any circumstances, there must be something more than a mere verbal promise, however unequivocal, otherwise the statute of frauds would be virtually abrogated; there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated. Equity does not pretend to enforce verbal promises in the face of the statute; it endeavors to prevent and punish fraud, by taking from the wrongdoer the fruits of his deceit, and it accomplishes this object by its beneficial and farreaching doctrine of constructive trusts."

ment would not constitute a resulting trust. [ with respect to land, may be enforced under Discussing this question in the case of Grayson v. Bowlin, 70 Ark. 145, 66 S. W. 658, Mr. Justice Battle, speaking for the court, said: "This court in Sale v. McLean, 29 Ark. 612, and in Du Val v. Marshall, 30 Ark. 230, said in effect that, in order to create a trust of this nature (resulting trust), payment of the purchase money must be made at the time of the purchase. By this it was meant that the trust must arise, if at all, from the original transaction at the time it takes place, and at no other time, and that it cannot be mingled with any subsequent dealings. Some of the cases use the language, 'at the date of the payment of the purchase money'; others, at the time of the execution of the conveyance.' But all of them mean the same thing, namely, that it is impossible to raise a resulting trust, so as to divest the legal estate of the grantee, or his heirs, by the subsequent application of the funds of a third person to the satisfaction of the unpaid purchase money. Botsford v. Burr, 2 Johns. Ch. [N. Y.1 406: Rogers v. Murray, 3 Paige [N. Y.] 390; Leading Cases in Equity, supra, 338. The trust arises out of the circumstances that the money of the real purchaser, and not of the grantee in the deed, formed the consideration of the purchase, and became converted into land."

[5] And that opinion quoted with approval the following language from the case of Bland v. Talley, 50 Ark. 71, 6 S. W. 234: "Now a parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds and cannot give birth to a resulting trust."

[6, 7] Nor can it be said that a trust ex maleficio arose from the facts of this transaction. The essentials of such a trust were discussed in Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, in which case it was said: "There is no testimony indicating that the husband fraudulently induced the wife to have the deed made to him by reason of a promise that he would convey the land to or hold it for such children. There is no testimony that he acquired the title by any intentionally false or fraudulent promise, so that it could be said that a trust ex maleficio arose from the transaction. To create such a trust, the mere verbal promise and its breach is not sufficient. There must be some element of fraud practiced whereby the execution of the deed is induced; and, in the case at bar, there is not a tittle of testimony indicating that any such fraud was practiced by the husband upon the wife in obtaining this deed. 3 Pomeroy, Eq. Juris. par. 1056."

Discussing the proof necessary to establish a trust ex maleficio, Mr. Justice Riddick, in the case of Ammonette v. Black, 73 Ark. 313, 83 S. W. 910, said:

"There must, of course, in such cases be an element of positive fraud by means of which the legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply."

Both of the opinions of this court quoted from cite with approval section 1056, 3 Pomeroy, Equity Jurisprudence, which reads as follows:

It follows from what we have said the chancellor erred in his finding that appellant held the interest to the property in question as trustee and in his directions that an accounting be had of the proceeds of the sale and disposition of the trust property, and his decree to that effect will therefore be reversed and the cause remanded, with directions to the chancellor to dismiss the complaint for want of equity.

KIRBY, J., dissents.

EVATT et al. v. MIER et al. (No. 83.) (Supreme Court of Arkansas. June 29, 1914.) 1. MARRIAGE (§ 11*)—VALIDITY.

left her, and later falsely represented to L. Where decedent, having married a wife, that he had been divorced, and then married her, L.'s marriage to decedent, though in good faith, was void.

[Ed. Note. For other cases, see Marriage, Cent. Dig. § 30; Dec. Dig. § 11.*] 2. BASTARDS (§ 1*)-LEGITIMATION-RIGHT TO INHERIT-STATUTES.

Kirby's Dig. § 2640, provides that the issue of all marriages deemed null in law or dissolved by divorce shall be deemed and considered legitimate. Held that, where decedent, having married, left his wife, and, after falsely informing L. that he had procured a divorce, married her, her children, though her marriage was void, were nevertheless legitimate under such statute, and entitled to inherit decedent's estate equally with the issue of the first marriage.

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 1-3; Dec. Dig. § 1.*] 3. EXECUTORS AND ADMINISTRATORS (§ 314*) SETTLEMENT OF ESTATE SUIT-ATTORNEY'S FEE.

Where, in a suit to settle a decedent's estate, there was no sale of property, but it involved a determination of the rights of certain children, the issue of a void marriage, an allowof the estate to them. ance for attorney's fees could not be made out

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. § 314.*]

Appeal from Scott Chancery Court; W. A. Falconer, Chancellor.

Suit by J. M. Evatt, as administrator of the estate of Frank Mier (or Miller), against Anna Mier and others. From a decree finding that Antone Frank Miller was the only legitimate and lawful heir of deceased, the administrator, as well as Lidmilla Miller and others, appeal. Affirmed in part, and in

"The foregoing cases should be carefully distinguished from those in which there is a mere verbal promise to purchase and convey land. In order that the doctrine of trusts ex maleficio, part reversed and remanded, with directions. For other cases see same topic and section NUMBER in Dec Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-52

testate. They alleged, also, that the mortgages which were foreclosed, and under which M. C. Miller claimed title, as well as the judgment in favor of the said M. C. Miller, were executed for the purpose of defrauding creditors, and of defeating them in the assertion of their rights in the estate of the intestate.

A man named Frank Mier (or Miller) died | children the allegations contained in the peintestate in Scott county, Ark., on April 11, tition of Anna were denied, and it was al1911. He had been a resident of that coun-leged that Lidmilla was the lawful wife, and ty for a number of years, prior to his death, her children the lawful heirs, of the said inand during all the time of his residence in that county he lived with a woman named Lidmilla Miller, who was reputed to be his wife, and there was nothing in their relationship which aroused even a suspicion to the contrary. In addition to his reputed wife, he was survived by four children, one an adult daughter, who had married, and three minor children, and these children never suspected there was any question about their legitimacy until after the death of their father and the institution of the litigation involving his estate. Although Miller appears to have owned considerable land and personal property at the time of his death, his estate was largely involved, and after the qualification of appellant, J. M. Evatt, as administrator of his estate, various debts were probated. Among other demands filed for probate was a judgment in favor of M. C. Miller, a brother of the intestate, and this brother, M. C. Miller, also had a mortgagee's deed, which he received upon the foreclosure of a mortgage executed to him by his brother Frank. The administrator instituted a suit for the benefit of the heirs and creditors, in which it was alleged that this deed, executed pursuant to the mortgage foreclosure, was fraudulent and had been executed for the purpose of cheating and defrauding various creditors in the collection of their just demands, and also for the purpose of placing the property beyond the reach of a probable judgment creditor, who at the time of the execution of the original mortgages had a suit pending against the intestate for a considerable sum of money. That cause of action, however, appears to have been disposed of without the rendition of any judgment against the intestate.

A number of interventions were filed in this cause by various persons, who were made parties to that litigation. Among others, one Anna Miller filed an intervention, in which she alleged that she and the intestate were married on the 16th of February, 1885, in Brazos county, Tex., and that about one year after their said marriage a son, named Antone Frank Miller, was born to them, and that shortly thereafter her husband deserted her and ran away with her sister Lidmilla, with whom he had thereafter lived until a short time before his death, when he and the said Lidmilla separated and ceased to live together during the remainder of his life.

Antone Frank Miller was made a party and alleged that he was the only heir at law of the intestate. Lidmilla and her adult daughter filed separate answers for themselves, and a guardian was appointed for the minor children of Lidmilla, who answered for them. In the answer of Lidmilla and her

The principals in this case were Bohemians, and resided originally in Brazos county, Tex. The evidence is to the effect that Frank Miller had courted the two sisters, Anna and Lidmilla, who was the younger, but that there was a Bohemian custom to the effect that a younger daughter should not marry while her elder sister was single, and Lidmilla testified that she became angry ať the attempt of the members of her family to compel Frank to marry her sister, and left home and moved to a point about 100 miles distant, where she lived for something more than a year, when Frank came there and told her that he had married her sister, but that he had been divorced from her, and she says that thereafter they went to his camp, where he was engaged in working in timber, `and they were married; and that soon thereafter they removed to Talihini, I. T., where they lived for a short time, after which they removed to Scott county, Ark., and lived together as man and wife until the time of their separation, about a year before the death of her husband. After Anna had been deserted by her husband, she lived for some years with a man named Cooper, and, although she denies she was ever married to Cooper, the evidence discloses the contrary to be the truth. After living for some years with this man Cooper, by whom she had a child, she lived for some years with a man named Richardson, by whom she had other children, and it appears she also married this man Richardson, although she denied that that was a fact. There was no proof that either Anna Miller or her husband, Frank Miller, ever secured a divorce.

The chancellor found that Frank and Anna Miller were lawfully married in Texas, and that Frank died intestate in Scott county, Ark., without ever having been divorced from Anna, and that Antone Frank Miller was his only child and lawful heir, and that all the property descended to the said child, subject to the payment of the intestate's debts and the dower and homestead rights of the said Anna. The court decreed that the judgment in favor of M. C. Miller was a valid demand, and that one of the mortgages had been assigned to the said M. C. Miller for a valuable consideration, and that the other mortgage was given to secure the payment of money which had been used in the purchase of the land described in the mortgage, and the

court decreed that on that account the lands | law. In the case of Furth v. Furth, 97 Ark. there described were not subject to the dow- 272, 133 S. W. 1037, Ann. Cas. 1912D, 595, er rights of the widow. it was said that:

The administrator and Lidmilla and her children have duly appealed from that de

cree.

J. O. Kincannon, of Booneville, for appellants Miller. A. G. Leming, of Waldron, for appellant Evatt. Carmichael, Brooks, Powers & Rector, of Little Rock, for appellees.

SMITH, J. (after stating the facts as above). We think the chancellor's findings of fact are not contrary to the preponderance of the evidence. The proof shows that Anna and Frank Miller were lawfully married, and there was no proof they were ever divorced, except Lidmilla's statement that Frank had told her he had secured a divorce, and this evidence was, of course, incompetent and proved nothing; and, notwithstanding her own subsequent bigamous marriages, Anna continued to be and at the death of Frank Miller was his lawful wife and entitled to her rights as such. The chancellor decreed that, as Frank Miller was indebted for money which he had previously borrowed from his brother M. C. Miller to pay the purchase price of the lands sold to M. C. Miller at the mortgage foreclosure, there were no dower rights in these lands in favor of Anna Miller, although she did not join in the execution of the mortgage; but, as Anna has not appealed from this decree, we are not called upon to review the correctness of that decision.

[1] We think that the chancellor's finding that the judgment and mortgages in favor of M. C. Miller were based upon transactions had in good faith is not against the clear preponderance of the evidence. We think, too, that his holding that Lidmilla's marriage was null and void is correct, and she therefore has no rights in this estate; but we do not agree that her children are excluded from the right to participate in the divi

sion of that estate.

[2] The decision of that question involves the construction to be given section 2640 of Kirby's Digest, which reads as follows:

"The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate."

So far as we are advised, this section has never been construed in any case decided by this court. It will be observed that this section was brought forward from the Revised Statutes, and appears in the chapter on Descents and Distributions. It will be observed, too, that the protection of this statute is limited to the issue of marriages. It does not apply to the mere progeny of illicit intercourse, nor to children born of persons whose relationship is merely that of persons who are illegally cohabiting together as man and wife. It shields only children born to parents who undertake to marry, and do marry, but whose marriage for any cause is null in

WO

"Even if it can be said that a present contract of marriage between a man and a man, followed by cohabitation, is valid under the common law, we hold that the common law

in this respect has never obtained in this state."

And the reason for that holding was there stated to be that, before the common law was adopted in this state, statutes had been enacted which regulated marriages, and which prescribed the manner and form in which they might be solemnized, and that before the adoption of the common law, as a part of our jurisprudence, marriage was regarded as something more than a contract between the parties, to be formed by present words of agreement to live together as husband and wife, and that such contract could not be entered into without being solemnized by some person authorized by statute to do so, and these statutes regulating and prescribing the manner and form in which marriages may be solemnized are mandatory, and not directory merely. The point involved and there decided was:

"That the doctrine of so-called common-law marriages has never obtained or become a part of the laws of this state."

But the marriage there sought to be upheld, as a common-law marriage, was one contracted in this state. The question was not involved, and it was not decided in that case, that such marriages would not be regarded as valid in the courts of this state, if valid in the state where contracted. Upon the contrary, section 5177 of Kirby's Digest provides that:

"All marriages contracted without this state, which would be valid by the laws of the state mated, and the parties then actually resided, or country in which the same are consumshall be valid in all the courts in this state."

It is true Lidmilla gives a very unsatisfactory account of her marriage to Frank Miller, and her evidence is very similar to that given

in the case of Darling v. Dent, 82 Ark. 76, 100 S. W. 747. As in that case, so in this,

the wife was unable to state the name of the

town where she was married, or the name of
not know
any person present. She did
whether a license had been procured, but
testified that a ceremony was performed by a
priest, who had a book in his hand from
which he read. But in this case of Darling
V. Dent, supra, there was quoted the language
of Judge Cooley in delivering the opinion of
the Supreme Court of Michigan in Hutch
ins v. Kimmell, 31 Mich. 130, 18 Am. Rep
164, as follows:

"Whatever be the form of the ceremony, or if all ceremony was dispensed with, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts riage binding on the parties, which would subwould be sufficient to constitute proof of a marject them to legal penalties for a disregard of its obligations."

And that case expressly held that the al-, first husband, are legitimate after the death leged marriage there considered, which oc- of their father." curred in the state of Texas, would be valid without formal ceremony, or the procurement of a marriage license, because common-law marriages were valid in Texas.

But it does not follow, because Lidmilla's marriage was contracted in Texas, where common-law marriages were valid, that she is entitled to the rights which inure to a lawful wife. The marriage was an unlawful one, because it was bigamous; and we quote again from the case of Darling v. Dent,

supra:

"While it is true that, if it be shown that the relations between Darling and Mrs. Williams were illicit in the beginning, the burden is upon those asserting a valid marriage agreement to show that such an agreement was afterwards entered into, still there is no presumption that the relationship continued to be illicit, or whether it was changed to a

legal and moral status."

In the case of O'Neill v. Davis, 88 Ark. 196, 113 S. W. 1027, the facts were that the parties whose marriage was there questioned had lived together before the man was divorced from a former wife, and continued to live together after the man secured a divorce from this wife, and in the opinion by Justice Battle it was there said:

"Their continued cohabitation after the divorce does not prove that they changed their intent, which was to live together without being married. The concomitants of their illicit relations are not sufficient, by their unasserted probative force, to prove that when they were at liberty to marry they embraced the opportunity. As Chief Justice Beasley said of such evidence in Collins v. Voorhees, 47 N. J. Eq. 315, 20 Atl. 676, 14 L. R. A. 364, 24 Am. St. Rep. 412, 'to treat evidence which was in all respects and to the utmost degree in accord with the original purpose as proving, proprio vigore, a change of such purpose appears to be not only inadmissible according to the legal rules, but as being in logic ridiculous.'"

It was the unanimous opinion of the court in that case that the issue of the second marriage were legitimate, and in a concurring opinion by Roane, Justice, it was said: "The second marriage, therefore, was not lawful; it was even void. But we cannot, in this case, say that it was criminal. Circumstances may exist, such as a belief of the death of the first husband, or a seven years' absence by him, which may render the second marriage even innocent. We are bound to consider this marriage innocent, for we cannot, in this proceeding, inquire into its guilt. But if it were otherwise, if the Legislature should even be supposed to consider every second marriage, living a first husband or wife, as criminal, wherefore should they visit the sins of the spring? But this was not the temper of the parents upon the innocent and unoffending offriages, where the parties with full knowledge of Legislature. the everlasting bar which does and ought to exist between them, enter into this contract, and produce an innocent offspring in defiance of laws human or divine, where you cannot supscarcely possible one of an ignorance of the pose a circumstance of excuse, except the consanguinity which exists between the parties, their offspring is not bastardized by our laws; on the contrary, it is expressly provided (New Code, p. 195, § 13) that the nullification of such marriages shall not be construed to render the issue illegitimate. * It was said by one of the appellee's counsel that the construction I adopt is inadmissible, as tending to encourage bigamy. It was well said in answer, by one of the appellants' counsel, that considerations of this kind, in relation to the offspring, form no part of the inducements to maritself has given the answer. riage. But this is not all. The Legislature That Legislature certainly meant not to encourage fornication, or incestuous marriages, and yet it has ex-. pressly legitimated the offspring of both."

In the case of incestuous mar

This section of the Virginia Code remained unchanged, and was again construed by the Court of Appeals of that state in 1894 in the case of Heckert v. Hile's Adm'r, 90 Va. 390, 18 S. E. 841, where it was said: As we have said, there was no proof here children of Peter Hile by a lawful wife, who "The controversy in this case is between the that Frank Miller was ever divorced from left her husband and went to the state of Anna. At common law all children, ex- Michigan, and the children of said Peter Hile cept the issue of lawful marriages, were by another woman, married by him during the illegitimate and remained so; but the harsh-lifetime of his first wife, who were born before ness of this rule has been much relaxed, until now in most, if not in all, American states statutes have been enacted which provide that the issue of a void or voidable marriage shall be legitimate notwithstanding the invalidity of the marriage. Long on Domestic Relations (2d Ed.) § 244, and cases there cited.

One of the earliest states to enact a statute to this effect was Virginia, where in 1785 a statute was passed which reads as follows:

"The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate."

The case of Stones v. Keeling, which was decided at the May term, 1804, of the Court of Appeals of Virginia, 5 Call, 143, involved the construction of this statute and the syl

labus in that case is as follows:

"The issue of a woman by a second marriage, which took place during the lifetime of her

*

*

The circuit court decreed that the first mar-
the dissolution of the marriage of the first wife.
riage was lawful and the children legitimate;
that the second marriage was null, but that the
children of this null marriage were legitimate,
made so by our statute (section 2554, Virginia
Code),
* and that the second set of
children, being legitimate, inherited from the
father as the first set, the issue of the legal
marriage. There can be no doubt of the cor-
rectness of this decision. The case comes with-
in the plain provision of the statute cited
above, which is of ancient date in this com-
monwealth,
and was carefully con-
sidered and construed in 1804 in this court, in
the case of Stone v. Keeling, 5 Call (Va.) 143–
a decision under which we have since rested.
In that case the law was considered in every
aspect under which it should be regarded, and
was sustained and made effective. But it is
contended by the counsel for the appellants
that a recent case in this court has substan-
cite Greenhow v. James, 80 Va. 636, 56 Am.
tially overruled Stones v. Keeling, and they
Rep. 603; but we do not so regard it. That
was the case of illegitimate children of a white
person by a negro, who left the state, and were