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(209 P.)

ing the rights of an abandoned wife, or one compelled to live separate and apart from her, husband for good cause, in decreeing to her an equitable division of her husband's property with a view of having the husband discharge his legal obligation to support his wife, it is quite obvious that the legal right of the wife to this protection in no way conflicts with the rule of law that grants to the husband the unrestricted right to deal with the property acquired during coverture, unless it be such property as a homestead, which the law protects against conveyances without the consent of the wife.

[7] It is for the Legislature to enact laws and thereby establish the public policy of the state. The Legislature of this state has not deemed it advisable to restrict the husband in the conveyance or disposition of property acquired by him during coverture except as to the homestead. There being no statutory prohibition against the husband conveying such property, to hold that there is a restriction against the alienation of the same would be to establish a limitation upon the right by judicial decree. Such a precedent would be unjustifiable upon any ground, and a most dangerous precedent. It is the imperative duty of courts to declare the law as enacted by the Legislature in determining the property rights of litigants. The law is fundamental that an expectant heir has no vested interest or estate in property which he may subsequently inherit. In re Barnes' Estate, 47 Okl. 117, 147 Pac. 504; In re Pigeon's Estate, 81 Okl. 180, 198 Pac. 309; 18 C. J. § 111.

Counsel for plaintiff have invoked the following maxims of equity:

“Equity will not suffer a wrong to be without

a remedy."

"Equity serves to do justice, and not by halves."

"Equity regards substance rather than form." "Equity regards that as done which ought to have been done."

These splendid maxims can have no place in the instant case, for the obvious reason that the respective rights of the parties to this action are clearly defined and established by law. No court is ever justified in invoking the maxim of equity for the purpose of destroying legal rights or of establishing rights that do not exist. The maxims above quoted are useful only to the court in protecting a right that really exists. It is a maxim of equity uniformly adhered to by the courts that "equity follows the law."

The Supreme Court of the United States, in Magniac v. Thomson, 15 How. (56 U. S.) 299, 14 L. Ed. 696, said:

unsettle those rights or that situation, but in all such instances the maxim equitas sequitur legem is strictly applicable.”

In Hedges v. Dixon County, 150 U. S. 182, 14 Sup. Ct. 71, 37 L. Ed. 1044, the Supreme Court of the United States said:

accident or mistake, cannot change the terms "A court of equity, in the absence of fraud, of a contract."

Jerome B. York, who was a man of strong personal character, and an intelligent business man, executed the conveyances and contracts sought to be avoided in this case.

[2,8] The trial court having determined, after hearing numerous witnesses testify, that the deeds and contracts executed expressed the free and voluntary acts of Jerome B. York, the judgment of the trial court, not being clearly against the weight of the evidence, is affirmed.

PITCHFORD, V. C. J., and JOHNSON, MeNEILL, and ELTING, JJ., concur.

NELSON et al. v. YORK et al, (No. 13167.) (Supreme Court of Oklahoma. July 25, 1922. Rehearing Denied Oct. 3, 1922.)

(Syllabus by the Court.) I. Wills 155(1), 159-"Undue influence" sufficient to invalidate will stated; influence on testator in ordinary affairs of life or opportunity for confidential relations not sufficient to invalidate will,

Undue influence, such as will invalidate a free agency of the testator at the time when will, must be something which destroys the substitutes the will of another for that of the the instrument is made, and which, in effect, testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them tate (Okl. Sup.) 175 Pac. 507. at the time of its execution. In re Cook's Es

2. Wills 289-To probate will, burden on proponents to show due execution.

In a proceeding to probate a will, where tested, the burden of proof rests upon the prothe right to admit the will, to probate is conponents of the will to establish by a preponderance of the evidence that the will was executed according to the provisions of the statutes prescribing the manner of executing and publishing a will.

3. Sufficiency of evidence.

nents of the will met the burden cast upon them Record examined, and held, that the propoby law.

"That wherever the rights of the situation of the parties are clearly defined and established by law, equity has no power to change or County; Harve L. Melton, Judge.

Appeal from District Court, McCurtain

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Action by Grace York Nelson and others, involved in the case of Elizabeth York, against Robert York and another. From a Plaintiff, v. Mary York Trigg and Robert judgment of the district court affirming a York (No. 13168) the two cases were tried judgment of the county court admitting to and submitted to the district court of Meprobate the will of Jerome B. York, plain- Curtain county upon the same evidence, and tiffs appeal. Affirmed. were tried in the district court as companion cases. We deem it unnecessary to review the evidence in this case at length, as the evidence has been reviewed in case No.

Etheredge & Arnett, of Idabel, and Rainey & Flynn, of Oklahoma City (Fitzhugh, Murrah & Fitzhugh and Ewing, King & King, all of Memphis, Tenn., and M. Danaher, of Pine Bluff, Ark., of counsel), for appellants. Harsh & Harsh, of Memphis, Tenn., Armstrong & Jones, of Idabel, and McPherren & Cochran, of Durant, for appellees.

KENNAMER, J. This appeal is prosecuted by Grace York Nelson, Lucile Anderson Johnson, Union & Planters' Bank & Trust Company, executor of the estate of Minnie Anderson, deceased, plaintiffs in error, to reverse the judgment of the district court of McCurtain county affirming the order of the county court admitting to probate the last will and testament of Jerome B. York, de

ceased.

13168.

The will in controversy was executed by Jerome B. York on the 12th day of December, 1914, and is in words as follows:

"Will of Jerome B. York.

"I, Jerome B. York, of Valliant, state of Oklahoma, being now in good health, strength of body and mind, and of disposing memory do hereby make publish and declare the following to be my last will and testament, hereby revoking and cancelling all other or former wills by me at any time made.

"Article 1. I direct that funeral expenses and all my just debts be paid as soon after my death as possible out of any moneys that I may the hands of my executors. die possessed of or that may first come into

"Article 2. I hereby give, devise and bequeath unto my son, Robert York, and Mrs. Mary Y. Trigg in trust and to be held by them, in trust for my wife Elizabeth York, for and during her natural life, the sum of seventy thousand ($70,000) dollars, to be invested by them in a safe way for her benefit; and from the income her support, the sum of three hundred ($300) of same, I direct that they pay to her or for dollars per month, or such sums as may be needed to provide for her every comfort and

Jerome B. York died on or about July 6, 1919, in Paris, Tex., though at the time of his death he was a citizen of Valliant, McCurtain county, Okl. Thereafter, on the 25th day of July, 1919, Mary York Trigg filed in the county court of McCurtain county, Okl., an instrument purporting to be the last will and testament of Jerome B. York, deceased, with a petition praying the judg ment of the court that said will be admitted to probate as the last will and testament of Jerome B. York, deceased, and that let-attention. ters testamentary issue thereon to Robert York and Mary York Trigg.

Said trustees are authorized and empowered to sell and convey any property that they may invest this trust fund in at any time that they may think it best to do so and reinvest the funds derived from such sale in other property to be held by them in trust for the uses and purposes as above stated. Any one purchasing property from said trustees shall not be required to look after or be held

On the 6th day of August, 1919, Grace York Nelson and Minnie York Anderson filed their petition in said proceeding to probate said will contesting the right of the proponents Mary York Trigg and Robert York, to have said will probated. After the contest-responsible for the reinvestment of the money ants had filed their peitition contesting the probation of said will, Minnie York Anderson, one of the contestants, died, and the executor of her estate, Union & Planters' Bank & Trust Company, and Lucile Anderson Johnson, her daughter and heir at law, were substituted as parties to said proceeding in her place.

On the 15th day of October, 1919, after a hearing upon the petition to admit said will to probate and the petition contesting it, the court admitted the instrument filed to probate as the last will and testament of Jerome B. York, deceased, and directed that letters testamentary issue to Robert York and Mary York Trigg as executors of the will without bond. Notice of appeal was filed by the contestants, and the cause appealed to the trict court of McCurtain county. The appeal was upon both law and facts.

paid to the trustees in pursuance of such sale.
I direct that all of this trust fund that may
remain at the death of my said wife shall be-
come a portion of my estate to be distributed
Jerome B. York.
as hereinafter directed.
"Article 3. I give and bequeath to my daugh-
ter, Minnie York Anderson, the sum of five
hundred ($500) dollars.

"Article 4. I give and bequeath to my daugh ter, Grace York Nelson, the sum of one hundred ($100) dollars.

"Article 5. I give and bequeath to my sisterin-law, Mrs. Lillie Miller, the sum of five hundred ($500) dollars.

"Article 6. I give and bequeath to my granddaughter, Lucile Anderson, the sum of one thousand ($1,000) dollars.

"Article 7. I will and bequeath to my granddaughter, Helen Trigg, the sum of one thoudis-sand ($1,000) dollars.

"Article 8. I give and bequeath to my grandson York Trigg, the sum of one thousand ($1,

The estate involved being the same as is 000) dollars.

(209 P.)

"Article 9. I give and bequeath to my neph- testator, Jerome B. York, and that such reew, William A. Wells, the sum of five hundred ($500) dollars.

"Article 10. I give, bequeath and devise all the residue, rest and remainder of my estate, both real and personal property, including whatever may be held, after the death of my wife, under the provision of article 2 herein, to my two children, Mary York Trigg and Robert York, to be divided between them equally, share and share alike and in the distribution of my estate between my said two children I direct that neither of them shall be charged with any money or property which have given

them.

Jerome B. York.

“Article 11. I hereby appoint and designate my son, Robert York and my daughter, Mary York Trigg, as executors of this my last will and testament without bond.

lation raises a strong presumption of undue influence and fraud; that the burden of proof was on the proponents to prove the execution of the will in accordance with the requirements of law, and that the instrument was the free and voluntary act of the testator.

[2] In this case there appears to be no serious controversy between counsel for the respective parties as to the applicable rules of law as supported by the authorities. The rule is well established that the proponents of the will had the burden of establishing its execution in accordance with the requirements of law, and that the instrument presented for probate was the free and volun"In witness whereof, I, Jerome B. York, tary act of the testator mentally capable and have to this my last will and testament consist-qualified to make a will. Hunter v. Battiest, ing of three sheets of paper subscribed my 79 Okl. 248, 192 Pac. 575; Parker v. Duncan, name, on each page hereof, this the 12th day 62 L. T. R. 642; McCarty et al. v. Weatherof December, 1914. ly et al. (Okl. Sup.) 204 Pac. 632; Delafield v. Parrish, 25 N. Y. 9.

Jerome B. York. "Subscribed by Jerome B. York in the presence of each of us, the undersigned, and at the same time declared by him to us to be his last will and testament, and we thereupon at the request of Jerome B. York, in his presence and in the presence of each other, signed our names hereto as witnesses, this the 12th day of December, 1914, at Valliant, Oklahoma. "S. B. McCartney, Valliant, Oklahoma. "W. B. McCallister, Valliant, Okla. "Bernie Herstein, Valliant, Okla." Jerome B. York on the date of his death, about July 6, 1919, left surviving him his widow, Elizabeth York, Mary York Trigg, daughter, Grace York Nelson, daughter, Minnie York Anderson, daughter, and Robert York, son. The last will and testament of Jerome B. York practically disinherited his two daughters Grace York Nelson and Minnie York Anderson, and bequeathed the greater portion of his property to his two children Mary York Trigg and Robert York. Counsel for the appellants, the contestants of the will, under their assignments of error present but two controlling questions for reversal of the judgment of the district court affirming the order of the county court admitting the will to probate: First, that in the execution of the will the testator, Jerome B. York, was acting under undue influence of the beneficiaries Mary York Trigg and Robert York, and that fraud was committed by said beneficiaries in securing the execution of said will; second, that the testator on the date of the execution of said will was mentally incompetent to execute a valid will for the reason he was suffering under a mental delusion, a condition for which Mary York Trigg and Robert York were responsible.

It is urged in the brief of counsel for appellants that a fiduciary and confidential relation existed between the two beneficiaries Mary York Trigg and Robert York and the

[1] In the instant case the trial court heard the testimony of numerous witnesses, and had before him much documentary evidence, consisting of many letters written by the testator during his lifetime, a number of which were written within a month or two before his death. After a careful review of this evidence the court found that the will admitted to probate was made by Jerome B. York, a man of strong personal character and an intelligent and successful business man, and expressed the intention of the testator acting in accordance with his own free agency. The trial court properly held it was not for him to determine whether the testator acted right or wrong in the way he distributed his estate. It was the plain duty of the court to sustain the will of the testator if the evidence established the fact that the will had been executed in aecordance with the requirements of law and the testator was capable of making the will, Undue influence is insufficient to invalidate

a will unless it be such as destroys the free agency of the testator at the time when the In re Cook's Estate instrument is made. (Okl. Sup.) 175 Pac. 507; In re Swartz's Will, 79 Okl. 191, 192 Pac. 203, 16 A. L. R. 450; McCarty et al. v. Weatherly et al., supra.

Counsel for appellants have argued at great length in their brief that, by reason of the failure of Jerome B. York's attorneys, G. H. Montgomery, of Valliant, Okl., and George Harsh, of Memphis, Tenn., to testify such failure on their part is a strong circumstance indicating that the will was prepared in Memphis, Tenn. We are unable to concur with counsel in this contention, and, furthermore, considering the fact that Jerome B. York was a bright-minded business man, who could not be easily influenced against his

will, it is quite immaterial where he had his, ing to be supported by the evidence, the will prepared. judgment is affirmed.

The three subscribing witnesses all appeared at the trial of this cause and testified in

PITCHFORD, V. C. J., and JOHNSON,

person, and, according to their testimony, MCNEILL, and ELTING, JJ.,

Jerome B. York personally requested them to come to the office of G. H. Montgomery in the town of Valliant, where he was having

concur.

his will prepared, for the purpose of witness- NIXON et al. v. GENERAL EXPLOSIVES ing it; that they went to his office pursuant CO. (No. 13068.) to his request, and saw him sign the will, which he declared to be his last will and (Supreme Court of Oklahoma. Sept. 26, 1922.) testament, and that in his presence at his request they signed the will as witnesses. It is important in this controversy to observe that neither Mary Y. Trigg nor Robert York were present at the time Jerome B. York executed his will.

(Syllabus by the Court.)

Appeal and error 285-Error assigned for overruling motion for new trial, when judgment rendered on pleadings, presents nothing for review.

Motion to dismiss appeal sustained upon the grounds stated in the opinion.

Appeal from District Court, Tulsa County; Valjean Biddison, Judge.

From the judgment rendered, the former appeals. On motion of the latter to dismiss appeal. Motion sustained.

Jerome B., York lived more than four years after he executed his last will, and, according to the testimony of numerous witnesses who were well acquainted with Jerome B. York during these four years, he was in Proceeding between J. Truman Nixon and good health, and an exceptionally success-others and the General Explosives Company. ful business man, a man well posted on current events, and at all times by his conduct evidencing the fact he was a bright-minded man. It appears to us that it would be unreasonable to conclude that a man of this character was influenced against his will to make a will which did not represent his free and voluntary act. It would, indeed, present an unusual situation if such a man during the four years or more that he lived after the execution of such a will never made any attempt to revoke it.

While it is to be regretted that such estrangement was brought about between the testator and his two daughters which caused him to practically disinherit them, that is a matter the court cannot relieve them from, where the will was executed as required by law, and represents the free and voluntary

act of the testator.

Shell S. Bassett, of Tulsa, for plaintiffs in

error.

Nixon & Nixon, of Tulsa, for defendant in error.

KANE, J. This action comes on to be heard upon motion to dismiss appeal filed by the defendant in error. The case was tried in the court below on a motion for judgment on the pleadings, which was sustained, and judgment entered for defendant in error. Plaintiff in error filed a motion for a new trial, which was overruled, and from this action plaintiff in error appealed to the Supreme Court. No notice of appeal was given at the time judgment was rendered on the pleadings, July 2, 1921, nor within 10 days thereafter, and from this judgment no appeal

was taken.

[3] Jerome B. York had a right under the law to make a will, and, being in every way capable and qualified to make a will, the It is well settled that, when judgment is manner in which he disposed of his proper-rendered on the pleadings, no motion for a ty, so long as he acted within the law, was new trial is necessary, and error assigned bea matter for him to determine, and not the cause of the overruling thereof presents nothcourt. The reasons for making the disposi-ing for review. Schuber et al. v. McDuffee tion of his property which he did were bet- et al. (Okl. Sup.) 169 Pac. 642. In the case at ter known to him than the court can ever be bar, the only error assigned is the overruling advised of through the channels of evidence. of the motion for a new trial. In this class of cases the court is only concerned with the proposition of whether or not the will was executed in accordance with the requirements of the law, the competency of the testator to make the will, and that the testator was acting freely and voluntary in its execution.

Motion for a new trial being unnecessary, and no notice of appeal from the judgment on pleadings having been given, it follows that the motion to dismiss the appeal must be sustained.

HARRISON, C. J., and JOHNSON, McThere appearing no error in the record, NEILL, MILLER, NICHOLSON, and KENand the judgment of the trial court appear-NAMER, JJ., concur.

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(209 P.)

the performance of its duty as a warehouse

HUGO ICE & LIGHT CO. v. RICHARDSON man. et al. (No. 10724.)

(Supreme Court of Oklahoma. Sept. 26, 1922.)

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(Syllabus by the Court.) 1. Appeal and error 1170(1)-Error not affecting substantial rights of adverse party disregarded on appeal.

The Supreme Court, in every stage of action, is required by statute (sections 4791 and 6005, Rev. Laws 1910) to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. Mullen v. Thaxton, 24 Okl. 643, 104 Pac. 359.

2. Warehousemen

24(1)-Liable for loss or injury to goods caused by failure to exercise reasonable care.

By statute (section 21, Session Laws 1915, page 554), a warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable in the absence of any agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care.

3. Warehousemen

The plaintiffs alleged, in substance, that the defendant was, on the 6th day of April, 1917, engaged in the business of wholesaling a nonintoxicating drink, known as "Barma"; with defendant to place in cold storage all that about such date an agreement was made kegs of certain product for keeping the same until such time as plaintiff should call for same and pay the defendant its regular charges for cold storage.

About the 8th day of May, 1917, the plaintiff, with consent of defendant under the foregoing contract, which was verbal, placed in storage house of said defendant 154 kegs of Barma: that said defendant carelessly allowed the temperature of said cold storage room to get so low that 27 kegs thereof froze and were a total loss to plaintiff; the value of said Barma being $256.50.

It was further alleged that plaintiff paid the said defendant the sum of $37.88 for the cold storage in accordance with its regular tariff and rates, and prayed judgment against the defendant for $256.50.

In the answer to this petition, the defendant, after admitting its incorporation and denying each and every allegation that the petition contained, except such as are here

19-Cold storage company, in absence of express contract, impliedly agrees to keep ordinary cold storage temperature for preservation of property re-inafter specifically admitted:

ceived.

In the absence of express contract, a cold storage company impliedly contracts to keep the ordinary cold storage temperature for the preservation of the property received.

4. Sufficiency of evidence; errors complained of held harmless.

Record examined, and held: (1) That the judgment of the lower court is sufficiently supported by the evidence; (2) that the errors complained of did not result in a miscarriage of justice, or deprive the defendant of any substantial constitutional or statutory right.

"That the said M. J. Richardson, on several occasions, talked with the said J. W. Dawley concerning the storage of said kegs in said ice storage vault, and was informed by the said J. W. Dawley, manager of defendant, Hugo Ice & Light Company, that the defendant, Hugo Ice & Light Company was not conducting a public cold-storage warehouse, but that the purpose for which said ice storage vault was constructed and for which it was used was the storage of ice manufactured by defendant, and, on said occasions the said M. J. Richardson was informed by the said J. W. Dawley that the temperature maintained in said ice storage vault was from 26 degrees to 30 degrees above

Appeal from District Court, Choctaw Coun- zero, Fahrenheit, and that said ice storage ty; J. W. Bolen, Judge.

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KANE, J. The defendants in error, hereinafter referred to as plaintiffs, commenced this action for damages against the plaintiff in error, hereinafter called defendant, for injury to the plaintiff occasioned by the failure of the defendant to exercise ordinary care in

vault was not suitable for general storage purposes, for the reason that the temperature of said vault was always maintained at below the freezing point, but that if the said M. J. Richardson desired to store the said kegs in said ice storage vault, he might store as much of said commodity herein as could be done without interfering with the business of the defendant and stored in said ice storage vault, and that if said M. J. Richardson desired to store said beverage in said ice storage vault, he could do so at his own risk as to the damages liable to result from freezing."

And further he states:

"That the said M. J. Richardson stated to conditions in other ice storage vaults where employees of defendant that he had investigated the temperature was maintained at a much lower degree than in the ice storage vault of defendant, and that the same commodity which

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