WISNER et al. v. RICHARDSON. (No. 169.) (Supreme Court of Arkansas. Feb. 18, 1918. On Rehearing, March 25, 1918.) 1. WILLS 717 DEVISE ON CONDITION ELECTION TO TAKE BENEFITS. Where a will devised land on condition that the devisees should assume and discharge an indebtedness, the devisees could not be required to pay the debts of testatrix, and were not required to take under the terms of the will; but they could not elect to take benefits and renounce burdens, and, if they elected to claim the property devised, they took it with the burden to pay debts. 2. WILLS 781-COLLATERAL HEIRS-ELECTION BETWEEN WILL AND STATUTE. Collateral heirs have no right, such as that of a widow, to elect between the provisions of a will and any provisions of statute for them. and discharge the indebtedness due by the testatrix at her death. The other tract was devised to her husband. The administrator called upon the devisees of the 40-acre tract to discharge the indebtedness and take the land, but they declined to do so, and repudiated the will. There was never any contest, however, over the will, and the existence and validity of the will is not questioned. Upon the refusal of the devisees of the 40 acres to pay the indebtedness and take the land, the administrator applied for, and obtained, an order of sale from the probate court to sell the 40acre tract. Pursuant to this order, the 40acre tract was sold to H. L. Richardson for the sum of $1,225. At this sale Richardson became the purchaser after competitive bidding against the Wisners and Mrs. Allen, who would have been the heirs in case of intestacy, as Mrs. Harper left no children or descendants of children. After the confirmation of this sale in the probate court, James Wisner appealed from this order of confirmation, and the circuit court held that the sale was void because of certain irregularities in connection therewith. This judgment of the circuit court was affirmed on appeal to this court. James A. Harper, the administrator, also sold a 20-acre tract of land, which he himself owned, and, with a Appeal from Randolph Chancery Court; portion of the proceeds of this sale, and by Geo. T. Humphries, Chancellor. On Rehearing. 3. MARSHALING ASSETS AND SECURITIES -DEVISE ON CONDITION RENUNCIATION EFFECT. Where testatrix devised land to her brothers and sister on condition they pay her husband's indebtedness, by renouncing, they renounced all interest in the land, and the doctrine of marshaling assets was without application, though the indebtedness was testatrix's husband's, and he paid it partly with money secured from void sale of the land under order of court; claim of brothers and sister being that land husband took under will should be subjected first to demands for subrogation of the purchaser at the void sale. Suit by H. L. Richardson against Jas. M. Wisner and others. From the decree, defendants appeal. Affirmed. J. W. Meeks and W. L. Pope, both of Pocahontas, and Thos. W. Campbell, of Little Rock, for appellants. J. J. Lewis, E. G. Schoonover, S. A. D. Eaton, and Jerry Mulloy, all of Pocahontas, for appellee. using all of the money paid him by Richardson, he paid the indebtedness due the loan company, which at that time amounted to $1,719. Richardson brought this suit to be subrogated to the rights of the loan company, and Harper, the husband, who was made a defendant, filed an answer and cross-complaint, in which he prayed that he too be subrogated to the extent of the portion of the indebtedness paid by him, which amounted to $494. Various pleadings were filed by the heirs at law, including demurrers to the pleadings filed by both Richardson and Harper. The issue is raised that the right of subrogation did not exist. The court granted subrogation to Richardson for the sum paid by him and the interest thereon in the 40-acre tract, and granted to Harper subrogation subject to the lien of Richardson. SMITH, J. There are but few disputed questions of fact in this case, and those in dispute are not of controlling importance. The facts may be stated as follows: On March 25, 1912, Mrs. Nannie W. Harper was the owner of the southwest quarter of the northeast quarter of section 32, township 20 north, range 3 east, and a portion of the Southeast quarter of the northeast quarter of the same section, and on that date she executed two deeds of trust to the Common- It is insisted that subrogation should not wealth Farm Loan Company, to secure a have been granted to Harper at all, and that, debt of James A. Harper, her husband, in the if granted to Richardson, the right should sum of $1,500. One of these deeds of trust have been given against all the land dewas to secure the principal; the other, to scribed in the deeds of trust, and not limited secure the interest thereon. Mrs. Harper to the 40-acre tract which he purchased. died testate in March, 1915, but named no The argument is that subrogation is an equiexecutor in the will, and her husband was table relief, which is granted only when it appointed administrator with the will an- accords with equitable principles, and it is nexed. Under the will Mrs. Harper devised insisted that the equities are with the brothto James, Rufus and John Wisner, her brothers and sister. They say they have repuers, and Elsie Allen, her sister, the 40-acre diated the will, and that the indebtedness tract as tenants in common, but upon the due the loan company, in satisfaction of express condition that they should assume which the 40-acre tract was sold to RichardFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes son, was the individual debt of Harper, and not the debt of his wife, and they say that, inasmuch as Harper, by selling his 20-acre tract of land, placed it beyond the reach of the court, the interest given him under the will should first be subjected to the payment of the indebtedness due the loan company. which burden was to pay the debts. Because of the earnestness of this insistence we quote the provisions of the will on that subject, which are as follows: opinion as decisive of the question stated. But that the question may be put at rest we do now expressly decide that the record in this case presents no question for the application of the doctrine of marshaling assets. It is true, as recited in the decree of the court below, that appellants renounced the provi[1, 2] Richardson does not complain that sions of their sister's will; but it also is his right of subrogation was limited to the true that, when they did this, they renounced 40-acre tract of land which he bought at the all their interest in the land therein devised. administrator's sale, and we need not, there- Counsel insist that we are in error in holdfore, review the correctness of this limita- ing that, if appellants elected to claim the tion. Was the decree correct in other re-property devised to them, they took that propspects? We answer this question affirmative- erty with the burden imposed by the will. ly. Learned counsel for appellants mistake the effect of the will of Mrs. Harper. It is true, of course, that appellants could not be required to pay the debts of their sister, and it is equally true they were not required to take under the terms of the will. But their election in the premises extended only to the right to take, or not to take, under the terms of the will. They could not elect to take the benefits granted by the will, and renounce its burdens. If they elected to claim the property devised to them, they took that property with the burden upon it which the will imposed, and that burden was to pay the debts. They, of course, took no interest in the tract, which was devised by the testatrix to her husband. Appellants refer to themselves as the heirs of their sister. So they are. But the will arrested the operation of the law of descent and distribution. Collateral heirs are not given a right, such as a widow has, to elect between the provisions of a will and the provisions of the statute. The rights of these collateral heirs depend upon the provisions of the will, and they take only such interest as the will gives them, and by the decree in this cause the court accorded them the right to take the property devised them upon compliance with the terms of the will; that is, to pay the debts. They declined to do so, and cannot, therefore, now complain. Decree affirmed. On Rehearing. "I do hereby give, grant and devise unto my brothers, James M. Wisner, John H. Wisner, Rufus Lloyd Wisner and my sister Elsie Allen, the following real estate situated in Randolph county, Arkansas, and described as follows, to wit: The S. W. 4 of the N. E. 4, section 32, Tp., 20 north, range 3 east, to them in comfourth interest therein, subject, however, to the mon and undivided, to each an undivided onefollowing terms and conditions, to wit: That my said brothers, James M. Wisner, John H. Wisner, Rufus Lloyd Wisner, and my said sister Elsie Allen, shall assume to pay and shall pay when due all sums either as principal or interest now due or which may hereafter become due by virtue of a certain mortgage held by Mo., which said mortgage is in the sum of $1,Commonwealth Trust Company of St. Louis, 500 with interest at the rate of 8 per cent. per annum from date until paid, and covering certain lands situated in Randolph county, ArW. 4 N. E. 14; also north part of S. E. 14 N. kansas, and described as follows, to wit: E. 4; also S. E. part of S. E. 4 N. E. 4 S. all in section 32, township 20, range 3 east; last above named and my one sister last above and it is my will that my said three brothers named shall so assume to pay, and when due to pay and fully satisfy and discharge and release such mortgage and hold my husband, J. A. Harper, harmless therefrom and in case of the failure of my said brothers or my said sister to so pay and discharge such debts the same shall become and remain a lien upon the respective interests of my said brothers and sister in said land and their said title thereto shall not vest absolutely in them or either of them until such debt is fully paid and discharged." The next paragraph of the will specifically devises to Harper the remainder of the testatrix's land, and that paragraph provides as follows: Counsel has filed a petition for rehearing, in which it is insisted that we have failed to discuss the point upon which he chiefly relied for the reversal of the decree of the "I do give, grant and devise unto my beloved court below. It is that the 20 acres owned husband J. A. Harper certain real estate situated in Randolph county, Arkansas, and deby Harper, and which he sold to raise the scribed as follows, to wit: The north part of money to pay the mortgage indebtedness, the S. E. 4 of the N. E. 14 of section 32, townwas unaffected by the terms of the will, and ship 20, range 3 east, containing ten acres, more also that that 20 acres of the land was of or less, the same to vest in him free of any lien or mortgage thereon, the payment of the exsufficient value to pay this indebtedness. It isting mortgage thereon to be assumed and disis argued that inasmuch as the mortgage in-charged by my brothers and sister herein before debtedness was Harper's debt that there mentioned." should be a marshaling of assets, and that the land which Harper took under the will should first be subjected to the demands of Richardson for subrogation. [3] We did not overlook this contention of Now, of course, it is true that when Richardson commenced this suit for subrogation there was no mortgage indebtedness, the same having been paid by Harper in the manner herein stated. But appellants are in Their option, as stated was to take the land | under Act 17, Acts 1905, to establish same. with the burden imposed by the testatrix or not to take it at all, and to grant them now the relief they pray would put upon the land devised to Harper the burden of paying this mortgage indebtedness, whereas the will provided it should "vest in him free of any lien or mortgage." The manifest purpose of the testatrix cannot be thus defeated. PALMER et al. v. PALMER et al. (No. 225.) (Supreme Court of Arkansas. March 11, 1918.) 1. STATUTES 169-REPEAL OF AMENDING STATUTE. Kirby's Dig. § 7796, providing that when a statute shall be repealed and the repealing statute shall afterwards be repealed the first statute shall not thereby be revived except by express words, has no bearing on amending stat utes. 2. STATUTES 141(1) — AMENDATORY STATUTES INCORPORATION OF PROVISIONS BY REFERENCE. Where amendatory statutes conferring rights or granting powers are re-enacted at length, it is permissible to adopt remedies and procedure by reference only, under Const. 1874, art. 5, § 23, providing that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. Both proceedings being in the circuit court, a motion was made by appellants to require appellees to elect on which petition they would stand. The court overruled the motion, and proceeded to hear the petition for writ of certiorari. The cause was submitted upon the petition, the answer of the county clerk, the response to the petition, the original papers in the cause, and a transcript of the proceedings and judgment of the county court, from which the court found that the county court had no authority under the law to establish the district. In keeping with the finding, a judgment was rendered, dissolving the order establishing the district, from which an appeal has been prosecuted to this court. The only question to be determined is whether Act 183 of Acts 1915, amended Act 17 of Acts 1905, so as to authorize the county Court to include Amity township in a district to prevent hogs from running at large. Act 17 of Acts 1905, as originally passed, applied to all, or any part not less than five square miles, of Clark county. Later in the session the Legislature passed Act 262, which amended section 1 of Act 17 so as to exclude Amity township and certain other territory in Clark county from the act. Act 183 of Acts 1915 amended Act 262, amending section 1 of Act 3. ANIMALS ~50(1)—Stock DISTRICT-STAT- | 17, Acts 1905, so as to include Amity town UTES. Acts 1915, p. 742, § 1, fully reinstated Acts 1905, p. 42, § 1, and amended Acts 1905, p. 676, so as to include Amity township and other territory in Clark county within the act, so that the county court had authority to establish Amity township into a district to prevent hogs from running at large. Appeal from Circuit Court, Clark County; Geo. R. Haynie, Judge. Certiorari by C. P. Palmer and others against T. B. Palmer and others to review an order of the county court of Clark county establishing a stock district. From a judgment dissolving the order, the defendants appeal. Reversed and remanded, with directions. Callaway & Huie, of Arkadelphia, for appellants. McMillan & McMillan, of Arkadelphia, for appellees. ship and other territory in Clark county within the act. This, in effect, amended section 1 of Act 17, Acts 1905, the same as if it had directly amended section 1 of said Act 17. It is insisted that Act 262 of Acts 1905 repealed section 1, Act 17, Acts 1905, and that the amendment of a repealing statute does not have the effect of reviving the original statute amended. [1] In support of this contention, section 7796 of Kirby's Digest is cited, which is as follows: "When a statute shall be repealed and the repealing statute shall afterwards be repealed the first statute shall not thereby be revived unless by express words." This section of the statute has no bearing here because Act 262 was not a repealing statute. It was an amending statute. It amended section 1 of Act 17, Acts 1905, by HUMPHREYS, J. Amity township, in excluding Amity township and other territoClark county, was organized, on the 31stry in Clark county from the effect of the act. day of July, 1916, into a district to prevent [2] It is insisted that Act 183, Acts 1915, hogs from running at large under Act 17, was void because it offended against section Acts 1905. On the 22d day of June, 1917, 23, article 5, of the Constitution of 1874, appellees filed a petition in the county court which provides that: "No law shall be revived, amended, or the of Clark county to abolish the district. Upon provisions thereof extended or conferred by refhearing the county court abolished the dis-erence to its title only; but so much thereof trict, from which an appeal was prosecut- as is revived, amended, extended or conferred ed to the circuit court. While that appeal shall be re-enacted and published at length." was pending, appellees applied for a writ of certiorari to bring up the original order establishing the district, alleging that the district, as organized, was void for the reason that the county court had no authority Appellees are not correct in this contention because section 1 of Act 183, Acts 1915, was a re-enactment of section 1 of Act 17, Acts 1905. It is true that the latter part of section 1 of Act 183, Acts 1915, refers to section 2 for the procedure prerequisite to the organization of such a district. Where amendatory statutes conferring rights or granting powers are re-enacted at length, it is permissible to adopt remedies and procedure by reference only, and such method does not offend against section 22, article 5, of the Constitution of 1874. Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384; Common School Dist. No. 13 v. Oak Grove Special School Dist., 102 Ark. 411, 144 S. W. 224; State v. McKinley, 120 Ark. 165;1 Harrington v. White, 199 S. W. 92; Fenolio v. Bridge District, 200 S. W. 501. [3] The effect of the passage of Act 183, .Acts 1915, was to set section 1 of said act in the place and stead of section 1 of Act 17, Acts 1905. It was said by Mr. Justice Heming way in the case of Mondschein v. State, 55 Ark, 389, 18 S. W. 383, that: "The amendatory provision from and after its passage became a part of the act [meaning the original act] and, in its relation to the other sections of the act, stood, with reference to future transactions, as though the act had originally been enacted in the amended form." It is quite clear that the Legislature intended by Act 183, Acts 1915, to fully and completely reinstate Act 17, Acts 1905, so as to permit Clark county, or any subdivision thereof not less than five square miles, to be organized into districts to prevent hogs from running at large. The court was in error in holding that the county court was without authority to establish Amity township into such a district. The judgment is reversed, and the cause remanded, with instructions to enter a decree dismissing the petition for writ of certiorari. Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge. Suit by Ernest N. Walton against the American Life & Accident Insurance Company and others. Judgment for plaintiff, and defendants appeal. Affirmed. D. K. Hawthorne, of Little Rock, for appellants. McCulloch & Jackson, of Little Rock, for appellee. SMITH, J. The American Life & Accident Insurance Company, hereinafter referred to as the company, issued an accident indemnity policy on September 15, 1915, to E. N. Walton, hereinafter referred to as the plaintiff. On October 10, 1915, plaintiff was returning to his home in Arkansas City, and, in order from a boat landing on the Mississippi river to cross a railroad track, which ran parallel to the levee upon which plaintiff was walking at the time, he jumped from the levee onto a stationary flat car loaded with logs, a distance of 4 or 5 feet, but, on account of the wet and slippery condition of the logs, plaintiff slipped and fell to the ground, a displaintiff sustained very serious injuries, the physical, visible evidence of which consisted of a sprained wrist and a swelling in the abdomen. There was immediate pain in the stomach, accompanied by nausea. Immediately following his accident plaintiff worked a few hours at night, but was unable to perform a regular day's work. Plaintiff was an electrician, and continued to do some work tance of 12 feet. As a result of his fall at night for a week or 10 days, but was foreed to quit work on account of the increasing pain in his stomach, since which time he was unable to do any regular work until the 21st AMERICAN LIFE & ACCIDENT INS. CO. of February, 1916, when, as a result of the representations. accident aforesaid, he was operated on for what is known as mobile cæcum; this being an operation to attach to the abdomen the lower bowel, which had become loosened from its regular place by reason of the accident. The operation was apparently successful, although the plaintiff was left in a weakened and run-down condition, and he testified that even up to the time of the trial he tion. Plaintiff was taken to the hospital on January 3, 1916, where he remained until the 24th of March, and after being taken home he was confined to his bed for 6 days and to his home 14 days. 2. INSURANCE 256(2)-APPLICATION-REP- had not been restored to his normal condiRESENTATIONS-KNOWLEDGE OF FALSITY. Where agent writes answers to questions in an application for accident insurance, not made a part of the policy, the insured is not bound by incorrect answers, where he does not know that they have been so written. 3. INSURANCE 665(5) ANCE TOTAL DISABILITY. Evidence held to support a finding that insured was totally disabled within the meaning of an accident policy, although he worked some days after an accident. ACCIDENT INSUR 4. INSURANCE 456 - ACCIDENT INSURANCE -EXTERNAL MARKS. Under a clause in an accident policy that the liability of an insurer should be limited where there were no external marks on the body, a sprained wrist and swollen abdomen were suf ficient external marks of total disability by reason of a mobile cæcum. The company denied any liability under the policy, and this suit was brought to recover, upon the theory that a total disability had been sustained, during the time for which a recovery was asked, and judgment for penalty and attorney's fees was also prayed. The application for the policy contained the statement that the plaintiff was in sound and healthy condition, and that he had never been ruptured; when, according to his own For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes admission on the witness stand, he had had "A warranty being a part of the contract itchills with the accompanying fever, and he self as contradistinguished from a representahad been ruptured when a child, and had tion, which is a mere inducement to the contract, must necessarily appear in the contract been operated on for it in 1903, and in 1906 itself. In Mutual Benefit Life Ins. Co. v. Robhe had had performed a preventive operation ertson, 59 Ill. 123, this court, on page 126 [14 for rupture on the opposite side. These op-Am. Rep. 81, said: 'A warranty is in the nature of a condition precedent. It must appear on erations were completely successful. Plain- the face of the policy or if on another part of tiff also testified that in 1911 he had been it or on a paper physically attached, it must thrown from a horse, from which he sus-appear that the statements were intended to tained an acute attack of indigestion, and form a part of the policy, or if on another paper, they must be so referred to in the policy as prior to that time he had been struck on clearly to indicate that the parties intended the head by a pole as he was getting off a them to form a part of it. A warranty cannot street car, for which accident he was treated be created nor extended by construction'-citby a physician, and in 1911 he had an X-ray Campbell v. New England Ins. Co., 98 Mass. ing Reynolds on Life Insurance, 85 et seq.; examination made of his head. It was also 381; Burritt v. Saratoga Ins. Co., 5 Hill (N. shown that as a boy he had broken his wrist.Y.) 188 [40 Am. Dec. 345]; Jefferson Ins. Co. However, prior to the taking out of the v. Cotheal, 7 Wend. 72 [22 Am. Dec. 567]. Depolicy sued on plaintiff had recovered from in this case is a part of the policy. The only fendant in error contends that the application these mishaps, and none of them apparently language in the policy that makes any reference contributed in any manner to the trouble to the application is found in the first sentence which sent him to the hospital. Plaintiff's of the policy, where it is recited: 'In consideration of the warranties and agreements in the trouble was first diagnosed as appendicitis, application for this policy and of $25 does hereand he was operated on for that disease on by insure Robert Spence, of Chicago, state of January 4, 1916; but this operation did Illinois, by occupation a collector publishing not relieve the pain, and a second operation house,' etc. It will be observed that the reference here to the application does not expressly for mobile cæcum was performed on Febru- make it a part of the policy; nor does such efary 21st. This operation, as stated, gave fect necessarily follow by a fair construction of comparative relief, and started plaintiff on the language, even if a warranty could thus be the road to recovery. The doctrine of The surgeon testified imported into the contract. warranty, in the law of insurance, is one of that the mobile cæcum was congenital, and great rigor and frequently operates very harshthat the plaintiff did not know of its exis-ly upon the assured, and courts will never contence, and that its existence might never have been made known but for such an accident as plaintiff sustained, although its presence made the plaintiff peculiarly susceptible to an injury from such an accident. strue a statement as a warranty unless the language of the policy is so clear as to preclude any other construction. As was said by Justice Gray in McClain v. Providence Savings Life Ass'n, 110 Fed. 80 [49 C. C. A. 31]: The prac tical operation of such literal warranties is so often harsh and unfair that courts require [1] The company now denies liability un- their existence to be evidenced clearly and under the policy upon the ground that the state- equivocally, and are not inclined to allow it to ments set out above in the application were rest upon a mere verbal interpretation where a false, and that in the application these anreasonable construction of a contract as a whole will authorize a different meaning. All reaswers were warranted to be complete and sonable doubts as to whether statements intrue and material and binding on him, wheth-serted in or referred to in an insurance policy are warranties or representations should company. er written by himself or by the agent of the be resolved in favor of the insured.'" After a further discussion of the principles involved, the court announced its conclusion as follows: "Certainly a mere recital such as the one in ulation that the application is made a part of this policy falls far short of an expressed stipthe policy, which, under the law, is necessary before it can be so treated. The application itself cannot be considered in determining the the policy. This fact must affirmatively appear preliminary question whether it is a part of from the policy itself. It is only after it is determined, from a consideration of the language of the policy, that the two papers constitute the contract that the application can be resorted to. The application not being a part of the contract, any statements contained therein are mere representations, and not warranties. May on Inpolicy if found to be false and material, within surance, 158. As such, they may avoid the the legal meaning of these terms." The doctrine of this case was expressly approved by this court in the case of Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 105, 150 S. W. 393, 395, where, after approving the doctrine of that case, this court said: "It follows that, the application not being a |