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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 rart 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 princi. Where at the maturity of a debt due a pals, and Cooper indorsed it for them. AC-bank from a depositor, the latter's deposit is cording to the testimony of the defendant sufficient to meet the obligation, and it has Rush, he only signed the note as surety. He not been specifically appropriated by him to stated that he sold his interest in the saloon be held for a different purpose, the bank has business to Bryan, and that it was thereafter a right to apply such deposit to the payment agreed that he should only sign the note as of the debt. 5 Cyc. 550, and cases cited; and accommodation for Bryan and Cooper, and case note to 2 Ann. Cas. 206, and case note to should only be liable as surety thereon, AC-19 Ann. Cas. 487. cording 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 “The law on this subject is well settled, and not deem it necessary to set them out, for the is thus stated by a recent writer: 'A banker

has a lien on all securities of his debtor in his testimony which we have recited is sufficient hands for the general balance of his account, for a determination of the issues of law rais- unless such a lien is inconsistent with the aced by the appeal.

tual or presumed intention of the parties. The The case was tried before the court, sitting lien attaches to notes and bills and other busias a jury, and the court made the following the bank for collection, as well as to his gen

ness paper which the customer has intrusted to findings of law and fact:

eral deposit account.' “(1) That so far as the plaintiff was concerned the defendant C. C. Rush is a joint maker,

It is contended by counsel for the defendwith C. G. Bryan, of the note in controversy. ant Rush that in order for the bank to have

“(2) That the deposit of $2,500 made by or this right, the same mutuality must exist for the defendant, c. C. Rush, on June 18, between the parties as is required in other 1913, was a general and not a special deposit, cases of set-off, and in support of his position nor was it a deposit in trust.

“(3) That the plaintiff, under its bankers' he cites the case of Trammell v. Harrell, 4 lien, had a right to apply said deposit of $2,045 Ark. 602, where the court held: in payment of the note in controversy. "(4) That so far as the defendant C. G. due from the sole plaintiff, or all the plaintiffs,

"A debt or demand, to be a set-off, must be Bryan and L. D. Cooper are concerned, the to the sole defendant, or all the defendants.” defendant C. C. Rush was an accommodation maker of said note.

This case and other cases to the same effect “(5) That all the defendants are jointly and were overruled by the case of Leach v. Lamseverally liable to the plaintiff for the balance beth, 14 Ark. 668, where the court held that a due on the note sued on.

Judgment was accordingly rendered for the debt due from the sole plaintiff to one of serplaintiff, and the defendant Rush has alone

eral defendants may be pleaded, under the

statute, as a set-off by the defendant to whom appealed.

such debt is due. And the court further held R. G. Davies, of Hot Springs, for appellant. that the case of Trammell v. Harrell, supra, Rector & Sawyer, of Hot Springs, for ap- is overruled as to this point. The court in pellee.

overruling the case adopted the reason of the HART, J. (after stating the facts as above). case of Trammell v. Harrell, and reference to

Chief Justice in a dissenting opinion in the [1, 2] The court found that on June 18, 1913, the opinion is made for the reasoning of the the defendant Rush had a general deposit in court, which we do not deem it necessary to the bank of plaintiff of $2,500. This finding repeat here. To the same effect, see Burke's of fact is sustained by the evidence, and its Adm'r v. Stillwell's Ex'r, 23 Ark. 294, and correctness is not disputed by the defendant Wilson v. Exchange Bank, 122 Ga. 495, 50 S. Rush. It will also be noted that the court E. 357, 69 L. R. A. 97, 2 Ann. Cas. 597, and found that, so far as the plaintiff bank was

case note. In the case of Wilson v. Exchange concerned, the defendant Rush was a joint Bank, the principles of law applicable to casmaker with C. G. Bryan on the note in con

es like this are thoroughly discussed, and troversy. This finding is sustained by the the court, after criticizing the opinion in the evidence of the cashier of the bank. It is

case of Trammell v. Harrell, 4 Ark. 602, true his testimony to that effect was contra

said: dicted by the defendant Rush but it is well

“And in the subsequent case of Leach v. Humsettled that where a case is tried before a bert, 14 Ark. 668, the principle laid down in court sitting as a jury the findings of fact Trammell v. Harrell was overruled, and by a unanimous decision the views expressed by the lien therefor. A decree was entered by the Chief Justice in his dissenting opinion in that chancellor in favor of appellee, and, to recase were adopted as the law applicable to the subject under discussion."

verse that decree, this appeal is prosecuted. Rush deposited $2,500 with' the bank as a

The facts are as follows: Appellee entered general deposit , and therefore the bank be whereby he sold them a tract of land for $1,

into a written contract with the appellants came indebted to him for that amount. When 500. In accordance with the contract, he exthe note of Bryan and Rush to the bank became 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 The judgment should be affirmed for an- they purchased it, which was used or deother reason. The bank only brought suit stroyed by appellee. The property in question against Rush and Bryan for $1,532.58. The consisted of an orchard sprayer and harrow testimony showed that the defendants owed which appellee took away from the premises the bank the $3,500 note, and the defendant and some fence posts which he burned up. Rush did not deny his indebtedness on that The fence posts had been brought by appellee note. He does not claim to have paid any and had never been fixed in the ground. The

from another place to the one in question, part of it and, inasmuch as the bank only brought suit for $1,532.58, the balance of the sprayer and harrow were used by him in his note which was due after it had been cred- orchard when he thought necessary. None of ited with the sum of $2,045, which Rush these articles were fixtures and did not pass had on general deposit in the bank, it is im- by a sale of the land by appellee to appel

lants. material whether or not the bank credited

Therefore he had a right to remove the note with the deposit so far as the pres else he pleased with them.

them from the premises or to do anything ent suit is concerned. In short, the bank had a right to sue the defendant for the amount

The decree will be affirmed. 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 BOONE et al. v. BOONE et al. (No. 62.) 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 1. WILLS (8 55*)-CONTESTS EVIDENCE

WEIGHT AND SUFFICIENCY. on the remaining amount alleged to be due the

On the trial of a will contest, evidence as bank on the note, and which the undisputed to testamentary capacity held sufficient to supevidence shows has not been paid.

port a verdict in favor of the will. The judgment will be affirmed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $8 137-158, 161; Dec. Dig. § 55.*] 2. WILLS (8 111*) — EXECUTION SIGNATURE

OR SUBSCRIPTION. HARRELL et al. v. TAYLOR. (No. 92.)

That a testator in signing his name on one (Supreme Court of Arkansas.

of the sheets of bis will omitted one letter of his

July 6, 1914.) first name did not affect the validity of the will, FIXTURES ($ 21*)-VENDOR AND PURCHASER where it appeared that he intended to and did -PERSONAL PROPERTY-REMOVAL.

sign it. At the time plaintiff sold certain land to

[Ed. Note.-For other cases, see Wills, Cent. defendants, there were certain fence posts lo- Dig. $8 267-275; Dec. Dig. § 111.*] cated thereon which plaintiff had brought from another place, and which were not fixed in 3. WILLS (105*)-DESIGNATION OF LEGATEE the ground, and there were also an orchard

-MISTAKE IN DESIGNATION. sprayer and a harrow which plaintiff had used

That a testator referred to his grandson on the land conveyed when necessary.

Deld, to whom a legacy was given as his nephew did that such articles were not fixtures, and that not affect the validity of the will, where he alplaintiff was entitled to remove them.

so referred to the legatee as the son of W., who (Ed. Note. For other cases, see Fixtures,

was the testator's son. Cent. Dig. 88 47–56; Dec. Dig. $ 21.*]

[Ed. Note.-For other cases, see Wills, Cent.

Dig. § 243; Dec. Dig. $ 105.*1 Appeal from Crawford Chancery Court; 4. TRIAL ($ 251*)-INSTRUCTIONS-CONFORM

ITY TO ISSUES. Wm. A, Falconer, Chancellor.

Where in a will contest there was no conAction by Lee Taylor against A. J. Harrell tention made by any one that the will was and others. Judgment for plaintiff, and de- not ineffectual as to a granddaughter not menfendants appeal. Affirmed.

tioned therein, the court properly refused to

submit the question of her rights, as such subJ. E. London, of Alma, for appellants. C. mission would only have confused the jury. A. Starbird, of Alma, for appellee.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. 88 587-595; Dec. Dig. § 251.*) HART, J. Appellee instituted this action 5. WILLS ($ 396*)-CONTEST-APPEAL-QUESagainst appellants to recover an amount due

TIONS Not RAISED BELOW, for the purchase price of a tract of land in devised land to the testator's wife for life, and

In a proceeding to contest a will which Crawford county and to foreclose a vendor's after her death to the proper authorities of 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 [Ed. Note. For other cases, see Wills, Cent. heirs, it tends strongly to show that the tesDig. $ 866; Dec. Dig. $ 396.*]

tator was weakened in mind and body with Appeal from Circuit Court, Pulaski Coun- the weight of years, that he had suffered two ty; Guy Fulk, Judge.

strokes of paralysis along about 1903 and Will contest by W. H. Boone and others 1904, which further impaired his mind, and against Sarah Boone, executrix, and others. that the effect of the last was decidedly noFrom a judgment sustaining the validity of ticeable by the drawn condition of his face the will, the contestants appeal. Affirmed.

and the twitching of the muscles; that his

memory was impaired to the extent that in Mehaffy, Reid & Mehaffy and Carmichael, June, 1904, he failed to recognize one of his Brooks, Powers & Rector, all of Little Rock, children, Mrs. McClellan, on Main street un. for appellants. J. W. Blackwood, of Little til after she had shaken hands with him and Rock, Fred McDonald, of Argenta, and Brad-called him “father," and "he recognized me shaw, Rhoton & Helm, of Little Rock, for ap- then and cried and wiped the tears from pellees.

his eyes," and said that he failed to recog.

nize another on another occasion, and that KIRBY, J. This is a contest of the will of he had forgotten and did not recognize a Emanuel Boone. The testator gave to his grandchild until she called his attention to children and grandchildren, named in the her identity. Some of these witnesses stat. will, $5 each, and to Emanuel Boone, the son ed that the Faucettes, who had been mayors of William H. Boone, designated in the will of Argenta, were frequent visitors at the as his nephew, $100, and left the bulk of his house of the testator before the making of estate to his widow, Sarah Boone, who was the will and often dined with him, and that named executrix of the will. He disposed their pictures were found in the rooms of of his home place, containing 30 acres, by his home. paragraph 4 of the will as follows:

Mrs. May Williams, a granddaughter, said "I hereby devise and bequeath my home place, that after her grandfather had a stroke of containing thirty (30) acres, more or less, to paralysis in 1903: my wife, Sarah Boone, to be held by her for her sole use and benefit during her natural life, stroke, and he was quick to cry about things.

"I noticed a twitching of his lips after the and at her death I desire that said land be I have seen him sob all alone in the room, and turned over to the proper authorities of the city would be twirling his hands and would be nearest to said land for the purpose of a public park (and that the same be maintained as a chuckling to himself and would cry when no one public park) under the name of 'Boone Park, was around him or doing anything to hurt him, by said city; but I desire that they do not to be worse then than before, and I poticed for the use and benefit of the public, forever, and no one was talking to him. I think it was

in 1904 he had the second stroke. He seemed disturb the natural outlines of the land, more that grandma cared for him very, very closely." than is necessary to make driveways through and over said land."

This witness overheard a conversation, in In the seventh paragraph, he devised 35 1904, between W. M. Boone, who was at the acres of land to his wife so long as she testator's home with his wife, in which the should remain single, authorizing her to sell testator was praising his home property and it, or any part thereof, during her widow- asking his son how he thought it would do hood after it was first appraised by three for a park. It was shown that he had also persons, naming them, and directing that out mentioned to many others that parks were of the proceeds, after paying the expenses, good things for the people and ought to be she should retain one-third and divide the provided by cities. other two-thirds equally among his heirs, Most of the children testified that he was named in section 2 of the will. W. H. Boone not competent to transact business after the et al. filed a contest, alleging as grounds second stroke of paralysis, and that, although therefor: First, that the testator was with he could do the little chores about the house, out testamentary capacity, and not of sound they did not regard him competent to atand disposing mind and memory; second, tend to matters of any importance. that he was unduly influenced by his wife Two experts testified upon hypothetical and Charles Vestal and others unknown; questions submitted to them that the testator third, denied the capacity of the city to take was not of sound and disposing mind and and hold the land proposed to be granted for memory. 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-Jtator 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

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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 “I never noticed any twitching in his face. the muscles noticeable, and that while he He was an elderly gentleman, and a little had grown old and was getting feeble, his feeble, but nothing more than ordinary for a

man of that age. He drew checks on the bank. mind and memory were not materially im. I knew his signature. His book shows last paired, if at all. His widow stated that she balance, $669,49, on October 6, 1907." did not know of his ever having had a stroke His account was continued in the name of of paralysis, and also a woman who had been Mrs. Boone as executrix: his nurse in a time of sickness.

"A few months before he made his will he A. J. Mercer, one of the witnesses to the talked to me about making it. At that time I will, and cashier of the People's Savings noticed nothing in his speech or conduct to inBank since 1902, stated he had known the dicate that he was not a perfectly rational

man and knew what he was doing. All my testator from 1896 to his death; that he was conversations with him, I never noticed anya customer of the bank from 1902; that he thing except that he was just an elderly gentlehad done some business for him as an ab- man, in feeble condition, and yet very rationstracter before that time; that "he kept when he talked to me about making the will.

al. I had that same opinion about his sanity an account with our bank from 1903 and a

I don't recollect whether he discussed little before that, until his death." The ac- with me about giving this land to the city of count was not very large.

Little Rock or Argenta for a park." "I witnessed his will at his request. The 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 "His ability to get around and walk and carfive or six times in regard to it. I wrote out ry on the affairs of life were good. He was nevthe draft of the will myself. There was more er sick during that time, to my knowledge, exthan one draft of it made. He discussed with cept a little cold or something of that kind. He me how he wanted to distribute his property, attended to all his business, did not limp, there He came in first and gave us a general idea of was nothing the matter with his arm. His face what he wanted. I think he was perfectly in- was not the least bit drawn, and I never saw telligent and rational at the time. He took a any twitching of the muscles; I saw him every draft of the will which I had prepared and day and sometimes two or three times a day went off with it and afterwards brought it for a year; lived just across the street from back and talked over what changes he wanted him for a year two or three years before his made. My recollection is there was no material death. I talked with him, visited back and changes. Afterwards I copied it as he decid-forth; his speech was distinct and his convered he wanted it, and as it is now. I con- sation intelligent, very much so; he read the sidered him rational at the time from my deal- papers and kept posted on current events and ings with him and from my conversation with

was an intelligent conversationalist." him, I couldn't say now whether he gave the name to me "Joseph H.' and I wrote it J. G. Vogel, a merchant in Argenta for 'Joseph E.' Boone. The first consideration 28 years, bought vegetables and berries from was that he stated that his children had the testator, and sold him groceries until a never done anything for him, and they had been provided for, most of them, during their short time before he died. He said: lifetime, and a hesitance in not signing the "He certainly was able to attend to his busifirst will was that he was not sure of the names ness in every respect, to take care of his own of his grandchildren, He afterwards brought interest at any and all times. The last time these corrected names. He gave me a list of he was in my store was about 30 days before them, and seemed to want to take a list and see he died. He bought five gallons of oil, and I whether the names were correct. In the sec- started to pick up the can and take it out, and ond paragraph, where he mentions 'my nephew, he said, 'No, no; I can get into the buggy;' Emanuel, son of Will H. Boone,' he might and he got into the buggy unassisted. There just have said he was a child of so and so; I ex- was nothing the matter with him that I could pect I didn't hear any better than that. I see in any shape, form, or fashion; he was didn't stop to think, I guess."

getting along in years naturally. I think he R. E. Stevenson, the other witness to the than one out of a great many thousand men

was better preserved mentally and physically will, stated that after it was executed he who reach the age of 78 or 79. I could observe heard a great deal of talk about the testator. nothing wrong with his mind or his conversa

tion or his demeanor. Never noticed “His son, Will Boone, came to me several twitching or drawing of his face. Sometimes he

any times and asked me if I didn't think the old would come to my place of business every day, gentleman of unsound mind, or words to that in the fall maybe two or three times a week. effect. I told him that I didn't think so at the When he would come across the river he would time he signed the will, and I don't think so stop in my store. I never knew any one that yet. I told him that he appeared to be getting kinda old, and I don't remember the exact

was more industrious and thrifty." words I used-I think a little bit senile-but Others who had known him long and tradI didn't say that I wouldn't have witnessed the ed with him never noticed that his face was will. The testator was back and forth probably a month discussing the making of his will, and drawn or that the muscles twitched, and reit was all in typewritten form and ready for garded him at the time of his death a rationsignature when I was called in to witness it.” al man of good sense.

W. E. Lenon stated that he had known tes- C. J. Kramer stated he had been in the tator for about 15 years, and knew him while grocery business in Little Rock for 30 years, about 10 years and had business with him for , shows that he was of sound and disposing 5 or 6 years, up to the time of his death. mind at the time of the execution of the

He seemed to always know what he was will, and there is no testimony whatever tenddoing. He would leave the goods there, go on ing to show that there was any undue influFifth street, come back, and we would settle the price at whatever they gave him on Fifth ence exerted by Charles Vestal and Sarah street. He seemed rational. I spent a good Boone, the Faucettes, or any one else, in prodeal of time talking to him, but not about mak- curing the execution of the will. The tesing his will. He was always same with me so tator was old and he gave valuable property far as the transactions and discussions I had that his children expected would come to with him. I never heard there was anything the matter with him until I was summoned them to the city nearest which it was lohere as a witness at the first trial.”

cated for a park to be named “Boone Park" The widow testified that testator had never and kept for the benefit of the public and in had a stroke of paralysis; that he some commemoration of the donor. His disposition times got overheated in the fields, came in to benefit his fellowman and to erect a monuwarm, and would sit down a while. He was ment to his own memory in passing through never sick any time until his last illness. this life was stronger than his inclination to He took sick on August 5th, and died on take care of and further provide for his own the 22d, in 1906. Never talked to her about children, who had long been away from his making his will. Neither side of his face was home and established families of their own. drawn, and there was no twitching of the He had a right to do this, if his capacity muscles of it. She knew both will and was sufficient in law. In McCulloch v. CampJim Faucette by sight, but neither of them bell, 49 Ark. 367, 5 S. W. 590, the court said had ever been in the house prior to Mr. that old age, physical infirmities, and even Boone's death. She did not know Mr. Fau- partial eclipse of the mind would not prevent cette until he called to see her when the the testator from making a valid will, if he trial was set for November.

knew and understood what he was doingJ. P. Faucette, the present mayor of Ar- if he could retain in his memory without genta, stated he was not acquainted with tes- prompting the extent and condition of his tator during his lifetime, never had seen property and comprehend to whom he was him that he knew of, nor had any conversa- giving it and be capable of appreciating the tion with him. Was never on his place dur- deserts and relations to him or others whoin ing his lifetime; he had seen it frequently, he excluded from "participation in his esknew where it was. He never gave a picture tate. Ouachita Baptist College v. Scott, 64 of his to any of the Boone family and, if Ark. 351, 42 S. W. 536; Hall v. Perry, 87 they had one, he knew nothing whatever Me. 569, 33 Atl. 160, 47 Am. St. Rep. 354; of it.

28 A. & E. Enc. of Law, 74; 40 I. B. 87; W. C. Faucette stated that he was mayor Leeper v. Taylor, 47 Ala. 221. of Argenta from April, 1904, until January, It is apparent that the testator retained in 1911; that he was not acquainted with the his memory the condition and extent of his testator, never had any conversation with property without prompting from any one, him about this will, nor any other subject, and without any suggestions as to the diswas never at his residence during his lifetime, position thereof. He went to the cashier of and that there was no picture of his in his his bank, with whom he had long dealt, and house. Didn't know anything about the will told him he desired to make a will and what until he read it in the newspapers; that he disposition he expected to make of his propnever saw his picture in the newspaper, al- erty. He discussed it with him several times, though they had a good deal to say about and a rough draft of the will was then made, him.

which he took away with him and kept for a Charles Vestal testified he lived on the time and then returned and suggested such property adjoining the testator, his nearest further amendments and corrections as he neighbor, and knew him well.

wanted made. He knew he was giving the “I must have known him over 30 years.

I

bulk of his estate to his wife, and intended to thought he had a good mind and entirely sane. do so, and doubtless preferred to perpetuate I never talked to him about giving any part of his name in the gift to the city of the home his property to the city."

place for a park to be called “Boone Park," The testator, shortly after his last mar- instead of to provide further for his chilriage, had had some litigation with his children, all of whom were grown and had long dren and heirs about some property they since gone from his home and established claimed had belonged to their mother. This homes of their own, and who had also sued litigation was compromised and the property him to prevent the disposition of certain divided.

property that they claimed belonged to them The jury found upon conflicting testimony as heirs of their mother. His mind doubtless in favor of the validity of the will, and there was not as good as in the days of his youth is ample evidence to sustain their verdict. and vigorous manhood, but the most that The decided preponderance of the testimony could be gathered from the testimony relative of witnesses not interested in the result and to the impairment of his mind was here and acquainted intimately with the testator | there an instance of absent-mindedness, if

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