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tion under cover of the statute." Glass v. Hul- 1 opinion is clearly pointed out by Sharswood,
bert, 102 Mass. 24, 3 Am. Rep. 418; Curdy v. J., one of the ablest of American judges, in
Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. Schultz's Appeal, 80 Pa. 396. In that case a
189, 12 Am. St. Rep. 157; O'Hara v. Dudley, 95
N. Y. 403, 47 Am. Rep. '53; Towles v. Berton, testator, wishing to bequeath his estate to
Rich. Eg. Cas. (s. C.) 146, 24 Am. Dec. 409; charitable uses, was told that it would be in-
Schultz's Appeal, 80 Pa. 396, and Stahl v. Stahl, valid if he should die within a month, but that
214 Ill. 131, 73 N. E. 319, 68 L. R. A. 617, 105 he might give it immediately to some person
Am. St. Rep. 101, 2 Ann. Cas. 774, and note. whom he could trust to carry out his wishes.

An absolute bequest was made to Reuben
In the present case the execution of the Yeakle. Yeakle was not present when the
will was secured by reason of the confidential will was made, and did not know of its ex-
relations existing between J. W. Stuart, de istence until after the death of the testator.
ceased, his wife, and his son, Jas. A. Stuart, The testator died within a month after the
while the testator was in contemplation of will had been made, and the court said that
death. It was established by clear and con- under the circumstances there was nothing
vincing testimony that, after J. W. Stuart to fasten a trust upon Yeakle. The learned
was informed by his son Jas. A. Stuart that justice said, however:
the doctors thought that he was going to die,
his mind began to dwell upon a disposition will was executed, or the object of the bequest

"Had Reuben Yeakle been present when the of his property. He called his children and been communicated to him before the testator's grandchildren around him, and told them death, and he had held his peace, there would that he had enough for all, and that he in- have been some ground for fastening a trust tended for his property to be divided equally upon him ex maleficio, as in Hoge v. Hoge, 1 between them. He began to designate the Watts [Pa.] 163 [26 Am. Dec. 52). But nothing different tracts of land that he wanted each of that kind can be pretended here." child to have, and specifically stated to them

It follows that the motion for rehearing his intended disposition of all his real and will be denied. personal property. He was persuaded by his son Jas. A. Stuart to make a short will, leaving all his property to his wife, with the son as executor, under the belief that she would SIMPKINS V. SIMPKINS. (No. 30.) dispose of it after his death in accordance

Dec. 9, 1918.) with his expressed intention. It is true that (Supreme Court of Arkansas. she never made an express promise to him 1. DIVORCE 124—GROUNDS HABITUAL that she would carry out his wishes in the DRUNKENNESS-SUFFICIENCY OF EVIDENCE. matter of the disposition of his property, in In a wife's suit for divorce, evidence held order to induce him to make a will in her sufficient to sustain chancellor's finding tbat de. favor; but she knew that her favorite son fendant husband was not an habitual drunkard. was making such promise in order to induce 2. DIVORCE 129(12)-ADULTERY SUFFI. him to make the will, and she acquiesced in CIENCY OF EVIDENCE. his conduct, knowing that her husband relied In a wife's suit for divorce, evidence, conupon her carrying out his wishes with re- sisting of wife's testimony that she had found spect to a division of his property. After an immoral instrument in her husband's pocket he had made the will, he repeatedly told his on two occasions, held insufficient to show huschildren, grandchildren, and friends who band had been guilty of adultery. gathered about him that his wife and son 3. DIVORCE 29—INDIGNITIES - HABITUAL James knew how he wanted his property di- AND SYSTEMATIC CHARACTER. vided, and that he could trust their honor The indignities offered which entitle one to and conscience in the matter. The record

a divorce under the statute must be habitual clearly shows that the will was made in fa- and systematically pursued to an extent which vor of Mrs. Stuart for the purpose of securing

would render life intolerable. a distribution of the testator's estate be- 4. DIVORCE Eww132—INDIGNITIES-SUFFICIENtween his wife, his children, and grandchil

CY OF EVIDENCE. dren, and that the acts and conduct of his

In a wife's suit for divorce, evidence held to wife and favorite son and the confidential warrant chancellor's action in denying divorce relations existing between them induced the under charge of indignities offered by plaintiff's

husband to her person. testator to believe that he had carried out his heart's desire and provided for all those 5. DIVORCE Em 232—AWARD OF ALLMONY ON whom he loved best and recognized as ob

SEPARATION-PROPRIETY. jects of his bounty.

In wife's suit for divorce, alimony of $25 Under the circumstances as pointed out in bill for divorce and a third interest in the hus

a month was properly awarded her, though her our original opinion, the acts and conduct of band's estate was dismissed, where the husband, the wife amounted to action on her part in before separation, had stated it was all right inducing her husband to make the will. The with him, and that he would pay expenses of her distinction we have attempted to make in the / moving.

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes



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Appeal from Crittenden Chancery Court; | October, 1917. On the last occasion she had Archer Wheatley, Chancellor.

called the cook, Martha Taylor, to witness

the discovery. Martha Taylor corroborated Suit for divorce by Maggie Simpkins against Henry Simpkins. From decree dis- her testimony as to finding the instrument missing the bill, but awarding alimony,

plain- in his pocket to some extent. The effect of tiff appeals, and defendant cross-appeals. appellee's testimony is to deny that he had

such an instrument in his possession, for he Decree affirmed.

denies that he knew anything about the disBrown & Anderson, of Memphis, Tenn., for covery of the instrument in his pocket, or appellant.

that he ever had a conversation with his Rudolph Isom, of Marion, for appellee. wife about it as sworn to by her. In addition

to his denial, he established by Dr. Barton HUMPHREYS, J. Appellant instituted that he was being ineffectively treated for suit against appellee on the 3d day of Jan- impotency at the times it is claimed the inuary, 1918, in the Crittenden chancery court, struments were found in his pocket. Again, for an absolute divorce and one-third of the the possession of such an instrument falls personal estate of appellee, upon the follow- short of proving adultery. He may have proing alleged grounds: (1) Habitual drunken- cured it for the purpose, yet never use it. ness; (2) adultery; (3) indignities offered to No paramour or opportunity was shown. In her person that rendered her condition in the case of Leonard v. Leonard, 101 Ark. 522, tolerable.

142 S. W. 1133, this court approvingly quoted Appellee filed answer denying each materi- from 14 Cyc. as follows: al allegation in the complaint.

"If an adulterous disposition on the part of The cause was submitted upon the plead- defendant and the alleged paramour is shown, ings and depositions of the witnesses, from and it appears that there was an opportunity which the chancellor found that the evidence for them to commit the offense, these facts are was insufficient to sustain any of the charges,

sufficient to establish adultery.

To but was sufficient to allow some alimony. A have this effect the opportunity must occur un

der incriminaing circumstances." decree was accordingly rendered dismissing the bill for divorce and awarding $25 per We do not think the mere possession of month as alimony. Appellant has prosecut- an immoral instrument necessarily established an appeal from the decree dismissing her ed adultery on the part of the appellee. Esbill for divorce and one-third interest in pecially would it not be so in the instant the estate of appellee; and appellee has pros-case; for the evidence strongly tends to ecuted a cross-bill from the decree awarding show that appellee was impotent. The clear alimony in the sum of $25 a month. The preponderance of the evidence is not against cause is therefore properly before this court the finding of the chancellor on the charge for trial de novo.

of adultery. (1) 1. There is some evidence tending to

[3, 4] 3. Appellee, at the age of 60, and apshow that appellee was a drinker of liquor pellant, at the age of 45, married in Memduring the entire time appellee and appellant phis, Tenn., on November 22, 1914. Appellived together as man and wife, but that he lant was a widow at the time, and had a only occasionally drank to excess. Appel- daughter, Ruby Hinds, about 12 years of lant's own testimony was to the effect that age. Immediately after the marriage, they he got drunk occasionally. Appellee intro went with appellee to his home in Marion, duced a number of witnesses who associated Ark. Appellee was engaged in the mercanwith him in a business way and frequently tile business, and had two stores, one in met him, who testified that they never saw Marion, and one a short distance out in the him take a drink and never saw him when country. Appellant assisted her husband in he was under the influence of liquor. The conducting the stores, and conducted a boardevidence failed to show that appellee had a ing house at the family residence in the fixed habit of frequently and habitually get- same inclosure with the store. During the ting drunk. The finding of the chancellor time she got her supplies from the store for that appellee was not an habitual drunkard use in the boarding house no charge was is sustained by the weight of the evidence, made upon the books against her, but during under the test laid down in the following the years 1915 and 1916 she paid about $782 cases as to what it takes to constitute an on her husband's store indebtedness out of habitual drunkard : Rose v. Rose, 9 Ark. her bank account, which she replenished from 507; Brown v. Brown, 38 Ark. 324; O'Kane time to time with money received from her v. O'Kane, 103 Ark. 382, 147 S. W. 73, 40 L. boarders. In February, 1917, her husband R. A. (N. S.) 655.

purchased a large dwelling house in the same [2] 2. The only evidence tending to show inclosure from E. C. Culver for $1,800. Apthat appellee had been guilty of adultery was pellant fitted up and furnished the house that of appellant to the effect that she had and used it in connection with her boarding found an immoral instrument in his pocket house business. After enlarging the boardon two occasions-once in May and once in ing house business, she ceased to work in

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the store and attended entirely to her board- Mr. Simpkins make a disparaging remark
ing house. The husband continued to con- about Mrs. Simpkins; that they seemed to
duct the mercantile business, and she con- love each other; that Mrs. Simpkins and
ducted the boarding house business. The un her daughter both had access to everything
derstanding was that she should have sup- in the store.
plies from the store to run her boarding Fred Caruthers, a porter around the store
house, at cost and carriage, and that, in lieu in 1916 and 1917, testified that he was with
of rent, she should board appellee and his them about eleven months; that Mrs. Simp-
porter or clerk. She continued the boarding kins and her daughter had access to every-
house business until the separation, and un- thing; that he never heard Mr. Simpkins
til the last month kept her own account of use any abusive language toward Mrs. Simp-
the goods she obtained from appellee's store kins; that his disposition was good, and that
and paid for them according to her account. they seemed to get on as nice as any one
About that time appellee employed J. C. Har could; that he had never seen Mr. Simpkins
rison as a clerk, who concluded all the goods angry but one time when he and his wife had
taken out of the store by appellant were not a fuss about some coffee; that on that oc
being accounted for, and, feeling responsible casion Mr. Simpkins said that rather than
for them, obtained permission from appellee have a dispute he would allow the witness
to keep an account. Appellant concluded she to weigh the coffee and pay what she thought
was being overcharged by this clerk and be was right.
came angry. The separation occurred Octo- J. C. Harrison testified that he went to
ber 22, 1917. She only had a small amount work for Mr. Simpkins October 1, 1917;
of household goods at the time she came. that he felt responsible for what was being
When she moved away, she had three van- taken out of the store, and suggested that
loads of goods, an automobile which had he put down what was being taken out by
been purchased principally by appellee, and Mrs. Simpkins, and got permission from Mr.
some bank account. There is a conflict be Simpkins to do so; that he informed Mr.
tween the evidence of appellant and appellee Simpkins that his wife had stolen a bucket
as to which one wanted to start the boarding of lard, which she denied getting, and that
house business and as to the immediate cause Mr. Simpkins made no response concerning
of the separation.

the charge; that Mrs. Simpkins was very
The substance of the evidence responsive angry because he was charging everything
to the charge of indignities offered is as up to her; that during the time he was
follows: Appellant testified to some con- there Mr. Simpkins' attitude and disposition
duct, by word and act of appellee, calculated towards Mrs. Simpkins was as nice as he
to render her condition intolerable; that ap- ever saw ; that he never heard him speak
pellee cursed her on a number of occasions ; disrespectfully to his wife or daughter; that
that he took her to task for going to a Chau- he was more like a father than a stepfather;
tauqua at Earle with Mr Martin and her that he never heard Mr. Simpkins use any
daughter and remaining out until 12 o'clock abusive language to either one; and that he
at night, and quarreled with appellant and was always kind and considerate to them.
criticized her daughter because the daughter H. S. Schweink testified that he took his
was permitted to go to church with Mr. Field, meals at Mrs. Simpkins' boarding house for
with whom she was only slightly acquainted; seven months in the year 1917; that he had
that appellee, on one occasion, charged ap- never heard an unkind word out of Mr. Simp-
pellant with wrongfully taking money out of kins regarding his wife, and that he was
the cash drawer; that appellee had permit- exceptionally kind toward her daughter;
ted J. C. Harrison, his clerk, to say in his that he never noticed any disagreement be-
presence, without resenting it, that appellant tween Mr. and Mrs. Simpkins during the
had stolen some lard out of the store; that time he was there.
on Saturday before appellant left the home R. H. Jones, half-brother of appellant,
she was invited to leave by appellee; that, who lived at Evadale, Ark., testified that his
when she got to Memphis, she tried to call sister visited him on two occasions in 1917
Mr. Simpkins from the Arlington Hotel, but and spent several days with him; that on
the lines were busy; and that she walked the last occasion her husband and Ruby
across the street and got Mr. Levich to send | came with her and remained over Sunday;
him a message that she was not going back. that Ruby was thrown from a horse she was
She was corroborated in her statements by riding, and her mother began fussing at her ;
her daughter, Ruby Hinds.

that Ruby asked her stepfather to stop her Martha Taylor, who cooked for appellant mother from fussing with her; that the re and appellee eight or nine months immediate- lationship between Ruby and her stepfather ly before the separation, testified that she was quite affectionate; that appellant and was in close contact with them while there; appellee seemed to be getting along all right; that she never heard Mr. Simpkins use any that appellant never informed him on either profane or abusive language to Mrs. Simp-visit of any mistreatment or misconduct on kins; that on no occasion had she ever heard the part of appellee; that appellant told him she was in straitened financial circum-, and systematically pursued to an extent stances before she married appellee, but that which would render the life of the one upon now she was making money out of the board whom the indignities are imposed intoleraing house,

ble. Haley y. Haley, 44 Ark. 429. Tested Appellee testified that he used some pro by this rule, the record in this case warrantfane language in the presence of Mrs. Simped the chancellor in denying a divorce to kins, but that it was in a general way, and appellant under her charge of indignities. not directed, at either her or her daughter; [5] It is insisted by appellee and cross-apthat he never cursed or abused his wife; pellant that the court erred, under the record, that his wife had access to his store and in awarding appellant the sum of $25 per money drawer at all times; that when his month as alimony. The contention is that, wife returned from the Chautauqua about unless the evidence warranted the court in midnight he made some complaint, and one granting either an absolute divorce or a diword after another brought on a quarrel; vorce from bed and board only, it was imthat he made objection to Ruby going to proper to award alimony. Appellant is in church with Mr. Field on account of his error in this contention. This court said in being a stranger, but that he did not abuse the case of Kientz v. Kientz, 104 Ark. 381, her and had no recollection whatever of us- 149 S. W. 86, that ing profane language; that six or seven

"It is the duty of the husband to support and months before the separation his wife got maintain his wife, even though they may live some money from an unknown place and separate and apart, if such separation does not paid a bill for him, and that he then sus- result through her fault.” pected for the first time that she was taking money, without his knowledge, out of the It cannot be said in the light of the evicash drawer, and he told her so; that later dence in this case that appellee's misconduct his clerk told him that his wife had stolen did not in part bring about the separation. a bucket of lard out of the store, and that The record in this case shows that appellant he did not resent it; that on two occasions is absent from the home through the consent she said, "I am feeding myself and feeding of appellee. The following question, proyou, and I just as well be off somewhere pounded to appellee, and the answer there else;" that he replied, "If you feel that way to by him, are found in the record : about it, you can move to-morrow and I will

“Q. You never told her she could leave or move you;” that he never ordered his wife must leave? A. Well, now, I believe there was to move, and did not know she was going; twice there, Mr. Brown, she told me she was that the first he knew of her leaving some boarding herself, and she said, 'I am feeding one called him up from Memphis and told myself and feeding you, and I just as well be him his wife was not coming home.

off somewhere else,' and I said, 'Well, if you feel The evidence is quite voluminous, and it is that way it is perfectly all right; you can move impracticable to set it out in detail in this to-morrow,' or something like that, 'and I will

move you.' opinion, but the general trend of it is to the effect that, outside of a few isolated in

Pressed further appellee said: stances, appellee manifested a kindly dispo sition toward his wife and daughter. The

"Well, now, I think I told her that she inevidence fails to show any settled hatred of think I said to her, 'I know you intend to leave

tended to leave. I think I told her that. I appellant by appellee, or that he habitually from what you said yesterday,' I think that is and systematically offered indignities to her as near as I can remember, and I said, “Whenperson. The weight of the evidence shows ever you get ready to move I am ready to pay that, outside of a few quarrels and disagree the bill.'" ments, the family lived in harmony for three years. The most trying indignity offered by So it cannot be said that appellant has abappellee was his charge that appellant took sented herself from appellee without fault money, without his consent, out of the cash on his part. A husband who agrees to a sepdrawer. While she cried at the time that aration, or so conducts himself that it is not indignity was offered her, she soon forgave congenial for him and his wife to live tohim, and they lived together six months there- gether, must, as a matter of necessity and after. It has been settled by this court that right, maintain two households. the indignities offered, which entitled one to No error appearing, the decree of the chana divorce under the statute, must be habitual cellor is affirmed.

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| ure of appellant to post the 13-cent rate in ST. LOUIS, I. M. & S. RY. CO. v. WOOD. its station, and because its agent misquoted (No. 29.)

the new tariff freight rate of 13 cents per

hundredweight to the appellee. In accord(Supreme Court of Arkansas. Dec. 9, 1918.)

ance with the findings, a judgment was ren1. CARRIERS 36-INTERSTATE RATES-ERRO

dered dismissing appellant's complaint. NEOUS QUOTATION-DAMAGES.

Proper steps were taken, and an appeal has In suit to recover undercharges on interstate

been prosecuted to this court., shipment, shipper could not recover damages The agreed statement of facts showed that due to misquoting of rate by defendant's agent the old tariff rate fixed by the Interstate and to failure of defendant to post latest tariff Commerce Commission on the kind of lumin its station as required by Interstate Com ber shipped was 1042 cents per hundredmerce Act Feb. 4, 1887, § 6, as amended by Act weight; that, in the manner provided by March 2, 1889, § 1, and section 9 (U, S. Comp.

law, the Interstate Commerce Commission St. 1916, 88 8569, 8573), in view of construction

| later raised the rate to 13 cents per hundredplaced upon said act by the United States Supreme Court.

weight; that the rate of 13 cents per hundred

weight was fixed by the commission prior to 2. COURTS Cw97(5) - FEDERAL DECISIONS

the shipments of lumber upon which an unBINDING ON STATE COURT.

dercharge was made; that the station agent Construction placed by the Supreme Court

had received no notice of the raise in rate, of the United States upon Interstate Commerce Act Feb. 4, 1887, as amended by Act March 2,

nor had posted the 13-cent tariff rate in the 1889 (U. S. Comp. St. 1916, § 8569), is binding

station; that the station agent quoted the old upon the state courts.

tariff rate of 1042 cents to appellee and

showed him the old printed tariff at the Appeal from Circuit Court, Izard County; | time the shipments in question were made; J. B. Baker, Judge.

that, had the new tariff rates been posted Suit by the St. Louis, Iron Mountain &

in accordance with section 6 of the InterSouthern Railway Company against J. H.

state Commerce Act of February 4, 1887, Wood, in which defendant filed a cross-bill

as amended by the Act of March 2, 1889, for damages. Judgment dismissing com

appellee would have added the increase

in rate over the old 1072 cents per hundredplaint, and plaintiff appeals. Reversed and

weight tarifr to his selling price of the lumrendered.

ber, and in that way would have protected Troy Pace and Samp Jennings, both of himself against any loss or damage. Little Rock, for appellant.

The question then to be determined by

this appeal is: Can an interstate carrier be HUMPHREYS. J. (1) Appellant institut- mulcted in damages for failure to post its ed suit against appellee before a justice of freight tariff rates, as fixed by the Interstate the peace in Izard county to recover $53.60 Commerce Commission, in its station, or by undercharges in freight charges on five car. misquoting the existing freight tariff rate to loads of lumber shipped from Calico Rock, a shipper? The answer to this question Ark., to Springfield, Mo.

must depend upon the correct construction of Appellee denied the material allegations in sections 6 and 9 of the Interstate Commerce the complaint and filed a cross-bill for dam- Act of February 4, 1887 (U. S. Comp. St. ages for an equal amount on account of the 1916, 88 8569, 8573). failure of appellant to post the latest freight [2] The construction placed on the Intertariff on lumber in its station, as required state Commerce Act of February 4, 1887, as by section 6 of the Interstate Commerce Act amended by the Act of March 2, 1889, by the of February 4, 1887, c. 104, 24 Stat. 380, as Supreme Court of the United States, is amended by the Act of March 2, 1889, c. binding upon the state courts. It seems that 382, § 1, 25 Stat. 855; and because the sta- the exact question presented by this appeal tion agent quoted a rate of 1042 cents per was settled by the Supreme Court of the hundredweight, according to an old printed United States in the case of Illinois Central tariff, instead of 13 cents per hundredweight. Railroad Co. v. Henderson Elevator Co., 226 as provided by the printed schedule of U. S. 441, 33 Sup. Ct. 176, 57 L. Ed. 290. In freight rates in the office of the Interstate that case, the Henderson Elevator Company Commerce Commission.

brought suit against the railroad company The cause was heard by the court, sitting to recover damages on account of the failas a jury, upon the pleadings and an agreed ure of the railroad company to post the statement of facts, from which the court freight rates at its station and the misquofound that appellant was entitled to recover tation by the agent of the freight rate on $53.60 with 6 per cent. interest thereon as corn shipped in interstate commerce from underfreight charges on lumber shipments, Henderson, Ky. The agent quoted a rate of but that appellee was entitled to reparation 10 cents per hundred pounds, when in fact in an equal amount on account of the fail- the rate fixed by the Interstate Commerce

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