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Suit by Mrs. N. E. Sherman against D. H. Crawford, as administrator of the estate of J. W. Sherman, deceased, and Frank Gould Sherman. Decree for plaintiff, and defendant Sherman appeals. Affirmed.

Mrs. N. E. Sherman brought this suit in equity against D. H. Crawford, as administrator of the estate of J. W. Sherman, deceased, and Frank Gould Sherman, to have her dower in her deceased husband's estate allotted to her.

The suit was defended on the ground that she had entered into a separation agreement with her husband, in which she had relinquished her right to dower in his estate. Another defense was that Frank Gould Sherman was the adopted child of said J. W. Sherman, and that the widow was not entitled to dower as if her husband had died leaving a widow and no children.

It appears from the record that Frank Gould Sherman is 31 years old and resided in Michigan at the time J. W. Sherman died. W. J. Gould is his father, and lives in Nebraska, where he has resided for 37 years. Some time in March, 1891, when Frank Gould Sherman was about 18 or 20 months old, J. W. Sherman proposed to his father that he would take the child and bring him up and treat him as his own child. W. J. Gould agreed to this, and turned Frank Gould Sherman over to J. W. Sherman to be raised as his own son. They neglected to take out adoption papers, but the child lived with Sherman after that time. J. W. Sherman lived in the state of Nebraska for 11 or 12 years after he took Frank in 1891, and always treated him as his own son. Thereafter Frank went by the name of Frank Gould Sherman. He has never lived with his father since that time.

The testimony of W. J. Gould was corroborated by that of other persons who lived near them at the time J. W. Sherman agreed to adopt Frank.

J. W. Sherman and his wife were very much attached to Frank while they lived in the state of Nebraska. After they left the state of Nebraska, Mrs. Sherman died, but Frank continued to live with J. W. Sherman. In 1917, J. W. Sherman married again in the state of Texas, and Frank Gould Sherman continued to reside with them. J. W. Sher

man and his wife then left the state of Texas and went to reside in Arkadelphia, Ark., in April, 1919, and lived there until J. W. Sherman died in January, 1922. At the time of his death, J. W. Sherman owned certain real and personal property in Arkadelphia, Ark. After they moved to Arkansas, Frank Gould Sherman left them and went to Michigan to reside. On the 22d day of October, 1919, J. W. Sherman made a will, leaving all of his property to Frank Gould Sherman, whom he called his adopted son.

On the 14th day of April, 1921, J. W. Sherman and his wife made an agreement of separation, which is as follows:

"The parties to this agreement are J. W. Sherman and Mrs. N. E. Sherman, who were married in the state of Texas on September 24, 1917, and have since resided together as husband and wife, and who are now residents and citizens of Arkadelphia, Ark., and who have for a long time been mutually incompatible to each other, and who both mutually agree that it is impossible for them to live to. gether longer as husband and wife, and who mutually agree that it is better for both of them to enter into this separation agreement, and in the future to live separate and apart from each other."

"The terms of this agreement are as follows, to wit: The said Mrs. N. E. Sherman, being the owner of a residence property situated at corner of Third and Main the northwest streets in the city of Arkadelphia, Ark., and the same being in need of certain repairs the said J. W. Sherman agrees to recover said house, except the porches, with a new shingle roof, to repaper two rooms and the bath room, and to repaper two other rooms overhead: he further agrees to pay off for the benefit of Mrs. N. E. Sherman the mortgage held on said property by the Midland Savings & Loan Company, of Denver, Colo.

"The said Mrs. N. E. Sherman is to have all of the furniture and all of the tools and implements about the house where they now live, except all clothes of the said J. W. Sherman, and all books, and dishes and bedding which belonged to the said J. W. Sherman at the time of their marriage, and typewriter, said J. W. Sherman, and he shall be privileged which property shall be and belong to the to remove the same from their said residence in a reasonable time.

"Mrs. N. E. Sherman agrees to remove all of her property and furniture from the residence they now occupy in a reasonable time.

"Both parties mutually agree with each other that they each waive all right that either may have in the property of the other owned by the other at this time, or at any future time; and to join in the execution of any deed or instrument conveying the property of the other that may be necessary to the conveyance claim or demand of or for any interest therein, of a good title to said property, without any or any consideration for so joining in the execution of any such deed or instrument.

"The said J. W. Sherman agrees to remove his residence from the city of Arkadelphia within a reasonable time and shall not make the place of residence of the said Mrs. N. E. said city his residence, so long as it shall be

Sherman.

"Each of the parties hereto mutually agree to waive any cause of divorce that either may have had against the other in the past, and agree that neither will prosecute a suit for divorce.

Each acknowledge that the considerations herein mentioned are valuable and are mutually accepted and agreed to as the considerations and stipulations for this agree ment of separation."

Pursuant to this agreement, J. W. Sherman made the repairs on the property of his

(252 S.W.)

wife as specified in the contract. J. W. Sher- | ward come together, and live together as husman and his wife never separated, but continued to live together as husband and wife until he died. J. W. Sherman was sick four or five weeks before he died, and nursed him during his last illness. ed together in the home of J. W. until his death. Other witnesses testified that J. W. Sher-cordingly. man and his wife lived at his home in Arkadelphia from the time they moved there until he died.

band and wife, where their conduct towards each other is such that no other reasonable conclusion can be indulged than that they his wife | had set aside or abrogated their agreement They liv- of separation, then such agreement will be Sherman held to have been annulled by the parties to it, and their marital rights determined ac

[3] Tested by this rule, we think that the facts and circumstances of this case warranted the chancery court in finding that the mar

Other facts will be stated or referred to inital relations between J. W. Sherman and his the opinion.

The chancellor found that the real estate owned by J. W. Sherman at the date of his death was a new acquisition and consisted of certain personal property and his homestead in the town of Arkadelphia, Ark., upon which he resided with his wife at the time of his death.

The chancellor also found, that J. W. Sherman died, leaving surviving him his widow but no children.

It was decreed that the plaintiff as his widow was entitled to a homestead in the real estate and also to a one-half interest therein in fee simple as her dower. She was also decreed dower in the personal property of J. W. Sherman under the statute. It was decreed that Frank Gould Sherman took the remainder of the estate under the will of J. W. Sherman, deceased.

wife never ceased, and that there was mutual forgiveness of the past misconduct on the part of each.

In the first place, it may be said that the agreement of separation shows on its face that it was an indivisible contract. It recites that the parties to it had married in Texas in September, 1917, and had since lived together as husband and wife. It further recites that it is impossible for them to live together any longer as husband and wife. Under the terms of the agreement the husband agreed to make certain repairs on a house belonging to his wife. She agreed to remove all of her property and furniture from his residence in a reasonable time. Each waived any right in the property of the other and agreed to join in the execution of any deed necessary to convey the property.

J. W. Sherman agreed to leave the city of Frank Gould Sherman has duly prosecuted Arkadelphia and not again live there so long an appeal to this court.

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D. H. Crawford and McMillan & McMillan, all of Arkadelphia, for appellant. Callaway & Callaway, of Arkadelphia, for appellee.

HART, J. (after stating the facts as above). There is a division of authorities on the question of whether a parol agreement of adoption whereby a parent surrenders a child to others upon their promise to adopt, rear, and educate it as their own, and to give it the same right of inheritance as a natural child, but which is not consummated by a statutory adoption, will, if otherwise fully performed, be enforced after the death of the adoptive parents. The views which we shall hereinafter express render it unnecessary to decide this question.

as his wife should do so. The agreement was executed on the 14th day of April, 1921. The parties never in fact separated, but lived together in the home of the husband until he died on January 10, 1922. The husband was sick for five weeks, and his wife attended him faithfully during his last illness. The attending physician and their neighbors testified that she conducted herself as a faithful wife towards her husband.

The wife testified that they lived together during all of this time as husband and wife, and that her husband for the most part made the repairs on her house himself. According to her testimony, they never separated and never considered that the separation agreement had any binding force and effect.

The agreement of separation contemplated that he should leave the city of Arkadelphia where they resided at the time. He not only did not leave, but the parties continued to live together in his home until his death nearly a year later. During all this time there was nothing in their conduct towards each other to indicate to their neighbors that they had separated and were not living together as husband and wife. The husband continued to support his wife, and they discharged their marital duties to each other. This conduct shows an intention on the part of both of [2] These cases also hold that where the them to consider the separation agreement parties to a valid separation agreement after-ended in all respects.

[1] An agreement of separation between husband and wife, in which their property rights are settled, is valid and binding between the parties. The law is that, having entered into a valid separation agreement, the courts will not deem such contract avoidable unless the conduct of the parties is such that they themselves so regarded it. Carter v. Younger, 112 Ark. 483, 166 S. W. 547; and Dennis v. Perkins, 88 Kan. 428, 129 Pac. 165, 43 L. R. A. (N. S.) 1219, and cases cited.

The preponderance of the evidence indi- | widow an absolute estate in the property of cates that it was not only their intention to her husband, and the interest thus conferred end the contract, in so far as it required them to live apart, but also to annul it as to the settlement of their property rights. Hence the wife became entitled to support from her husband and was supported by him until he died. She then became entitled to dower in his estate.

vests immediately in her upon the death of her husband. She takes absolutely an undivided one-half interest in fee simple; and it is such an interest as immediately vests at her husband's death. Barton v. Wilson, 116 Ark. 400, 172 S. W. 1032; Crowley v. Mellon, 52 Ark. 1, 11 S. W. 876; Jacks v. Dyer, 31 Tate v. Jay, 31 Ark. 576; and McGuire v. Cook, 98 Ark. 118, 135 S. W. 840, Ann. Cas. 1912D, 776.

[4] The evidence shows that the property | Ark. 334; in controversy was a new acquisition and that J. W. Sherman died without having any children of his own. Hence it was the contention of the widow that she was entitled to one-half of his property in fee simple as her dower under section 3536 of Crawford & Moses' Digest. Earl v. Earl, 145 Ark. 559, 225 S. W. 289.

On the other hand it is the contention of Frank Gould Sherman that, even if the separation agreement be deemed annulled, the widow is entitled to only one third of the personal property absolutely as her dower; and one third of the realty for her life only.

J. W. Sherman died seized and possessed of the real and personal estate involved in this lawsuit, and there was no valid lien on it. Mrs. N. E. Sherman had not released or relinquished her dower in any part of said estate. The verbal promise of her husband to adopt Frank Gould Sherman could not have the effect to deprive her of her dower in his estate. She could only do that by some affirmative act on her part releasing or relinquishing her dower, or by some act which would operate as an equitable estoppel against her.

Nothing of this sort is shown by the record. and it follows that the chancellor was correct in holding that she was entitled to dower under the provisions of section 3536 of Crawford & Moses' Digest.

The chancellor upheld the contention of the widow, and we think that his decision is correct. In the first place, it may be stated that Mrs. N. E. Sherman was the second wife of J. W. Sherman and was no party to the agreement to adopt Frank Gould Sherman. That agreement was made during the life of J. W. Sherman's first wife. Frank Gould Sherman was never legally adopted by them. They agreed verbally to adopt him and raise him as their own child. The father of Frank Gould Sherman turned him over to J. W. Sherman and his wife to be raised by KNIGHT v. FARMERS' & MERCHANTS' them and treated as their own child. He

knew that no statutory adoption was made or undertaken by them. Reliance was placed entirely upon their verbal agreement to take him and care for him as their own child. This they did, and always manifested the like affection for him as parents usually do for their own children.

No other issues are raised by the appeal, and it follows that the decree will be affirmed.

GIN CO. (No. 44.)

(Supreme Court of Arkansas. June 18, 1923.)

1. Negligence 32(2) — Stockholder visiting cotton gin plant held a mere licensee and not an invitee.

a belt.

Where one visiting a cotton gin plant had been invited to the plant on his own inquiry When the first wife of J. W. Sherman died, the stockholders interested in its operation, the for the purpose of looking it over as one of Frank Gould Sherman continued to reside corporation had no such interest in the visit with J. W. Sherman. After the latter mar- as would make him an invitee, but he was a ried again, he continued to reside with them mere licensee, and the corporation was not liauntil after they moved from Texas to Ar-ble for his injuries caused by the breaking of kansas. Frank Gould Sherman then went to Michigan and resided there until he was summoned back to Arkansas during the last illness of J. W. Sherman. Hence, under the undisputed testimony, he does not occupy the relation of an adopted child, but only stands in the relation of an infant child for whose benefit a parol contract to adopt had been made.

2. Negligence 32(1)
stated.

Care as to licensee

The owner of premises owes no duty to a mere licensee except to do no act to cause his injury after his presence is discovered.

Appeal from Circuit Court, Mississippi County; W. W. Bandy, Judge.

As we have just seen, the plaintiff was not Action by Mattie Mae Wade Knight, ada party to that agreement, and such an agree- ministratrix of the estate of R. C. Choate, ment could not in any wise operate to bar against the Farmers' & Merchants' Gin Comher dower. The agreement had not been car-pany for personal injuries. From a judgried into effect when her husband died. Our ment for defendant on a directed verdict, statute now under consideration gives the plaintiff appeals. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(252 S. W.)

J. T. Coston, of Osceola, for appellant. Little, Buck & Lasley, of Blytheville, for appellee.

MCCULLOCH, C. J. This is an action to recover damages sustained by appellant's intestate, R. C. Choate, by the breaking of a belt at appellee's cotton gin, which it is alleged was caused by negligence of appellee's employees in failing to properly lace or brad together the ends of the belt.

It is alleged in the complaint that Choate was a visitor at the gin on business in which appellee was interested and at the invitation of the manager of appellee's business.

The answer contained a denial of the allegations of negligence with respect to the lacing or bradding together of the gin belt, and also denied that Choate was on the premises at the invitation of appellee's manager, and alleged that Choate was there voluntarily and merely as a licensee.

of the spliced pieces was fastened to or connected with the main part of the belt by hooks. The proof shows that the hooks were of standard make and in common use for fastening belts, though there is another method adopted by using lace leather. The unfastening of the belt was caused by the hooks pulling out.

Appellee introduced no testimony, but its manager, Rose, and the machinist in charge, Groves, were introduced as witnesses by ap-. pellant, and the testimony of those witnesses was relied upon by appellant as making a case in her favor. Rose testified that several times during the construction of the gin Choate asked him, when they met by chance, how they were getting along at the gin plant; that he made reply to Choate that they were getting along all right and invited Choate to come down to the plant and look it over. Rose testified that these conversations occurred several times up to about the time, or perhaps after, the gin was started into operation; but the witness was not certain that the conversations occurred after the gin was started. The statements of the witness as they appear in the transcript are as follows:

Choate died during the pendency of the action, appellee was appointed administratrix, and the cause was revived in her name. At the trial of the cause, after appellant had introduced her testimony, the court peremptorily instructed the jury to return a verdict in favor of appellee. The only question presented, therefore, is whether or not there was evidence legally sufficient to sus-ises and look the machinery over? A. I had tain a verdict in favor of appellant.

Appellee is a domestic corporation, organized in Mississippi county for the purpose of building and operating a public cotton gin at the town of Leachville. R. C. Choate, a retired merchant and farmer, was the largest stockholder in the corporation; but he was not a director or officer of the company and was in no wise connected with the management of its affairs.

The gin was completed and put into operation early in October, 1921, and on October 14, according to the undisputed evidence, Choate visited the gin plant and entered the engine room without the knowledge of any one at the gin. The first one to discover his presence there was the machinist in charge, who testified that he went into the engine room and saw Mr. Choate standing there as if he were examining a pump, and that as the belt had broken once before, he was in the act of calling out a warning to Choate,

when the belt broke loose from the drivewheel and struck Choate's hand, breaking the bones in two of his fingers. The gin had been in operation three or four days, and this was Choate's first appearance at the gin so far as the testimony in this case discloses. The belt was one which revolved around the drivewheel, was about 75 feet in length, 14 inches wide, five-ply in thickness, and made of rubber. The ends were fastened together by hooks specially prepared for that purpose. Originally the belt had been cut too short and had to be spliced by another piece 14 or 16 inches in length, and each end

to him an invitation to come down to the prem"Q. State whether or not you ever extended

at times. I didn't that morning. In fact, I didn't know he was in the gin that morning until he was hurt. I had invited him down at times before that.

"Q. Well, was that a general invitation or an invitation to come and see certain parts of it? A. Well, I had asked him to come down and

look it over."

On cross-examination the statements of the witness were as follows:

"Q. Mr. Choate was a stockholder? A. Yes, sir.

"Q. One of the largest? A. Yes, sir; he was the largest.

"Q. Was he a director in the company? A. No, sir.

"Q. He had nothing to do with the running of the gin? A. No, sir.

"Q. You say that you had invited him to come to the gin? A. Yes, sir. "Q. That is while you were building it? A. Yes, sir. A.

Well, I would be talking to him and he would say, 'How are you getting along down there?" and I would say, 'All right,' and he said, 'Well, I am coming down and see how you are getting along," and I said, 'All right, come down.'

"Q. How did you happen to do that?

"Q. That would be the extent of your invitation, would it? A. Yes, sir.

"Q. You didn't know he was there that morning? A. No, sir.

be there that morning? A. No, sir.
"Q. And he had no invitation from you to

"Q. You had not invited him to be in there at any time while the machinery was in operation, had you? A. I had just invited him down at different times.

"Q. Well, did you ever invite him to come down there and stand around while the machinery was in operation? A. Well, I had just invited him down is all.

"Q. Your invitation was just casually made to him to come down? A. I just invited him to come down and look over the proposition."

The redirect examination on this subject was as follows:

"Q. You say you invited him while the gin was being erected to come down? A. Yes, sir. "Q. And after it was finished, tell the jury whether you then invited him to come down or not. A. Well, couldn't say. I could not say whether it was after it was finished and we were running, or not. He would meet me and ask me how we were getting along, and I would tell him, all right, that we were going to start

up.

"Q. State whether or not, after you told him that you were going to start up, you invited him down. A. Well, I invited him in that way." Further cross-examination was as follows: "Q. You didn't invite him because of any benefit to yourself or the gin company, did you, but for his own pleasure and convenience? A. It was just out of courtesy to him. He was a stockholder in the company."

After the court had announced the ruling that a peremptory instruction in favor of appellee would be given, counsel for appellant was granted permission to introduce additional testimony, and witness Rose was again recalled and made the following statements: "Q. When did you invite him to visit the gin in relation to the time you commenced running the gin? A. Well, I invited him at times before we started ruuning and some time along about the time we started to running.

"Q. Mr. Choate owned three or four farms around there and was raising cotton on those farms? A. Yes, sir.

"Q. State whether or not the cotton from those farms was ginned at that gin? A. It was. "Q. State whether or not you invited other farmers around there who were prospective customers of the gin to come down and go through and look it over. A. Yes, sir; I had a good many people coming down there.

"Q. You wanted to advertise the gin, didn't you? A. Yes, sir."

The only legitimate inference that can be drawn from the testimony is that Mr. Choate went to the gin on his own business as a stockholder in the corporation and not in the interest of the corporation itself. He was, according to the testimony, invited there; but the invitation was only for his own purpose and interest, and not for any purposes of the corporation.

The

is no testimony whatever in the record that Choate was invited there for any such purpose. On the contrary, the undisputed testimony shows that he was invited to the gin plant upon his own inquiry for the purpose of "looking it over" as one of the stockholders interested in its construction and operation. That being true, Choate was a mere licensee while on the premises of appellee for the purpose of inspecting the plant. fact that he was a stockholder in the corporation did not bar him from recovering damages caused by the negligence of the servants of the corporation if he was rightfully on the premises otherwise than as a trespasser or a bare licensee. Home Mining Co., 53 Kan. 731, 37 Pac. 124. But if he went to the plant for the sole purpose of looking after his own investment, the corporation itself would have no such interest in the visit as would change his status from a licensee to that of an invitee. It is not always clear, under a given state of facts, as to what inference may be drawn as to a person being a licensee or an invitee; but one of the sure tests is whether or not the owner of the premises is interested in the presence of the visitor.

Morbach V.

In the case of Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, 119 S. W. 659, 22 L. R. A. (N. S.) 910, we said that one who went upon a train at a railroad station merely for the purpose of greeting passengers and without the intention to assist them in any way in embarking or debarking was a licensee and not an invitee.

In St. Louis, Iron Mountain & Southern Ry. Co. v. Wirbel, 104 Ark. 236, 149 S. W. 92, Ann. Cas. 1914C, 277, we decided that one who went upon the premises of an owner for the purpose of seeking employment, when it was customary to employ help there, was there on business of the owner so as to make him an invitee and render the owner responsible in damages for negligence in failing to properly make the premises reasonably safe.

In Chicago, Rock Island & Pacific Ry. Co. held that where the plaintiff went into the v. Russell, 136 Ark. 365, 206 S. W. 666, we railroad station to meet persons whom he thought were friends of his from another town, and he was injured by falling down an open and unlighted stairway, he was a mere licensee, and the railroad company was not liable on account of failure to safely ma.n. tain the premises.

In Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S. W. 712, where a person had bought firewood at a manufacturing plant [1] Counsel for appellant insist that the and went there for the purpose of hauling it case should have been submitted to the jury away and was injured by negligence in the for the reason that the inference might have maintenance of the premises, we held that been drawn that the corporation was invit- the owner of the plant had such an intering farmers to the plant for advertising pur- est in the presence of the visitor as to make poses in order to induce them to patronize the transaction one in which the visitor was the gin, but we do not think that the testi- an invitee rather than a licensee, and that mony warrants any such inference. There the owner was responsible for damages.

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