ment of L. D. Cooper. At the time the note, made by the court are as binding on us on became due the defendant Rush had on gen- appeal as is the verdict of a jury. Therefore eral deposit the sum of $2,045 in the bank, it may be taken as settled that the defendant which was by the bank credited on the note. Rush was a joint maker with the defendant Afterwards the bank instituted this action to Bryan on the note in controversy. The bank, recover the balance due on the note, which when the note became due, applied $2,045 amounted to $1,532.58, with interest. Bryan on the amount deposited with it by Rush as a and Cooper appeared in court at the time of part payment on the note in controversy. the trial and acknowledged the indebtedness. The right of the plaintiff to do this is chalAccording to the testimony of the plaintiff, lenged by Rush in this appeal. Bryan and Rush executed the note as principals, and Cooper indorsed it for them. According to the testimony of the defendant Rush, he only signed the note as surety. He stated that he sold his interest in the saloon business to Bryan, and that it was thereafter agreed that he should only sign the note as accommodation for Bryan and Cooper, and should only be liable as surety thereon. According to the testimony of Cooper and the Among the cases cited is that of Cockrill cashier of the bank, Rush signed the note as v. Joyce, 62 Ark. 216, 35 S. W. 221. In that principal, and no agreement was made that case, Mr. Justice Riddick, speaking for the he should only be held liable as surety. Oth-court, in discussing the rule, said: er facts were testified to by Rush, but we do not deem it necessary to set them out, for the testimony which we have recited is sufficient for a determination of the issues of law raised by the appeal.

The case was tried before the court, sitting as a jury, and the court made the following findings of law and fact:

"(1) That so far as the plaintiff was concerned the defendant C. C. Rush is a joint maker, with C. G. Bryan, of the note in controversy. "(2) That the deposit of $2,500 made by or for the defendant, C. C. Rush, on June 18, 1913, was a general and not a special deposit, nor was it a deposit in trust.

"(3) That the plaintiff, under its bankers' lien, had a right to apply said deposit of $2,045 in payment of the note in controversy.

(4) That so far as the defendant C. G. Bryan and L. D. Cooper are concerned, the defendant C. C. Rush was an accommodation maker of said note.

"(5) That all the defendants are jointly and severally liable to the plaintiff for the balance

due on the note sued on."

Judgment was accordingly rendered for the plaintiff, and the defendant Rush has alone appealed.

R. G. Davies, of Hot Springs, for appellant. Rector & Sawyer, of Hot Springs, for appellee.

HART, J. (after stating the facts as above). [1, 2] The court found that on June 18, 1913, the defendant Rush had a general deposit in the bank of plaintiff of $2,500. This finding of fact is sustained by the evidence, and its correctness is not disputed by the defendant Rush. It will also be noted that the court found that, so far as the plaintiff bank was concerned, the defendant Rush was a joint maker with C. G. Bryan on the note in controversy. This finding is sustained by the evidence of the cashier of the bank. It is true his testimony to that effect was contradicted by the defendant Rush but it is well settled that where a case is tried before a court sitting as a jury the findings of fact

Where at the maturity of a debt due a bank from a depositor, the latter's deposit is sufficient to meet the obligation, and it has not been specifically appropriated by him to be held for a different purpose, the bank has a right to apply such deposit to the payment of the debt. 5 Cyc. 550, and cases cited; and case note to 2 Ann. Cas. 206, and case note to 19 Ann. Cas. 487.

"The law on this subject is well settled, and is thus stated by a recent writer: A banker has a lien on all securities of his debtor in his hands for the general balance of his account, unless such a lien is inconsistent with the actual or presumed intention of the parties. The lien attaches to notes and bills and other busithe bank for collection, as well as to his genness paper which the customer has intrusted to eral deposit account.'"

It is contended by counsel for the defendant Rush that in order for the bank to have this right, the same mutuality must exist between the parties as is required in other cases of set-off, and in support of his position he cites the case of Trammell v. Harrell, 4 Ark. 602, where the court held:

due from the sole plaintiff, or all the plaintiffs, "A debt or demand, to be a set-off, must be to the sole defendant, or all the defendants."

This case and other cases to the same effect were overruled by the case of Leach v. Lambeth, 14 Ark. 668, where the court held that a debt due from the sole plaintiff to one of several defendants may be pleaded, under the statute, as a set-off by the defendant to whom such debt is due. And the court further held that the case of Trammell v. Harrell, supra, is overruled as to this point. The court in overruling the case adopted the reason of the Chief Justice in a dissenting opinion in the case of Trammell v. Harrell, and reference to

the opinion is made for the reasoning of the court, which we do not deem it necessary to repeat here. To the same effect, see Burke's Adm'r v. Stillwell's Ex'r, 23 Ark. 294, and Wilson v. Exchange Bank, 122 Ga. 495, 50 S. E. 357, 69 L. R. A. 97, 2 Ann. Cas. 597, and case note. In the case of Wilson v. Exchange Bank, the principles of law applicable to cases like this are thoroughly discussed, and the court, after criticizing the opinion in the case of Trammell v. Harrell, 4 Ark. 602, said:

"And in the subsequent case of Leach v. Humbert, 14 Ark. 668, the principle laid down in Trammell v. Harrell was overruled, and by a

unanimous decision the views expressed by the Chief Justice in his dissenting opinion in that case were adopted as the law applicable to the subject under discussion."

Rush deposited $2,500 with the bank as a general deposit, and therefore the bank be

came indebted to him for that amount. When

lien therefor. A decree was entered by the chancellor in favor of appellee, and, to reverse that decree, this appeal is prosecuted.

The facts are as follows: Appellee entered whereby he sold them a tract of land for $1,into a written contract with the appellants the note of Bryan and Rush to the bank be- 500. In accordance with the contract, he excame due, the bank had a right to apply the ecuted to the appellants a deed and delivered whole or any part of this deposit towards to them possession of the premises. Appelthe payment of the note, Rush not having lants refused to pay all of the purchase mondirected its application to any other indebt-ey, and claim they are entitled to a deduction edness due by him. of $50 for certain property on the place, when they purchased it, which was used or destroyed by appellee. The property in question consisted of an orchard sprayer and harrow which appellee took away from the premises and some fence posts which he burned up. The fence posts had been brought by appellee and had never been fixed in the ground. The from another place to the one in question, sprayer and harrow were used by him in his orchard when he thought necessary. None of these articles were fixtures and did not pass by a sale of the land by appellee to appellants. Therefore he had a right to remove them from the premises or to do anything else he pleased with them.

The judgment should be affirmed for another reason. The bank only brought suit against Rush and Bryan for $1,532.58. The testimony showed that the defendants owed the bank the $3,500 note, and the defendant Rush did not deny his indebtedness on that

note.

He does not claim to have paid any part of it and, inasmuch as the bank only brought suit for $1,532.58, the balance of the note which was due after it had been credited with the sum of $2,045, which Rush had on general deposit in the bank, it is immaterial whether or not the bank credited

The decree will be affirmed.

the note with the deposit so far as the present suit is concerned. In short, the bank had a right to sue the defendant for the amount alleged to be due it, and the defendant Rush cannot complain that suit was not brought for the whole amount of it. The fact that the bank credited the note with a part of the gen-(Supreme Court of Arkansas. June 22, 1914.)

eral deposit of the defendant Rush would be
no defense to a suit by the bank to recover
on the remaining amount alleged to be due the
bank on the note, and which the undisputed
evidence shows has not been paid.
The judgment will be affirmed.

HARRELL et al. v. TAYLOR. (No. 92.)
(Supreme Court of Arkansas. July 6, 1914.)
FIXTURES (8 21*)-VENDOR AND PURCHASER
-PERSONAL PROPERTY-REMOVAL.

At the time plaintiff sold certain land to defendants, there were certain fence posts located thereon which plaintiff had brought from another place, and which were not fixed in the ground, and there were also an orchard sprayer and a harrow which plaintiff had used on the land conveyed when necessary. Held, that such articles were not fixtures, and that plaintiff was entitled to remove them.

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. 88 47-56; Dec. Dig. § 21.*]

Appeal from Crawford Chancery Court; Wm. A. Falconer, Chancellor.

Action by Lee Taylor against A. J. Harrell and others. Judgment for plaintiff, and defendants appeal. Affirmed.

BOONE et al. v. BOONE et al.

(No. 62.)

EVIDENCE

1. WILLS (§ 55*)-CONTESTS
WEIGHT AND SUFFICIENCY.
to testamentary capacity held sufficient to sup-
On the trial of a will contest, evidence as
port a verdict in favor of the will.

[Ed. Note. For other cases, see Wills, Cent.
Dig. §§ 137-158, 161; Dec. Dig. § 55.*]
2. WILLS (§ 111*) — EXECUTION - SIGNATURE
OR SUBSCRIPTION.

That a testator in signing his name on one of the sheets of his will omitted one letter of his first name did not affect the validity of the will, where it appeared that he intended to and did sign it.

Dig. §§ 267-275; Dec. Dig. § 111.*]
[Ed. Note.-For other cases, see Wills, Cent.

3. WILLS (§ 105*)-DESIGNATION OF LEGATEE
-MISTAKE IN DESIGNATION.

That a testator referred to his grandson to whom a legacy was given as his nephew did not affect the validity of the will, where he also referred to the legatee as the son of W., who was the testator's son.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 243; Dec. Dig. § 105.*]

4. TRIAL (§ 251*)-INSTRUCTIONS-CONFORMITY TO ISSUES.

tention made by any one that the will was
Where in a will contest there was no con-
not ineffectual as to a granddaughter not men-
tioned therein, the court properly refused to
submit the question of her rights, as such sub-

J. E. London, of Alma, for appellants. C. mission would only have confused the jury.
A. Starbird, of Alma, for appellee.

HART, J. Appellee instituted this action against appellants to recover an amount due for the purchase price of a tract of land in Crawford county and to foreclose a vendor's

[Ed. Note.-For other cases, see Trial, Cent. Dig. 587-595; Dec. Dig. § 251.*] 5. WILLS (§ 396*)-CONTEST-APPEAL-QUESTIONS NOT RAISED BELOW.

devised land to the testator's wife for life, and In a proceeding to contest a will which after her death to the proper authorities of

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 866; Dec. Dig. § 396.*]

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Will contest by W. H. Boone and others against Sarah Boone, executrix, and others. From a judgment sustaining the validity of the will, the contestants appeal. Affirmed.

the nearest city for a public park, where no bate court, and upon appeal to the circuit instruction as to the incapacity of the city to court a trial by jury resulted in favor of its hold the property and maintain it as a park under the provisions of the will was requested, validity, and from the judgment this apthe failure to give such instruction could not peal is prosecuted. be complained of, especially as such incapacity [1] The testimony is voluminous and, upon could not affect the testator's capacity or the the question of testamentary capacity, convalidity of the will, the land merely reverting to the heirs if the city was incapable of hold-flicting and contradictory. Upon the part ing it. of the contestants, children, relatives, and heirs, it tends strongly to show that the testator was weakened in mind and body with the weight of years, that he had suffered two strokes of paralysis along about 1903 and 1904, which further impaired his mind, and that the effect of the last was decidedly noticeable by the drawn condition of his face and the twitching of the muscles; that his memory was impaired to the extent that in June, 1904, he failed to recognize one of his children, Mrs. McClellan, on Main street until after she had shaken hands with him and called him "father," and "he recognized me then and cried and wiped the tears from his eyes," and said that he failed to recog nize another on another occasion, and that he had forgotten and did not recognize a grandchild until she called his attention to her identity. Some of these witnesses stated that the Faucettes, who had been mayors of Argenta, were frequent visitors at the house of the testator before the making of the will and often dined with him, and that their pictures were found in the rooms of his home.

Mehaffy, Reid & Mehaffy and Carmichael, Brooks, Powers & Rector, all of Little Rock, for appellants. J. W. Blackwood, of Little Rock, Fred McDonald, of Argenta, and Bradshaw, Rhoton & Helm, of Little Rock, for appellees.

KIRBY, J. This is a contest of the will of Emanuel Boone. The testator gave to his children and grandchildren, named in the will, $5 each, and to Emanuel Boone, the son of William H. Boone, designated in the will as his nephew, $100, and left the bulk of his estate to his widow, Sarah Boone, who was named executrix of the will. He disposed of his home place, containing 30 acres, by paragraph 4 of the will as follows:

"I hereby devise and bequeath my home place, containing thirty (30) acres, more or less, to my wife, Sarah Boone, to be held by her for her sole use and benefit during her natural life, and at her death I desire that said land be turned over to the proper authorities of the city nearest to said land for the purpose of a public park (and that the same be maintained as a

public park) under the name of 'Boone Park, for the use and benefit of the public, forever, by said city; but I desire that they do not disturb the natural outlines of the land more than is necessary to make driveways through and over said land.'

Mrs. May Williams, a granddaughter, said that after her grandfather had a stroke of paralysis in 1903:

stroke, and he was quick to cry about things. "I noticed a twitching of his lips after the I have seen him sob all alone in the room, and would be twirling his hands and would be chuckling to himself and would cry when no one and no one was talking to him. I think it was was around him or doing anything to hurt him, in 1904 he had the second stroke. He seemed that grandma cared for him very, very closely." to be worse then than before, and I noticed

This witness overheard a conversation, in 1904, between W. M. Boone, who was at the testator's home with his wife, in which the testator was praising his home property and asking his son how he thought it would do for a park. It was shown that he had also mentioned to many others that parks were good things for the people and ought to be provided by cities.

Most of the children testified that he was not competent to transact business after the second stroke of paralysis, and that, although he could do the little chores about the house, they did not regard him competent to attend to matters of any importance.

In the seventh paragraph, he devised 35 acres of land to his wife so long as she should remain single, authorizing her to sell it, or any part thereof, during her widowhood after it was first appraised by three persons, naming them, and directing that out of the proceeds, after paying the expenses, she should retain one-third and divide the other two-thirds equally among his heirs, named in section 2 of the will. W. H. Boone et al. filed a contest, alleging as grounds therefor: First, that the testator was without testamentary capacity, and not of sound and disposing mind and memory; second, that he was unduly influenced by his wife and Charles Vestal and others unknown; third, denied the capacity of the city to take and hold the land proposed to be granted for a park under the laws of the state, and al- On the other hand, his banker; his grocerleged other inconsistent provisions of the will. man, and the merchants with whom the tesThe will was admitted to probate by the pro-tator did business testified he was a gardener For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Two experts testified upon hypothetical questions submitted to them that the testator was not of sound and disposing mind and memory.

"I never noticed any twitching in his face. He was an elderly gentleman, and a little feeble, but nothing more than ordinary for a man of that age. He drew checks on the bank. I knew his signature. His book shows last balance, $669.49, on October 6, 1907."

and truck farmer, and others of his friends in their bank frequently from 1904 to 1906. and neighbors testified that there was no He was a depositor. drawn condition of his face nor twitching of the muscles noticeable, and that while he had grown old and was getting feeble, his mind and memory were not materially impaired, if at all. His widow stated that she did not know of his ever having had a stroke of paralysis, and also a woman who had been his nurse in a time of sickness.

A. J. Mercer, one of the witnesses to the will, and cashier of the People's Savings Bank since 1902, stated he had known the testator from 1896 to his death; that he was a customer of the bank from 1902; that he had done some business for him as an abstracter before that time; that "he kept an account with our bank from 1903 and a little before that, until his death." The account was not very large.

The

His account was continued in the name of Mrs. Boone as executrix:

"A few months before he made his will he talked to me about making it. At that time I noticed nothing in his speech or conduct to indicate that he was not a perfectly rational man and knew what he was doing. All my conversations with him, I never noticed anything except that he was just an elderly gentleman, in feeble condition, and yet very rational. when he talked to me about making the will. I had that same opinion about his sanity * * I don't recollect whether he discussed with me about giving this land to the city of Little Rock or Argenta for a park."

"His ability to get around and walk and carry on the affairs of life were good. He was never sick during that time, to my knowledge, except a little cold or something of that kind. He attended to all his business, did not limp, there was nothing the matter with his arm. His face was not the least bit drawn, and I never saw any twitching of the muscles; I saw him every day and sometimes two or three times a day for a year; lived just across the street from him for a year two or three years before his death. I talked with him, visited back and forth; his speech was distinct and his conversation intelligent, very much so; he read the papers and kept posted on current events and was an intelligent conversationalist."

"I witnessed his will at his request. Mrs. Underwood knew the testator three will is undated, but from records in the bank or four years before his death, and assisted it was signed on May 22, 1905. The other his wife in nursing him when he was sick. witness, Mr. Stevenson, was at the time paying teller in the bank. He talked to me about She said: making the will. He was probably in the bank five or six times in regard to it. I wrote out the draft of the will myself. There was more than one draft of it made. He discussed with me how he wanted to distribute his property. He came in first and gave us a general idea of what he wanted. I think he was perfectly intelligent and rational at the time. He took a draft of the will which I had prepared and went off with it and afterwards brought it back and talked over what changes he wanted made. My recollection is there was no material changes. Afterwards I copied it as he decided he wanted it, and as it is now. I considered him rational at the time from my dealings with him and from my conversation with him. I couldn't say now whether he gave the name to me 'Joseph H.' and I wrote it 'Joseph E.' Boone. The first consideration was that he stated that his children had never done anything for him, and they had been provided for, most of them, during their lifetime, and a hesitance in not signing the first will was that he was not sure of the names of his grandchildren. He afterwards brought these corrected names. He gave me a list of them, and seemed to want to take a list and see whether the names were correct. In the second paragraph, where he mentions 'my nephew, Emanuel, son of Will H. Boone,' he might just have said he was a child of so and so; I expect I didn't hear any better than that. I didn't stop to think, I guess.'

R. E. Stevenson, the other witness to the will, stated that after it was executed he heard a great deal of talk about the testator. "His son, Will Boone, came to me several times and asked me if I didn't think the old gentleman of unsound mind, or words to that effect. I told him that I didn't think so at the time he signed the will, and I don't think so yet. I told him that he appeared to be getting kinda old, and I don't remember the exact words I used-I think a little bit senile-but I didn't say that I wouldn't have witnessed the will. The testator was back and forth probably a month discussing the making of his will, and it was all in typewritten form and ready for signature when I was called in to witness it." W. E. Lenon stated that he had known testator for about 15 years, and knew him while engaged in the abstract business. Saw him

J. G. Vogel, a merchant in Argenta for 28 years, bought vegetables and berries from the testator, and sold him groceries until a short time before he died. He said:

"He certainly was able to attend to his business in every respect, to take care of his own interest at any and all times. The last time he was in my store was about 30 days before he died. He bought five gallons of oil, and I started to pick up the can and take it out, and he said, 'No, no; I can get into the buggy;' and he got into the buggy unassisted. There was nothing the matter with him that I could see in any shape, form, or fashion; he was getting along in years naturally. I think he than one out of a great many thousand men was better preserved mentally and physically who reach the age of 78 or 79. I could observe nothing wrong with his mind or his conversation or his demeanor. Never noticed twitching or drawing of his face. Sometimes he would come to my place of business every day, in the fall maybe two or three times a week. When he would come across the river he would stop in my store. I never knew any one that was more industrious and thrifty."

any

Others who had known him long and traded with him never noticed that his face was drawn or that the muscles twitched, and regarded him at the time of his death a rational man of good sense.

C. J. Kramer stated he had been in the grocery business in Little Rock for 30 years, and was acquainted with the testator for

་

The testator, shortly after his last marriage, had had some litigation with his children, all of whom were grown and had long dren and heirs about some property they claimed had belonged to their mother. This litigation was compromised and the property divided.