28

tion under cover of the statute." Glass v. Hul- |
bert, 102 Mass. 24, 3 Am. Rep. 418; Curdy v.
Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A.
189, 12 Am. St. Rep. 157; O'Hara v. Dudley, 95
N. Y. 403, 47 Am. Rep. 53; Towles v. Berton,
Rich. Eq. Cas. (S. C.) 146, 24 Am. Dec. 409;
Schultz's Appeal, 80 Pa. 396, and Stahl v. Stahl, |
214 Ill. 131, 73 N. E. 319, 68 L. R. A. 617, 105
Am. St. Rep. 101, 2 Ann. Cas. 774, and note.

In the present case the execution of the
will was secured by reason of the confidential
relations existing between J. W. Stuart, de
ceased, his wife, and his son, Jas. A. Stuart,
while the testator was in contemplation of
death. It was established by clear and con-
vincing testimony that, after J. W. Stuart
was informed by his son Jas. A. Stuart that
the doctors thought that he was going to die,
his mind began to dwell upon a disposition
of his property. He called his children and
grandchildren around him, and told them
that he had enough for all, and that he in-
tended for his property to be divided equally
between them. He began to designate the
different tracts of land that he wanted each
child to have, and specifically stated to them
his intended disposition of all his real and
personal property. He was persuaded by his
son Jas. A. Stuart to make a short will, leav-
ing all his property to his wife, with the son
as executor, under the belief that she would
dispose of it after his death in accordance
with his expressed intention. It is true that
she never made an express promise to him
that she would carry out his wishes in the
matter of the disposition of his property, in
order to induce him to make a will in her
favor; but she knew that her favorite son
was making such promise in order to induce
him to make the will, and she acquiesced in
his conduct, knowing that her husband relied
upon her carrying out his wishes with re-
spect to a division of his property. After
he had made the will, he repeatedly told his
children, grandchildren, and friends who
gathered about him that his wife and son
James knew how he wanted his property di-
vided, and that he could trust their honor
and conscience in the matter. The record
clearly shows that the will was made in fa-
vor of Mrs. Stuart for the purpose of securing
a distribution of the testator's estate be-
tween his wife, his children, and grandchil-
dren, and that the acts and conduct of his
wife and favorite son and the confidential
relations existing between them induced the
testator to believe that he had carried out
his heart's desire and provided for all those
whom he loved best and recognized as ob-
jects of his bounty.

Under the circumstances as pointed out in our original opinion, the acts and conduct of the wife amounted to action on her part in inducing her husband to make the will. The distinction we have attempted to make in the

(Ark.

opinion is clearly pointed out by Sharswood, J., one of the ablest of American judges, in Schultz's Appeal, 80 Pa. 396. In that case a testator, wishing to bequeath his estate to charitable uses, was told that it would be invalid if he should die within a month, but that he might give it immediately to some person whom he could trust to carry out his wishes. Yeakle. Yeakle was not present when the An absolute bequest was made to Reuben will was made, and did not know of its existence until after the death of the testator. The testator died within a month after the will had been made, and the court said that under the circumstances there was nothing to fasten a trust upon Yeakle. The learned justice said, however:

will was executed, or the object of the bequest
"Had Reuben Yeakle been present when the
been communicated to him before the testator's
death, and he had held his peace, there would
have been some ground for fastening a trust
upon him ex maleficio, as in Hoge v. Hoge, 1
Watts [Pa.] 163 [26 Am. Dec. 52]. But nothing
of that kind can be pretended here."

will be denied.
It follows that the motion for rehearing

SIMPKINS v. SIMPKINS.
(Supreme Court of Arkansas.
1. DIVORCE 124-Grounds

(No. 30.)
Dec. 9, 1918.)
HABITUAL
DRUNKENNESS-SUFFICIENCY OF EVIDENCE.

sufficient to sustain chancellor's finding that de-
In a wife's suit for divorce, evidence held
fendant husband was not an habitual drunkard.
2. DIVORCE 129(12)—ADULTERY
CIENCY OF EVIDENCE.

SUFFI

HABITUAL

sisting of wife's testimony that she had found In a wife's suit for divorce, evidence, conan immoral instrument in her husband's pocket on two occasions, held insufficient to show husband had been guilty of adultery. 3. DIVORCE 29-INDIGNITIES AND SYSTEMATIC CHARACTER. The indignities offered which entitle one to a divorce under the statute must be habitual and systematically pursued to an extent which would render life intolerable. 4. DIVORCE

132-INDIGNITIES-SUFFICIEN

CY OF EVIDENCE.

warrant chancellor's action in denying divorce In a wife's suit for divorce, evidence held to under charge of indignities offered by plaintiff's husband to her person.

5. DIVORCE 232-AWARD OF ALIMONY ON

SEPARATION-PROPRIETY.

a month was properly awarded her, though her
In wife's suit for divorce, alimony of $25
band's estate was dismissed, where the husband,
bill for divorce and a third interest in the hus-
before separation, had stated it was all right
with him, and that he would pay expenses of her
moving.

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

Brown & Anderson, of Memphis, Tenn., for covery of the instrument in his pocket, or appellant.

that he ever had a conversation with his 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 used 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.

Fred Caruthers, a porter around the store in 1916 and 1917, testified that he was with them about eleven months; that Mrs. Simpkins and her daughter had access to everything; that he never heard Mr. Simpkins use any abusive language toward Mrs. Simpkins; that his disposition was good, and that they seemed to get on as nice as any one could; that he had never seen Mr. Simpkins angry but one time when he and his wife had a fuss about some coffee; that on that occasion Mr. Simpkins said that rather than have a dispute he would allow the witness to weigh the coffee and pay what she thought was right.

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 house, at cost and carriage, and that, in lieu of rent, she should board appellee and his porter or clerk. She continued the boarding house business until the separation, and until the last month kept her own account of the goods she obtained from appellee's store and paid for them according to her account. About that time appellee employed J. C. Harrison as a clerk, who concluded all the goods taken out of the store by appellant were not being accounted for, and, feeling responsible for them, obtained permission from appellee to keep an account. Appellant concluded she was being overcharged by this clerk and became angry. The separation occurred October 22, 1917. She only had a small amount of household goods at the time she came. When she moved away, she had three vanloads of goods, an automobile which had been purchased principally by appellee, and some bank account. There is a conflict be tween the evidence of appellant and appellee as to which one wanted to start the boarding house business and as to the immediate cause of the separation.

The substance of the evidence responsive to the charge of indignities offered is as follows: Appellant testified to some conduct, by word and act of appellee, calculated to render her condition intolerable; that appellee cursed her on a number of occasions; that he took her to task for going to a Chautauqua at Earle with Mr Martin and her daughter and remaining out until 12 o'clock at night, and quarreled with appellant and criticized her daughter because the daughter was permitted to go to church with Mr. Field, with whom she was only slightly acquainted; that appellee, on one occasion, charged appellant with wrongfully taking money out of the cash drawer; that appellee had permitted J. C. Harrison, his clerk, to say in his presence, without resenting it, that appellant had stolen some lard out of the store; that on Saturday before appellant left the home she was invited to leave by appellee; that, when she got to Memphis, she tried to call Mr. Simpkins from the Arlington Hotel, but the lines were busy; and that she walked across the street and got Mr. Levich to send him a message that she was not going back. She was corroborated in her statements by her daughter, Ruby Hinds.

Martha Taylor, who cooked for appellant and appellee eight or nine months immediately before the separation, testified that she was in close contact with them while there; that she never heard Mr. Simpkins use any profane or abusive language to Mrs. Simpkins; that on no occasion had she ever heard

J. C. Harrison testified that he went to work for Mr. Simpkins October 1, 1917; that he felt responsible for what was being taken out of the store, and suggested that he put down what was being taken out by Mrs. Simpkins, and got permission from Mr. Simpkins to do so; that he informed Mr. Simpkins that his wife had stolen a bucket of lard, which she denied getting, and that Mr. Simpkins made no response concerning the charge; that Mrs. Simpkins was very angry because he was charging everything up to her; that during the time he was there Mr. Simpkins' attitude and disposition towards Mrs. Simpkins was as nice as he ever saw; that he never heard him speak disrespectfully to his wife or daughter; that he was more like a father than a stepfather; that he never heard Mr. Simpkins use any abusive language to either one; and that he was always kind and considerate to them.

H. S. Schweink testified that he took his meals at Mrs. Simpkins' boarding house for seven months in the year 1917; that he had never heard an unkind word out of Mr. Simpkins regarding his wife, and that he was exceptionally kind toward her daughter; that he never noticed any disagreement between Mr. and Mrs. Simpkins during the time he was there.

R. H. Jones, half-brother of appellant, who lived at Evadale, Ark., testified that his sister visited him on two occasions in 1917 and spent several days with him; that on the last occasion her husband and Ruby came with her and remained over Sunday; that Ruby was thrown from a horse she was riding, and her mother began fussing at her; that Ruby asked her stepfather to stop her mother from fussing with her; that the relationship between Ruby and her stepfather was quite affectionate; that appellant and appellee seemed to be getting along all right; that appellant never informed him on either visit of any mistreatment or misconduct on 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 v. 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, thating profane language; that six or seven months before the separation his wife got some money from an unknown place and paid a bill for him, and that he then suspected for the first time that she was taking money, without his knowledge, out of the cash drawer, and he told her so; that later his clerk told him that his wife had stolen a bucket of lard out of the store, and that he did not resent it; that on two occasions she said, "I am feeding myself and feeding you, and I just as well be off somewhere else;" that he replied, "If you feel that way about it, you can move to-morrow and I will move you;" that he never ordered his wife to move, and did not know she was going; that the first he knew of her leaving some one called him up from Memphis and told him his wife was not coming home.

The evidence is quite voluminous, and it is impracticable to set it out in detail in this opinion, but the general trend of it is to the effect that, outside of a few isolated instances, appellee manifested a kindly disposition toward his wife and daughter. The evidence fails to show any settled hatred of appellant by appellee, or that he habitually and systematically offered indignities to her person. The weight of the evidence shows that, outside of a few quarrels and disagreements, the family lived in harmony for three years. The most trying indignity offered by appellee was his charge that appellant took money, without his consent, out of the cash drawer. While she cried at the time that indignity was offered her, she soon forgave him, and they lived together six months thereafter. It has been settled by this court that the indignities offered, which entitled one to a divorce under the statute, must be habitual

"It is the duty of the husband to support and maintain his wife, even though they may live separate and apart, if such separation does not result through her fault."

It cannot be said in the light of the evidence in this case that appellee's misconduct did not in part bring about the separation. The record in this case shows that appellant is absent from the home through the consent of appellee. The following question, propounded to appellee, and the answer thereto by him, are found in the record:

"Q. You never told her she could leave or must leave? A. Well, now, I believe there was twice there, Mr. Brown, she told me she was boarding herself, and she said, 'I am feeding myself and feeding you, and I just as well be off somewhere else,' and I said, 'Well, if you feel that way it is perfectly all right; you can move to-morrow,' or something like that, 'and I will move you.'"

Pressed further appellee said:

"Well, now, I think I told her that she inI think I told her that. I tended to leave.

think I said to her, 'I know you intend to leave from what you said yesterday,' I think that is as near as I can remember, and I said, 'Whenever you get ready to move I am ready to pay the bill.'"

So it cannot be said that appellant has absented herself from appellee without fault on his part. A husband who agrees to a separation, or so conducts himself that it is not congenial for him and his wife to live together, must, as a matter of necessity and right, maintain two households.

No error appearing, the decree of the chancellor is affirmed.

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 in accordance with section 6 of the Interstate Commerce Act of February 4, 1887, as amended by the Act of March 2, 1889, appellee would have added the increase in rate over the old 10% cents per hundredweight tariff to his selling price of the lumber, and in that way would have protected

Troy Pace and Samp Jennings, both of himself against any loss or damage. Little Rock, for appellant.

(