S. H. Mulkey, the appellant, stated that he bought the lot from W. A. Johnson for his son Dodridge (D. E. Mulkey), and that Johnson understood that he was buying it for his son, and the deed was made out to his son, who executed to him (S. H. Mulkey) on the same day, March 21, 1912, a deed of trust to secure three notes of $1,000 each, the purchase money thereof, paid by him to Johnson for the lot. The deed of trust, which was recorded on the day of its execution, and the notes, were exhibited, as well as receipts for taxes and some bills paid by him for lumber put into the barn and painting the same.

N. T. Britt produced in evidence two notes from D. E. Mulkey and wife, for $533.25 each, dated August 1, 1912, and secured by a deed of trust upon the same property. He explained these notes, however, by saying that it was for money that he was going to advance D. E. Mulkey and wife to go into the saloon business in Memphis, and was not taken as security for the money used in the construction of the barn. It developed in the testimony that Britt and D. E. Mulkey were quite friendly, and were men of like tastes and disposition; that they had gotten drunk in Memphis together, and spent $400 or $500 of appellee's money in a protracted spree there. D. E. Mulkey explained that a great deal of the money advanced by Britt was used in this way, that he had no money and was disposed to celebrate, and that Mr. Britt had the money and the disposition also, and they used it together.

The court ordered the deed of trust of S. H. Mulkey foreclosed, but held that Britt had a prior lien, and was entitled to the payment of $1,000 and interest of the proceeds, and that S. H. Mulkey was entitled to the remainder of the proceeds for the satisfaction of his lien under the deed of trust, and rendered a decree accordingly, from which S. H. Mulkey prosecutes this appeal.

J.. W. Rhodes, Jr., and W. J. Lamb, both of Osceola, for appellant.

KIRBY, J. (after stating the facts as above). [1] The undisputed testimony shows that appellant purchased for his son, D. E. Mulkey, on March 21, 1912, the lot upon which the barn was afterwards erected, and paid the purchase price therefor; the deed being made to his son, who on the same day executed a deed of trust thereon, to secure the payment of the purchase money to appellant. It is also undisputed that this deed of trust was on March 21, 1912, recorded, and the barn was erected on the lot after these conveyances were put of record.

It is not contended by appellee, Britt, that he ever told appellant that he was paying for the barn that was being erected up

upon the part of S. H. Mulkey with appellee, Britt, before the erection of the barn or during the time of its construction, to pay therefor, nor any conduct that would estop him from enforcing his security, the trust deed, against the lot upon which the barn was built. According to appellee's own testimony the barn was about completed before he had any conversation at all relative to it with appellant. He says that the appellant then assured him that he should have every penny of the money that had gone into the improvement; that although his son might be disposed to beat him out of it that he would not do so. Certainly this conversation could not have caused the appellee to agree with D. E. Mulkey to put $1,000 into the erection of a barn upon the lot, and, if it could operate as an estoppel at all, would only bind the appellant to the payment of such sums of money as were furnished for the construction of the barn after the conversation occurred or postpone his lien to the payment thereof.

[2] The statement of appellant, testified to by appellee's niece, made after the barn was built, that he would see that her grandfather got every penny of his money back, and that he did not lose a cent on account of furnishing the money for the construction of the barn, could not have induced the appellee to furnish the money for the building, and was at most a promise, without consideration, to answer for the debt or default of his son. Neither is it clearly shown by the testimony how much of the money furnished by appellee was used in the construction of the barn, nor whether any was expended therefor after appellee's conversation with S. H. Mulkey relative thereto, and certainly the notes and deed of trust, given to appellee to secure the payment thereof, executed in August, long after its construction, if they were made by D. E. Mulkey to secure the repayment of money advanced by Britt to him to be used in the construction of the barn, as some of the testimony tended to show, could not have affected the security of S. H. Mulkey's deed of trust recorded in March.

The chancellor erred, therefore, in finding that N. T. Britt, appellee, was entitled to a prior lien against the lot upon which the barn was erected, and to the payment of $1,000 and interest out of the proceeds of the sale thereof, before the application of such proceeds to the payment of the amount secured by the deed of trust; the appellant being entitled to the whole amount of the proceeds of the sale of such lot under his deed of trust. The findings of the chancellor are clearly against the preponderance of the testimony, and the decree is reversed, and the cause remanded, with directions to enter a decree in accordance with this opinion, and dismissing the complaint of N. T. Britt for

in any case, in a bastardy proceeding on the relation of a married woman living apart from her husband at the time of the alleged intercourse with defendant, her testimony that she had not cohabited with her husband for four years prior to such time was incompetent, as a married woman may not testify to the fact of nonaccess on the part of her husband within the period of gestation, though she may testify to facts tending to prove nonaccess.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 157-159; Dec. Dig. 57.] 2. BASTARDS 92-PROCEEDINGS UNDER BASTARDY LAWS-HARMLESS ERROR-ADMISSION OF EVIDENCE.

Though there was other evidence to support a verdict against defendant, the admission of such evidence was highly prejudicial.

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 228-239; Dec. Dig. 92. ]

Appeal from Circuit Court, Polk County; Jeff. T. Cowling, Judge.

Bastardy proceeding by the State, on relation of Nora Johnson, against G. A. Liles. From a judgment against him, defendant appeals. Reversed and remanded.

H. A. King, of Mena, for appellant. Pole McPhetrige, of Mena, for appellee.

KIRBY, J. [1, 2] This is a bastardy proceeding, and, from the judgment against him in the circuit court, appellant brings this appeal, claiming for reversal that the court erred in allowing the mother of the child, a married woman who was living with her husband at the time of its birth, to testify that she had not cohabited with her husband, Marvin Stevens, for four or five years before the appellant had the sexual intercourse with her.

It appears from the testimony of Nora Johnson that she was the mother of an illegitimate child, born on March 7, 1914, which she alleged was begotten by appellant, a married man, in Polk county, Ark., of which she was a resident. She was, at the time of the sexual intercourse with appellant in June, 1913, the wife of Marvin Stevens, from whom she had been separated for three or four years, but was not divorced, and he also lived in the community. She was divorced from her husband, Marvin Stevens, in December, 1913, after having the

intercourse with appellant, in the June preceding, which resulted in the birth of the child, and immediately after the divorce was granted married one Joe Johnson, with whom she resided and cohabited as husband and wife thereafter. The witness was permitted to testify, over appellant's objection,

that she had not cohabited with Stevens, her husband, for more than four years at the time the appellant had the sexual intercourse with her.

cases of bastardy, "unless she be legally incompetent in any case." Section 492, Kirby's Dig.; Kennedy v. State, 173 S. W. 842. The court, passing upon this question there, said: "In the absence of a statute in express words making the mother competent to testify to the nonaccess of her husband, we hold that she cannot do so. Under our statutes, as we have seen, the mother is a competent witness. She may testify to facts which tend to prove that access on the part of her husband within the period of gestation was impossible, and, if she testified to facts of that character, there would be a question for the court or jury trying the issue to of legitimacy had been overcome. determine as to whether or not the presumption

*

She may testify to any fact tending to prove the illegitimacy of the child, except the single fact of nonaccess of her husband.

It follows that the court erred in permitting the introduction of testimony of the mother of the nonaccess of her husband, and the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.

KNIGHTS OF PYTHIAS OF NORTH • AMERICA et al. v. LONG. (No. 188.) (Supreme Court of Arkansas. Feb. 15, 1915.) 1. INSURANCE 780-FRATERNAL BENEFIT INSURANCE-RIGHTS OF BENEFICIARY,

Where there is no authority in the by-laws or constitution of a fraternal benefit society, nor of beneficiary, the named beneficiary has a vesta clause in the certificate, providing for a change ed right therein, and the insured cannot change the beneficiary.

780.]

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1946; Dec. Dig. 2. INSURANCE 719-FRATERNAL BENEFIT INSURANCE BY-LAWS "MODIFICATION" -CHANGE OF BENEFICIARY.

Where a certificate of insurance in a fra

ternal benefit society was expressly subject to such modifications as might be made by the Grand Lodge, the lodge could thereafter adopt a by-law empowering the insured to change the beneficiary; since "modification" is a change; an alteration which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.

Cent. Dig. § 1855; Dec. Dig. 719.]

[Ed. Note.-For other cases, see Insurance,

3. INSURANCE 780- FRATERNAL BENEFIT INSURANCE-CHANGE OF BENEFICIARY-IR

REGULARITIES.

Where the insured had actually authorized the change of beneficiary of his certificate in a fraternal benefit society, only the lodge can complain of irregularities in the making of such change.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1946; Dec. Dig. 780.] Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.

Cora Long brought this suit against the Knights of Pythias of North America, etc., a fraternal benefit association doing business in the state of Arkansas, upon a policy of insurance for $300, issued on the 28th day of May, 1906, to Tom Long, a member of one of its subordinate lodges, who died in Pulaski county on the 1st day of December, 1912, in good standing in his lodge with his policy of insurance in full force and effect at the time of his death, and appellee, Cora Long, named therein as his beneficiary. Suit was also brought against the sureties on the bond of said company made to this state.

The appellant answered, admitting it was incorporated under the laws of the state of Arkansas and doing a fraternal insurance business among its members; that it issued the policy sued on to Tom Long, with Cora Long named as beneficiary therein; and, further, that on November 5, 1912, the said Tom Long made two affidavits; in one of which he stated that he had lost his policy, and it could not be found, and asked that a dupli

be found, and he prays that you issue him a duplicate. Tom Long.

"Witness: Wm. Derrick.

"Sworn and subscribed to before me, C. J. Baker, on this day, the fifth of November, 1912. "C. J. Baker, Notary Public."

A new policy was thereupon issued in lieu of the former policy, naming Janie Davidson the beneficiary therein. This was done under authority of section 7 of the by-laws, which reads as follows:

"Any member of this order is hereby authorized to change his beneficiary named in his poleffect or be in force until the beneficiary's name icy at any time, but no such change shall take has been furnished the Grand Keeper of Records and Seals and inserted by him on the face of the policy."

Frank Snodgrass testified that he took the request for a new policy and change of beneficiary that was brought to him by the Grand Commander to Frank Young, the Grand Keeper of the Records; that it was put before the lodge at the regular meeting, which granted a new policy, payable to Janie David

son.

that Janie Davidson be given his life insurance and other effects. Both affidavits were

bility upon the policy or contract sued on.

The sureties denied that they were liable

under the terms of the bond.

It appears from the testimony that Cora Long, the named beneficiary in the policy sued on, had been married to Tom Long for about 12 years, but left him in July, 1913,

and went to Helena to live, and that Long went to live with Janie Davidson. Cora

Long paid the dues on the policy one time. It was the duty of the Secretary and Grand Keeper of Records and Seals to sign and issue policies to the members, and Long's request to the officers of the subordinate lodge of which he was a member consisted of the following affidavits:

"I, Tom Long, being in my right mind, and realizing that at some future time death will be my portion, as happens to all the human race, do hereby will all my personal effects and life insurance, after my burial expenses have been paid, and my body put away in a nice and respectable manner, to Janie Davidson, and I desire that, if an administrator is necessary, that she be appointed without bond. Witness my hand and seal this the 5th day of November, 1912. Tom Long.

"Witness: C. J. Baker. "Witness: Wm. Derrick. "Sworn and subscribed to," etc. "Appeared before me, a notary for said state and county, Tom Long, and under oath states that his policy for three hundred dollars in the T. W. Stringer Lodge has been lost and cannot

to a different party.

for the lodge and a member of the committee of law supervision, and that he introduced the resolution providing for a change of beneficiary, said section 7 of the constitution and by-laws, but did not know where the resolution was now. He produced a copy, which he identified positively, and stated that he had compared it with the original, and that it was duly passed in July, 1910; that a certified copy thereof was on file with the officers in Garland county.

T. J. Price states he was Grand Attorney

The court instructed the jury, and from the judgment against it, appellant brings this appeal.

Thos. J. Price, of Little Rock, for appellant. J. F. Wills and Fred McDonald, both of Argenta, for appellee.

KIRBY, J. (after stating the facts as above). It is contended by appellant that the undisputed testimony shows that appellant changed the beneficiary on Tom Long's policy at his request in accordance with its bylaws, and paid the same to the new beneficiary upon his death, and that the court erred in not instructing a verdict in its behalf.

[1] The policy issued to Tom Long, in which appellee is named beneficiary, was

issued before the adoption by appellant order of said section 7 of its constitution, authorizing any member to change his beneficiary at any time as therein provided. When there is no authority in the by-laws and constitution of the order permitting a change of beneficiary, nor any clause of the policy providing therefor, the beneficiary named in such policy has a vested interest, and the holder has no power to change such beneficiary. Johnson v. Hall, 55 Ark. 210, 17 S. W. 874; Franklin Life Insurance Co. v. Galligan, 71 Ark. 301, 73 S. W. 102, 100 Am. St. Rep. 73.

[2] In Carruth v. Clawson, 97 Ark. 50, 133 S. W. 178, the court recognized that the weight of authority was against this doctrine, but adhered to it, while declaring that it should not be extended. This policy provides that:

The Grand Lodge "will pay to Cora Long, at the death of Brother Tom Long an endowment of $300, being the total amount due on this policy, subject, however, to such modifications as may be made by the said Grand Lodge, provided that the said knight is in good standing," etc.

It is contended by appellant that this clause of the policy authorizes the making of a by-law by the fraternal benefit associa tion permitting the change of beneficiary upon the request of the member, and we agree with this contention. The policy specifically provides for the payment of an endowment of $300 to the beneficiary, subject to such modi. fications as may be made by the Grand Lodge. "Modification," a change; an alteration which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. Black's Law Dictionary.

It was the purpose of the order to pay the benefits or endowments provided to the beneficiaries named by the members holding certificates, and it had no interest in such beneficiary further than to pay the benefit as directed by the member in accordance with the terms of its contract. Having agreed to pay the amount, subject to such modifications as may be made by the Grand Lodge, it could make by-laws regulating the conduct of its affairs, and providing for a change of beneficiary, a modification of its obligation in that regard, upon the member's request, and, when such laws were made affecting the payment of the policies of insurance or benefit certificates of the order, they became a part thereof. Beasely v. Mutual Aid Ass'n, 94 Ark. 502, 127 S. W. 974; Supreme Lodge of Knights & Ladies of Honor v. Johnson, 81 Ark. 512, 99 S. W. 834; Woodmen of the World v. Jackson, 80 Ark. 419, 97 S. W. 673.

the change, or the making of it by the fraternal organization, but the fact remains that it did permit the change of the beneficiary by the member, as it had the right to do, and that it did issue its policy of insurance to such changed beneficiary, and thereafter paid such certificate in full to the beneficiary named therein.

[3] Only the lodge or order would have the right to complain of the irregularity of such change of beneficiary, and it has not done so. The burden of proof is on the appellee to show that the certificate payable to Janie Davidson, and paid to her, was obtained without authority, and there is no proof in this record discharging that burden. The testimony is, in effect, undisputed that the beneficiary was changed in accordance with the by-laws, upon the member's request, to Janie Davidson, and the policy paid to her in accordance with its terms after the death of the member, Tom Long. The association or organization thereby discharged its whole liability, and the court erred in not instructing a verdict for the appellant.

The judgment is reversed, and the cause dismissed.

EAGLE v. OLDHAM. (No. 383.) (Supreme Court of Arkansas. May 10, 1915.) 'Dissenting opinion.

For majority opinion, see 174 S. W. 1176. McCULLOCH, C. J. It is too well settled for further controversy that a court of equity will reform a last will and testament only in the exceptional class of cases where the instrument represents a contract between the parties, and a reformation will be decreed so as to make it conform to the intention of the testator in carrying out the contract. Where there is no contract, reformation will not be decreed, for the obvious reason that a gift by will is purely voluntary, and if the language used in the instrument is insufficient to express the will of the donor with sufficient clearness to indicate his intention the gift must fail. This court has steadily adhered to the rule that the intention of a testator must be gathered from the language employed in his will, and not from oral testimony. Cook v. Worthington, 173 S. W. 395. Courts may construe wills, but not reform them; and the effect of the decision of the majority is, it seems to me, to reform the will of the testator, rather than to construe it, and they have considered oral testimony for that purpose.

In reaching the conclusion, the majority seem to be controlled entirely by the case of Patch v. White, 117 U. S. 210, 6 Sup. Ct. 617, 710, 29 L. Ed. 860. That case announces a correct principle, I think, in laying down the rule that: