to them by Laura O. L. Archer in her lifee to the language of the will. Each case de

pends to a great extent upon the peculiar time. The facts above stated were set out words used by the testator in the will under in appellant's complaint, and the will was consideration. made an exhibit to the complaint. The [4] In cases of wills, such construction is prayer of the complaint was that the court adjudge the rights of the parties under the will of James M. Archer, and that judgment be rendered in favor of the appellant, decreeing a title to him in said property, and that the decree be declared a lien upon the property in the hands of the appellees as being held in trust by them for appellant. The court sustained a demurrer to the complaint, and dismissed it for want of equity. The case is here on appeal.

too, in the case of Douglass v. Sharpe, 52 | expressly given the absolute power to disArk. 113, 12 S. W. 202, there was nothing to pose of the property; and we think it was indicate that the testator intended to give to the manifest intention of the testator to give the life tenant the absolute power to dispose her the power to dispose of the fee in his of the fee in the estate. estate. It is true that in so doing she could defeat the rights of the remaindermen; but the testator had the right to devise the property as he saw fit. He could, by his will, vest in his wife the power to destroy the rights of those in remainder and give to her the authority to dispose of the whole of his estate. If she failed to exercise the power, the remainder would have passed to those who were named in the will to take at her death.

In the first clause of the will under consideration, the wife is given a life estate in the property of the testator not otherwise disposed of by the will, with remainder over to certain devisees at her death. By a subsequent clause of the will the testator's wife is given full power and authority to sell and dispose of any and all of his property, both real and personal, in such manner as she may desire. The language is very broad and comprehensive. When the will is read and considered as a whole; we think it is manifest that the power of disposal was not limited to such disposition as a tenant for life can make. To so hold would give no effect whatever to the fourth clause of the will; for the tenant for life had the power of disposition without being granted that power under the will. The fourth clause of the will, in express terms, gives her the power of disposal of the whole of his property. It does not purport to give her any absolute right to the property, but only the bare authority to dispose of it. The existence of such a power does not imply ownership, but it does in express terms give to the life tenant authority to dispose of the property absolutely. By the exercise of the power by the life tenant she could convey the fee to her

grantee.

We think that, when the whole will is considered and read together, it was the manifest intention of the testator to give to his wife a life estate, with the added power of disposing of his whole estate during her life, and, having exercised this power during her lifetime, the estate vests in those to whom she granted it.

It follows that the decree of the chancellor will be affirmed.

PHILLIPS et al. v. GRUBBS et al. (No. 281.)
(Supreme Court of Arkansas. April 27, 1914. ·
On Rehearing, May 23, 1914.)

1. EXECUTORS AND ADMINISTRATORS (§ 150*)—
LEASE OF PROPERTY OF ESTATE-RATIFICA-
TION BY BENEFICIARIES.

agent for the beneficiaries, made a five-year
Where an executor, assuming to act as
lease of property belonging to the estate, the ac-
ceptance by the beneficiaries of rents under the
lease amounted to a ratification of the lease
if it was not previously authorized by them.
[Ed. Note. For other cases, see Executors
and Administrators, Cent. Dig. §§ 607-613;
Dec. Dig. § 150.*]

2. FRAUDS, STATUTE OF (§ 129*)-PART PER-
FORMANCE-FIVE-YEAR LEASE.

Where a tenant, under an oral five-year frauds, took possession under the lease, paid lease, which was invalid under the statute of the rent for two years, and made the permanent improvements required by the lease, such part performance took the lease out of the operation of the statute.

[Ed. Note.-For other cases, Statute of, Cent. Dig. §§ 287-292, 303, 306see Frauds, 308, 310-312, 314, 318-320, 322, 323, 325, 326; Dec. Dig. § 129.*1

[5] According to the current of authority, the rule is that where a testator gives an estate for life only, with the added power to the life tenant to convey the estate absolutely, the life tenant may defeat the estate of a remainderman under the will by the exercise of the power of disposal during his lifetime. Warren v. Ingram, 96 Miss. 438, 51 South. 888, Ann. Cas. 1912B, 422, and case note: Steiff v. Seibert, 128 Iowa, 746, 105 N. W. 328, 6 L. R. A. (N. S.) 1186, and case note. A leading case on the subject, also, is Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23. It appears from the case notes which we have just cited that this holding is in accord with the great weight of authority. The courts generally hold that where the testator devises his estate to a life tenant, with 3. EQUITY (§ 423*)-RELIEF AWARDED-SETa remainder over, and then gives the life tenant absolute power and authority to dispose of his whole estate, the exercise of such power by the life tenant, by conveying the property to other persons during his life, carries the fee and defeats the right of the remaindermen. By this construction all of the clauses of the will harmonize with each other. Otherwise the fourth clause of the will could be given no effect whatever. As we have already seen, by the first clause of the will the wife of the testator was granted a life estate, with remainder over. By the fourth clause of the will she was clearly and

On Rehearing.

TLEMENT OF ENTIRE CONTROVERSY.

In a suit originally instituted as an action of unlawful detainer against a tenant, but parties were added, who claimed the lands and which was transferred to chancery when other who had ratified the lease to defendant, an issue between one of the original plaintiffs and one of the new parties as to the ownership of an by the chancellor, although he found that the interest in the premises should be determined original defendant was entitled to hold under à lease from the agents of the plaintiffs, since the parties were all before the court, and the whole controversy might be settled by it.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 986-990, 992-998, 1009-1014; Dec. Dig. § 423.*]

4. EXECUTORS AND ADMINISTRATORS (§ 131*) | strained from interfering with the occupancy -RIGHTS OF DEVISEE-COLLECTION OF of Grubbs. Appellants filed an answer to the RENTS.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 541-544; Dec. Dig. § 131.*1

Appeal from Prairie Chancery Court; Jno. M. Elliott, Chancellor.

Where a lease by an executor of property cross-complaint in which they alleged that devised by a will was ratified by the devisees, the title held by the Bluff City Bank was as the devisees and not the executor are entitled trustee for Mrs. Wright, one of appellants, to collect the rents if they are not necessary and alleging that the interest of Wilkie M. for the payment of the debts. Phillips was purchased by Frank Wright, her husband, and the title taken by the bank as security for the purchase money advanced. The prayer was that the receiver of the bank be required to make a deed to Mrs. Wright Unlawful detainer by W. A. Phillips and for the interest thus purchased. The lands Mrs. Jennie B. Wright against William in question were originally owned by Mrs. Grubbs, in which the Bluff City Bank and the Ollie To Carr, the mother of appellants W. receiver thereof and Joe Skarda, as curator A. Phillips and Mrs. Jennie B. Wright and of the plaintiff, Mrs. Jennie B. Wright, were of Wilkie M. Phillips. Mrs. Carr left a will made parties, each claiming an interest in the in which she dévised the lands to the three premises and asking that the cause be trans- children, and afterwards Wilkie M. Phillips ferred to chancery and plaintiffs be restrain-conveyed his interest in the land to the bank. ed from interfering with the possession of The bank advanced the money, and confesseddefendant Grubbs. After the cause had been ly took the title as security for the purchase transferred and the plaintiffs had filed their money. There is a controversy whether the answer to defendant's cross-complaint, Frank purchase was made by Frank Wright for Wright was made a party on his motion, and himself or for the use and benefit of his claimed that the interest held by the bank in wife, Mrs. Jennie B. Wright, who is one of the lands in controversy was held in trust the appellants. Frank Wright was executor for him, and prayed that it be conveyed to of the will of Mrs. Carr, and filed a settlehim. From a decree of the chancellor re- ment account from time to time. He entered straining plaintiffs from interfering with the into an oral contract with Grubbs, whereby possession of the defendant Grubbs, but re- he rented the farm to the latter for a period fusing to pass on the issues raised by defend- of five years, beginning January, 1911. Unant Frank Wright, the plaintiffs appeal. On der the terms of the contract Grubbs was to rehearing decree modified and affirmed in pay an annual rental of $600, and make cerpart and reversed and remanded in part. tain repairs and improvements. He entered into possession of the lands and made valuable improvements, and paid the rent for the years 1911 and 1912. This action was instituted in January, 1913, to recover possession from him.

Trimble & Trimble, of Lonoke, for appelJ. G. & C. B. Thweatt, of De Vall Bluff, for appellees.

lants.

MCCULLOCH, C. J. This suit originated in the circuit court of Prairie county, being instituted by appellants against appellee William Grubbs, to recover possession of certain lands in that county. It was an action of unlawful detainer, it being alleged in the complaint that appellee Grubbs was a tenant of appellants under an oral contract for the year 1912, and that he unlawfully detained

said lands and held the same after the expiration of his term. The Bluff City Bank and George Craig, the receiver thereof, and Joe Skarda, as curator of the estate of Mrs. Jennie B. Wright, one of the appellants, were made parties. They, together with appellee Grubbs, filed an answer and cross-complaint, alleging that Grubbs held the land under a contract of lease covering a period of five years from January, 1911, to December, 1915; that said bank was the owner of an interest in the lands by purchase from Wilkie M. Phillips, and that appellants were interfering with Grubbs and his quiet possession of the land and disturbing his tenants on the place, thus preventing the prosecution of farm operations on the place. The prayer was that the cause be transferred to the chancery court, and that appellants be re

The chancellor decided that Grubbs was

rightfully in possession of the land, and rendered a decree dismissing the complaint of appellants.

Both sides argue the question whether under the evidence Frank Wright or his wife, Jennie B. Wright, is entitled to the interest in the land held by the bank as trustee. The conclusion we reach, however, renders it unnecessary to pass upon that question; the chancellor not having done so.

The real controversy in this case, so far as the appellants are concerned, is as to the right of Grubbs to occupy the land, and the question of the bank's interest in the land was introduced merely as affecting the right to prevent appellants from interfering with the tenant, Grubbs. Inasmuch as the chancellor upheld the right of Grubbs to continue his occupancy under his lease, and appellees not having appealed, it is unnecessary to determine the controversy between Wright and his wife as to who is entitled to the interest held by the bank.

[1] The sole question necessary to determine in the case is whether the decree was correct in awarding the possession to Grubbs

during the terms of his oral lease with Wright. We think the evidence is sufficient to sustain the finding of the chancellor, or at least that the finding is not against the preponderance of the testimony. Wright testified that he was authorized by Phillips, his brother-in-law, and that he was also acting for his wife, in renting out the lands. The question of his authority is disputed, but, as before stated, we think the testimony is sufficient to support the chancellor on that point. Besides that, it is undisputed that Phillips and Mrs. Wright both accepted the rent for the years 1911 and 1912, and that amounted to a ratification of whatever contract Wright had made for them. They could not accept the benefit of the contract without ratifying it as a whole.

[2] The contract was not in writing and, as originally made, was within the statute of frauds. But its terms were complied with by Grubbs in paying the rent for two years and making valuable improvements in accordance with the terms of the contract, and this took it out of the operation of the statute. This is true of an agreement to sell lands, and the same principle controls a contract for lease of lands. Railway Co. v. Graham, 55 Ark 294, 18 S. W. 56; Phillips v. Jones, 79 Ark. 100, 95 S. W. 164, 9 Ann. Cas. 131; Evins v. Sandefur-Julian Co., 81 Ark. 70, 98 S. W. 677; 29 Cyc. pp. 47, 48; Reichardt v. Howe, 91 Ark. 280, 121 S. W. 347.

Without undertaking to decide the controversy between the receiver of the bank and Mrs. Wright concerning the interest held by the bank, which is really a controversy between Mrs. Wright and her husband, we hold that the decree of the chancellor concerning the right of appellee Grubbs to occupy the land during the term of his lease is correct, and the same is affirmed.

On Rehearing.

title, and under those circumstances the parties are entitled to a decision of the chancellor upon that issue. Greenlee v. Rowland, 85 Ark. 101, 107 S. W. 193.

[4] We find no cause for changing the conclusion we reached as to the main controversy between appellants and appellee Grubbs, and as to that part of the decree the petition for rehearing is denied. The decree ought, however, to be modified with respect to the order on Grubbs to pay the rent to Frank A. Wright as executor of the estate of Mrs. Carr. It does not appear that the lands or the rents and profits thereof are necessary for the payment of debts; therefore the heirs are entitled to collect the same. proof shows, as recited in the former opinion, that Frank A. Wright was authorized to enter into a contract with Grubbs, or that his act was ratified by the owners, and the latter are entitled to collect the rents pursuant to the contract. That, of course, will include the right of the owner to whom is adjudged the interest purchased from Wilkie M. Phillips.

The

The decree is therefore modified as to the direction naming the parties to whom the rent is to be paid and that part of the cause which relates to the controversy between Frank A. Wright and his wife is remanded, with directions to the chancellor to proceed, upon proof which has been adduced in the case, to determine the issue presented upon that part of the case.

WAUGH v. COOK. (No. 316.)

(Supreme Court of Arkansas. May 11, 1914.) 1. ALTERATION OF INSTRUMENTS (§ 5*)-EF

FECT.

The unauthorized alteration of a note by raising the rate of interest is a material alteration and avoids the note.

[Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 18-29; Dec. Dig. § 5.*]

DIS

2. PRINCIPAL AND SURETY (§ 101*)
CHARGE OF SURETY-ALTERATION OF NOTE-
EXTENSION OF TIME OF PAYMENT.

thority, and that the sureties refused to assent

thereto.

[3] We have concluded, on reconsideration of the case, that the chancellor ought to have decided the controversy between appellant Jennie B. Wright and her husband, Frank A. Wright, concerning the title to the interest in Where a maker falsely represented to the the land purchased from Wilkie M. Phillips, payee that the sureties had agreed to an alteraand the bank required to execute a deed con- tion of the note by raising the rate of interest veying the legal title to the one of those in consideration of an extension of time of payment, the sureties were not discharged, unless parties who was found to be the real owner. the payee acted under the agreement after learnThe undisputed testimony is that the banking that it had been entered into without auheld the title in trust, and the only controversy is whether the purchase was made by Frank A. Wright for his own benefit or as agent for his wife. The testimony is sharply in conflict upon that issue, but all the necessary parties were before the court, and it was within the power of the court to settle the whole controversy, and that ought to have been done. The state of the proof with regard to the issue between Wright and his wife leaves it not free from doubt as to whom the bank should be required to convey the

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 255, 256, 330, 346; Dec. Dig. § 101.*]

DIS

3. PRINCIPAL AND SURETY (§ 101*)
CHARGE OF SURETY-ALTERATION OF NOTE-
EXTENSION OF TIME OF PAYMENT.

Where a payee, suing on a note as altered by raising the interest rate in consideration of an extension of the time, in reliance on a fraudulent representation of the maker, did not know she could repudiate any rights under the note that a surety had not assented to the alteration, as altered and file an amended complaint, seek

ing a recovery on the note as originally exe- of the note was pressed the sureties would have cuted.

The jury returned a verdict in favor of "I went to Compton and demanded payment the plaintiff, and the defendant, Waugh, has of the note. He told me that if the collection appealed.