This condition of the policy, and the existence of the facts set forth above, would, of course, render the policy void under ordinary circumstances. It is said, however, that this provision of the policy was waived, and the evidence in support of this waiver is to the following effect. An agent of the appellant company applied to Smith for authority to write a policy of insurance against this property. Smith explained to the agent that he had sold the property, and had executed a deed therefor, but that no part of the purchase money had been paid. This agent stated to him that, if this was true, the property was his, and could be insured in his own name, and the policy was accordingly written. There was also evidence that this explanation was made to the agents of the company before the proof was made, and the insured was directed to make the proof in his own name as owner, and he accordingly did so.

The instructions in the case are not set out, and we must, therefore, assume that the cause was submitted to the jury under correct instructions, and we must affirm the judgment of the court below if we find the evidence set out above is legally sufficient to support the verdict.

Smith's interest in the property was an equitable one, yet he insured it as if he were the owner of the legal unencumbered title. This was in contravention of the provisions of the policy set out above. However, such provisions are for the benefit and protection of the insurer, and may be waived by it.

In the case of Queen of Ark. Ins. Co. v. Laster, 108 Ark. 261, we said: "This court has often ruled that the warranty of no encumbrance is waived where the insurer's agent was notified, when application was made for the policy, that the property was encumbered. (Capital Fire Ins. Co. v. Montgomery, 81 Ark. 508; Capital Fire Ins. Co. v. Johnson, 82 Ark. 90)."

Other recent cases holding such provisions may be waived are Hutchins v. Globe Life Ins. Co., 126 Ark. 360, 190 S. W. 446; Home Fire Ins. Co. v. Wilson, 118 Ark. 442; Royal Ins. Co. v. Morgan, 122 Ark. 243.

Smith was not the owner of this property within the meaning of the policy, although his equitable interest equalled that of its value, as evidenced by its purchase price. But, with knowledge of this fact, the company elected to issue this policy in the name of Smith, rather than in the name of his vendees, and, under the doctrine of the above cited cases, it must be held to have waived the provision of the policy set out above. The decree of the court below is, therefore, affirmed.

HIGHTOWER V. HIGHTOWER.

Opinion delivered March 12, 1917.

WILLS-SIGNATURE BY MARK-PROOF. - Where a testator signed a will by his mark, and the party who signed his name failed to attest the signature by writing his own name as witness, an affidavit by the witness that he wrote deceased's name for him and witnessed the making of his mark by the deceased, is inadmissible, and there then being no proof of deceased's signature the will is not entitled to probate.

Appeal from Fulton Circuit Court; J. B. Baker, Judge; affirmed.

Ellis & Jones, for appellant.

1. The court erred in directing a verdict for appellees. The will was not void because the names of all the heirs were not mentioned therein. Kirby's Digest, $ 8020; 23 Ark. 569; 31 Id. 145; 87 Id. 206; 92 Id. 88; 94 Id. 39.

2. The will was signed as required by law. Kirby's Digest, $ 7799. It was duly signed by mark and in the presence of witnesses. 40 Cус. 1104; 19 Мo. 609; 5 Johns. (N. Y.); Jackson v. Van Dusen; 17 Ark. 292; 51 Id. 48; 14 Id. 675; 23 Id. 396. Price's testimony shows that he wrote the testator's name and saw him sign by mark. 38 Ark. 279; 49 Id. 18; 14 Id. 675; 23 Id. 396. It was not necessary to have the attesting name signed, where the proof shows the signature was in fact made, but the attesting witness failed to sign as a witness.

Price's affidavit was legal evidence. 51 Ν. Ε. 1046. It was never denied that Price witnessed the testator's signature by mark and there was no issue as to how Hightower signed his name.

Lehman Kay, for appellees.

1. The court properly directed a verdict. The will was signed by mark and there was no attesting witness to the signature as prescribed by statute. Price's affidavit was not admissible as evidence. No will was proven. Kirby's Digest, §§ 3150, 8012, 8020; 14 Enc. Ev. 758, and notes, 757; 5 Ark. 708; 21 Id. 352; 2 Id. 319; 5 Id. 485; 70 Id. 449; 42 Id. 357.

The signature was not proved. 49 Ark. 18; 91 Id. 274; 36 Сус. 455; 2 Id. 34, and notes; 40 Id. 1304. In the absence of a statute, or rule of court, affidavits are not evidence. 2 Corp. Jur. 373; 89 Ark. 487; 13 Id. 476.

2. The names of all the heirs are not named. J. H. Hightower was dead when the will was executed. He was a son and his heirs were living. 94 Ark. 43.

3. The court acted within its discretion when it directed a verdict. There was no evidence to sustain the will. 126 Ark. 208; 97 Id. 447; 71 Id. 447; 43 Id. 301.

HUMPHREYS, J. The appellees, except G. M. Caruthers, as administrator of the estate of S. W. Hightower, deceased, brought a suit on August 21, 1916, against appellants in the probate court of Fulton County, contesting the will of S. W. Hightower, deceased. The will was signed by mark on November 25, 1912. No one signed the will as a witness to the signature by mark. The names of O. N. Halcomb and F. L. Lefevers were signed as subscribing witnesses to the will. The will was filed for probate on the 14th day of August, 1916.

On August 21, 1916, the same day appellees filed the contest, J. R. Price appeared and filed his affidavit in substance swearing that he signed S. W. Hightower's name to the will at his request, and that Hightower made his mark in the presence of the subscribing witnesses and himself, and in their presence declared the instrument present in court to be his last will and testament. The contest proceeded to a hearing on the pleadings and it was adjudged by the probate court that the will was not entitled to probate. An appeal was taken to the circuit court.

On the 7th day of July, 1916, G. M. Caruthers took out letters of administration on the estate of S. W. Hightower, deceased, and on July 15, 1916, brought suit against Allie Hightower in the Fulton County Circuit Court to recover the personal property belonging to said estate. On the 28th day of August, 1916, Allie Hightower answered, claiming that she and her two children, Claude and Madeline Hightower, owned all of said property under the terms of the will then in course of probation.

The case appealed from the probate court was consolidated with the suit brought by the administrator and the cause was heard on the pleadings, the affidavit of J. B. Price, introduced over the objection of contestants, and on an agreement in substance as follows: That J. H. Hightower was dead when the will was executed, and that the names of his three children, William Hightower, Maude A. Mitchell and Martha McCollum were omitted from the will and were grandchildren and heirs of S. W. Hightower, deceased; that J. H. Hightower was the son of S. W. Hightower, deceased; that S. W. Hightower's name was subscribed to the will in the following form:

that nothing appeared on the face of the will to show who signed S. W. Hightower's name thereto.

The court instructed the jury as follows: "Gentlemen of the Jury: I instruct you to return a verdict for the contestants herein, for the reason that the will is not signed as required by law, and for the further reason, that under the evidence in the case, the names of all the heirs of S. W. Hightower are not mentioned in his will."

In the will contest case proper, appealed from the probate court, the jury rendered the following verdict: "We, the jury, find for the plaintiffs, and that the will of S. W. Hightower is void. J. N. Hunt, Foreman."

In the case of G. M. Caruthers, administrator of the estate of S. W. Hightower, deceased, the jury returned a verdict in favor of the administrator for specific property or its value.

A separate judgment in each case was rendered in conformity to each verdict. The necessary steps were taken and the consolidated case is here on appeal.

The first assignment of error, insisted upon by appellant for reversal, is the giving of a peremptory instruction by the trial court to find for the administrator and contestants. Appellant then proceeds to attack the reasons assigned by the trial court for giving the peremptory instruction. It is immaterial whether the reasons given by the court are correct, if for any reason it was proper to give a peremptory instruction favoring the contestants. The will on its face disclosed the fact that it was signed by mark. The ex parte affidavit of J. R. Price is the only evidence in the record tending to show who signed the testator's name to the will, or that the testator made his mark. This affidavit was introduced over the objection of appellees. If not competent evidence, then there is no legal evidence in the record establishing the execution of the will, and no evidence whatever to support a verdict in favor of the validity of the will, had the question been submitted to the jury. Section 8013, Kirby's Digest, requires that the party signing the name of one who can not write should attest the signature by writing his own name as witness. Had this been done, the genuineness of the signature would have been sufficient without other proof. Fakes v. Wilder, 70 Ark. 449; Ward v. Stark, 91 Ark. 268. This not having been done, it follows that the genuineness of the signature by mark must be established by other proof. In the instant case, the execution of the will was drawn in issue by the pleadings. This court held, in the case of Smith, Admx., v. Feltz, 42 Ark. 355, that "A statement or declaration, though made under the sanction of an oath and reduced to writing, is not allowable as evi