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 convincing 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 intended 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, leaving 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 respect 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 divided, and that he could trust their honor and conscience in the matter. The record clearly shows that the will was made in favor of Mrs. Stuart for the purpose of securing a distribution of the testator's estate between his wife, his children, and grandchildren, 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 objects 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

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. An absolute bequest was made to Reuben Yeakle. Yeakle was not present when the 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:

"Had Reuben Yeakle been present when the will was executed, or the object of the bequest 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."

It follows that the motion for rehearing will be denied.

SIMPKINS v. SIMPKINS. (Supreme Court of Arkansas.

1. DIVORCE 124-GROUNDS

(No. 30.) Dec. 9, 1918.)

HABITUAL DRUNKENNESS-SUFFICIENCY OF EVIDENCE.

In a wife's suit for divorce, evidence held sufficient to sustain chancellor's finding that defendant husband was not an habitual drunkard. SUFFI2. DIVORCE 129(12)—ADULTERY CIENCY OF EVIDENCE.

-

In a wife's suit for divorce, evidence, consisting of wife's testimony that she had found an immoral instrument in her husband's pocket on two occasions, held insufficient to show husband had been guilty of adultery. 3. DIVORCE 29-INDIGNITIES - HABITUAL 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.

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

5. DIVORCE 232-AWARD OF ALIMONY ON

SEPARATION-PROPRIETY.

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

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

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

Suit for divorce by Maggie Simpkins against Henry Simpkins. From decree dismissing the bill, but awarding alimony, plaintiff appeals, and defendant cross-appeals. Decree affirmed.

called the cook, Martha Taylor, to witness the discovery. Martha Taylor corroborated her testimony as to finding the instrument in his pocket to some extent. The effect of appellee's testimony is to deny that he had such an instrument in his possession, for he denies that he knew anything about the dis

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

Rudolph Isom, of Marion, for appellee.

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 that he was being ineffectively treated for impotency at the times it is claimed the instruments were found in his pocket. Again, the possession of such an instrument falls short of proving adultery. He may have procured it for the purpose, yet never used it. No paramour or opportunity was shown. In the case of Leonard v. Leonard, 101 Ark. 522, 142 S. W. 1133, this court approvingly quoted

HUMPHREYS, J. Appellant instituted suit against appellee on the 3d day of January, 1918, in the Crittenden chancery court, for an absolute divorce and one-third of the personal estate of appellee, upon the following alleged grounds: (1) Habitual drunkenness; (2) adultery; (3) indignities offered to her person that rendered her condition intolerable. Appellee filed answer denying each materi- from 14 Cyc. as follows: al allegation in the complaint.

The cause was submitted upon the pleadings and depositions of the witnesses, from which the chancellor found that the evidence was insufficient to sustain any of the charges, but was sufficient to allow some alimony. A decree was accordingly rendered dismissing the bill for divorce and awarding $25 per month as alimony. Appellant has prosecuted an appeal from the decree dismissing her bill for divorce and one-third interest in the estate of appellee; and appellee has prosecuted a cross-bill from the decree awarding alimony in the sum of $25 a month. The cause is therefore properly before this court for trial de novo.

[1] 1. There is some evidence tending to show that appellee was a drinker of liquor during the entire time appellee and appellant lived together as man and wife, but that he only occasionally drank to excess. Appellant's own testimony was to the effect that he got drunk occasionally. Appellee intro duced a number of witnesses who associated with him in a business way and frequently met him, who testified that they never saw him take a drink and never saw him when he was under the influence of liquor. The evidence failed to show that appellee had a fixed habit of frequently and habitually getting drunk. The finding of the chancellor that appellee was not an habitual drunkard is sustained by the weight of the evidence, under the test laid down in the following cases as to what it takes to constitute an habitual drunkard: Rose v. Rose, 9 Ark. 507; Brown v. Brown, 38 Ark. 324; O'Kane v. O'Kane, 103 Ark. 382, 147 S. W. 73, 40 L. R. A. (N. S.) 655.

[2] 2. The only evidence tending to show that appellee had been guilty of adultery was that of appellant to the effect that she had found an immoral instrument in his pocket on two occasions—once in May and once in

"If an adulterous disposition on the part of defendant and the alleged paramour is shown, and it appears that there was an opportunity for them to commit the offense, these facts are ** To sufficient to establish adultery. * have this effect the opportunity must occur un

der incriminaing circumstances."

We do not think the mere possession of an immoral instrument necessarily established adultery on the part of the appellee. Especially would it not be so in the instant case; for the evidence strongly tends to show that appellee was impotent. The clear preponderance of the evidence is not against the finding of the chancellor on the charge of adultery.

[3, 4] 3. Appellee, at the age of 60, and appellant, at the age of 45, married in Memphis, Tenn., on November 22, 1914. Appellant was a widow at the time, and had a daughter, Ruby Hinds, about 12 years of age. Immediately after the marriage, they went with appellee to his home in Marion, Ark. Appellee was engaged in the mercantile business, and had two stores, one in Marion, and one a short distance out in the country. Appellant assisted her husband in conducting the stores, and conducted a boarding house at the family residence in the same inclosure with the store. During the time she got her supplies from the store for use in the boarding house no charge was made upon the books against her, but during the years 1915 and 1916 she paid about $782 on her husband's store indebtedness out of her bank account, which she replenished from time to time with money received from her boarders. In February, 1917, her husband purchased a large dwelling house in the same inclosure from E. C. Culver for $1,800. Appellant fitted up and furnished the house and used it in connection with her boarding house business. After enlarging the boarding house business, she ceased to work in

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 be came 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.

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.

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 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 reand appellee eight or nine months immediate-lationship between Ruby and her stepfather ly 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

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.

ST. LOUIS, I. M. & S. RY. CO. v. WOOD. (No. 29.)

(Supreme Court of Arkansas.

Dec. 9, 1918.) 1. CARRIERS 36-INTERSTATE RATES-ERRONEOUS QUOTATION-DAMAGES.

In suit to recover undercharges on interstate shipment, shipper could not recover damages due to misquoting of rate by defendant's agent and to failure of defendant to post latest tariff in its station as required by Interstate Commerce Act Feb. 4, 1887, § 6, as amended by Act March 2, 1889, § 1, and section 9 (U. S. Comp. St. 1916, §§ 8569, 8573), in view of construction placed upon said act by the United States Su

preme Court.

ure of appellant to post the 13-cent rate in its station, and because its agent misquoted the new tariff freight rate of 13 cents per hundredweight to the appellee. In accordance with the findings, a judgment was rendered dismissing appellant's complaint. Proper steps were taken, and an appeal has been prosecuted to this court.

The agreed statement of facts showed that the old tariff rate fixed by the Interstate Commerce Commission on the kind of lumber shipped was 101⁄2 cents per hundredweight; that, in the manner provided by law. the Interstate Commerce Commission later raised the rate to 13 cents per hundredweight; that the rate of 13 cents per hundredweight was fixed by the commission prior to the shipments of lumber upon which an undercharge was made; that the station agent had received no notice of the raise in rate, nor had posted the 13-cent tariff rate in the station; that the station agent quoted the old tariff rate of 101⁄2 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.

Suit by the St. Louis, Iron Mountain & Southern Railway Company against J. H. Wood, in which defendant filed a cross-bill for damages. Judgment dismissing complaint, and plaintiff appeals. Reversed and

rendered.

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.

HUMPHREYS, J. [1] Appellant instituted suit against appellee before a justice of the peace in Izard county to recover $53.60 undercharges in freight charges on five carloads of lumber shipped from Calico Rock, Ark., to Springfield, Mo.

Appellee denied the material allegations in the complaint and filed a cross-bill for damages for an equal amount on account of the failure of appellant to post the latest freight tariff on lumber in its station, as required by section 6 of the Interstate Commerce Act of February 4, 1887, c. 104, 24 Stat. 380, as amended by the Act of March 2, 1889, c. 382, § 1, 25 Stat. 855; and because the station agent quoted a rate of 102 cents per hundredweight, according to an old printed tariff, instead of 13 cents per hundredweight, as provided by the printed schedule of freight rates in the office of the Interstate Commerce Commission.

The cause was heard by the court, sitting as a jury, upon the pleadings and an agreed statement of facts, from which the court found that appellant was entitled to recover $53.60 with 6 per cent. interest thereon as underfreight charges on lumber shipments, but that appellee was entitled to reparation in an equal amount on account of the fail

The question then to be determined by this appeal is: Can an interstate carrier be mulcted in damages for failure to post its freight tariff rates, as fixed by the Interstate Commerce Commission, in its station, or by misquoting the existing freight tariff rate to a shipper? The answer to this question must depend upon the correct construction of sections 6 and 9 of the Interstate Commerce Act of February 4, 1887 (U. S. Comp. St. 1916, §§ 8569, 8573).

[2] The construction placed on the Interstate Commerce Act of February 4, 1887, as amended by the Act of March 2, 1889, by the Supreme Court of the United States, is binding upon the state courts. It seems that the exact question presented by this appeal was settled by the Supreme Court of the United States in the case of Illinois Central Railroad Co. v. Henderson Elevator Co., 226 U. S. 441, 33 Sup. Ct. 176, 57 L. Ed. 290. In that case, the Henderson Elevator Company brought suit against the railroad company to recover damages on account of the failure of the railroad company to post the freight rates at its station and the misquotation by the agent of the freight rate on corn shipped in interstate commerce from Henderson, Ky. The agent quoted a rate of 10 cents per hundred pounds, when in fact the rate fixed by the Interstate Commerce

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(