dissenting. I respectfully dissent on the grounds that the Order of Chicot County Chancery Court entered September 1, 1964, is now res judicata to the issues there presented and the parties to that order are now barred from raising such issues in this appeal.
The Order of September 1, 1964, specifically provides:
That Helen Epstein Kantor, Sylvia Epstein Angel and Melvyn Epstein Festinger have elected and do elect to continue said Trust until the death of the last one of said beneficiaries under said Will and as the sole surviving heirs at law of Sam Epstein, deceased.
We have long held that consent decrees and consent judgments are res judicata as if entered as a judgment after trial on the merits and, as such, are not subject to collateral attack. Lewis v. St. Louis, I.M. & S. Ry. Co., 107 Ark. 41, 154 S.W. 198 (1913).
In Wooldridge v. Hotze, 215 Ark. 8, 219 S.W. 2d 216 (1949), the deceased died testate in 1909 creating a trust in favor of his three children with the corpus of the trust to be distributed to his grandchildren upon the death of the last surviving child. Provisions were also made whereby the trustee was to create a fund from the estate’s assets for improvements to real property remaining in the corpus of the trust. A dispute arose in 1937 as to how the improvements fund was to be created and administered. The court in that dispute in effect rendered void the provision in the will creating the fund due to apparent impossibility of performance. In 1948, a dispute again arose as to the improvements fund. The trial court held: “The parties all assented to the order entered in 1937 ... all the respective parties to this controversy are bound by said order.” Wooldridge, at 11. On appeal, the Supreme Court affirmed:
We hold that the trial court correctly held that the issues now presented are res judicata by reason of the 1937 decree, supra. Appellants were bound by the decree. It is undisputed that at the time that decision was rendered appellants were parties, consented to that decree, and have acquiesced in the court’s construction of the will for more than 10 years thereafter. Wooldridge, at 12.
In this case the same result is equitable and appropriate. Coincidentally, it is precisely what Sam Epstein wanted his children to do, which no doubt influenced them toward that end.
It is undisputed that Helen Epstein Kantor, Sylvia Epstein Angel and Melvyn Epstein Festinger were parties to the 1964 proceeding. It is equally clear that each enjoyed the benefits of the 1964 order, as beneficiaries of the trust created by Sam Epstein, for a great many years. It is evident that they mutually elected “to continue said Trust until the death of the last one of said beneficiaries ...” and gave that election the formality and sanction of a decree of the chancery court. It is now much too late to hear those parties complain that some other interpretation of Sam Epstein’s will or of the 1964 order should be adopted.
Justice Purtle joins in this dissent.