being upon it to show a violation of the provisions of the policy, would necessarily have been defeated if no evidence had been introduced. Roberts v. Padgett, 82 Ark. 331, 101 S. W. 753. See, also, Mansur & T. Implement Co. v. Davis, 61 Ark. 628, 33 S. W. 1074.

not fire his pistol at all, and Treadway tes- | a member in good standing, and the burden tified that he did not even draw it from his scabbard. Other witnesses who were standing near and witnessed the difficulty corroborated their testimony. On the part of the plaintiff one witness testified that after Howle and Sowell had emptied their pistols at each other Treadway fired two shots at Howle and that these shots caused his death. Other testimony will be referred to in the opinion.

There was a verdict and judgment in favor of the plaintiff, and the defendant company has appealed.

Brundidge & Neelly, of Searcy, for appellant. J. N. Rachels, of Searcy, for appellee.

[3] Counsel for the plaintiff say that section 6196 of Kirby's Digest gives the opening and conclusion of the argument to the party upon whom the burden of proof rests under the pleadings. Hence they claim that the opening and conclusion is a matter to be determined by the pleadings in the case, and in support of their contention cite Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 25 S. W. 868, and Beal & Doyle Dry Goods Co. v. Barton, 80 Ark. 326, 97 S. W. 58. In answer to that HART, J. (after stating the facts as argument it may be stated that at the beabove). In the opinion on the first appeal ginning of the trial and before any evidence it was held that when a policy of insurance was offered to be introduced by the plaintiff in a fraternal order provides for a forfeiture the defendant admitted the execution of the in case the insured met his death while com- policy, and that Howle died while a member mitting an act in violation of law, in order in good standing in the company. Its sole to avoid the policy the insured must have defense was that there had been a forfeiture met his death while voluntarily engaged in of the policy because he had violated the the violation of the law, and if the insured terms thereof. Under these circumstances was insane and not responsible for his acts the court should have treated the pleadings when the act was committed, then he did as amended to conform to the admission not voluntarily commit an unlawful act in made by the defendant, and erred in not givviolation of the law. It was the contentioning the defendant the right to open and close of the plaintiff that Howle at the time of the the case before the jury. killing was insane, and testimony was intro- [4] It is next insisted that the court erred duced on the part of the plaintiff to establish in giving certain instructions to the jury at that issue. Some of the witnesses who tes- the instance of the plaintiff. The instructified on this branch of the case were not tions are as follows: experts, and it is now insisted that they did "No. 6. You are further instructed that under not sufficiently detail the facts upon which the law and the evidence in this case, that untheir testimony was based to make it com-less you find that Marvin Sowell in self-defense petent. We do not deem it necessary to set out their testimony. It is substantially the same as the testimony given by the witnesses on the last appeal, and we there held that the testimony was competent.

fired the fatal shot, hit and killed, or caused the death of John W. Howle, your verdict will be for the plaintiff.

"No. 7. You are instructed that even though you may find from the evidence that the deceased, John W. Howle, provoked the difficulty with Marvin Sowell, and that Marvin Sowell, in self-defense, shot at John W. Howle, unless you further find from the evidence that the shots fired by Marvin Sowell killed or caused the death of said John W. Howle, you will find for the plaintiff.

"No. 8. You are further instructed that if one J. W. Treadway, a bystander, shot the deceased, John W. Howle, and that the shots from the gun of the said J. W. Treadway killed the said by the city marshal, then your verdict will be John W. Howle, and not the shot, or shots, fired for the plaintiff."

[1, 2] It is also insisted by counsel for the defendant company that the court erred in denying it the right to open and close the case before the jury. In this contention we think counsel are correct. The record shows that at the beginning of the trial the defendant admitted the issuance of the policy sued on, and that John W. Howle died while a member in good standing in the company. It denied liability solely on the ground that there had been a violation of the provisions of the policy of insurance. The burden was upon the company to show that there had been a forfeiture under the terms of the policy. Arkansas Mutual Fire Insurance Co. v. Stuckney, 85 Ark. 33, 106 S. W. 203. Sec-ed of were not prejudicial would be to say tion 6196 of Kirby's Digest provides that in the argument of a case the party having the burden of proof shall have the opening and the conclusion. Section 3107 provides that the burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side. The insurance company, having admitted the issu

[5] The instructions complained of were erroneous and prejudicial to the rights of the defendant. The only theory upon which it could be held that the instructions complain

that if Treadway killed Howle, the undisputed evidence shows that he killed him after Howle had retired from the conflict and that on this account, although Howle might have been the aggressor in the beginning, his death was not the proximate result of his original unlawful act, and hence was not within the clause in the policy limiting the

[7] The jury were the judges of the credito plead further, and the bill was dismissed bility of the witnesses, and had a right to for want of equity. From the decree disbelieve such parts of the testimony as they missing the bill, an appeal has been prose

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

is a mooted question in this state. Being a question of first impression here, the court adopts the American doctrine, both upon reason and because the American doctrine is supported by the increasing weight of authority. This court said in the well-considered case of Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, that:

shall survive the said John Bowlin and marry again, that this shall immediately cease and determine upon the happening of that event, that upon the death of either the said John and Mattie Bowlin the one-half of said income shall be paid to Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin, and Maud E. Campbell, children and their heirs or the survivor of them until the final determination of this trust as hereafter provided. That upon the death of John and Mattie Bowlin or the marriage of Mattie Bow"Although it is intimated in Honnett v. Willin should she survive her husband John Bow-liams, 66 Ark. 153 [49 S. W. 495], that such lin, this trust shall immediately cease and deter- a trust cannot be created or exist in this state, mine and the trust fund with any income that the increasing weight of authority in America may have accrued at the time I give and be- favors the contrary rule." queath unto the said Marcus Bowlin, Paul C. Bowlin, Othel Bowlin, and Maud E. Campbell and their heirs share and share alike or their survivors in the event that either of said legatees should not survive the determination of this trust and die without issue of their bodies. I further direct that this trust shall be without power of anticipation of such income by way of assignment charge or otherwise by the said beneficiaries. It is not that I have any less affection for my son John than my other children that I make this provision in my will for him, but to provide a stated income for him and his wife and relieve him of the care and charge of an estate which I fear that he would not be able to properly care and manage."

John Bowlin and Mattie Bowlin, cestuis que trust of the life estate in said property, acquired the remainder interest therein from the remaindermen, all of whom were, at the time, sui juris.

It may be noted also that the distinguished jurist, in rendering the opinion in Honnett v. Williams, supra, reserved the question for future consideration. It was unnecessary to decide the question in Booe v. Vinson for the reason that no restriction was placed upon the cestuis by the testator in the disposition of the income from the life estate. This court has jealously protected the free and unlimited right of a person in sound mind and otherwise competent to dispose of his property according to his pleasure, unless in

contravention of some statute or the wellestablished rule against perpetuities. Fortner v. Phillips, 124 Ark. 395, 187 S. W. 318.

[3] There is no misconstruing the intent of the testator in the instant case. The language of the eighth clause is direct and un[1] Appellants contend that under the doc- ambiguous. By the very wording, the legal trine of merger of estates and acceleration of title and the absolute control of the properremainders, the trust was terminated when ty passed to the trustee for the sole purthe beneficiaries of the life estate acquir-pose of creating, by use and investment, a ed the interest of the remaindermen. As a permanent income for the maintenance of general rule, this is true when the estates, the testator's son during life, and his daughboth legal and equitable, unite in the same ter-in-law so long as she remained the wife person, but otherwise, if the merger is held or widow of his son. The testator assigned in abeyance by the clear intent or purpose as a reason for creating the trust the inaof the trust. What is characterized in law bility of his son to care for and manage the as a spendthrift trust usually acts as a bar-estate. In the fear that his son might rier and prevents a merger. It seems that resort to some method of defeating his equity will not recognize a merger, even purpose, he provided against the anticipawhere there is a union of legal and equitable estates in the same person, if contrary to the intention of the parties, if the effect would be to destroy a valid trust. 39 Cyc. 246; In re Moore's Estate, 198 Pa. 611, 48 Atl. 884; 2 Washburn on Real Estate (6th Ed.) § 1484; Evansville Gaslight Co. v. State, 73 Ind. 222, 38 Am. Rep. 129; Watson v. Dundee Mortgage & Trust Investment Co., 12 Or. 474, 8 Pac. 548; Asche v. Asche, 113 N. Y. 232, 21 N. E. 70; Mason v. Rhode Island Hospital Trust Co., 78 Conn. 81, 61 Atl. 57, 3 Ann. Cas. 586. Having subscribed to the American doc[2] The soundness then of appellants' con- trine upholding spendthrift trusts, and the tention must depend upon whether spend-intention of the testator being manifest to thrift trusts are valid in Arkansas, and, if create such a trust for the protection of the valid, whether a spendthrift trust was creat- cestuis against improvidence and incapacity, ed by the terms of the section of the will which trust is not contrary to law or public quoted above. The English doctrine con- policy, and being convinced the doctrine of demns and the American doctrine upholds merger of estates cannot operate to destroy spendthrift trusts. Nichols, Assignee, V. a valid spendthrift trust, the decree of the Eaton et al., 96 U. S. 716, 23 L. Ed. 254. It learned chancellor is affirmed.

tion of the income in any manner. He evidenced his intention most clearly by creating a stated income. His purpose was to impound the corpus of the estate in such way that the cestuis should not receive it, or even the income therefrom, except at certain and reasonable intervals. All power of alienation of the trust fund was withheld from the cestuis. By the bequest appellants acquired no vested estate therein. Every essential necessary to create a spendthrift trust is present in the devise.

possession," in a word, is simply that which HOUSTON OIL CO. OF TEXAS v. JONES the court had always held it to mean and as

et al. (No. 9872.)

(Supreme Court of Texas. Nov. 14, 1917.)
"CLAIM OF

ADVERSE POSSESSION 67

-

RIGHT"-STATUTE. The "claim of right" to which Rev. St. art. 5681, defining "adverse possession," refers, prescribes merely that the entry of the limitation claimant on the land must be with intent to claim it as his own, to hold it for himself, such continuing to be the nature of his possession, and it is unnecessary that his entry or holding be founded on some character of title.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Claim of Right.]

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

other authorities, generally, had defined it. For instance it was said by Judge Moore in Word v. Drouthett, 44 Tex. 365, decided in 1875:

to claim it as his own or hold it for himself; or "His entry upon the land must be with intent his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or decla ration showing such purpose, in order to set the statute in motion in his favor. (Wash. on Real Prop. 125; 2 Smith's Lead. Cases, 561.)"

The court has a number of times declared

that a naked trespasser may acquire a limitation title to land under the ten years statute. Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, Craig v. Suit by H. C. Jones and others against the Cartwright, 65 Tex. 413, and Word v. DrouthHouston Oil Company of Texas. Judgment ett are among the decisions so holding. for plaintiffs, and defendant appealed to the It was not the purpose of Stevens v. court of Civil Appeals, which affirmed (184 Pedregon to overrule this established holdS. W. 611), and defendant brings error. Writing of the court, though there is an expres of error refused.

See, also, 161 S. W. 92.

H. O. Head, of Sherman, Parker & Kennerly, and Fred L. Williamns, all of Houston, for plaintiff in error. Jno. B. Warren, of Houston, for defendants in error.

sion in Chief Justice Brown's opinion that is to some extent confusing.

The "claim of right" to which the statute refers simply means that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself; and such must continue to be the nature of his possession. That it is necessary that his entry upon or holding of the land be founded upon his having some character of title is opposed to the theory of the ten

PHILLIPS, C. J. The suit was by the heirs of Mrs. D. M. Jones against the Houston Oil Company of Texas for the recovery of an undivided one-half interest in a 160 acre tract of land. The title relied upon by the plain-years limitation statute. tiffs was one of ten years limitation which The case of Houston Oil Co. v. Davis, 200 they claimed was perfected by their father, S. W., in which a writ of error has been D. M. Jones, during the life-time of their granted and which has not yet been decided, mother. The verdict of the jury was in their involves this question, but we deem it best favor and has support in the evidence. to relieve the opinions of the court of any possible doubt upon it. For that reason this opinion is written now, rather than deferred until the decision of the above case. The writ of error is refused.

It is urged that there was no proof that D. M. Jones had any claim to the land when he entered upon it, and none that his occupancy was continued under any claim other than an intention to hold the land as a home. For this reason it is contended that his possession was not adverse within the meaning of the statute, because not commenced and continued under "a claim of right." Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210, is relied upon in support of this proposition.

The statute defining "adverse possession," Article 5681, is as follows:

"Adverse possession' is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another."

DANIEL v. STATE. (No. 4654.)
(Court of Criminal Appeals of Texas. Oct. 31,
1917.)

CRIMINAL LAW 1159(3) - REVIEW
FLICTING EVIDENCE.

-CON

Where, on a trial for violating the local op tion law (Rev. St. 1911, art. 5715 et seq.), the state proved that defendant sold alcohol to a certain person, while defendant denied it, the jury's finding in favor of the state's evidence would not be disturbed.

Appeal from District Court, Morris County; J. A. Ward, Judge.

J. S. Daniel was convicted of violating the local option law, and he appeals. Affirmed. E. B. Hendricks, Asst. Atty. Gen., for the State.

While the requirement that the appropriation of the land must be commenced and continued "under a claim of right inconsistent with and hostile to the claim of another" was first incorporated in the statute in 1879, at an early day this court announced that such claim was an essential element of adverse possession. Portis v. Hill, 3 Tex. 273. DAVIDSON, P. J. Appellant was convict The present statutory definition of "adverse ed of violating the local option law; his pun

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

ishment being assessed at one year's confinement in the penitentiary.

The only bill of exceptions found in the record was reserved to the action of the court overruling the motion for new trial. This adds nothing to the matters contained in the motion for new trial, and does not strengthen anything connected with the action of the court in this respect. The motion for new trial is based mainly upon the sufficiency of the testimony to support the conviction. This is set out in different ways in four or five paragraphs of the motion. The evidence is before us, and is very brief. The state proved that

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. The conviction under the indictment is for robbery, and penalty fixed at confinement in the state penitentiary for seven years.

The indictment appears regular, and in the absence of statement of facts or bills of exceptions we find nothing to review. The judgment is affirmed.

LAY et al. v. STATE. (No. 4614.)

appellants sold some alcohol to the alleged (Court of Criminal Appeals of Texas. Oct. 31,

purchaser, whose name was Cleveland Giles. This was denied by appellant. The jury solved the question in favor of the state's evidence. It was an issue squarely and fairly presented, and we do not feel justified in disturbing the finding of the jury.

The judgment, therefore, will be affirmed.

FISHER V. STATE. (No. 4665.)
(Court of Criminal Appeals of Texas. Oct. 31,
1917.)

CRIMINAL LAW 1124(3)-APPEAL-RECORD
-MATTERS PRESENTED FOR REVIEW.

1917. On Motion for Rehearing,
Nov. 21, 1917.)

1. CRIMINAL LAW 1095-BILLS OF EXCEP-
TIONS-DELAY IN FILING-STRIKING OUT.
Bills of exceptions filed too late will be
stricken out on motion.

2. ROBBERY 24(3) EVIDENCE

AND SUFFICIENCY.

WEIGHT

On a trial for robbery, evidence to identify defendants as the robbers held sufficient to sustain a conviction.

3. INDICTMENT AND INFORMATION—125(39) On Motion for Rehearing.

-DUPLICITY-INDICTMENT FOR ROBBERY. Under the statute providing that if any person, by assault or violence, or by putting in fear of life or bodily injury, shall fraudulently take any property from the person or possession of another with intent to appropriate it, he shall be imprisoned for life or for not less than five years, and when a firearm or other deadly weapon is used or exhibited, the punishment shall be Marcus Fisher was convicted of murder, by death or by imprisonment for not less than and he appeals. Affirmed.

The denial of a motion for a new trial for newly discovered evidence cannot be considered on appeal, where the evidence is not brought up. Appeal from District Court, Ft. Bend County; Samuel J. Styles, Judge.

five years, an indictment alleging that defendants made an assault upon a person named and

E. B. Hendricks, Asst. Atty. Gen., for the by assault and violence, and by putting him in State.

fear of life and bodily injury, and by using and exhibiting a pistol, fraudulently took from him use or exhibition of a firearm or deadly weapon certain property, was not duplicitous, since the in the commission of robbery is but a circumstance of aggravation and not a separate offense. Appeal from District Court, El Paso County; W. D. Howe, Judge.

J. H. Lay and Palmer Jones were convicted of robbery, and they appeal. Affirmed.

E. B. Henricks, Asst. Atty. Gen., for the
John T. Hill, of El Paso, for appellants.
State.

PRENDERGAST, J. The grand jury of El Paso county indicted appellants and one Racobs jointly, charging that on February 21, 1917, in said county they robbed C. Stull Racobs was not arrested or tried. Appellants by using and exhibiting a firearm (pistol). were tried together. They were each found guilty by a separate verdict and the punishment of each was assessed at 5 years confinement, the lowest punishment prescribed by law.

[1] All the bills of exceptions herein were filed too late to be considered. The Assistant Attorney General's motion to strike them out and not consider them on that account must be sustained.