she replied that she needed a few days to think about it, and about a week later offered to pay him $200.00 to “forget it,” but that Bean insisted on going through with the job. She said that he came to her house, got the $200.00, another heavyset man with gray in his hair, being with him; that Bean told her that she could not “get out of the deal” and that the killing would be accomplished on Christmas Eve; however, she stated that she talked him out of killing her husband on Christmas Eve.

Appellant said that on January 8, 1975, around 7:30 P.M., the telephone rang and a man asked for “Eugene,” her husband. She called the latter to the telephone and heard him advise the party on the other end of the line that he would see him after he was dressed. Thereafter, Bean (she did not see him but recognized his voice) came to the house and her husband advised that he was going with this man to buy some land and kissed her. “Eugene left with the man and I knew what was fixing to happen.”

After about three hours, she called Herb McCandless, her husband’s business partner, and told him that Eugene had not returned and that she was worried. McCandless called the police and the next morning she was advised by the Chief of Police that her husband had been killed. Mrs. Zachry stated that she received a call from Charlie Bean during the afternoon, was told that if she opened her mouth, “she would get it too” and Bean said that he needed $1,000. She told him that she would leave this amount in her car at Chez Sue Beauty Shop and that she did leave this amount in an envelope in an automobile; when she returned to her car, the money was gone and she had not since been in contact with Charlie Bean.

At the trial, the state also produced witnesses whose testimony confirmed appellant’s statement about payments to Lindsey and Bean. Bill Brown, President of the Bank of Ashdown, testified that appellant borrowed $2,000.00 from his bank on October 29, 1974, taking the proceeds in cash. Ms. Mary Lou Moore, an employee of First Federal Savings and Loan Association in Ashdown, testified that on the same date appellant made a withdrawal of $3,244.55, taking the proceeds in the form of two checks only after being informed that she could not have them in cash. Likewise, the $200.00 check, endorsed and apparently cashed by Charles Bean’s wife, Frances Bean, was introduced; an officer of the Ashdown bank testified that after it had been cashed appellant came to the bank and picked it up personally, rather than letting it clear through normal channels.

William (“Big Bill”) Lumpkin, Sr., also testified for the state. Lumpkin said that appellant asked him, in December 1974, to kill her husband or to find someone who would do so, offering him a total of $5,000.00. Lumpkin stated that he told appellant “I would see if I could find someone.” Lumpkin also testified that appellant told him that she had paid Monroe Lindsey $5,000.00.

The state’s chief witness was Charles Watson Bean, the admitted killer of appellant’s husband. Bean was arrested on January 21, 1975, and gave his statement to police that day. At the trial, Bean testified that he met appellant in December 1974, near her house, and that appellant told him that she had paid Lindsey $5,000.00 to “do it,” but that Lindsey was not going to “do it.” Bean stated that he “told her that I would see if I could get it done for her,’’and that she told him “to proceed to do it immediately.” Bean “was to be paid $5,000.00.” He said that he and appellant had other meetings to discuss the planned killing, and that appellant even offered to let him kill Zachry in their home, showing Bean through the house, but Bean said that he told her “there was no way that it could happen with children there or in the house. And she said she would try to make arrangements to have the children at her mother’s house, and at this time, it was beginning to be urgent —just wanted it to happen that night. ” According to Bean, “Dianne kept asking that it just happen as soon as possible.”

Bean testified that he requested Jimmy Lee Dyas to help him kill Zachry, but that when appellant could not pay the $5,000.00 before the murder occurred, he and Dyas agreed to go ahead and carry out the “contract” for $10,000.00 to be paid after Zachry’s death. When Bean met again with appellant, he “asked her that if she would give me $100.00, then that would more or less close the deal and would involve her as well as me in case she decided to put me on the spot. After she had paid $100.00, she would have been as involved as much as I would. She didn’t have a hundred dollars on her, so she said, ‘I can give you a $200.00 check.’ ” At Bean’s request, Mrs. Zachry made the check out to her mother, Mrs. Tolleson, who then endorsed it. Bean testified positively that appellant never indicated that the $200.00 was a payment to abandon the killing, but to the contrary she was anxious for the plan to be carried out, stating at one point that if Bean did not hurry and do it, she would kill Zachry herself.

Bean stated that he and Dyas drove to appellant’s house on the afternoon of January 8; sitting in a car in appellant’s driveway, they had just begun to converse with appellant about their plans when “she noticed that her father-in-law was over at the place of business just east of her house .... she asked that we leave that he would probably come in there and we did meet him halfway out of the driveway.” (The state also called the father-in-law, Loyce Zachry, who testified that he saw Bean and Dyas at appellant’s house on January 8; when he asked her who the men were, appellant told him “that’s two tile men from Texarkana” looking for her husband, and “then she changed the subject right quick.”) Bean said that in this conversation they told appellant “ we were going to try to do it that night”; at no time did appellant ever ask them not to kill her husband. Bean also stated that appellant told him and Dyas that her husband “usually carried a lot of money on him and that she wanted it to look like robbery or thought that would be the best thing and that we were to keep his rings if that were true as part-payment of doing it.”

Continuing with his testimony, Bean said that he and Dyas drove in Dyas ’ automobile, to the Zachry home on the night of January 8, and persuaded Zachry to accompany them by pretending interest in buying some real estate listed with Zachry’s agency. After driving to a remote location in Little River County, one of the men told Zachry to empty his pockets, that he was being robbed, and then asked him to get out of the car. Bean said that both he and Dyas were armed, but that Zachry charged at him; in the scuffle Bean emptied his pistol into Zachry. After the fight he shot Zachry one more time, with Dyas’ pistol. The men then took Zachry’s jewelry and money and drove back toward Texarkana. They stopped once, Bean said, when he called appellant and “told her we had done what we agreed to do and she asked me how long it would be before she should notify them and I told her just to use her own judgment.”

Bean said that he called appellant several days after the killing “and asked her when she was going to have some money for us, and she said she would have $1,000.00 for us if that was all right.” Bean later met appellant’s mother at a Texarkana K-Mart store and received a thousand dollars in cash in an envelope. Bean lost $200.00 of this payment, which apparently fell from the envelope in his car, but he split the remaining $800.00 with Dyas. (The state produced a witness, Bill Brown, President of the Bank of Ashdown, who corroborated that appellant had given his bank a note for $1,~ 500.00 on January 16, 1975, putting the proceeds in her checking account; on the same day appellant wrote and cashed an $850.00 check in a Texarkana bank.)

McCandless, after receiving the call from appellant that her husband was missing, with a man named Eddie Woodruff, began a search for Zachry. Appellant had also called Albert C. Moore, owner of a fishing camp near the scene of the killing, telling him that her husband had been gone for 18 hours, that she was uneasy about him, and according to Moore, asked him to check around camp to see if he had been down there. Moore discovered the body early on the morning of January 9. It is apparent that the evidence offered by the state was more than sufficient to justify the jury in reaching its conclusions.

It is asserted that the court erred in admitting into evidence the statement referred to under Point 1, said statement being a violation of her constitutional rights. We do not agree. The trial court held extensive hearings on the admissibility of this statement, given by appellant at the Texarkana police station on January 21 and written down by state policeman James Lester, and ruled that it was admissible. Appellant’s version of the events that transpired before and during the time the statement was given conflicted with the testimony of every other witness, and was not corroborated by any other witness. Appellant’s attack on the voluntariness of the statement is based on allegations that an unknown police officer at the station told her that she might be prosecuted only as an “accessory,” which she interpreted to indicate some lesser degree of culpability; that she was not advised of her constitutional rights until after she gave the statement, and that she was under the influence of drugs when the statement was given.

Sheriff Marlin Surber, who took appellant to the station, testified that he stayed with appellant during most of the time that she waited for questioning (a period that he estimated as no more than 30 minutes), and that he never heard anyone mention the term, “accessory,” to appellant. Appellant herself testified only that she was listening to a conversation among some unidentified officers, and “I asked when I overheard the conversation if we were being charged with an accessory, and he said, ‘Yes, ma’am, I believe so.’ ” Appellant also stated that she had gone to a doctor the previous night, and had received a shot and some pills to help her relax, and that she was still “drunk” from this medication when she gave the statement the next day. No doctor corroborated this statement, nor was there any testimony about the identity of the drugs in question or their effects.

Both James Lester and Danny Sewell, the interrogating officers, testified that appellant was fully apprised of her constitutional rights before the statement was given, and that they also told her that she was a suspect in the homicide. Appellant signed a rights form, introduced at the hearing, that shows that the officers informed her of her rights at 10:30 A.M., before the statement was taken. Neither of the officers noticed anything abnormal about appellant’s condition, and both testified that she became upset only when they told her at the beginning of the interview that she was a suspect. Lester and Sewell also said that appellant never asked for an attorney, and that she never indicated that she wanted the questioning to cease.

The statement itself shows that it was taken in an interview that began at 10:30 A.M. and concluded at 11:45 A.M. and was signed by appellant, who initialed each page and every correction. Appellant herself admitted that the statement accurately reflected what she told the officers.

In reviewing a trial court’s ruling on the admissibility of a statement by a defendant, this court makes an independent determination based on the totality of the evidence, but reverses the trial court only when its ruling is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. There is no question but that the preponderance of the evidence sustains the trial court’s decision.

Appellant asserts that the state’s case rested wholly on the testimony of two accomplices, Charles Bean and Bill Lumpkin, and that the state failed to adduce sufficient independent evidence to sustain appellant’s conviction. This point obviously repeats appellant’s first contention, that the evidence was insufficient, and does not merit extended discussion.

In the instant case, as appellee points out, the state presented undisputed proof that the crime was committed, establishing the corpus delecti. Appellant made a voluntary statement on January 21, identifying herself as the perpetrator of the plan to kill Zachry, and detailing the circumstances under which she acquiesced as her husband left their home on January 8 with Bean and Dyas. The state documented the bank transactions by which appellant obtained the sums of money involved in the scheme. Zachry’s father testified that he saw appellant talking with two men on the afternoon of the day of the killing, and further stated that when he asked about the men, appellant said they were two “tile” men and quickly changed the subject. After the killing, appellant called Moore, who lived in the area where she knew that Bean and Dyas has taken her husband, and asked him to look for Zachry in that area. She also told the sheriff that she thought her husband had been robbed, but she made absolutely no mention of Bean, Dyas or Monroe Lindsey.

The applicable rule of law is well established. “The test of sufficiency of corroboration has been stated to be whether, if the testimony of the accomplice is eliminated from the case, the testimony of the other witnesses be sufficient to establish the commission of the offense and the connection of the accused therewith.” Prather v. State, 256 Ark. 581, 509 S.W. 2d 309. There is no question in this case but that the state presented sufficient evidence to establish the commission of the offense, and appellant’s connection therewith, even if the testimony of Lumpkin and Bean is eliminated.

It is asserted that “The Court Erred In Permitting The State, Over Appellant’s Objection, To Cross-Examine The Defendant-Appellant From A Statement Illegally And Unconstitutionally Obtained and Ruled Inadmissible.”

Appellant, while confined in the Howard County Jail, also wrote a 26 page narrative statement (previously mentioned in a fooinote) on February 1-2, 1975. Although the trial court held that this statement was also admissible, the state elected not to use it in its case-in-chief. When appellant testified in her own defense, however, the trial court permitted the prosecuting attorney to cross-examine appellant about the February 1-2 statement, as a prior inconsistent statement, and afforded appellant an opportunity to explain any discrepancies. The trial court refused to allow the prosecuting attorney to introduce the entire statement at that point because the state had rested its case without proffering it.

It should first be noted that under the standard of Degler v. State, supra, the February 1-2 statement does not appear to be inadmissible. Appellant testified that she wrote the statement only because she received promises of leniency and favorable treatment from a state policeman at the Howard County jail, but the policeman, Sergeant Carroll Page, denied that he had made any promises. The trial court’s decision that the statement was voluntary does not appear contrary to the preponderance of the evidence. Of course, no error could arise from cross-examination about an admissible statement.

Even if it is conceded, arguendo, that the statement was involuntary and inadmissible, this court has previously rejected a contention identical to appellant’s argument, in Rooks v. State, 250 Ark. 561, 466 S.W. 2d 478, a decision premised on Harris v. New York, 401 U.S. 222. Therefore, even if the statement had been inadmissible, the trial court committed no error by permitting the state to use it in cross-examining appellant.

It is next contended that the court erred in refusing to give appellant’s requested instruction on conspiracy.

Appellant requested an instruction, refused by the trial court, that stated a conspiracy to commit a felony is only a misdemeanor if the conspirators do not commit the felony. The proffered instruction followed the language of Ark. Stat. Ann. § 41-1201 (Repl. 1964). Appellant now contends that the refusal to give this instruction was error, since appellant’s “defense in part to the charge filed against her by the State concerned her withdrawal from any conspiracy prior to the death of her husband.”

The trial court correctly refused the instruction. In its interpretation of the statute that is now codified as § 41-1201, on which appellant relies for this instruction, this court held that the statute makes a conspiracy a prosecutable misdemeanor only when the object of the conspiracy is not accomplished. When the purpose of the conspiracy is achieved — as it was in the instant case — then the conspiracy is merged in the greater offense, and § 41-1201 becomes inapplicable. Elsey v. State, 47 Ark. 572, 2 S.W. 337. Appellant’s requested instruction was, therefore, an incorrect statement of the law with regard to the facts of this case, and the trial court committed no error by rejecting it.

It is next urged that since the office of State Police Sergeant Carroll Page at the Howard County jail was “bugged,” appellant was denied privileged and confidential communications with her attorneys.

Before the trial, appellant’s counsel discovered a hidden microphone leading to a recording device in a desk in a room at the Howard County jail. In this room appellant and counsel had held several conferences. Appellant moved to dismiss the information against her, alleging that the illegal electronic surveillance vitiated all criminal proceedings to that point. At a hearing on this motion, Sergeant Page, who owned the equipment, testified that he used it solely to record statements from victims and witnesses who might be afraid to talk before an open recorder; Page also stated that the equipment had never been used in connection with appellant’s case. Moreover, appellant’s counsel admitted that no one forced him to use the room in which the equipment was located; that the machine was not in operation when he discovered it, and that he had no evidence that it had ever been used to record a conference between him and appellant. Actually, it is not contended that any conversations were “bugged.” At any rate, the record contains not one scintilla of evidence that any type of electronic surveillance was ever conducted in this case. Accordingly, appellant’s contention that she was denied privileged and confidential communications with her attorneys is without merit.

Finally, it is vigorously urged that the state made deals with Bean and Lumpkin, and refused to disclose same at appellant’s trial, which was “illegally prejudiced.”

It might first be stated that Lumpkin is not even mentioned in appellant’s argument at all, and there are no facts in the record which could, in any way, support such an allegation. The argument is all directed to a so-called “deal” with Bean. While appellant argues that there was a “deal” which was not disclosed to the jury, the record is contrary to such an assertion. Bean testified that he had been told by the prosecuting attorney that if he testified in behalf of the state, this fact would be taken into consideration, but he was also told that under no circumstances would the prosecutor ever recommend that he receive less than life imprisonment. The witness also emphatically stated that he had never been promised that he would not be sent to the electric chair. The transcript contains five and one-half pages relating to this matter, including statements by counsel for the defense and the state, and a vigorous cross-examination of the witness by appellant’s attorney. The entire proceeding took place in jront of the jury, so there certainly is nothing to the argument that the jury was not informed of any inducements made to Bean. As already stated, the only actual inducement appearing in the record is that Bean was told that his willingness to testify would be taken into consideration. Of course, the credibility of a witness is a matter for the jury to pass upon, and since the jury heard the entire discussion and testimony relating to a so-called “deal,” we can see no possible prejudice.

Appellant filed notice of appeal, and 41 days (according to appellant) after Mrs. Zachry’s conviction, Bean pleaded guilty to first degree murder and was sentenced to life imprisonment. Thereafter, appellant filed a motion with this court asking that a supplemental record of the proceedings held on the day Bean pleaded guilty be ordered included in the transcript on his appeal. We denied this motion, but granted an alternate motion for appellant to file an out-of-time motion for a new trial. This motion was denied and such denial of this motion is also included in this appeal.

After reviewing the proceedings of the sentencing of Bean, we agree with the trial court that there is “nothing inconsistent between the transcript filed in this [main] case and the [transcript of] sentencing of Charles Watson Bean. ” That is, there is nothing to substantiate appellant’s contention that Bean, at the time he testified, had been promised that the death penalty would not be sought, or that he would receive no more than life imprisonment. This court observed, in McDonald v. State, 249 Ark. 506, 459 S.W. 2d 806, that an inducement to testify, even if one is shown, “does not affect the competency of [the witness’s] testimony, for we have held that it goes only to the witness’s credibility.” The federal courts have reached the same result. In United States v. Vida, 370 F. 2d 759 (6th Cir.), cert. denied, 387 U.S. 910, a similar argument was rejected when the court stated that it was not impressed with the contention “that the use of the testimony of an unsentenced accomplice deprives one who stands trial of due process or fair treatment. [Citations omitted.] We find no disagreement with the text that ‘the fact that a witness hopes or expects that he will secure a mitigation of his own punishment by testifying on behalf of the prosecution does not disqualify him. ’ ” See also United States v. Brill, 350 F. 2d 171 (2d Cir.), cert. denied, 382 U.S. 973. In the words of the United States Supreme Court, in Lisenba v. California, 314 U.S. 219, “[t]here is no adequate showing that there was a corrupt bargain with [the witness], and the practice of taking into consideration, in sentencing an accomplice, his aid to the State in turning state’s evidence can be no denial of due process to a convicted confederate.”

As already set out, the jury heard every contention relative to a “deal” advanced by appellant at the time of trial and apparently concluded that the assurance given to Bean that the fact he testified would be given consideration, did not impair his credibility.

We have also examined the record for every objection made, and find no reversible error.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur, but base my agreement on the sustaining of the motion for a new trial on a different basis from that of the majority opinion. The trial court properly held that the motion for new trial should be denied because it was not timely filed. This was jurisdictional. I agree with the trial court, as evidenced by my dissenting opinion to the granting of appellant’s motion to be permitted to file the motion for new trial. See Zachry v. State, 259 Ark. 42B. This jurisdictional defect cannot be cured by this court’s “reinvesting jurisdiction.”

      In a second confession, written by Mrs. Zachry on February 1 and 2, she went into much greater detail (26 pages), and with reference to the 51,-000.00, she stated that she had given it to her mother to give to Bean. She also stated in this second confession, and contended on trial, that her mother, Mrs. Bessie Tolleson, had instigated the plan to murder Zachry, and that her own subsequent statements were attempts to “cover” for her mother. However, she could not give any reason why her mother would have wanted Zachry killed. In addition, she said in both the second statement, and at the trial, that Bean intimidated her into silence by threatening to kill her and the children.

      The witness subsequently identified the two men as Bean and Dyas.

       Actually, with respect to Lumpkin, it is questionable that he was an “accomplice.” The record does not reveal that he was charged with any offense, nor does it indicate that he committed any overt act toward carrying out a conspiracy. This court pointed out in Johnson and Keeling v. State, 259 Ark. 773 (1976), “the burden is on the defendant to show that a witness is an accomplice. ”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Kenneth BINNS v. Earl VICK et al
    76-69
    538 S.W. 2d 283
    Opinion delivered July 6, 1976

      John Wright, for appellant.

      Shaver, Shaver & Smith, by: Tom B. Smith, for appellees.
   George Rose Smith, Justice.

The executors of the will of Pearl Vick filed this petition for a construction of its residuary clause, which reads: “All the rest and residue of my estate, whether real, personal or mixed, I give, devise and bequeath [to] Kenneth Binns to distribute among my relatives as he sees fit. ” The probate court held that the testatrix intended to create a trust, but the beneficiaries were so indefinite that the attempt failed; so the residual estate passed to Miss Vick’s heirs, by intestacy. For reversal Kenneth Binns contends (a) that no trust was intended, (b) that if a trust was intended it did not fail, and (c) that the bequest should be construed as an outright gift to him.

In considering the situation that existed when the testatrix made her will, we adhere to this familiar rule of law: “We must look to the will to determine the testator’s intention, but in getting this view we should place ourselves where he stood, and should consider the facts which were before him in deciding what he intended by the language which he employed.” Eagle v. Oldham, 116 Ark. 565, 174 S.W. 1176, 1199 (1915). Such extrinsic evidence is admitted not to show what the testator meant, as distinguished from what the words of the will express, but to show the meaning of the words that he used. Ellsworth v. Ark. Nat. Bank, 194 Ark. 1032, 109 S.W. 2d 1258 (1937).

Pearl Vick made her will a few months before she died at the age of 84, survived by a brother, two sisters, and the descendants of eight other brothers and sisters. She devised her only real property, a half interest in a house, to two nephews, A.O. Vick, Jr., and the appellant, Kenneth Binns, who were named as executors. There were a few specific bequests to others including two rings and a television set. An electric fan was left to Kenneth. According to Kenneth’s candid testimony, his aunt’s only other possessions were her clothes, to which the residuary clause presumably applied. What Miss Vick never knew was that she was entitled to an inheritance of about $6,000, which was paid to her estate after her death. By the petition now before us the executors of Miss Vick’s will asked the probate court to determine the disposition of that money.

The trial judge’s decision was right. Kenneth, in disputing his aunt’s intention to create a trust, argues that since the will was drafted by an attorney, the absence of any reference to a trust shows that none was intended. Not so. It is an elementary rule of law, doubtless known to the attorney, that a trust may be created without the use of the words “trust” or “trustee.” Thomason v. Phillips, 192 Ark. 107, 90 S.W. 2d 228 (1936); Cockrill v. Armstrong, 31 Ark. 580 (1876). More important, the attorney must have expected the residuary clause to apply only to the testratrix’s personal effects, such as her clothing. In the circumstances there was no occasion for him to waste time and expense in creating a formal trust.

We must, however, apply the language of the residuary clause to the situation that actually arose. Ark. Stat. Ann. § 60-409 (Repl. 1971). Laying aside the possibility of an outright gift to Kenneth, which we shall discuss in a moment, an intended trust is the most reasonable and most practical inference from the language of the will. The question then arises, what did the testatrix mean by her direction that Kenneth distribute the property “among my relatives as he sees fit”?

The word “relatives,” when used in a will, is ordinarily construed in either of two ways. It may be taken to mean the testator’s legal heirs, in which case the bequest is valid. Or it may be taken to mean all persons related to the testator, in which case the bequest usually fails for uncertainty. The authorities are examined in the annotation following Hahn v. Bernheim, 57 A.L.R. 1169, 82 Mont. 198, 266 Pac. 378 (1928).

Here Kenneth is not entitled to a reversal upon either interpretation. If the word “relatives” was used in its broad sense, the trust fails, as the probate judge held. If it was used in its narrow sense, Kenneth can claim no beneficial interest in the estate. He is not an heir at law of his aunt, his mother having survived her sister, the testatrix. Here it should be emphasized that there is no appeal by the testatrix’s heirs or other relatives or by the co-executors of the will. Kenneth alone comes to this court, as an individual, and thus cannot prevail without showing that the judgment is pecuniarily prejudicial to him. No such showing is made.

Finally, the residuary clause cannot fairly be construed to express an intent to make an outright gift to Kenneth. The transfer of the property to Kenneth, “to distribute among my relatives as he sees fit,” is not another way of saying, “I leave all my residuary estate to Kenneth for his own benefit.” There had already been a specific bequest of a fan to Kenneth. That provision would have been unnecessary had the testatrix meant for all the residuary estate to go to Kenneth. It is also argued that the testatrix’s language is merely precatory, but we think it to be imperative under the reasoning of our earlier cases. See Cockrill v. Armstrong, supra; Gregory v. Welch, 90 Ark. 152, 118 S.W. 404 (1909).

Affirmed.

Byrd, J., dissents.


author: John A. Fogleman, Justice.

text:
    Pamela SCHRUM, by Her Mother and Next Friend, Irene Craig GAITHER v. Elbert Glen BOLDING et ux
    76-28
    539 S.W. 2d 415
    Opinion delivered July 6, 1976
    [Rehearing denied September 13, 1976.]

      Eubanks, Files & Hurley, for appellant.

      Howell, Price, Howell & Barron, for appellees.
   John A. Fogleman, Justice.

This tragic case involves the infant child of adolescent parents and the problems of society in endeavoring to make the best of the means at hand to suitably provide for its future. It reaches us on appeal from a final decree of adoption and the denial of the minor mother’s petition to annul an interlocutory decree. We find merit in her contention that the probate court erred in failing to set aside the interlocutory order and reverse.

This child, Terry Lynn Schrum, was born in Bartlesville, Oklahoma on February 20, 1974 to Tim Schrum and Pamela Schrum. Pamela was born April 14, 1958 and was married to Tim on September 21, 1973. They have been separated more than once. They first separated in May, 1974. After a brief stay in a crowded apartment with her mother’s friend, Pamela took the baby in June or July, 1974, and moved into the home of the adopting parents, Glen and Eloise Bolding, with her friend and their daughter, Connie, while Mrs. Bolding was in the hospital.

There is considerable conflict in the testimony about the circumstances and events leading up to a trip on September 16, 1974 to the office of appellees’ attorney, by Mrs. Bolding, and Tim and Pamela Schrum, where the parents executed an entry of appearance in the adoption proceeding and their consents to adoption. Pamela testified that she had been physically assaulted and threatened by her husband when she objected to his proposal that the Boldings be permitted to adopt their young baby. She also said she went along because she was afraid of him, because she had no means of supporting the baby since her husband had refused to do so, and because Mrs. Bolding threatened to call the welfare department to take the child away from her and place him where Pamela could never see him if she did not consent to the adoption. Much of this testimony is controverted, but evidence of Pamela’s reluctance to agree to the adoption and her being upset after she had told her sister and mother what had been done on the same day she signed the entry and consent is not substantially controverted. Shortly after the signing of the consent Pamela moved away from the Bolding residence, either because of her dissatisfaction or because she was asked to leave (contrary to promises allegedly made her) depending upon whose version of the matter is accepted. To say the least, Mrs. Bolding was aware of Pamela’s dissatisfaction with the arrangement within approximately one month after the consent was signed. Mrs. Gaither, Pamela’s mother, said that, when Pamela asked whom to call, she referred her to the only attorney she knew. The petition was filed by this attorney (who later withdrew) six weeks after the entry of the interlocutory order.

The petition for adoption and entry of appearance and consent were filed on September 18, 1974, the day on which an interlocutory decree of adoption was entered. On October 31, 1974, Pamela, by her mother as next friend, filed her petition to annul the adoption, alleging that she was coerced by her husband to sign a consent to the adoption. She prayed that the interlocutory order be rescinded and all action on the matter nullified and that the child be returned to her. During the course of the proceeding, Pamela’s father, Billy Bob Sullivan, was appointed guardian ad litem to defend for her. After a hearing on October 3,1975, the probate court entered its final decree of adoption on October 17, 1975, finding that Pamela’s consent was valid, that the evidence was insufficient to show that fraud was practiced on her or that she was overreached, that the statutory procedure for waiver, entry of appearance and consent to adoption was complied with, that Pamela’s attempted revocation of consent was made after this interlocutory decree was entered, that more than six months had expired since the entry of the interlocutory decree, that it was in the best interest of the baby that her mother’s request for withdrawal and quashing of her consent be denied, and that a final decree of adoption should be entered. The probate court further found that the minority of the mother did not bar or vitiate her consent and that the adoption laws had been substantially complied with.

Appellant questions the jurisdiction of the probate court over her person, saying that the failure to set aside the interlocutory order deprived her of due process of law under the state and federal constitutions. While it is true that substantial compliance with adoption laws is generally sufficient to satisfy due process requirements, we must agree with appellant that, by reason of the fact that no process was served on her prior to the entry of the interlocutory order on the same day the petition was filed, the interlocutory decree should have been set aside.

Ark. Stat. Ann. § 56-104 (Repl. 1971) requires that all persons whose consent to adoption is required be made defendants by name and notified of the proceedings by summons in the manner required by law in chancery proceedings. Of course, parents are in the category of necessary parties. Ark. Stat. Ann. § 56-107 (Repl. 1971). Such a party is allowed 30 days to answer. § 56-104. The hearing on the petition is to follow expiration of the time for filing answer. Ark. Stat. Ann. § 56-108(Repl. 1971). In this case Pamela Schrum was not a named defendant and she was not served with process in any form. Service of summons would certainly be required in a chancery proceeding. See Ark. Stat. Ann. §§ 27-215, 27-336 (Repl. 1962). Furthermore, no judgment may be rendered against an infant until after a defense by a guardian. Ark. Stat. Ann. § 27-825 (Repl. 1962). A guardian ad litem cannot be appointed until after service of process. Ark. Stat. Ann. § 27-826 (Repl. 1962). Proof cannot be taken prior to the appointment of a guardian, in the absence of a statutory guardian, in order that the appointed guardian may have the opportunity of attending when proof is taken. Dudley v. Dudley, 126 Ark. 182, 189 S.W. 838. Judgment rendered against an infant without the appointment of a guardian ad litem, however, is not void, but is irregular and reversible as voidable, in a proper proceeding. Sauve v. Ingram, 200 Ark. 1181, 143 S.W. 2d 541. In other words, failure to have a defense by guardian is error and would be basis for reversal of a judgment on appeal, or would require the setting aside of the judgment on motion before appeal. Sauve v. Ingram, supra. Of course, after the expiration of the term at which the judgment is rendered, one attacking a judgment on these grounds would be barred unless the infancy of the defendant appeared in the record. Ark. Stat. Ann. § 29-506 (Repl. 1962). After expiration of the term, the attack would have to be made under Ark. Stat. Ann. § 29-508 (Repl. 1962); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507. A decree without service of process and defense by a guardian is clearly-erroneous,, but not necessarily subject, to collateral attack. Haley v. Taylor, 39 Ark. 104; Woodall v. Delatour, 43 Ark. 521; Morris v. Edmonds, 43 Ark. 427; Robinson v. Cline, 255 Ark. 571, 501 S.W. 2d 244. See also, Cannon v. Price, 202 Ark. 464, 150 S.W. 2d 755; Davie v. Padgett, 117 Ark. 544, 176 S.W. 333.

The substitute for service of process was Pamela’s entry of appearance. But a minor cannot waive the service of process. In Moore v. Wilson, 180 Ark. 41, 20 S.W. 2d 310, we so held, quoting the following from Ruling Case Law:

An infant can neither acknowledge nor waive the regular service of process upon him, though in some instances a regular service of summons slightly irregular in form was held to be a substantial compliance with the statute, and sufficient to give jurisdiction. ***** It is held in most of the cases that the lack of service of the infant is a fatal, because jurisdictional, defect, and cannot be cured by the appointment of a guardian ad litem, and his making actual defense for the infant, and this ruling seems consistent with the lack of power on the part of the guardian to bind the infant by his admissions or stipulations. A few courts have held, however, that even a lack of legal service does not render the judgment void, if the infant appeared, a guardian was appointed, and a proper defense was in fact made.

There was not the slightest suggestion that this principle applied only to actions for damages or that it did not apply to statutory proceedings where the governing statutes did not specify otherwise. We do not take Martin v. Ford, 224 Ark. 933, 277 S.W. 2d 842 to hold to the contrary. There the questions raised with reference to notice and the lack of appointment of a guardian for the minor mother were by-passed because, when she appeared and testified, after her mother, as next friend, had filed an intervention protesting the adoption, she was of full age. This is not the case here. Furthermore, when the interlocutory decree was entered, nothing in the record disclosed that Pamela was a minor. It is clear that a guardian could not possibly have attended the hearing when the temporary order of adoption was entered.

The importance of these procedural requirements in this case is based upon the effect of the interlocutory decree. Prior to its entry, a consent to adoption may be withdrawn under appropriate circumstances, because there must be valid consent at the time of its entry. Martin v. Ford, supra; Combs v. Edmiston, 216 Ark. 270, 225 S.W. 2d 26. The lapse of time between the consent and the attempted revocation is an important circumstance. But the adoption is said to be effective at the time of the interlocutory order and the validity of consent is to be determined as of the date of that order. A v. B, 217 Ark. 844, 233 S.W. 2d 629. While it has been held that consent can be withdrawn after the interlocutory order, it is clear from these cases that a much stronger showing is required than on a withdrawal before entry of the order. Martin v. Ford, supra.

It also seems obvious that the burden of proof of validity of consent is different before and after the interlocutory decree. It is required that the court, at the time of entry of the temporary or interlocutory order, find from the evidence that there has been proper service of process as required by Ark. Stat. Ann. § 56-108 (Repl. 1971), that there is proper consent to the adoption, and that the adopting parent is morally, physically and financially fit to have custody of the adopted person. Ark. Stat. Ann. § 56-108 (Repl. 1971). Clearly the burden of proof on all these points would be on the petitioner. It is at least implied that one objecting to the adoption between the entry of the interlocutory decree and the final decree would bear the burden of proof, i.e., to show good reason for setting aside the interlocutory order, which is otherwise effective as the adoption. A v. B, supra; Williams v. Nash, 247 Ark. 135, 445 S.W. 2d 69.

This shifting of the burden of proof brings into play constitutional due process requirements, which have been held applicable to adoption proceedings. Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). To hold that the order based upon entry of appearance here was not erroneous and voidable in view of the prompt attack made by the minor parent through her mother and next friend would violate constitutional due process requirements of Art. 2, § 18 of the Arkansas Constitution as well as the Fourteenth Amendment to the United States Constitution. The attack was made in the only manner available to appellant, because the interlocutory order was not appealable. Ark. Stat. Ann. § 56-111 (Repl. 1971).

We must reject appellee’s arguments that Pamela was no longer a minor because she was emancipated by Ark. Stat. Ann. § 55-401 (Repl. 1971). It was not the intention of that act to remove the disabilities of minority. It was only designed to emancipate married women from disabilities attendant upon their marital status, i.e., it permitted her to enjoy all rights as though she were a femme sole. See Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409. Marriage does not relieve a male of all his disabilities of minority. Shinley v. Ricks, 234 Ark. 767, 354 S.W. 2d 547. There is no reason why it should relieve a female of all such disabilities. Harrod v. Myers, supra.

Since we find error in this respect, we do not consider other questions raised or further discuss the effect of this decision upon them. The locus of the burden of proof in this case, where so much depends upon credibility, demands that we refrain from directing the judgment to be entered. It is clear that both the final and the temporary decree must be reversed because proper service of process was not had. There will be no necessity for new service, because an actual appearance has been made as effectively as the minor can do so and, in addition, both her mother, as next friend and her father, as guardian ad litem are before the court and acting in her behalf.

In remanding the case to the trial court for further proceedings, we cannot help expressing our concern for the welfare of this helpless baby. While we do not ordinarily say so in cases such as this, we feel very strongly that in this case the trial court should require a report by the Child Welfare Division under Ark. Stat. Ann. § 56-105 (Repl. 1971).

The decrees are reversed and the cause remanded for further proceedings consistent with this opinion.

Byrd, J., dissents from that portion of the opinion pertaining to the Welfare Division report.


author: Conley Byrd, Justice. Elsijane T. Roy, Justice,

text:
    Walter SKELTON, Assistant Director of The Department of Finance and Administration v. B. C. LAND COMPANY, Inc.
    75-378
    539 S.W. 2d 411
    Opinion delivered July 6, 1976
    [Rehearing denied September 13, 1976.]

      James R. Cooper, H. Ray Hodnett, Robert G. Brockman, Jack East III and James R. Eads Jr., for appellant.

      Gordon, Gordon & Eddy and Partlow & Mayes, for appellee.
   Conley Byrd, Justice.

Following our decision in Skelton v. B. C. Land Co., 256 Ark. 961, 513 S.W. 2d 919 (1974), denying a net operating loss carryover to B. C. Land Co., appellant Walter Skelton, Assistant Director of the Department of Finance and Administration, filed a certificate of indebtedness and caused an execution to be issued thereon on February 3, 1975. On March 31, 1975, the Govennor signed Act 676 of 1975. Section 1 of Act 676 provided that, for income tax purposes, an acquiring corporation would succeed to any net operating loss carry-over that the acquired corporation could have claimed — i.e. it brough the Arkansas income tax law in conformity with the provisions of § 381 and § 382 of the Internal Revenue Code. Sections 2 and 4 of Act 676 provide as follows:

SECTION 2. The provisions of this Act shall apply to all corporate income returns for income years beginning on or after January 1, 1975, and to all corporate income tax returns filed for years prior to January 1, 1975 which are pending on the effective date of this Act and on which the taxes have not been paid.
SECTION 4. It is hereby found and determined by the General Assembly that the present corporate income tax law does not permit one domestic corporation which acquires the assets of another domestic corporation to succeed to the net operating loss carry-over of the acquired corporation under any circumstances; that the absence of any such authority creates a serious hardship on some acquiring corporators and that provision should be made as soon as possible for permitting such acquiring corporations to succeed to the net operating loss carry-over of the acquired corporations under specified conditions, and that this Act is designed to accomplish this purpose. Therefore, an emergency is hereby declared to exist and that this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Pursuant to a petition filed by appellee on April 2, 1975, the trial court entered a final order on August 20, 1975, holding the certificate of indebtedness to be void. For reversal, appellant makes the following contentions:

“I. Act 676 of 1975 is not applicable to the appellee because his tax return was not pending on the effective date of the Act.
II. The appellee has failed to meet his burden of proof showing his entitlement to this tax deduction.
III. Act 676 of 1975 is inapplicable to the appellee because the rights of the State had vested prior to the effective date of the Act and therefore those rights are protected from legislative invasion.”

Under points I and II, supra, appellant takes the position that appellee’s income tax return was not pending on the effective date of Act 676, supra. In this connection appellant would have us construe the phrase “which are pending on the effective date of this Act” to exclude all corporate income tax returns that had become res judicata in the courts. However, Section 2 does not refer to court litigation but to income tax returns. Furthermore, in making this contention appellant ignores the cardinal principle that in construing remedial legislation the courts should do so with appropriate regard to the spirit which prompted its enactment, the mischief sought to be abolished and the remedy proposed, United States v. Colorado Anthracite Co., 225 U.S. 219, 32 S. Ct. 617, 56 L. Ed. 1063 (1912) and Peet v. Mills, 76 Wash. 437, 136 P. 685 (1913). When the provision with respect to pending corporate income tax returns is construed with respect to the mischief sought to be abolished and the remedy proposed, we must agree with the trial court that appellee’s corporate income tax return, uoon which a certificate of indebtedness had been filed and an execution issued, was “pending on the effective date of the Act” within the meaining of Section 2 of Act 676, supra.

Little need be said as to appellant’s contention that appellee has not proven its entitlement to the provisions of Section 2 of Act 676, supra. Since appellant has agreed that appellee meets all of the criteria established in Section 1 of the Act, there is no dispute as to the facts.

In making the argument that Act 676 of 1975 was inapplicable to appellee because the rights of the State had become vested prior to the effective date of the Act, appellant relies upon cases involving only the rights of private individuals, Files, Auditor v. Fuller, 44 Ark. 273 (1884). However, the general rule applicable to individuals does not apply to retroactive legislation impairing a state’s own rights, Greenaway’s Case, 319 Mass. 121, 65 N.E. 2d 16 (1946) and People ex rel. Clark v. Gilchrist, 243 N.Y. 173, 153 N.E. 39 (1926). A state has no vested rights which are immune from its legislative control, 16 C.J.S. Constitutional Law § 243 (1956).

Affirmed.

George Rose Smith, Fogleman and Roy, JJ., dissent.

Elsijane T. Roy, Justice,

dissenting. I cannot agree with the majority opinion in its determination that the appellee’s income tax returns were pending on January 1, 1975.

In construing statutes courts must give words their ordinary and usually accepted meaning in the common language. Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973), and Hicks v. Ark. State Medical Board, 260 Ark. 31, 537 S.W. 2d 794 (1976).

The ordinary meaning of the word “pending” is “in the period before the decision or conclusion of; remaining undecided; awaiting decision or settlement; unfinished.” Random House Dictionary of the English Language, 1967. Another definition is “begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in the process of settlement or adjustment.” Black’s Law Dictionary, Fourth Edition.

These same definitions have been accepted by the courts. U.S. v. 2049.85 Acres of Land, 49 F. Supp. 20 (1943); State v. Faircloth, 34 N.M. 61, 277 P. 30 (1929); Fireman’s Fund Ins. Co. v. Jackson, 161 Ga. 559, 131 S.E. 359 (1926).

In Davis v. Britt, 243 Ark. 556, 420 S.W. 2d 863 (1967), we stated: “It would appear evident that if the case is ‘pending’ there would have been no final judgment.”

“An action is pending so long as it is still open to modification, appeal, or rehearing,” i.e., until final judgment is rendered. (Italics supplied.) 1 C.J.S. Action, § 142, p. 1421.

None of the above avenues of relief remained open to appellee, so this cause could not have remained pending. The judgment was final in every sense of the word when the petition for rehearing was denied on October 14, 1972. The majority bases its opinion on the unsound premise that even though the cause has been finally adjudicated the income tax returns were pending. The issues involved and all substantive matters in connection with the income tax returns had long since been resolved. They had been finally and completely adjudicated. The only thing pending was payment of the tax due by appellee for the years 1969 and 1970. Not having met the criterion of “pending tax returns” appellee is not entitled to the benefit of the net loss carry-over provision on its 1969 and 1970 returns.

Furthermore, to view the matter in any other light involves the more serious issue of illegal classification. While the legislature has considerable discretion in establishing classifications for the purpose of taxation, this discretion does not extend to setting up a classification which relieves from the tax burden here involved all who have not paid the tax and placing in another category the taxpayers who long ago paid the amounts due on their 1969 and 1970 income tax returns under the loss carry-over provision in effect at that time.

The United States Supreme Court has held many times that states in the exercise of their taxing powers, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. In Allied Stores of Ohio v. Bowers, 358 U.S. 522, 79 S. Ct. 437, 3 L. Ed. 2d 480 (1958), the Court stated:

But there is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification “must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415; Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 37; Airway Electric Appliance Corp. v. Day, 266 U.S. 71, 85; Schlesinger v. Wisconsin, 270 U.S. 230, 240; Ohio Oil Co. v. Conway, 281 U.S. 146, 160.

The classification established in this case is arbitrary, discriminatory and has no reasonable relation to an impartial administration of the Arkansas income tax laws.

The majority opinion also states appellant’s citations involve “only the rights of private individuals” and that “the general rule applicable to individuals does not apply to retroactive legislation impairing a state’s own rights.” The opinion also declares that “a state has no vested rights which are immune from legislative control.” However, citizens and taxpayers of this state do have rights involved in this case. One is the right to demand that tax burdens be imposed fairly and impartially and that taxes owed be collected in a nondiscriminatory manner. To waive collection from appellee on the sole basis of refusal to pay the assessment while collecting from other taxpayers under the old loss carry-over provision of the statute is to place a stamp of approval on the most obvious kind of special legislation and put a premium on delay in payment of taxes instead of a penalty.

For the foregoing reasons I respectfully dissent.

Justice George Rose Smith and Justice Fogleman join in this dissent.

      Cited with approval in Kahn v. Shevin, 416 U.S. 351, 94 S. Ct. 1734, 40 L. Ed. 2d 189 (1974).


author: Conley Byrd, Justice.

text:
    Pete LOWREY Jr. v. Lucy LOWREY
    76-75
    538 S.W. 2d 36
    Opinion delivered July 6, 1976

      William R. Wilson, Jr., P.A., for appellant.

      Daggett, Daggett & Van Dover, for appellee.
   Conley Byrd, Justice.

The issue in this appeal is whether the trial court erred in awarding appellee Lucy Lowrey, as part of her property rights under Ark. Stat. Ann. § 34-1214 (Repl. 1962), a one-third interest in a pending Jones Act claim of appellant Pete Lowrey, Jr. The trial court, upon the award of divorce to appellee, awarded “as her statutory interest, one-third of all proceeds derived either by judgment or settlement from the suit of Pete Lowrey, Jr. v. Canal Barge Lines Inc. ” and directed appellant to execute an assignment.

We reverse the action of the trial court for the reasons set forth in Southern Farm Bureau Casualty Insurance Company v. Wright Oil Company, Inc., 248 Ark. 803, 454 S.W. 2d 69 (1970) and Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976). See also In re Schmelzer, 350 F. Supp. 429 (S.D. Ohio 1972). Under those authorities an unliquidated personal injury claim does not constitute personal property for purposes of assignment or by operation of law in matters of bankruptcy. Consequently, we conclude that such a personal injury claim does not constitute personal property within the meaning of Ark. Stat. Ann. § 34-1214.

Appellee’s suggestion that the assignability of the unliquidated personal injury claim was raised for the first time on appeal is not supported by the record.

Reversed and remanded for entry of a judgment not inconsistent herewith.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    MERCANTILE BANK, Administrator With The Will Annexed v. Douglas PHILLIPS, Rosa Lee PHILLIPS, Lee GLASCO and Lela GLASCO
    75-357
    538 S.W. 2d 277
    Opinion delivered July 6, 1976

      Stephen R. Bigger and Alexander, Nicholson & Smith, by: Richard S. Smith, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellees.
   Frank Holt, Justice.

This is an accounting action brough in behalf of certain relatives of Mrs. Gertrude Sharpe, deceased, in the name of the appellant which is administrator of her estate. This case presents the question of the validity of various inter vivos gifts during 1972 and 1973 totalling $59,-738.65 and $6,000 on January 2, 1974, allegedly made to the appellees (and the two children of the Phillipses) by the deceased. These gifts were allegedly made during the last twenty-three months of her life. She was seventy-six years old at the time of her death, February 16, 1974. Appellees are the deceased’s niece, Lela Glasco, her husband Lee Glasco, their daughter Rosa Lee Phillips and her husband Douglas Phillips. A general power of attorney was executed by the deceased to Douglas Phillips on January 26, 1971, and in that capacity he handled the transactions in question which occurred during the interval of March 16, 1972, and January 2, 1974. The accounting hearing was brought by appellant seeking a judicial declaration that the alleged inter vivos gift transfers were invalid based upon (1) breach of fiduciary duty by misappropriation and overreaching, (2) lack of comprehension by reason of mental incompetency, (3) undue influence, and (4) lack of the deceased’s intent or delivery concerning the alleged gift transfers.

The chancellor found and decreed that:

Gertrude P. Sharpe was mentally competent until the last few weeks of her life and then had lucid intervals; that none of the defendants exerted undue influence or overreaching over Gertrude P. Sharpe as to any transfers of property within the meaning of the law; that the gifts made to Douglas Phillips, Rosa Lee Phillips, Jennifer Lyn Phillips, John D. Phillips Jr., Lee Blasco and Lela Glasco by Gertrude P. Sharpe in her life, **** were valid legal gifts from Gertrude P. Sharpe in her lifetime **** with the following two exceptions:
(1) . . . . the said jewelry were not valid gifts inter vivos or gifts cause mortis, and consequently, the aforesaid jewelry must be turned over to the Plaintiff, Mercantile Bank as Administrator ....
(2) That the $3,000.00 check drawn by Mrs. Gertrude P. Sharpe on November 3, 1969, made payable to Douglas Phillips with a notation, “Loan” and endorsed by the said Douglas Phillips, is not barred by the three-year Statute of Limitations and there is insufficient corroboration of Douglas Phillips’ testimony to show that the debt had been forgiven ....

The complaint of the appellant was otherwise dismissed and hence this appeal. Appellees cross-appeal from the decree with respect to the $3,000 check.

Since the appellant’s contentions and arguments made under points 7, 8 and 9 are so related, we will discuss them first and together in order to prevent repetition. The thrust of appellant’s argument is that the deceased did not have sufficient mental competency during the last 23 months of her life to be capable of exercising competent judgment regarding the questioned gift transfers; appellees, being in a fiduciary relationship, have not met the burden of establishing no undue influence or overreaching and, therefore, the chancellor erred in finding the gifts in question were valid, legal gifts. We cannot agree.

It is not disputed by the appellees that a fiduciary relationship existed between appellee Douglas Phillips and the deceased at the time of the alleged gifts. Neither do the appellees question the rule in Barrineau v. Brown, 240 Ark. 599, 401 S.W. 2d 30 (1966), and our similar decisions relied on by appellant; i.e., a donee who has a fiduciary relationship to the donor has the burden of proof, by clear and convincing evidence, to overcome the presumption of invalidity of a gift when it stems from such a relationship.

There is volunimous testimony, both lay and expert, regarding the deceased’s mental capacity. There was some testimony that she was not the same after her husband passed away in 1965 and some testimony that indicated a change after her only child was killed in 1949. There was a great deal of testimony by some of her relatives and, others, including a daytime and nighttime attendant, that during the two years preceding her death in February, 1974, she was at times confused, disoriented and had difficulty recalling facts. She was repetitious in her conversations and actions and was irrational in her behavior. Several witnesses said at times she was just like a child and was not competent to engage in business transactions. There was medical evidence she suffered from cerebral arteriosclerosis (hardening of the arteries) which resulted in senility.

There was an abundance of testimony that most of the time she was entirely rational and able to transact business. Lewis Goad, president of her bank and a friend for more than thirty years, testified “ [S]he needed help in her business but I agree, that given sound help and advice there was no reason why she couldn’t transact business.” The assistant cashier of her bank, who observed the deceased at the bank for twenty-seven years, testified she would characterize her behavior “|J]ust as normal as any elderly person could be.” The pastor of her church testified that she attended church regularly until she became ill in January, 1974. She was active in her Bible class. He visited her in her home once or twice a month and saw her occasionally about town. During the times he observed her “as far as mental judgment and competency are concerned I would say that by and large that she knew who she was, where she was and what she was doing.”

Several witnesses, who saw her regularly including some of her neighbors for many years, testified that they considered Mrs. Sharpe as being rational, normal, mentally alert and competent. Her personal physician, Dr. Swingle, who had treated the deceased for twenty years and saw her socially, testified that up until the last two years of her life she was 100% lucid. From September 1, 1973, until January 28, 1974, he saw her about seven times professionally and socially on occasions. During that time he considered her 80% lucid until she was hospitalized for a physical illness on the latter date. He also testified on cross-examination that “I believe that Mrs. Sharpe was lucid enough to retain in memory, without prompting from another person, the extent and condition of the property she had disposed of by will, inventory and gifts and bequests.....It was my opinion that Mrs. Sharpe was lucid and same and had no defect of reasoning as far as I could ascertain.” According to him she was an exceptional physical and mental specimen until the latter part of 1973.

The appellees, Mr. and Mrs. Glasco, had lived across the street from the Sharpes since 1946. Mrs. Sharpe’s husband gave the Glaseos $4,500 for the purchase of their home in 1964. Mrs. Glasco is Mrs. Sharpe’s neice. During these many years they were very attentive to her every need. When Mrs. Sharpe broke her hip and arm in 1969, she lived with them approximately three months. The appellees, Douglas and Rosa Lee Phillips, lived in a nearby town. Mrs. Phillips is the Glaseos’ daughter and Mrs. Sharpe’s great neice. They, likewise, were constantly solicitous and attentive to Mrs. Sharpe. There was uncontradicted testimony she considered the Glaseos and the Phillipses to be her children and the Phillipses’ children, John and Jennifer, her grandchildren. A close friend and neighbor io the deceased and her husband for many years and who saw her regularly testified as abstracted:

I just don’t see how the relationship of the Glasco and Sharpe family could be any better. They were very close and looked after them day and night.... I would say she looked on them as the only family she had left to look after her, as her children. . . . Well, she had, as I said, her good days and bad days in her memory, but when she was at herself she was at herself, and she never failed to talk sense when I talked to her and when I saw her and visited her. ... I don’t know what Mrs. Sharpe would have done without the Glaseos and the Phillipses. I really don’t.

In referring to John and Jennifer Phillips, this friend said Mrs. Sharpe “talked about she was going to educate the children. ... It was just like they were her own children. ” This is supported by a letter from Mrs. Sharpe in February, 1972, to her bank authorizing the use of certain funds to educate the Phillipses’ children.

Appellee Douglas Phillips is an insurance agent, a C.L.U., with training and experience in business matters. After Mrs. Sharpe’s husband died in 1965, she relied upon him, without any remuneration to him, in the conduct of her business affairs. Her property interests were extensive and reflect total assets of $627,584.84 (real estate $273,000, cash, $500 car, and securities $354,084.84). The attorney, who prepared the legal instrument in January, 1971, giving appellee Phillips a general power of attorney, testified that both Mrs. Sharpe and Douglas Phillips were in his office and there was a discussion as to what she wanted. He then drafted the document, read and explained it to her. She executed in his presence. As abstracted, “[I]t appeared to me that Mrs. Sharpe completely understood it and I thought that it would meet the purposes for which they came. ” Appellee Douglas testified that the deceased directed him to make the gifts in question during the last two years of her life as part of an overall estate tax gift plan and he considered her competent to make the gifts. Several witnesses testified without contradiction that Phillips’ reputation in the community for truthfulness, honesty and integrity was good. One witness said as abstracted “I would say that very well describes his reputation. His integrity is beyond question I would say.”

Appellee Douglas Phillips’ testimony is corroborated by Grover Freeman, a C.P.A., who testified that following Mrs. Sharpe’s husband’s death in 1965 and on various occasions during the last few years of her life, he discussed with her the subject of gift and estate problems and the advantages of having a program of gifts to alleviate her estate taxes. As abstracted, “I would say that Mrs. Sharpe was aware of the tax problems involved in the estate taxes as a result of her husband’s estate tax situation. ... I recommended that she might consider making some gifts to the people that she might be considering in her will [appellees are made beneficiaries in Mrs. Sharpe’s 1967 will] anyway to take it out of the estate to save estate taxes. ... I made the recommendation to her to purchase these bonds [government bonds] and save taxes. This was part of the estate planning that I did with her. I do not recall any other recommendations I made to her besides these gifts and bonds, and generally that was the extent to our conversation in that regard. She bought $100,000 worth of bonds. ... In 1970 she was considering estate taxes and means of avoiding or reducing them. I made the recommendations regarding the gifts at that time. I think she understood generally what was being said to her. ... I might say this, that Mrs. Sharpe had no trouble understanding and following through on a suggestion that she buy $100,000.00 of Federal Government Bonds at a favorable price to alleviate estate taxes. I didn’t have to explain that twice.” In further corroboration, there were five quarterly gift tax returns signed by her covering the period of gifts from March 16, 1972, until December 31, 1973. These five returns identified in detail the gifts which total $59,-738.65. A gift of $3,000 each to John and Jennifer was made on January 2, 1974. Since she died in February, 1974, no gift tax return for that quarter was made.

In summary, the inventory of Mrs. Sharpe’s estate consisted of $627,584.84 in total assets. In her 1967 will she made various specific bequests to her relatives and charities. Among these was an interest in her home to the Glaseos and $10,000 to the Phillipses. However, by specific bequests and the residual clause of her will, the vast part of her estate was left to her brother, sisters and numerous other relatives. Her accountant testified that he had disucssions about a gift tax program with her for the purpose of alleviating her estate taxes. It appears that following these discussions, the gifts in question were made. Five quarterly gift tax returns were filed in 1972 and 1973 detailing the names of the donees, the amounts and the dates of the gifts. It is undisputed that they were signed by Mrs. Sharpe and approved by her accountant. Over one-half of the amount of the questioned gifts were made to the Phillipses’ children, John and Jennifer, regarded by her as her grandchildren. It appears one or both of them were college students. There was testimony by a disinterested witness and a letter from Mrs. Sharpe to her bank indicating her desire to educate John and Jennifer. It is further undisputed that the appellees were kind to Mrs. Sharpe and took painstaking care of her every need for many years. She regarded them as her children.

The finding of the chancellor on a fact question will not be disturbed by us on appellate review unless the finding is against the preponderance of the required evidence. Nutt v. Strickland, 232 Ark. 418, 338 S.W. 2d 193 (1960). In Murphy v. Osborne, 211 Ark. 319, 200 S.W. 2d 517 (1947), we aptly said “the chancellor saw each witness when he testified. The chancellor observed the demeanor on the witness stand, the inflection in the voice and the hesitancy or rapidity of the words flowing from the mouth of the witness. The chancellor thus had an opportunity to see more than the mere words on the printed page which, alone, come to this court.” In the case at bar the chancellor had the advantage of seeing and hearing the witnesses in resolving the disputed issues. Therefore, when we consider this together with all the evidence, we cannot say his finding as to competency, undue influence and overreaching is not supported by clear and convincing evidence.

We next consider appellant’s contention that the chancellor erred in allowing the appellees to introduce appellee Douglas Phillips’ answers to appellant’s interrogatories. Appellant argues that the answers contained inadmissible self-serving declarations and hearsay. We perceive no prejudice because the interrogatories were offered “expressly not for evidentiary purposes” but solely for the purpose of proving they were made and to constitute a waiver of the dead man’s statute. In Motors Insurance Corporation v. Lopez, 217 Ark. 203, 229 S.W. 2d 228, this court said:

A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial.

Appellant also asserts that the chancellor erred in holding that the appellees’ introduction of appellee Douglas Phillips’ answers to appellant’s interrogatories constituted appellant’s waiver of the dead man’s statute, Arkansas Constitution (1874), Schedule 2, which provides in pertinent part:

.... in actions by or against executors, administrators or guardians in which judgment shall be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.

Appellant argues that when the appellee Douglas Phillips’ answers are introduced on behalf of appellees, it cannot truly be said that he was “called to testify by the opposite party,” and, consequently, no waiver of the dead man’s statute resulted by the use of the interrogatories. Appellees respond that by the use of the interrogatories directed to appellee Douglas Phillips, the appellant waived any disqualification of Phillips as a witness. We agree. Smith, Administratrix v. Clark, 219 Ark. 751, 244 S.W. 2d 776; Hood, Executrix v. Welch, 256 Ark. 362 (1974); and Tenny v. Porter, 61 Ark. 329, 33 S.W. 211 (1895).

We next consider appellant’s assertion that the court erred in admitting hearsay testimony of appellee Lee Glasco and appellee Douglas Phillips regarding conversations with the deceased’s husband, A. J. Sharpe, who died in 1965. Appellant argues that the testimony of Glasco and Phillips concerning Sharpe’s generosity was incompetent as hearsay and irrelevant since the question of whether or not Sharpe was a generous man is not an issue. We review chancery cases de novo and consider only such testimony as is competent. Newsom v. Reed, 177 Ark. 177, 6 S.W. 2d 10 (1928). Suffice it to say, here we consider the evidence sufficient without considering the asserted incompetent testimony.

Appellant next contends that the chancellor erred in permitting appellee Douglas Phillips’ “almost carte blanc leeway in incorporating discussions that Phillips alleges ensued with deceased since most of Phillips’ testimony violates the substance and spirit of the hearsay rule and/or the dead man’s statute.” Appellant argues that since virtually all the substance of Douglas Phillips’ testimony is founded upon unreliable self-serving recapitulations of his conversations with deceased, “it would serve little purpose to enumerate practically all the pages of his direct examination testimony that incorporates pervasive hearsay as well as violations of the Dean Man’s Statute.” That part of the argument relating to the dead man’s statute is repetitious and was disposed of earlier in this opinion. As to that portion of appellant’s argument referring specifically to certain conversations as self-serving declarations and hearsay, suffice it to say that we deem other evidence sufficient without considering the asserted examples of inadmissible evidence.

Appellant next asserts that the court erred in admitting picture film strips that had been spliced and edited by appellee. The film in question was a motion picture reel prepared by appellees for trial from several boxes of film which the Phillipses and Glaseos had taken over a period from Easter, 1956, to Christmas, 1965, showing occasions of visits of the two families with Mr. and Mrs. Sharpe. Appellant argues that the motion picture “may not” accurately show what they are represented to portray because the film was spliced and edited without any unbiased supervision; fabrication is “entirely possible” since there is no practical way to determine exactly what was deleted; and to allow such edited and spliced films involving remote occasions as distant as 1956 is so unreasonable as to constitute abuse of the trial court’s discretion. We cannot agree. Here there is no evidence that the films do not represent an accurate reproduction or that they convey a false impression. Counsel for appellant was given an opportunity to view any edited portions of the film in appellees’ possession and to supply any films that it felt were relevant. The pictures were properly admitted. Sloan v. Newman, 166 Ark. 259, 266 S.W. 257 (1924).

Neither can we agree that the chancellor erred in refusing to allow into evidence portions of Dr. Schoettle’s deposition. It is asserted that the court rendered inadmissible relevant admissions against interest allegedly made by appellee Lee Glasco. The evidence about which appellant is concerned is a medical history of the deceased taken from a hospital admissions record which was made when deceased was admitted to the hospital on January 28, 1974. It appears the record itself was not offered into evidence. Suffice it to say that the authenticity of the hospital record was not properly established by any testimony under oath. Further, the portion asserted as being relevant is admittedly based upon the mere assumption of Dr. Schoettle, the deponent.

On cross-appeal it is contended that the trial court erroneously held that the claim based upon the $3,000 debt of appellee Douglas Phillips was not barred by the three year statute of limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962). The thrust of cross-appellant’s argument is that the check given by Mrs. Sharpe to Phillips for $3,000 marked “loan” did not constitute a written contract and since more than three years expired before appellant’s action was commenced, the chancellor erred in not holding the suit was barred. We cannot agree. Appellee Phillips was given power of attorney before the three year statute of limitations had expired. In this fiduciary capacity he was her business advisor and she relied upon him in the conduct of her affairs. Therefore, he is estopped to invoke the statute of limitations. See Leach v. Moore, 57 Ark. 588, 22 S.W. 173 (1893); 51 Am. Jur. 2d, Limitation of Actions, § 452; 45 ALR 3d 630.

Affirmed on direct and cross-appeal.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. The law correctly places upon a fiduciary the obligation to show by clear, cogent and convincing evidence that his self dealings with the trust property were authorized. Regarding the checks which appellee wrote to himself or his family and on which Mrs. Sharpe filed gift tax returns to the Internal Revenue, I cannot say that the chancellor erred; although the issue is close. However, I cannot agree with the majority that appellee discharged his burden of proof as to the checks written to himself or his family on which no gift tax returns were made. We have in the record only the testimony of appellee that those checks were gifts. Surely the majority is not saying that the fact that appellee was kind to and considerate of Mrs. Sharpe corroborated his testimony. If that be the majority’s view, then all embezzlements by a kind and considerate fiduciary should be considered gifts.

For the reasons stated, I respectfully dissent.


author: Frank Holt, Justice. John A. Fogleman, Justice, Conley Byrd, Justice,

text:
    ARKANSAS STATE GAME AND FISH COMMISSION v. Harley D. GILL et al
    75-388
    538 S.W. 2d 32
    Opinion delivered July 6, 1976

      William H. Donham, for appellant.

      George E. Pike and Macon, Moorhead & Green, by: J. W. Green Jr., for appellees.
   Frank Holt, Justice.

This case involves the eminent domain power of the appellant under Amendment 35 of the Arkansas Constitution (1874). Appellant brought suit in the circuit court to condemn 143.76 acres of appellees’ lands pursuant to the authority of that Amendment. The land sought to be condemned is adjacent to approximately 34,000 acres of land (the Bayou Meto Wildlife Management Area) owned and managed by appellant. During the duck hunting season, appellant annually floods a portion (a green tree, artificial reservoir) of the Bayou as a wintering habitat for the migratory mallard duck. The water impoundment is later released in mid-February of each year to prevent damaging the green timber in appellant’s artificial reservoir. As a result of this annual seasonal flooding, approximately 20 to 40 acres of appellees’ lands are sometimes flooded, damaging their crops. Appellant, in its complaint and declaration of taking, alleged that appellees’ lands are necessary, useful and convenient in the exercise of its control and management of the wildlife management area. The appellee landowners filed a motion to strike the declaration of taking on five grounds: (1) the taking is contrary to Amendment 35 to the Arkansas Constitution for the reason that the taking is not in the public interest; (2) the taking is contrary to the finding in Hampton v. Arkansas State Game and Fish Commission, 218 Ark. 757, 238 S.W. 2d 950 (1951); (3) the taking is not necessary to carry out the statutory and constitutional purposes of the Commission; (4) appellee landowners would be irreparably damaged for which they have no adequate remedy at law; and (5) the purpose of the taking is to avoid building dams, levees, or other structures to prevent flooding of appellees’ lands. On appellees’ motion the action was transferred to chancery court. After hearing the evidence, the chancellor dismissed the complaint and declaration of taking, finding in part:

There is really very little difference between the facts of this case and, certainly, the facts that existed and the purposes that were present and involved in the Hampton case. It can be said that the Game and Fish Commission is seeking to condemn the defendants’ lands to make it a part of the Bayou Meto Wildlife Management Area to improve the, basically, duck hunting and duck killing capabilities of this area, and that, the Supreme Court says, it cannot do. **** So, Ground No. 1., the Court holds that ultimately, even though the witnesses for the plaintiff were not trying to deceive the Court, the Court believes they gave their testimony in utmost good faith, but when they have testified that the purpose is to improve the habitat of this area, the Court must pursue that further than they did and, as stated, and to repeat, that is in the opinion of this Court for the purpose of improving that quality of the habitat so that the duck shooting in that area can be and will be enhanced, and that is not permitted under Arkansas Law according to the Hampton case.

Appellant asserts that the evil sought to be corrected is that the Commission cannot fully operate its green tree artificial reservoir without flooding the appellees’ private lands lying adjacent to the Bayou Meto Wildlife Management Area. Therefore, the acquisition is for the purpose of acquiring such lands in order to fully utilize the waterfowl habitat previously acquired for the W.M.A. Appellant candidly admits that it is asking this court to either overrule or distinguish Hampton, supra, from the case at bar. Appellant further correctly recognizes that this court is reluctant to overrule previous decisions except for clear and demanding cause.

In Hampton, supra, the Arkansas Game and Fish Commission, pursuant to Amendment 35, sought to condemn 1,-320 acres of land to become part of the Bayou Meto Wildlife Management Area. The chancery court sustained the Commission’s authority to exercise eminent domain there. On appeal we reversed saying:

So here the State cannot, under the guise of a game refuge, take the property of private citizens and then convert the property to a public hunting ground to satisfy the sporting instincts of other citizens. A careful study of the entire Amendment No. 35 shows that it is not the duty of the Commission to acquire lands by eminent domain in order to establish shooting grounds where the public may kill migratory fowl. That is the basic question in this case; and we hold that the Commission does not have such power.

In the case at bar the chancellor found the same situation to exist as in the Hampton case; namely, the Commission was attempting to improve the habitat of the Bayou Meto area for the purpose of enticing migratory mallard ducks to this public hunting ground for the purpose of hunting and killing ducks. We think the evidence clearly preponderates in support of the chancellor’s finding. In fact, appellant agrees that it “has no quarrel with the finding of the court below that the direct purpose of the taking was to improve the quality of the habitat for ducks, but that the purpose of improving the habitat was to attract more ducks to the Bayou Meto Wildlife Management Area where regulated public hunting is allowed.” The thrust of appellant’s argument, as indicated, is that we should “either outright reverse the rule established therein or distinguish it from the case at bar.” We must decline appellant’s persuasive argument to overrule the longstanding precedent established by Hampton. Neither can we agree with appellant that Hampton is distinguishable from the case here. Nor can we agree that Hampton is overruled by our decision in State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S.W. 2d 342 (1951).

We deem it unnecessary to discuss appellant’s additional contention that the chancery court was without jurisdiction to substitute an alternative remedy (building a levee with pumps to prevent flooding) to the eminent domain proceeding initiated by appellant.

Affirmed.

Smith, Fogleman, and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent, but I cannot join with those who would overrule Hampton v. Arkansas State Game & Fish Comm’n, 218 Ark. 757, 238 S.W. 2d 950. On the record before the court in that case it seems to me that the court was right. Amendment 35 does not authorize the exercise of the power of eminent domain .to acquire lands on which to establish a public duck hunting project. That was the only question presented and the only one decided. In Hampton, the complaint alleged that the Commission had the obligation, duty, authority and responsibility of acquiring, developing and maintaining hunting and fishing facilities for the use and benefit of sportsmen and that the taking was in the discharge of that duty. Clearly, it does not have that duty but no other purpose for the taking in Hampton was alleged or proved. The landowner’s challenge was that the Commission did not have the power to condemn the lands for the purposes stated in the complaint and that the Commission did not have the obligation, duty, authority or responsibility of acquiring, developing or maintaining public hunting facilities. It was stipulated at the beginning of the trial that the question to be presented to the court was whether the Commission had the right to condemn the lands “for the purposes shown by the pleadings and proof for such condemnation.” The decree in the chancery court recited the stipulation. The executive secretary of the Commission testified that the number one purpose of the plan in its inception and execution was “duck hunting and shooting.” The report of the Commission’s Coordinator of Federal Aid stated that the Commission’s greatest possible accomplishment was in the “acquisition of suitable areas for public hunting, that “we are now ready for the final push which will make one public hunting ground an accomplished fact.’’“The only possibility . . . is through the purchase of public hunting areas,” and “In the spring of 1946, an investigation was made of the possibility of establishing a public shooting ground in the Bayou Meto area . . . The area is physically well adapted for use as a duck hunting area and has an excellent reputation in this respect.”

As the court said in Hampton, a public shooting ground can hardly be likened to a hatchery, sanctuary, refuge or reservation. It was conceded in Hampton that only one-fourth of the area would ever be used as a refuge. The opinion concluded:

... A careful study of the entire Amendment No. 35 shows that it is not the duty of the Commission to acquire lands by eminent domain in order to establish shooting grounds where the public may kill migratory fowl. That is the basic question in this case; and we hold that the Commission does not have such power.

This is a different record indeed. In the declaration of taking, it was alleged that the public use for which the property was taken was to facilitate the control and mangement of a wildlife management area. On the face of the pleadings the taking was for purposes stated in Amendment 35.

Bill Gaines, Real Estate Officer for the Commission, who has a bachelor’s degree in biology with special courses in wildlife management, forestry and surveying, testified about the purposes of the taking, as did Lawrence N. Owens, District Game Biologist for the Commission. Their testimony may be summarized:

There is a green tree reservoir on the Bayou Meto Wildlife Management Area, which is controlled by two levees, the upper Vallier School levee and the lower Vallier School levee. The upper levee has very little watershed and is utilized to keep water off the Gill property, holding that reservoir to 551.53 acres. The normal pool elevation to afford an adequate waterfowl habitat in the winter in the upper area (1,243 acres) is 1,785 feet mean sea level, but when the water reaches this level, it overflows on the Gill property and another tract. The Commission would like to maintain an area of 3,566.67 acres as a green tree reservoir, and would use all the Gill land, other than that upon which the water would spread, as a buffer zone for excess runoff and excess water in the area. The acquisition of this piece of property is necessary, useful or convenient for the use of the Commission in the exercise of its duties for the following reasons:
The acquisition of this piece of property from a management standpoint of managing the green tree reservoir for a wildlife and waterfowl habitat, this property is necessary to act partially as a buffer zone when you have high flows into the area and not capable of letting the water out of the basin quick enough and getting on this private land and also a portion of it to be a permanent pool for waterfowl habitat without hampering of the management of the entire upper green tree reservoir.
Without the acquisition of this property it would be almost futile to even attempt to manage a green tree reservoir in the upper Vallier School area. The terrain is so fiat that raising the water level six inches increases the size of the green tree reservoir from 551 acres to 1,-243 acres, but managing the green tree reservoir here is almost useless because pa vate property is damaged when water is raised to the higher level. The maximum manageable green tree area includes a portion of the Gill property. The primary purpose is not to grow grain on the Gill property but to acquire fee title so the management of the Bayou Meto Wildlife Management Area can be carried out. The purpose of having water in the green tree reservoir is to provide winter habitat for waterfowl, principally ducks. No designated area is set aside in the Wildlife Management Area for hatching and raising ducks. Part of it, the Wrape plantation, consisting of 500 acres, is closed to duck hunting, except for the last three days of the season. The rest of the area is closed to duck hunting for half of each day, so that ducks will remain in the area throughout the winter. Constant harassment would cause them to leave. Some mallards remain in Arkansas throughout the winter.
The waterfowl is dependent upon wintering grounds as much as upon rearing ponds in Canada and the northern part of the United States. Providing for them to remain and feed in the winter is part of conservation. Arkansas, along the Mississippi River and in the Stuttgart area, has been a traditional mallard winter ground during migration. Because the area is a basin which floods, it has been used primarily for waterfowl management. The primary purpose is to attract ducks during the winer months and the provision of hunting along with that is within the realm of good, scientific game management. The overall purpose is management. The side effect is hunting.
Mallards attracted to the area from the Mississippi flyway remain until about the middle of February. The spillways are then opened. Only about five per cent of the Bayou Meto Wildlife Area — the green tree area — is flooded for waterfowl. A primary purpose of the green tree area is duck hunting, which is a tool in conservation to keep the waterfowl population in balance. The Wildlife Management Area surrounds the Gill property on three sides. The combined area of the upper and lower green tree reservoirs was designed to flood between 7,000 and 9,000 acres. The area was primarily set up for a wintering habitat for waterfowl, not for hunting.

Amendment 35 to the Arkansas Constitution charged the Commission with the duty of control, management, conservation and regulation of birds, game and wildlife resources of the state. §§ 1 and 8, Amendment 35. Traditionally, waterfowl have been a resource of this state. Providing a winter habitat for them is a proper function of the Commission in the control, management, conservation and regulation of the migratory waterfowl which are birds, game and a wildlife resource. The evidence shows that a winter habitat is as essential in the conservation and management of this wildlife resource as nesting grounds. The evidence also shows that hunting is necessary to maintain the proper population balance as a conservation measure. If summer or winter habitats are overpopulated, it stands to reason that this wildlife resource will suffer. There was no evidence in Hampton that conservation or propagation was promoted by intermittent shooting, or a thinning out process, as there is here. The primary purpose here is not acquisition of a public duck shooting facility. Hampton is easily distinguished.

I would reverse the decree and remand for further proceedings.

Conley Byrd, Justice,

dissenting. To me the case of Hampton v. Arkansas State Game & Fish Commission, 218 Ark. 757, 238 S.W. 2d 950 (1951), was overruled by State Game & Fish Commission v. Hornaday, 219 Ark. 184, 242 S.W. 2d 342 (1951). If the Game and Fish Commission can use the power of eminent domain to make a lake for fishermen to fish, I fail to understand the logic that prevents the Commission from using the same power of eminent domain to provide a lake for duck hunters to hunt. Amendment 35 to the Arkansas Constitution does not make the distinction.

For the reasons stated, I respectfully dissent.

George Rose Smith, J., joins in this dissent.