author: Humphreys, J.,

text:
    Less v. Less.
    Opinion delivered April 9, 1923.
    1. Dower — jurisdiction to adjudge liens. — Where a widow sought to have dower assigned to her in lands subject to the lien of a mortgage executed by her husband in his lifetime, and also to a 'lien in favor of a divorced wife for alimony decreed to her, the chancery court had jurisdiction, in apportioning dower to plaintiff, to determine that such dower interest was subject to the above liens, and such determination became res judicata.

      2. Dower — enforcement of liens. — Where a widow’s dower was adjudged to be proportionately subject to a mortgage and to a lien for alimony decreed in decedent’s lifetime to a divorced wife, and the heirs paid off the mortgage at maturity, it was proper, in a suit by the heirs for contribution from the dower lands and to sell such lands to enforce their lien, to have the lien for one-third of the alimony reduced to an annuity, so that the divorced wife may share in the proceeds of the sale with the heirs, who are subrogated to the rights of the mortgagee.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      W. E. Beloate, for appellant; W. A. Cunningham, of counsel.
    Motion to strike out part of record should be granted. Order, basis of complaint, is not definite or final. 6 Standard Pro. 741; 148 Ark. 380. Amount due not determined. 25 Ark. 429; 34 Ark. 128; 141 Ark. 155; 25 N. Y. 613; 82 N. Y. 560. Order not a bar to right to question liability of lands to contribution. 96 Ark. 87. Demurrer should have been 'sustained. 152 Fed. 600; 11 Ann. Cases 656, 15 R. C. L. 378. Chancery court without jurisdiction to make declaratory decrees flying future rights. 1 Heisk. 524 Term; 9 A. & E. Euc. 12; Bisphom, Equity, 571; 68 TJ. S. 515; 179 N. W. 350; 214 Mo. 187; 21 L. it. A. (N. S.) 481. Suck action coram non juclice and void. 105 Mo. 93; 24 Am. St. Rep. 366; 16 S. W. 595; 186 Mo. 633; 105 Am. St. Rep. 629; 85 S. W. 868; 140 U. S. 254; 35 L. ed. 464; 11 Sup. Ct. Rep. 773; 108 Ind. 517, 8 N. E. 161; 23 Cal. 222, 47 Pac. 379; 101 Minn. 169, 11 L. R. A. (N. S.) 803; 118 Am. St. Rep. 612, 112 N W. 386; 11 A. & E. Ann. Gas. 348; 1 Black on Judgments 242, adopts part of opinion therein as test. 54 W. Va. 613, 102 Am. St. Rep. 959, 64 8. E. 605. When court .attempts to adjudicate matters outside the pleadings and issues, judgment void. 56 Ark. 422; 55 Ark. 205; 55 Ark. 565; 34 N. J. Law 420; Black on Judgments, 215. Judgment rendered by court 'having no jurisdiction of the subject-matter is void. Black on Judgments, § 242; Reynolds v. Stockton, 140 TJ. B. 254; 31 Ark. 345; 32 Ark. 289; 81 Ark. 350; 77 Ark. 21. After the original decree awarding to G-ussie Less a lien for her amount and finding that appellant was entitled to her dower .and homestead and the appointment of commissioners, the chancellor had no jurisdiction or right to add any other lien on this property as 'against the widow in that action. 130 Ark. 301; 183 N. Y. 425; 5 Crunch, 61 L. ed. 38; 2 Cranch 159; 7 Wheat. 522; 22 Ark. 14; 15 R. C. L. 317, 328,43. No allegation asking for the court to declare a lien for the Commonwealth Farm Loan Co. claim against the dower land, and recovery must be had on the pleadings or not at all. 88 U. S. 481; 1 Black 506. Could only have been set up by crossbill. 31 Ark. 205; 43 Ark. 469; 5 Ann. Cas. 464; McSpadden v. Rose, 8 N. E. 161; Fletcher’s Equity PI. and Pr., § 61 n 3; 51 111. Ápp. 409. Court had no jurisdiction from pleadings in 131 Ark. 232 to declare the dower lands burdened with a lien that was not referred to in either the complaint or answer; motion to set aside and answer could not constitute a cross-complaint, and both were denied in original suit. An attempt to add to original decree on master’s report was dismissed by Supreme Court in 9 Peters 267; 18 Nev. 315; 2 John. oh. 488; Fletcher, Equity PL & Pr., § 927. Bill of review can only be filed by party to suit. Fletcher, Equity Pl. & Pr. 925, 922; 62 Ark. 78. The widow’s dower not barred in foreclosure suit not in issue. 40 Ark. 283; 97 Ark. 450; 96 Ark. 540; 46 Ark. 103; 41 Ark. 394; 29 Ark. 500. Court will not go outside of case made by pleadings to grant relief. 30 Ark. 628; 13 Ark. 187. Chancery court in original action, Less v. Less, was without jurisdiction to make this order. 55 Ark. 205; 81 Ark. 452; 90 Ark. 195; 62 Ark. 429; 76 Ark. 146. Farm Loan Company not a party when this order was made, its petition to be made a party having been denied. McK night v. Smith, 5 Ark. 409; 52 Ark. 480; 137 Ark. 232; 15 L. E. A. (N. S.) 823; 87 Ark. 423; 24 A. & E. Enc. 777 D; 124 Ark. 432; 136 Ark. 115; 13 Ark. 187. Appellant is entitled to 'a decree !on tins complaint. 47 Ark. 120; 20 Ark. 12. No question of creditors comes in this case. 34 Ark. 391; 52 Ark. 172; 98 Ark. 446. Court cannot declare a lien solely on exception to commissioner’s report. 130 Ark. 30; 42 Ohio 337. Chancery having properly assumed jurisdiction will determine all issues presented by the pleadings and evidence. 149 Ark. 460. Widow could not release dower to husband. 31 Ark. 678; 30 Ark. 17; 55 Ark. 228. Widow had right to pay mortgage of the Less Land Co. and hold the land for all the debt. Smith v. Hall, 30 Atl. 409; Hayes v. Cretin, 62 Atl. 1028. Had dower in whole mortgaged premises and not required to redeem. 15 E. C. L. 378, 429-30, 443. Dower lands coxild not be liable for more than annuity. 68 Ark. 449. Claim cannot be divided. 16 N. Y. 554; 24 Ark. 177; 63 Ark. 259; 2 A. L. E. 534; 64 Ark. 94. Appellant would only be liable for an annuity or $1,020.80 if court holds order a decree and res judicata. 132 Ark. 71; 131 Ark. 235; 147 Árk. 438; 121 Ark. 64; 68 Ark. 449. Annuity rule, Scribner on Dowel', 681-82. Appellant entitled to $725 in cross-complaint if her defense to course of action against appellees- -sustained. G-ussie Less bound by adjudication, and cannot have monthly allowance reduced to cash settlement. 83 Ark. 546; 91 Ark. 394; 108 Ark. 577; 119 Ark. 413. . She cannot again recover. Hemingway v. Grayling Lbr. Co., 125 Ark. 400.

      Coleman, Robinson & House, Poindexter <& Irby, Smith & Gibson, Ponder & Gibson, for .appelllees.
    The issues in this case are -simple, it being merely -a case for contribution. The facts are to a great extent admitted, and the law has been declared in 131 Ark. 232, and 147 Ark. 432. The court should be controlled by the opinions in the above oases on the former appeals, and the chancellor should be sustained, except in reduction of annuity to be paid by appellant from one producing one-half the interest during her expectancy to -one-third. The issues made in the present suit have already been twice decided in the above cases. The supplemental complaint shows a direct admission on the part -of Ida Less that the lands set apart to her were burdened with one-third of the interest on a loan of $40,000 to the Commonwealth Farm Loan Co., not only makes the admission but a tender of a certain amount of money to discharge the burden. Motion for nunc pro time order -does not ask that -order imposing lien of loan company allotted to her be set aside, but only requests its correction in .a minor matter. This is sufficient to refute -all claims set up by her now and to show that her estate in the dower lauds was burdened with her proportion of this mortgage. 0-nly question for determination is the amount due from appellant as contribution to' the heirs of Isaac Less who paid -off incumbrance of Commonwealth Farm Loan Co. Contribution to Gussie Less can be reduced from monthly payment to annuity basis and all paid at once. Chancellor erred -in reducing the charge against the lands assigned to the widow to a sum sufficient only to produce annuity for the remainder of Ida Loss’ expectancy for one-third of the amount of the annual ■interest due the loan company.

      W. E. Beloate, in reply.
    Test of jurisdiction is found in allegations of complaint. 152 Ark. 47; 140 Ark. 480; 90 Ark; 195. No admission in 147 Ark. 432 could give jurisdiction to an action wherein judgment was rendered three years .prior thereto. Supplemental complaint and motion for nunc pro tunc order not in record and should not be considered. Ry. v. Clark, 58 Ark. 490. Question of jurisdiction raises itself. 90 Ark. 195; 85 Ark. 213.
   Humphreys, J.,

This suit was instituted in the chancery court of Lawrence County by the children and heirs at law of Isaac Less, deceased, against Mrs. Ida Less, widow of their father, for contribution on account of moneys paid by them to liquidate a mortgage which covered the lands of their ancestors, and part of which had been assigned to Mrs. Ida Less as her dower interest in said estate. The gist of the bill was that Mrs. Ida Less had failed to pay her proportion of a $40,000 mortgage upon said lands, a portion of which had been adjudged a lien upon the lands assigned to her by said court, and which indebtedness they were compelled to pay at maturity in order to save the lands from foreclosure and sale. The decree of the chancery court assigning dower and charging the lands assigned with a portion of said indebtedness was set up in the bill.' Said decree was affirmed on appeal to the Supreme Court in the case of Less v. Less, 131 Ark. 232.

Mrs. Less filed an answer denying the validity of that portion of the decree burdening the dower lands assigned to her, on the ground that the issues joined by the pleadings did not embrace the apportionment of the said indebtedness to the lands partitioned, alleging that the only proper issue involved in that case, according to the pleadings, was the allotment of dower. She set out and made the pleadings in the suit for the assignment of dowér a part of her answer.

A separate answer and Crossbill was filed by G-ussie Less, the divorced wife of Isaac Less, alleging that said court had declared a lien upon the dower lands in question for one-third of the monthly alimony of $140 allowed her, and prayed that said monthly allowance be reduced to an annuity and declared an equal lien in proportion to the mortgage lien upon the dower lands in question.

Ida Less filed a reply to the answer and crossbill of Gussie Less, attacking the validity of the decree burdening her dower interest in said lands with said monthly allowance of alimony, and denying the right of G-ussie Less to have same reduced to a sum certain.

The Commonwealth Farm Loan Company and its trustee filed an answer, admitting the payment of the mortgage debt, after maturity, by the children and heirs of Isaac Less, deceased.

The case was submitted to the court upon the pleadings and testimony, which resulted in a decree fixing equal liens upon the dower lands in favor of said heirs for $7,741.41, and in favor of Gussie Less for $4,209.20, from which is this appeal. The heirs of Isaac Less, deceased, had prayed for contribution in the sum of $21,493 from appellant, on the ground that they were entitled to an annuity sufficient to produce one-half of the interest to carry the mortgage during the expectancy of Mrs. Ida Less, according to mortuary tables introduced in evidence, instead of an amount necessary to produce only one-third of the interest during the nineteen-year expectancy of said appellant. The heirs filed a crossbill from the decree fixing the annuity, in an effort to increase the amount thereof.

Appellant’s paramount contention for reversal is that the court’s acts in burdening the dower lands with a portion of the $40,000 mortgage due the Commonwealth Farm Loan Company, and with a part of the -alimony allowance to G-ussie Less in the'original suit for the allotment of dower, were coram non judice, and void. Attention is called to the fact that, in'none of the pleadings in the original action of Ida Less against the Less heirs for admeasurement of dower, were requests made for liens to he declared on the dower lands for any part of the mortgage or alimony indebtedness, but that the orders were made growing out of exceptions filed to the commissioners’ report, who were appointed to set-off the dower lands. This is true, but that does not necessarily mean the question of the apportionment of the indebtedness was not proper subject-matter for adjudication in the suit for the allotment of dower. Issues may arise in a case out of the testimony, whether pleaded or not, touching proper subject-matter for adjudication. It is immaterial, therefore, how the point arose, if it was, in substance and effect, within the issue involved, and if all necessary parties were before the court. The main purpose of that suit, of course, was to allot dower, but incident to it was the all-important question between appellant and the heirs, of whether dower should he assigned free from or subject to the liens upon the lands for borrowed money and alimony. Suffice it to say, during the progress of the suit it developed that the lands sought to be partitioned were incumbered, so the issue as to what portion of the incumbrances each part of the land should bear raised itself and became a proper issue for adjudication by the court. The owners of the liens were not necessary parties in the determination of this question, for their liens were not impaired by the division of the lands.

The issues tendered by the answer of appellant in the instant case were clearly res judicatae. The facts alleged presented an issue of whether or not the dower lands in question were subject to the payment of a just proportion of the lien indebtedness upon the lands of Isaac Less, deceased. That identical issue was involved and determined in the case of Less v. Less, 131 Ark. 232, and was- acted upon in subsequent legal proceedings between the same parties, as shown by pleadings, intro■dneed in evidence: In the case of Less v. Less, supra, it was said by.this court that “the court did not commit error in the instant case in assigning dower and imposing thereon a proportionate amount of the lien indebtedness.”

In view of the fact that the dower lands may be sold to satisfy the lien for the sum contributed by the heirs to pay the mortgage indebtedness on them, we see no reason why the monthly allowance for alimony may not be reduced to a sum certain, so that Gussie Less may share the proceeds with the heirs who are subrogated to the rights of the Commonwealth Farm Loan Company. Neither lien has priority.

The contention made by the heirs on cross-appeal for an increase of the annuity adjudged in their favor is without merit. It is true the original decree .rendered by the trial court in the case of Less v. Less, supra, charged the dower lands, after maturity of the debt, with a sum sufficient to produce an annuity for the remainder of Ida Less’ expectancy for one-half of the amount of the annual interest on the mortgage. This was manifestly a clerical error, as the lands should have been charged with only one-third of the amount of the annual interest.

The decree is affirmed.


source: Caselaw Access Project

author: Humphreys, J. Humphreys, J.,

license: Public Domain

text:
    Freeman v. State.
    Opinion delivered April 9, 1923.
    1. Criminal law — sentence of minor to penitentiary. — Under Crawford & Moses’ Dig., § 804, providing that “persons under eighteen years of age convicted of a felony may be sent to the penitentiary if, in the judgment of the trial judge, such course may be expedient,” held that the statute invests the trial court with discretion to impose either a penitentiary sentence or a sentence to the reform school upon minors under eighteen years of age convicted of a felony.
    2. Criminal law — power of trial court to modify sentence.— The trial court in a criminal case had no power to modify a sentence after the term of court at which the judgment was rendered had expired, nor after the cause had been appealed to the Supreme Court and affirmed.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.

      J. E. London, for appellant.
    The court erred in refusing to modify judgment and commit appellant, who was under 16 years of age, to the reform school, instead of sending him to the penitentiary. Sec. 804, Crawford & Moses’ Digest; 35 Ark; 517.
    J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    No error was committed in overruling motion for modification of judgment. Question of sentencing person eonvicited to reform school or penitentiary is within discretion of trial court. See. 804, C. & M. Digest; 84 Ark. 292. Judgment could not be modified after affirmance by Supreme Court and mandate to lower court. 60 Ark. 50; 28 S. W. 799; 5 Ark. 200; 13 Ark. 653. Neither could court modify judgment after expiration of term. Adler v. State, 35 Ark. 530.
   Humphreys, J.

Appellant was convicted on the twentieth day of October, 1922, in the Sebastian Circuit Court, Fort Smith District, for the crime of grand larceny, and was sentenced during said term of court to serve a term of one year in the penitentiary as punishment therefor. An appeal from the judgment and sentence was prosecuted to the Supreme Court, and on the twenty-seventh day of January, 1923,' the judgment of the trial court was affirmed. On the thirteenth day of February, 1923, appellant filed a motion before the trial court to modify the judgment so as to sentence him to the reform school, instead of the penitentiary. In support of the motion he alleged that he was a minor, under eighteen years of age. The proof showed that he was sixteen years of age when convicted and sentenced. The court overruled the motion for a modification of the judgment, from which is this appeal. Appellant contends that the court erred in overruling the motion, and relies for a reversal upon § 804 of Crawford & Moses’ Digest, which is as follows, in part:

“All convicts in the penitentiary now, and all persons hereafter sentenced to the penitentiary, under the age of eighteen years, shall be committed to and placed in said reform school by said board; provided, said persons under eighteen years of age convicted of a felony may be sent to the- penitentiary, if, in the judgment of the trial judge, such course may be expedient.”

The interpretation placed on said act by learned counsel for appellant is that the statute is mandatory in requiring the trial court to sentence a minor, under the age of eighteen years, convicted of a felony, to the reform school, unless some substantial reason affirmatively appears why a penitentiary sentence should be imposed. We do not so interpret it. The statute invests the trial court with discretionary power to impose either a penitentiary sentence or, a sentence to the reform school upon minors, under eighteen years of age, convicted of a felony, during the term of court at which convicted. Of course, this means a sound discretion, and the facts in each case must determine whether the trial court has abused the discretion lodged in him. In the instant case the trial court was without jurisdiction to modify the judgment, upon motion, after the term of court at which the judgment was rendered had expired.

No error appearing, the judgment is affirmed.

Humphreys, J.,

(on rehearing). Appellant has suggested a diminution of the original record in his motion for a rehearing, and -asked for -a writ of certiorari requiring the circuit clerk of Sebastian County, Fort Smith District; to certify to the clerk of the Supreme Court a 'transcript of the record showing the date of adjournment of the term of court during which the judgment of sentence was imposed upon 'appellant. . The request for the writ is denied because the perfection of the. record as to the date of the adjournment of said term of court could not benefit appellant. It is true we affirmed the judgment of the circuit court upon the ground that the 'sentence could not be modified after the adjournment of court. That was not the only ground which called for an affirmance. An appeal was prosecuted to the Supreme Court from the original judgment 'of conviction and sentence, which was affirmed. The appeal lifted the cause out of the -circuit court; and, as the judgment was affirmed, it was beyond the power of that court to afterwards modify or change it in any respect. After the appeal was taken and the transcript lodged in this court, the only jurisdiction remaining in the circuit court was to correct the judgment by nunc pro tunc order to make it speak the truth, or upon reversal and remand of the cause to follow the directions of this court. The motion for the writ and for rehearing is overruled.


author: McCulloch, C. J.

text:
    Rebecca v. State.
    Opinion delivered April 16, 1923.
    1. Criminal law — exclusion op evidence — harmless error.— Where, on a charge of assault with intent to kill, defendant sought to explain his presence at the city jail by showing that he went there for the purpose of carrying a bullet to be used in a trial the next day, it was not prejudicial error to exclude the testimony of a witness that defendant “brought a shot there,” as such testimony had no probative force.
    2. Criminal law — bystanders’ bill of exceptions — A bill of exceptions verified by affidavits of bystanders, in the absence of controverting affidavits, must be taken as true.
    3. Criminal law — expression of opinion by court — specific Objection. — A general objection to an ambiguous statement of the court held insufficient to point out that it was an expression' of' opinion on the weight of the testimony. • ■

      Appeal from Pulaski Circuit Court, Second Division.; R. M. Mann, Judge;
    affirmed.
    ■ Z. M. Longstretli and Neill BohUnger, for appellant.
    Court erred in not permitting witness White to state for what lawful purpose defendant was at the city hall immediately prior to and at the .time of the kidnapping of the injured party and in expressing- his opinion on the weight of the evidence in sustaining the objections thereto. 110 Ark. 323, 125 N. E.; 190 S. W. 181; 42 Ark. 542; 29 Ark. 406; 67 Ark. 416; 51 Ark. 155; 170 Ark. 472. The affidavits of the bystanders were not controverted and must be taken as a correct statement of the language used by the court. 87 Ark. 461; 87 Ark. 543; 95 Ark. 71.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    No error was committed in refusing to permit witness to state why appellant went to the city hall on the night Johnson was assaulted; neither did appellant disclose what he expected to prove by the witness. Intention to commit the assault could have been formed instantaneously 'and after appellant went to the city hall. 103 Ark. 28; 141 Ark. 11; 147 Ark. 67. Error committed in court’s language refusing’ to permit the introduction óf the testimony, as shown by the affidavits of the bystanders, was not prejudicial and would doubtless have been corrected had specific objection been made. 118 Ark. 49; 134 Ark. 136; 146 Ark. 23.
   McCulloch, C. J.

Appellant was indicted for the crime of assault with intent to kill, and, on the trial of the cause, he was convicted of aggravated assault, and his punishment fixed at a fine and imprisonment.

The evidence adduced by the State was sufficient to prove that appellant, in concert with twelve or fifteen other men, assaulted B. Y. Johnson, the person named in the indictment, striking and beating him with bare fists and metal knucks, and inflicting serious bodily injuries. Appellant admitted that he was present when Johnson was assaulted and beaten, but claims that he did not participate in the assault, and was induced by the other men to take the party into his (appellant’s) automobile and carry them out to the spot where the beating was done.

Johnson was working for the Missouri Pacific Railroad Company as special guard at the shops in North Little Rock. He was arrested on the charge of assault with intent to kill, and lodged in the city jail. This was early in the evening of July 9, 1922, and in a few hours one of the agents of the Missouri Pacific Railroad Company went to the city hall and furnished bail for Johnson, who informed the agent that he was afraid to leave the jail without some kind of protection — that he was afraid of personal violence from some of the workmen on strike. The agent of the company, Mr. G-annaway, thereupon called up the office of the special agent of the company and instructed him to send a car with some men to get Johnson, so as to afford him protection from assault as he was leaving the city jail, and he instructed the turnkey to lock Johnson up until the agent of the company sent for him.

Mr. G-annaway testified that, when he was talking over the telephone, appellant was sitting in the room, near enough to hear the conversation. Gannaway then left the place, and shortly thereafter a party of men drove up in an automobile, and the turnkey opened the door and informed J ohnson that his men were there for him, and J ohnson left with them, thinking that they were men from the office of the company’s special agent.

There were twelve or fifteen men in the crowd that took Johnson outside of the city limits and' administered a severe beating, using, as before stated, their fists arid also metal knucks.

Appellant admitted that he was at the'oity jail when Johnson was there, but claimed that he went there for the purpose of carrying a bullet to be used in a trial the next day, the bullet having been fired from a pistol or gun.’ His narrative of the affair, so far as concerned his connection with it, is that a few minutes after the turnkey let Johnson out of jail, he (appellant) left the-jail office and went out the back door and got in his car, and that as he drove down one of the streets of .the city he passed the place where there'were twelve or fifteen people out in the street and a damaged car near by; that the men stopped his car and got in, and told him to drive under their direction; that they put Johnson in the car next to him, and after they got out to the end of the paved streets théy gave further directions to him where to drive. He testified that the men left the car, and that he was not present when the beating was administered to Johnson. Johnson testified that he recognized appellant as one of the men in the party. Another witness, one Rawles, who accompanied the party and participated in the beating, testified that the first he knew of the affair was when appellant came to him on the street and asked him (witness) to let him have the use of his car, and that he agreed to that, and appellant told him to drive to the turnkey’s office and tell the latter that he (witness) was an officer from the office of the special agent of the Missouri Pacific Railroad Company, and had come for Johnson. He testified that he did this, and that later he met appellant out on the street in his roadster, and after his (witness’) car broke down the party was transferred to appellant’s car.

There was other testimony tending to show, more or less, that appellant was a participant in the brutal assault on Johnson.

During the progress of the trial appellant introduced as a witness Luther White, the desk-sergeant, or night turnkey at the city jail, who testified that appellant was at the city jail that night, but did not participate in releasing Johnson from jail. He testified that a crowd of persons drove up to the city hall and stated that they had come from the railroad shops, that he opened the door and told Johnson that the men were there for him, and that Johnson went to the back door and .spoke to the men, and got into the car and went off with them. Appellant’s attorney asked the witness if he knew why appellant was at the city hall that night, and the witness replied that appellant ‘ ‘brought a shot there. ’ ’ Objection was made by the prosecuting attorney, which was sustained by the court, over appellant’s objection, and the ruling of the court in excluding this answer is assigned as error.

Appellant was entitled to show that his presence at the city jail that night was for a purpose other than to participate in the assault upon Johnson, but the bare statement that he “brought a shot there,” without any further statement from the witness, was not sufficient to show that. Appellant testified himself that he went to the city hall that night, pursuant to instructions from the chief of police, to bring the shot there for use in the trial, and no objection was made to that testimony, but he did not offer to prove that state of facts by the witness White; on the contrary, he contented himself merely with an attempt to elicit the statement from the witness that he brought the shot there, which amounted to no more than saying that he had this shot when he was there. That bare statement was without any probative force, and its exclusion from the consideration of the jury was not prejudicial.

Error is also ■ assigned concerning the language of the court in sustaining the objection to the testimony we have just discussed. There is a conflict between the certificate of the trial judge, in the bill of exceptions, concerning the language used, and the affidavits of bystanders, which were filed upon refusal of the trial judge to certify the exception as claimed by appellant. The following is the statement of the court, with the word “if.” in parenthesis inserted by the trial judge in the bill of exceptions, but omitted from the affidavits of the bystanders:

“Court: I cannot see that that would have anything to do with it (if) he was there for this purpose also, he might have brought the bullet there that he had, but I don’t see that that would be competent in any way to prove that he was not there for this purpose also, and, as I 'understand, that is what you are trying to prove. The objection will be sustained.”

The affidavits of bystanders were not controverted, and we are therefore compelled, under the statute, to accept them as a correct statement of the language used by the court. Wingfield v. State, 95 Ark. 71.

The objection to the court’s statement was a general one, and the grounds of the objection were not pointed out. It is urged here that the statement of the court constituted an expression of opinion concerning the weight of the evidence, in stating that appellant was present for the purpose of participating in the assault on Johnson. It is not clear, from the language used, that the court meant to tell the jury that Johnson was there for that purpose. The language is that, appellant “was there for this purpose also,” but it does not state for what purpose. Being ambiguous, and not a positive statement of fact, the court’s attention should have been called to it by a specific objection. If such objection had been made, the court would have had an opportunity to explain to the jury what he meant in language which they could not misunderstand.. We are of the opinion therefore that the general objection was not sufficient to raise the question that the language used was an instruction on the weight of the evidence.

These are the only grounds urged for reversal.

Affirmed.


text:
    Butler County Railroad Company v. Lawrence.
    Opinion delivered April 16, 1923.
    1. Carriers — presumption of negligence. — Where a passenger on a motor car propelled by steam produced by the use of coal oil as fuel was injured by the explosion of a water pipe which caused the car to be filled with smoke and soot, the burden was on the carrier to overcome the presumption of negligence.
    2. Carriers — injury to passenger — question for jury. — Where an explosion of a water pipe in a motor-propelled passenger car caused gas as well as smoke and soot to envelop the persons in the car, it was a question for the jury, under the evidence, whether a passenger was injured by inhaling the gas and smoke.
    3 Appeal and error — instruction—general objection. — A general objection to an instruction authorizing recovery by the representative of a married woman “for her loss of time” was insufficient to point out that there was no proof of pecuniary injury on account of loss of earnings, where the jury might properly have allowed pecuniary compensation for the personal discomfort and inconvenience of lying in her sick-bed, and for being incapacitated from going about the usual household duties.'
    4. Carriers — injury to passenger — instruction as to damages.— In an action by the representative of a married woman for personal injuries caused by an explosion of a water pipe in a motor-propelled passenger car, an instruction which authorized plaintiff to recover “any expenditures or expenses occasioned to her by reason of the injury” was open to a general objection where there was no proof that she incurred any expense on that account, and where the evidence showed that certain expenses were incurred by her husband, who was not a party, except in representative capacity as administrator of her estate.
    5. Appeal and error — erroneous instruction — remittitur.— Where the court, in a suit by the representative of a married woman, erroneously instructed the jury that plaintiff was entitled to recover any expense incurred by her, when the only expense shown to have been incurred was the payment of $200 by her husband, held that, since the jury may have allowed that sum as part of the award to her estate, a remittitur of that amount will be ordered.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    reversed, unless remittitur is entered.

      IF. E. Spence and Sheppard & Sheppard, for appellant.
    The evidence is not sufficient to sustain the verdict on the question of injury. 172 S. W. 258. The court erred in giving instruction numbered 4 on the question of damages. There was no testimony showing loss of time of the injured party nor any expense paid for nursing and medical attention by her husband. Administrator can’t recover in this action for money expended by him for medical attention to the wife. 63 Ark. 563; 116 Ark. 334; 84 Ark. 617; 11 111. App. 154; 186 111. App. 360; 148 Wis. 541, 134 ,N. W. 157; 35 R. I. 406, 87 Atl. 174; 56 Conn. 478, 16 Atl. 237; 46 Kan. 109, 26 Pac. 453; 39 Atl. 1100; 63 N. E. 328; 107 Ind. 32, 7 N. E. 373; 88 N. W. 337; 172 Mo. App. 113. Distinction between loss of time and'decreased earning capacity. 190 Ala. 229, 67 So. 513. Instruction did not limit amount of recovery to the damages shown by the evidence. 128 Ark. 479,194 S. W. 873; 149 Ark. 433, 233 S. W. 683; 159S. W. 33. Unless it affirmatively appears that error was not prejudicial, cause should be reversed. 16 Ark. 329; 67 Ark. 604, 50 S. W. 529; 69 Ark. 134; 62 S. W. 64; 71 Ark. 272, 74 S. W. 513; 104 U. S. 625, 26 L. Ed. 870; 17 Wall. 639, 21 L. Ed. 717; 119 U. S. 99, 7 Sup. Ct. Rep, 118, 30 L. Ed. 299; 110 U. S. 50, 3 Sup. Ct. Rep. 471, 28 L. Ed. 62; 5 Wall. 807,18 L. Ed. 653. No negligence shown as alleged. 177 S. W. 923; 118 Ark. 206, holding that where specific acts of negligence pleaded recovery may be had on doctrine of res ipsa loquitur is contrary to the weight of authority and should not be adhered to. 269. No. 104; 88 Md. 55, 40 Atl. 1066; 64 So. (Ala.) 343; 126 111. App. 189; 213 Mass. 392; 72 111. 141; Tex. Civ. App. 141, 29 S. W< 948; 140 Cal. 563; 37 S. W. 423; 35-S. W. 208.

      Gosten & Harrison, for appellee.
    The testimony show® that decedent was injured by the" explosion while on board the motor-car. • '118 Ark. 206. No error in' giving instruction No. 4. Married woman’s disabilities have been removed, act 66, Acts Í919, p. 36; § 1070, Crawford & Moses’ Digest; 17 C. J., 782, 801-2-3. No specific objection was made- to said in-' struotion. 56 Ark 602, 123 S. W. 797; 125 S. W. 136; 133 S. W. 1134; 88 Ark 184; 88 Ark. 204; ¡89 Ark. 522; 93 Ark. 589; 96 Ark. 184; 118 Ark. 337; 119 Ark. 530. Even though some of the elements of damage which the court instructed could be recovered were not proper elements of damage, no prejudicial error in absence of specific objection. 92 Ark. 432; 108 Ark. 14.

      W. E. Spence and Sheppard & Sheppard, in reply.
    Act of 1919 does not permit a recovery by appellee for loss of services and medical expense. 166 Ark. 334; 112 Mo. 225, 91 A. 980; 181 Mich. 101,147 W. W. 614; 132 Term. 609, 179 S. W. 127; 206 S. W. (K). 880; 166 Pac. (Ore.) 57; 135 Ala. 417, 33 So. 335, 21 Col. 340, 40 Pac. 891; 130 111. App. 400; 103 Minn. 290; 115 N. W. 651; 51 Lad. App. 533, 100 N. E. 101; 41 Neb. 578, 59 N. W. 921; 73 N. H. 529, 63 Atl. 578; 66 Ohio St. 395; 64 N. E. 438; 179 Mo. App. 61, 162 S. W. 280; 141 Ala. 420, 38 So. 363; 14 Col. App. 132, 59 Pac. 476; 124 Oa. 549, 52 S. E. 916. Appellee’s authorities reviewed as to specific objections and insisted not applicable to case. The substance of the instruction being complained of 58 Ark. 205; 130 Col. 521, 62 Pac. 932, is in point. 63 Ark. 563; 96 Ark. 243, 131 S. W. 686; 138 Ark. 10, 210 S. W. 350; 136 Ark. 433, 206 S. W. 571.
   McCulloch, C. J.

Appellant owns and operates a line of railroad running from Poplar Bluff, Missouri, through McDougal, Arkansas, to Piggott, Arkansas, and on October 6, 1920, appellee’s intestate, Mrs. T.' J. Lawrence, was a passenger from McDougal to Piggott on a motor-car propelled by steam produced by the use of coal oil as fuel. An' explosion of the pipes in the boiler occurred as the car pulled out from McDougal, and-the car was filled with smoke and soot, or carbon, and Mrs. Lawrence claimed that she received injuries on account of the inhalation of the smoke and gas. She instituted this action against appellant, alleging that the explosion was caused by the negligence of appellant, and that as a result of the explosion the car was filled with smoke'and gas, which caused injuries to her lungs and stomach and made her sick for a considerable length of time. Damages were laid in the sum of $2,000.

Appellant answered, denying that Mrs. Lawrence sustained any injuries or that appellant’s servants were guilty of any negligence -which caused the explosion.

Mrs. Lawrence died about a year after the'occurrence of the explosion, and the cause was revived in the name of the administrator of her estate. On the trial of the cause a verdict was returned in favor of appellee, assessing damages in the sum of $1,000.

It is undisputed that Mrs. Lawrence was a passenger on the train, and that a violent explosion occurred, which filled the oar with smoke and soot, or carbon, which blackened the faces of the passengers to the extent that they looked like negroes. That is the way in which one of the witnesses related the facts, and there is no dispute on that subject. The car was moving out of McDougal at the time, and as soon as the explosion occurred the conductor stopped the train and nearly all the passengers got out for fresh air — all, perhaps, except Mrs. Lawrence, who remained in the car — and the smoke rapidly disappeared, as the windows were open at the time. Another engine was procured, and the train proceeded on its journey, and on arrival at Piggott Mrs. Lawrence went to her home in that town.

The testimony tends to show that when Mrs. Lawrence arrived at her home her face was still black from the soot, and she was sick and distressed. A physician was called, either that day or the next, and he treated her for some time, and testified as to her suffering, and gave his opinion that the condition of her lungs and stomach resulted from the explosion, which, he said, produced gas that was injurious when inhaled. Mrs. Lawrence was 73 years of age at the time, and there was also testimony tending to show that her health was good up to the time this explosion occurred.

The contention of appellant is that Mrs. Lawrence suffered no injury except the inconvenience of having the soot settle on her face. It is urged that it is scientifically impossible for a deadly or injurious gas to escape on account of an imperfect combustion or explosion of coal oil.

There was no attempt on the part of appellant to clear itself of the charge of negligence in permitting the explosion to occur; therefore, if injury be shown to have resulted to Mrs. Lawrence from the explosion, the verdict fixing liability is justified, the burden being upon appellant to overcome the presumption of negligence.

Appellant introduced as a witness its master mechanic, who explained the cause of the explosion as follows: “Q. Will you explain to the jury the construction of that engine? A. Well, it is a water-tube boiler, and the steam is generated by a low grade coal oil fire, and the oil is put in through the burner into the fire-box, and that heats the water in the tubes, and this tube burst, and that is what caused the trouble. Q. Now, what would naturally take place on account of the construction of that engine at that time now? , A. Well, it introduced steam into the fire-box, and, mixed -with the coal oil, it caused an incomplete combustion and created smoke, just like a lamp not properly trimmed or turned up does; they will smoke. Q. Would there be any gas in' that? A. Well, it is partly burned coal oil is all it is; it forms carbon instead of burning it up completely. Q. You weren’t present when that took place? A. No sir. Q. Did you examine that engine and fix it after-wards? A. I saw it done; yes sir. Q. Now, explain what took place; what happened to the engine ? A. Well, one of- the tubes burst. Q. How long a place burst? A. Four or five inches up and down the tube. Q. And the steam then would go down into the fire-box and blow the coal oil out, or ignite it? A. Well, it was already ignited, but the steam interfered with the mixture and made it into smoke.”

We are not willing to say, in the face of positive testimony, that the explosion which caused the gas as well as smoke and soot to envelop the persons in the car was insufficient to produce an injury to Mrs. Lawrence, and that it was impossible that such an injury could have so resulted. According to the testimony of the physician, Mrs. Lawrence inhaled a sufficient quantity of injurious gas to seriously affect her lungs and stomach and to make her sick, and, even if it be conceded that the gas which came off from the explosion was not deadly in its effects, we cannot say, as a matter of law, that the evidence was insufficient to show that it was of an injurious nature and did produce injury. The fuel used was low-grade coal oil, which is a petroleum product, and an imperfect combustion necessarily gives off fumo- and gas. The extent of injury resulting from inhalation might, and perhaps does, depend upon the physical condition of one who is exposed to it. It is a question of fact and not one of law as to whether or not injury could have resulted, and we think that the verdict of the jury on this issue should not be disturbed.

The only instruction to which appellant makes objection is No. 4, on the subject of the measure of damages; it reads as follows:

“Now, if you find for the plaintiff, the measure of her damages will be such an amount as you may find would be a fair and just compensation to her for her loss of time, and iany expenditures or expenses occasioned to her by reason of- the injury, and also what would be a just and fair compensation to her for any physical pain she suffered because of the injury, if you find she suffered any, or any injury she suffered by reason of any mental pain or suffering, if you find she has suffered any, not to exceed the amount of two thousand dollars, the amount sued for in the complaint.”

Appellant’s criticism of this instruction is that there was no evidence to justify the submission of loss of time or of expenses incurred. The objection was a general one and not specific, and it is contended by counsel for appellee that a general objection is not sufficient to raise the question of the correctness of the instruction in the particular mentioned. We think that a general objection is sufficient, because, if the instruction was erroneous at all, it was inherently so. So far as the question of loss of time is concerned, we are of the opinion that there was no prejudice in that regard, for there was no attempt to prove any pecuniary injury on account of loss of earnings, if any. The verdict of the jury was very moderate, and was for one-half of the amount sued for. It is therefore not at all probable that the jury made an allowance for loss of earnings, or, in other words, for loss of time. But, if any allowance on this account was made at all by the jury, it must have been by way of pecuniary compensation for the personal discomfort and inconvenience of lying in the sick-bed, and for being incapacitated from going 'about the usual household duties. It was not improper for the jury to consider loss of time in that light.

There was, however, proof introduced to the effect that Mrs. Lawrence’s husband, who is the administrator of the estate, paid out about $200 for the services of a physician and a nurse, but there was no proof at all that Mrs. Lawrence incurred any expense on that account, and, if the jury allowed anything at all for such expenses, it was necessarily for the amount paid by Mr. Lawence. We have no means of determining whether the jury included this in the verdict, and the instruction submitting this issue is necessarily erroneous and may have been prejudicial. Mr. Lawrence was not a party to the action, except in his representative capacity as administrator of his wife’s estate, and no recovery could be had in this action for sums paid out by him.

Counsel on both sides argue with much zeal the effect of modern statutes in regard to the rights of married women, but we deem it unnecessary to enter into a discussion as to the effect of those statutes, for in no event could any of them be interpreted to give the wife the right to sue for expenses incurred by the husband.

We are of the opinion therefore that there was error in giving the instruction copied above in that it submitted the issue as to expenses incurred, and that the only way to eliminate the error is to require a remittitur of the sum of $200, the amount which the jury might have included in their estimate of the damages.

The judgment will be reversed and the cause remanded, unless appellee, within fifteen days, enter a remittitur of the sum mentioned above. It is so ordered.


author: McCulloch,- C. J.

text:
    Cartwright v. Cartwright.
    Opinion delivered April 16, 1923.
    1. Wills — letter as testamentary paper. — A testamentary paper is valid as such, even in the form of a letter, where it is proved to be in the handwriting of the testator.
    2. Wills — signature.—A testator may sign his will by an abbreviation of his full name, or merely by his initials.
    3. Wills — right of instrument to probate. — Whether an offered instrument is testamentary in form or substance so as to be admitted to probate is a question of law for the court to determine from the face of the instrument.
    4. Wills — functions of probate court. — The functions of a probate court, when a will is propounded for probate, are limited to inquiring and determining whether the instrument presented as- the last will of the decedent was executed in the manner prescribed by statute and when he was legally competent to execute it, and free from duress, menace, fraud and undue influence, but questions as to property rights which might arise out of a construction of the terms of a will are not to be determined in a proceeding for the probate of a will. ■ '
    5. Wills — sufficiency of letter as will. — A letter from a deceased soldier to his wife, which, referring to a policy of war risk insurance in the sum of $5,000 which was made payable to his father, stated: “You will get the $5,000 when I die,” held sufficient to constitute his last will and testament, and therefore entitled to probate as such.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    affirmed.

      J. C. & Wm. J. Clark and J. H. Carmichael, for appellant.
    Beneficiary in insurance policy could not be changed by will. Appellant was named beneficiary in the will. The testimony attempting to establish the letter as ' a will was incompetent and unsatisfactory. 32 Ark. 338; 85 Ark. 430; 144 Ark. 286. Note 62 L. R. A. 836. Letter only expressed a conclusion based on a 'contingency. 11 Am. Law Reports, 832. No intention of making a will. Subdivision 3, § 10494, Crawford & Moses ’ Digest; also subdivision 5, 1 Schouler on Wills, secs. 278, 279’; 2 Am. Dee. 19; 11 Cash 532; Definition “animo teslandi,” Rapalge & Lawrence’s Dictionary; 187 Mass. 120, 72 N. E. 499; 105 Am. St. Rep. 386; 17 Am. Law Rep. 372.

      R. W. Robins, for appellee.
    No testimony in the record of any provision in the policy prohibiting a change of beneficiary by will. Will established by competent and satisfactory testimony. Cases cited by appellant as to introduction of signature card for comparison not applicable to case made. 22 C. J. 775. No objection made to introduction of card. Secs. 2250, 2251, 'Crawford & Moses’ Digest; § 10498, Crawford & Moses’ Digest; 1 Lewis’ Blackstone, 417; 1 Schouler on Wills, § 378; 1 Alexander, Wills, 195; 8 A. L. R. 182, cited, has no application to the case. Letter is a valid holographic will. 80 Ark. 204; 144 Ark. 429; 193 TJ. S. 411, 48 L. ed. 73; 30 Am. & Eng. Ehc. of Law, 571, 572; 86 L, T. R., (N. S.) 119; 86 L. T. R., (N. S.) 120; 21L. T. 653; 39 Vt. 498; 53 Me. 561; 184 N. Y. P., 399; 109 S. E. (Va.) 186.
   McCulloch,- C. J.

This is an appeal from a judgment of the circuit court of Faulkner County, rendered on appeal from the probate court, admitting to probate an instrument in the form of a letter as the last will and testament of Luster Cartwright, deceased.

Cartwright was an American soldier in the late war, and was killed in action on one of the battlefields of France. His death occurred on October 14, 1918. He lived in Faulkner County, was a young farmer, and was drafted into the army, sent to Camp Pike, and thence to Camp Beauregard. While in the last named encampment, he went back home on a furlough, and intermarried with a young woman to whom he had previously given his promise of marriage. After his return to Camp Beauregard he wrote and mailed to his wife, Mell Cartwright, the following letter which is presented as a testamentary paper:

“Mrs. Mell Cartwright: My sweet little wife, how are you? Oh, I see you looking me straight in the face. * * * I think some time of coming back to you and taking my life while there, for it will never be of any pleasure here, and I could see you, and then you could care for my place of rest. Now I know I should not write you like this, yet I want you to know how dearly I love you. * * * We are having a very good time now, and, my, Ifow hot. I begin running and jumping this morn, we had a 9 ft. wall to climb, ramps to run over, and a trench to jump. Well, I miss getting my pay this mo. So it will be in July, about the 15th before I get any money, and I only have about $9 in my possession. Of course I have some in the bank, and I could draw out but I am going to do without for you may need it some day, and I get my clothes and eats; will not need to go to town. * * * If I had only thought so when we were first married, everything might of been O. K. But I don’t believe so now. Oh, kido, you are on my heart all the time. I believe it will weaken my mind if there is not some relief soon, of course in a few days it may be some dif. But my love will never grow old for you; there will never a day or- night but what I will be longing for you. It may be I'will see you soon, which I could see it that way I feel like I have seen you and the rest of my people my last time. * * * Say, my precious Darling, I think I can get an allotment made soon. You will get $15 of my pay and $15 from the government made soon. You will get $15- of my pay and $15 from the government, then I will get $4.75 per mo. We both will draw $45 a mo. then I have to pay insurance & Liberty bonds out of my pari, then you will get the $5,000 when I die, so you should not want for anything except me. Lus.”

The letter is of considerable length, and nearly all of it is devoted to expressions of endearment and narratives of his daily life in camp, and the following sentences, in conclusion, are the only words which purport to be, or are claimed to be, testamentary:

“I think I can get an allotment made soon. You will get $15 of my pay and $15 from the government made soon. You will get $15 of my pay and $15 from the government, then I will get $4.75 per mo. We both will draw $45 a mo. then I have to pay insurance & Liberty bonds out of my part, then you will get the $5,000 when I die, so you should not want for anything except me. (Signed) “Lus.”

There are other expressions in the letter which show that it was written in contemplation of the writer’s being sent to the battle area of France and the possibility of his being killed in battle.

The attempt in offering this instrument of writing' is to establish it as a holographic will within the meaning of our statute on the subject,, which provides as follows:

“Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each ¡estator of testatrix.” Crawford & Moses’ Digest, 494, 5th subdivision.

Probate of the instrument was contested by appellant, the father of decedent. The issues were submitted to a jury, and the verdict was in favor of appellee, admitting the instrument to probate.

At the trial there were three witnesses introduced by appellee, who testified that they were familiar with the handwriting of decedent, and that the body of the letter offered for probate, as well as the signature, was in his handwriting. Other witnesses testified, by comparison with other writings proved to be in the handwriting of decedent, that the whole of the letter and the signature were in the handwriting of decedent. This issue was submitted to the jury, and, the evidence being in conformity with the strict requirements of the statute, its weight was a question for the jury. The evidence was legally sufficient to sustain the finding of the jury on that issue.

If the offered instrument is testamentary in effect, its particular form is unimportant, and it is well established by decisions of this court, as well as those of other courts, that a testamentary paper is valid as such, even in the form of a letter, where it is proved to be in the handwriting of the testator. Arendt v. Arendt, 80 Ark. 204; Murphy v. Murphy, 144 Ark. 429.

The signature was, as before stated, proved to be in the handwriting of decedent, and the fact that it was not signed in his full name does not lessen its effect as his signature, for, according to the authorities on this subject, a valid signature may be made to such an instrument by an abbreviation of the full name, or merely by initials. 28 R. C. L. 163; Pilcher v. Pilcher, 117 Va. 356; note to L. R. A. 1915-D, 902; note to Estate of Fay (Cal.), 104 Am. St. Rep. 29.

It is contended by counsel for appellant that the language of the offered instrument is not sufficient to make it testamentary in its character, or to manifest an intention to make a will, and in support of this contention it is proved that the only property or estate left by decedent was a policy of war risk insurance in the sum of $5,000, which was made payable to his father, the appellant, and had never been changed during the lifetime of decedent, unless the letter in controversy is sufficient for that purpose.

The question whether or not an offered instrument is testamentary in form or substance so as to be admitted to probate is one of.law for the court to determine from the face of the offered instrument. If its language is testamentary, then it may be admitted to probate if proved in accordance with the statute, otherwise it may not be admitted to probate.

It is not the function of either court or jury to interpret or construe the will for the purpose of determining its effect upon the distribution of the property of the 1 estator. If it purports to bequeath or devise any property, either in general or particular terms, to an individual or class of individuals, then it is of a testamentary character, and may be admitted to probate. The rule of law on the subject of what may be considered in admitting a will to probate is stated as follows in 28 ft. C. L. p. 377:

“The functions of a probate court when a will is propounded for probate are limited to inquiring and determining whether or not the instrument presented to it as the last will of the decedent was executed by him in the manner prescribed by statute, and when he was legally competent to execute it, and free from duress, menace, fraud and undue influence. Questions as to the prop erty rights of devisees, legatees, heirs, and others which might arise out of 'a construction of the terms of a will are not to be determined in a proceeding for the probate of á will, and therefore the mere probating of a will is not final and conclusive as to the construction of the instrument. The validity of particular testamentary gifts contained in the will are not involved in the proceedings, and the orphans’ court, in admitting to probate the will of a married woman, disposing of her separate property, does not decide upon the right of disposal, but merely the factum of the instrument. Nor is the question of ownership by the testator of property claimed to belong to his estate involved in or determined by the probate of his will.”

See also to the same effect: Gardner on Wills, p. 335; note to Graham v. Burch (Minn.), 28 Am. St. Rep. 339.

The question whether or not the property of the decedent consisted solely of a policy of insurance made payable to another beneficiary, and could not be changed by will, is one which must be determined in other proceedings than the present one, to admit the will to probate.

The most serious question on this branch of the case is whether or not the language itself is sufficient to make it of a testamentary character, and, as before stated, this involves an inquiry whether or not it mentions property, either in general or particular terms, upon which the testament is to operate. While this question cannot be said to be free from doubt, we are of the opinion that the language is sufficient to show an intention on the part of the testator to bequeath to his wife a certain amount of property in the form of life insurance. The particular language which has this effect is as follows: “I have to pay’insurance & Liberty bonds out of my part, then you will get the $5,000 when I die, so you should not want for anything.” This clearly has reference to life insurance, and manifests a present purpose of declaring a bequest, rather than an intention to make such provision in the future. The auxiliary verbs will and shall are often erroneously used interchangeably as signifying futurity, and, when used in the first person, as expressing a fixed design. The letter shows on its face that the testator was not a person of much education, and is not supposed to have had any definite idea as to the exact meaning of particular words, but it is clear, we think, that he meant to make a definite provision for his wife as an expression of his last will.

The language of the will is very much like that involved in a recent Virginia case which the court, with apparently some hesitation, declared to he sufficient to constitute the last will and testament of a soldier enlisted in the American army. Rice v. Freeland (Va.), 109 S. E. 186. Of course, if the language was sufficient to be testamentary, it follows that it manifests the animus testandi.

It cannot be said, as urged by counsel for appellant, that the testament is based upon a condition which did not happen. Of course, all testaments are to take effect upon the death of the testator, and in this sense it is conditional upon death before revocation. But there was no condition expressed in the letter now before, us for consideration, unless, possibly, the condition that he would not survive the war, and if it be held that it was based upon that contingency, it has come to pass so as to make the will effective.

"We have therefore reached the conclusion, upon the whole, that the instrument was properly admitted to probate as the last will and testament of the decedent, and that there is no error in the proceedings.

Judgment affirmed.

FIart and Humphreys, JJ., dissent.


text:
    Pritchett v. Road Improvement District No. 4.
    Opinion delivered April 16, 1923.
    1. Highways — abandonment of road project — engineer’s compensation. — Where a road improvement district, before there was an assessment of benefits, entered into an agreement with an engineer to do the whole of the engineering work, both preliminary and constructive, and agreed to pay him seven per centum of the cost of the improvement, one-half of which was to be paid upon completion of the preliminary plans and estimates, and the project was abandoned after the preliminary plans and estimates were made, the contract was premature, and can be considered only as evidence of the value of the services performed in preparing the preliminary plans and estimates.
    2. Highways — abandonment of road improvement — value of engineer’s services. — Where employment by a road improvement district of an engineer was made before an assessment of the benefits, in a suit by him to recover on a quantum meruit for the value of his services in preparing .the preliminary plans' and estimates, the court properly instructed the jury that, in determining the reasonable value of the services performed by the engineer, consideration should be given to the amount of work done and expenses incurred .by the claimants in doing the work, including the cost of labor and salaries paid to employees, expenses incurred by employees, the purchase of tools and materials with which to do the work, office expenses necessarily incurred, as well as personal compensation to the engineer for for work done by him and a profit on the expenditures made by him.
    3. New trial — verdict not supported by evidence. — Where the verdict of a jury arbitrarily fixed the amount of an engineer’s compensation at a sum much less than the undisputed testimony showed -that the engineer was entitled to, the verdict will be set aside and a new trial ordered.
    Appeal from Van Burén Circuit Court; J. M. Shinn, Judge;
    reversed.

      Coleman, Robinson & House, for appellant.
    Appellant was entitled to recover compensation for services as engineer for the district for preliminary-work under the contract, the amount of the certificate of indebtedness issued. There is no denial that the work was not properly done, nor any evidence at all that the amount sought to be recovered was not reasonable or earned. Court erred in not directing a verdict for full amount of claim.
    No brief for appellee.
   McCulloch, C. J.

Boad Improvement District No. 4 of Van Burén County was created as an improvement district by special act of the General Assembly of 1919, and, in pursuance of the terms of the statute, plans were made for the improvement of the road mlentioned, and a contract was entered into between the district and. appellants, Pritchett & Hight, for the engineering work. The contract provided for a commission to the engineers of seven per centum of the cost of the improvement, fifty per centum of which was to be paid upon completion of the preliminary plans and estimates. Appellants did all of the preliminary work, and the plans and estimates were adopted, and the commissioners gave appellants a certificate of indebtedness in the sum of $3,387.19 as evidence of their earned compensation under the contract. The assessors completed the work of assessing the benefits, and the list was filed with the county court, but was never approved, and there was never any contract let for the construction of the improvement.

The General Assembly, at the session of 1921 (act No. 501), repealed the former statute creating the district, and provided that claims should be filed, as in actions on account, in the circuit court of the county within six months after the passage of the statute, and that, upon the allowance of all -claims against the district, sufficient taxes should be levied to pay the claims. The statute also provided that claims, when filed, should be heard and determined by the court “as in suits on account.” It was also provided by the statute that, after the allowance of all claims, a tax should be levied and extended upon, the real property in the district, based upon the assessed value for State and county purposes, sufficient to pay off the claims.

Appellants filed their claims in the circuit court in the amount stated in the certificate of the board of commissioners, $3,387.19. There was a trial of the issues before a jury, and a verdict was returned fixing the amount of recovery on the claim in favOr of appellants in the sum of $1,600, and judgment was rendered accordingly, but appellants, being dissatisfied with the amount allowed, have duly prosecuted an appeal to this court.

There was no separate contract between the district and appellants for the preliminary work, but the contract embraced -the whole of the engineering work, both preliminary and constructive. The contract was entered into before there was an assessment of benefits so as to determine whether or not the improvement could be constructed, and it was therefore premature. The con tract must therefore be considered only as evidence of the value of the services performed in preparing the preliminary plans and estimates. Gould v. Toland, 149 Ark. 476; Bowman Engineering Co. v. Arkansas-Missouri Highway District, 151 Ark. 47.

The court in its instructions properly declared that the written contract could only be considered for that purpose, in connection with other proof tending to show the actual value of the services performed. The court further told the jury that, in determining the reasonable value of services performed by appellants, consideration should be given to the amount of work done and expenses incurred by the claimants in doing the work, including the cost of labor and salaries paid to employees, expenses incurred by employees, and the purchase of tools and materials with which to do the work, and also office expenses necessarily incurred, as well as personal compensation to appellants for the work done by themselves, and a profit on the expenditures made by them. The instructions of the court were in accord with the views expressed here on this subject in numerous decisions of the court, and no objections have been urged against the instructions. The only contention is that the verdict was contrary to the undisputed evidence.

The trial below was one at law, and in passing upon the question of the sufficiency of the evidence to sustain the verdict we must, in accordance with the rule often announced, give the evidence its highest probative force in support of the verdict.

One of the appellants testified as a witness and stated in detail the amount and kind of work done, the number of men engaged in the work under their employment, and the length of time of the service, and also stated in detail all the expenditures for work in the field and in the office. The testimony of the witness showed that the actual cost, including the expénse of the field work and the office work, amounted to $3,026.03, and that this did not include any personal- compensation to appellants for their own services. The contract was intro duced in evidence, and also the certificate of indebtedness issued by the board to appellants.

Appellants introduced as a witness another engineer, Hugh Carter, who testified that he was familiar with the territory in which this work was done, and was also familiar with the character of work done, and the necessary cost and expenses of doing it, and the value, and he stated that it was worth $200 per mile to do the work in that kind of territory. He testified that the percentage allowed by the. contract was a fair compensation for the work, and that one-half of the stated compensation was earned on completion of the preliminary work. It appears from the undisputed testimony that the road to be improved was twenty-eight miles in length and that the estimated cost of the improvement was $105,000.

Our conclusion is that the amount of compensation was arbitrarily fixed by the jury at a sum much less than the undisputed testimony showed that appellants were entitled to, and that the verdict of the jury is not supported by the evidence.

The contract itself, fixing the amount of compensation, and the certificate issued to appellants by the hoard of commissioners after the completion of the work, were of considerable probative force in aiding the jury in filing the award of compensation. In .addition to this, Pritchett, one of the appellants, testified in detail concerning the extent of the work done and its cost, and showed that the actual cost of the construction would amount to over $3,000. Then another witness, who is not interested in this controversy, supported appellant’s case by testifying as to his familiarity with that kind of work and his knowledge of the territory in which the work was to he done, and showing that the value of the services would he substantially what appellants were claiming. There was no testimony offered against this. No testimony at all was introduced by appellee.

The jury had no right to reject the testimony introduced by appellants and fix the award at less than what the testimony shows was the actual cost of the work. ' There is no attempt to show here that the services performed by appellants were unsatisfactory, or that they ■resulted in plans and specifications which were not adapted -to use in preparing for the construction of the ' improvement; nor was there any attempt to show that the value of the services was other than as claimed by appellants. We do not ignore the rule that the jury is not bound to believe the testimony of one of the parties to a suit or one interested in the result (Skillern v. Baker, 82 Ark. 86), even though not contradicted by direct testimony, but in the present case we have, as before stated, the effect of the contract and the certificate fixing the amount of the compensation, as well as the testimony of one of the plaintiffs, and the testimony of a witness who is not shown to be interested in this controversy. There is no contradiction offered, and we think that the jury was not justified in disregarding this testimony.

The judgment is therefore reversed, and the cause is remanded for a new trial.

Hart, J., dissents.


author: Wood, J.

text:
    Wilhite v. State.
    Opinion delivered April 16, 1923.
    1. Criminal law — insanity as defense — inquisition.—Under ■ Crawford & Moses’ Dig-., § 3055, when it appears in a criminal case that there are reasonable grounds to believe that the defendant is insane, it is the duty of the court to postpone the trial and impanel a jury to inquire whether the defendant is of unsound mind.
    2. Criminal law — insanity op dependant — inquisition.—When counsel for accused under oath state that accused is insane, and their affidavit presented proof of such fact, it was an abuse of discretion to deny to accused the right to have a jury impaneled to inquire into his sanity.
    Appeal from .Johnson Circuit Court; A. B. Priddy, Judge;
    reversed.

      G. 0. Patterson and Webb Covington, for appellant.

      J. 8. Utley/ Attorney General, Elbert Godwin' and Wm. T. Hammock, Assistants, for appellee.
   Wood, J.

On the 5th of December, 1922, the appellant was indicted in the Johnson Circuit Court for the crime of murder in the first degree. On the 11th of December, 1922, the appellant, through his counsel, Patterson & Bagon and Webb Covington, filed a petition in which he alleged that he was then insane; that before the commission of the crime charged against him he had been confined in the insane asylum, and had been released therefrom before his reason had been completely restored, and that at the time of the commission of the crime charged against him he was insane. The petition alleged that the appellant had a brother confined in the insane asylum, and that, as they believed, a sister in the insane asylum in Tennessee; that appellant’s ancestors had been confined in insane asylums in Tennessee and Kentucky; that, on account of his insane condition, he was unable to render them any assistance in preparing for his defense of the crime charged against him. Their petition concluded with a prayer that the court inquire into the sanity of the appellant before proceeding to a trial of the charge against him, and that a committee of reputable physicians be appointed for the purpose of examining appellant to determine his present mental condition. This petition was signed by the attorneys and was verified by G. 0. Patterson.

On the same day the court granted the petition, and appointed a committee, consisting of three physicians, to inquire . into the • sanity of the appellant, and the record shows that this committee refused to serve because they were not paid for their services. On the 13th of December, 3922, Webb Covington and G. 0. Patterson filed the following petition:

“Come Webb Covington and G. 0. Patterson, and on oath state that they are the counsel for the defendant, that they believe him to be insane at this time, that they know that he is unable, on account of mental disease or insanity, to intelligently aid, assist, counsel with, help, or direct, the preparation of his case, or in any manner assist his counsel in his defense. They therefore, in behalf of said defendant, pray that a jury be impaneled, and that his present mental condition be inquired into, and, if said defendant be found of unsound mind, or unable to conduct his defense at this time, that his trial be suspended, and that he be dealt with as the law directs. ’ ’

The petition was sworn to by Patterson and Covington before the clerk, as shown by his certificate. The application was denied, and the appellant, through his attorneys, excepted to the ruling of the court. Appellant was then placed upon his trial, which resulted in a verdict of murder in the first degree. He moved for a new trial, setting up, as one of the grounds of his motion, “because the court erred in denying the petition of the defendant to grant him a hearing upon his petition for the purpose of testing his sanity.” The court overruled the motion, and entered a judgment sentencing appellant to imprisonment in the State Penitentiary for life, from which is this appeal.

Section 2299, Crawford & Moses’ Digest,-provides as follows: “A person that becomes insane or lunatic after the commission of a crime or misdemeanor shall not be tried for the offense during the insanity or lunacy. ”

Section 3055, C. &. M. Digest, provides in part as follows: “If the court shall be of the opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until the jury be impaneled to inquire whether the defendant .is of unsound mind, and if the jury shall find that he is of unsound mind, the court shall direct that he be kept in prison, or conveyed by the sheriff to the lunatic asylum, and there kept in custody by the officers thereof until he is restored, when he shall be returned to the sheriff, on demand, to be reconveyed by him to the jail of the county.”

In Duncan v. State, 110 Ark. 523, the defendant, who was under indictment for murder in the first degree, filed a petition before the cause was called for trial, asking the court to inquire into his mental condition. The prayer of the petition was denied, and the ruling of the court was assigned as error. Passing on such assignment we said: “But, as the record does not contain the petition nor any of the proceedings thereon, further than the recital that the petition was presented and overruled, we cannot determine whether the court was in error in refusing to impanel a jury or not. We must, in the abse'nce of any proof in the record, indulge the presumption that no sufficient showing was made to justify the court in impaneling a jury to try the issue of present insanity, and that the ruling of the court was therefore correct.”

In the case at bar the petition is in the record. It alleges that the appellant, at the time the petition was filed, was insane, and, on account of his insanity, was not able to assist his counsel in the preparation of his case, nor to assist them in his defense. It alleges that appellant had been in the insane asylum before the commission of the crime, and that he was released therefrom before his reason was fully restored; that his ancestors had been confined in insane asylums in Tennessee and Kentucky, and that he had .a brother in the insane asylum in Arkansas and a sister in the insane asylum in Tennessee. The application for a jury to inquire into his mental state alleged that his attorneys knew that he was “unable, on account of mental disease or insanity, to intelligently aid them,” etc. The application was sworn to by his attorneys, Gr. 0. Patterson and Webb Covington.

In the recent case of Kelley v. State, 154 Ark. 246, we said: “If there has been a suggestion at the trial of the question of the present insanity of the accused, the failure or refusal of the court to institute an inquiry into that question by impaneling a jury must be corrected,: if erroneous, by appeal or writ of error to this court, and cannot be"again, raised on writ of error coram nobis. It is'made the duty of the trial court by statute (C. & M. 'Digest, § 3055) when it appears that ‘there are reasonable grounds to believe that the defendant is insane,’ to postpone the trial and impanel a jury to inquire ‘Whether the defendant is of unsound mind.’ No particu-' lar formula is prescribed for bringing this matter to the attention of the court, but if it is brought to the attention of the court in any form, and there is error, it can be corrected on appeal.”

Now, it occurs to us that the application of the .counsel for appellant, setting forth the fact that the appellant was insane, and their affidavit that such was the fact, presented proof of the insanity of the appellant which entitled him to the benefit of the sections of the statute above quoted. The language of § 3055, supra, indicates that the trial court is vested with the discretion to determine when there are reasonable grounds to believe that a defendant is insane. But where it is shown that reasonable grounds exist, the .court must follow the statute. The discretion is a judicial one, and, if the court fails to exercise it, or does so in an arbitrary manner, the error in so doing will be corrected on appeal. Otherwise, the defendant would be deprived of the benefit of ^ 2299, which declares he shall not be tried for the offense during insanity. Here the facts set forth in the application, which was sworn to by counsel, were sufficient, in the-absence of any showing to the contrary, to entitle the appellant to the benefit of the statute, and the overruling-of- his application was tantamount to declaring that' these facts, though true, did not constitute reasonable grounds for believing the appellant insane. We are convinced that the court abused its discretion, under the facts of this record, and erred in not having a jury impaneled to inquire into appellant’s sanity, as prayed in the petition.

The above cases of our court decide that, where a proper application and showing is made, it is the.duty of the court to impanel a jury to inquire whether the prisoner be of unsound mind, and, if the court errs in refusing his petition, where sufficient showing- is made, his remedy, and only remedy, is by appeal. In addition to the above cases see Hodges v. State, 111 Ark. 22-28. The appellant has made the proper showing and pursued the proper remedy, and, for the error of the court in not granting the prayer of his petition, the judgment is reversed, and tlie cause is remanded for further proceedings according to law.