author: HALL, J.

text:
    PANHANDLE & S. F. RY. CO. v. JONES.
    (No. 866.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1915.
    Rehearing Denied Jan. 26, 1916.)
    1. Cabbiebs >&wkey;207 — Cabbiage of Dive Stock — Actions—Bight to Becoveb.
    As under the law existing before the Car-mack Amendment (Act Cong. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [Ü. S. Comp. St. 1913, § 8592)) a shipper of live stock might recover under a verbal contract, he may thereafter recover under a verbal contract where no valid written contract was made; the amendment declaring that nothing should deprive the holder of any receipt or bill of lading of any remedy or right of action which he had under existing laws.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. <&wkey;207.)
    2. Cabbiebs &wkey;>102 — Cabbiage of Live Stock —CONTRACT.
    At common law a shipper of live stock might rely either on an oral contract or recover for negligent delay where there was no contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 434; Dee. Dig. ©¿5102.)
    3. Cabbiebs &wkey;>207 — Caebiage or Live Stock —Actions—Contbacts.
    Where the contract for an interstate shipment of cattle was oral, but just before the train started the shipper was required to sign a written bill of lading which he did not have time to read and could not have understood, the oral contract was not supplanted; the contract contained in the bill of lading not being mutual.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. ©=^207.)
    4. Cabbiebs ©=o228 — Carriage oe Live Stock —Actions—Contracts.
    In an action for injuries to an interstate shipment of cattle, where the carrier relied on a contract made under authority of the Carmack Amendment, claiming limitations of liability were in consideration of a reduced rate, the carrier has the burden of proving that the limitations were reasonable and supported by consideration, and were not a subterfuge to escape liability for negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. ©==>228.]
    5. Appeal and Ebeob ©=»1170 — Instructions — Defects.
    Where the charge as a whole fairly presented the case, judgment will not be reversed on account of technical defects.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dee. Dig. &wkey;1170.)
    Appeal from Lubbock County Court; E. B. Haynes, Judge.
    Action by J. O. Jones against the Panhandle & Santa Fé Bailway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Madden, Trulove, Byburn & Pipkin, of Amarillo, Boscoe Wilson, of Lubbock, and Terry, Cavin & Mills, of Galveston, for appellant. Bean & Klett, of Lubbock, for ap-pellee.
   HALL, J.

Appellee sued appellant railway company to recover $850 damages alleged to have been sustained as the result of delay in the transportation of five cars of cattle shipped from Abernathy, Tex., to Kansas City, Mo. A trial resulted in a verdict and judgment in appellee’s favor in the sum of $517.17.

Plaintiff alleged that about 2:30 o’clock p. m., October 23, 1914, he delivered to defendant 189 head of cattle, which were accepted for safe and speedy transportation as a through shipment from Abernathy, Tex., to Kansas City, and that thereby defendant became bound to transport said shipment with reasonable speed and safety; that the cattle did not reach Kansas City until 11:30 p. m. October 26th; that the time consumed in transportation was unreasonably long, by about 24 hours; that said delays specified in the pleading occurred en route, each alleged to have been unreasonable; that the cattle were placed in muddy pens and detained there for an unreasonable time; that as the result of such delays and detention there was a decline in the market value of the cattle to plaintiff’s damage in the sum of $800.

Defendant answered by general and special demurrers, special denial of each of the material allegations of plaintiff’s petition, and by special pleas set up, among other things, the following:

“(a) That such cattle were by it received, and by it and its connecting carriers transported from Abernathy, Tex., to Kansas City, Mo., interstate, as common carriers of freight, by rail, and in accordance with the provisions of a written contract theretofore made and entered into between plaintiff and defendants. (b) That such contracts were made for the transportation of said cattle at the lower of two rates the carriers had caused to be filed with the Interstate Commerce Commission and duly published at which they could by law transport such cattle, which lower rate the plaintiff had accepted as the rate for the transportation of his cattle, the choice of the two rates being open to plaintiff, the higher being for transportation without limitation of liability, and the lower for transportation with the limitations specified in the contract, (c) That by such contract it was agreed, among other things, in substancé: (1) That the stock were not to be transported within any specified time nor delivered at destination at any particular hour nor in season for any particular market; (2) that the company would stop for watering and feeding only at such stations as it had adequate facilities for feeding and watering, and that plaintiff should not confine his stock in the cars for a longer period than 28 hours without unloading for rest, feeding, and watering; (3) that in case of loss or damage from any cause for which the defendant might bo liable payments should be made therefor only on the basis of the actual cash value at the time and place of shipment, in no case to exceed the valuation therein specified, which was for an ox, steer, or bull $50, for a cow $80, and for a calf $10 per head; (4) that in order that any loss or damage claims by plaintiff might be fully and fairly investigated, and the facts and nature of such claims and loss preserved beyond dispute and by the best evidence, and as a condition precedent to the right to recover any damages for any loss or injury to his stock during the transportation thereof, or at any time or place where the same might be loaded or unloaded for any purpose, or previous to the loading thereof for shipment, the plaintiff or his agent in charge should give notice of their claims therefor to some officer of the company or to the nearest. station agent, if delivered to the consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery, before such stock should be removed from the place of destination or from the place of delivery, and before such stock should have been slaughtered or intermingled with other stock, and that plaintiff would not remove such stock from such station or stockyards until the expiration of three hours after the giving of such notice, and that a failure to comply with the terms of this clause in said contract in any respect should be a complete bar to any recovery of any and all such damages; (5) that such recitals and limitations upon the liability of the carriers were made in consideration of the lower of the two rates, which the shipper acknowledged that he had chosen, having had full opportunity to choose the rate at the carrier’s risk, or limited liability at the rate chosen and stipulated in the contracts. (d) That, though the defendant and its connecting carrier had on their respective lines at each and all places where all said cattle were stopped or delayed in transit station agents and other officers and agents to whom such notice could and reasonably should have been given, and though the delivering carrier, the Atchison, Topeka & Santa Fé Railway Company, had such officers and agents at Kansas City to whom plaintiff could and reasonably should have given such notice, plaintiff wholly failed to give notice in writing of his claim for damages before such stock were removed from the place of destination or from the place of delivery, and before such stock was slaughtered or intermingled with other stock within the time and manner and form as required by such shipping contracts, the provisions of which are reasonable and just, so that plaintiff could and reasonably should have given such notice as he had contracted and agreed to do.”

In addition to the demurrers and denials, plaintiff, by supplemental petition, replied to defendant’s answer, among other matters alleging:

“That as a special answer herein plaintiff says that said cattle were received and transported by the defendant under a verbal contract of shipment made and entered into by and between plaintiff and defendant three or four days before said cattle were delivered to the defendant for shipment, and that by the terms of said agreement the defendant agreed for a valuable consideration to transport said cattle with reasonable speed and safety to the point of destination, as alleged in plaintiff’s original petition.”
“That, if it be true, as alleged by the defendant, that a written contract was issued by the defendant and entered into by the plaintiff, that the same was not binding, and was without consideration, and attained by fraud and under duress, as more particularly alleged herein; that after said cattle were delivered to and received by defendant company for shipment to Kansas City as- previously agreed upon by verbal contract, as herein alleged, and after said cattle had been loaded on the train, and the same was steamed up and ready to leave the stock pens, and the plaintiff was ready to climb into the caboose and take his seat therein, for the purpose of accompanying said shipment, as he had the right to do¡ the agent of the company at Abernathy required and requested the plaintiff, before permitting said train to leave or the plaintiff to accompany the same, to sign an instrument at the office, which was located some several hundred yards from the stock pens, without explaining said instrument to plaintiff and without giving the plaintiff an opportunity to read the same, or to learn the contents thereof; that plaintiff was in ignorance of the contents of said instrument and of the nature thereof; that the plaintiff did not know, and did not have opportunity to know, that said instrument was a limitation of the company’s liability, or that said instrument required the plaintiff to give notice of any kind, as alleged, by the defendant, or that said instrument varied from the verbal contract of shipment, and, in fact, did not understand and was not notified that said instrument was a contract of shipment, but supposed that the same constituted the plaintiff’s ‘pass’ to ride on said train with his cattle; that plaintiff further says that he had never read any such instrument before, and did not know or understand the nature or purpose of such instrument; that he was deceived thereby and acted in ignorance of the nature or purpose of said instrument; that the agent at said place merely told the plaintiff that he must ‘sign up’ before the train left, in order to get his ‘pass’; that, had the plaintiff known that said instrument was at variance with said verbal contract of shipment, he would not have entered into said written instrument, and would not have bound himself by the terms thereof; that the plaintiff further says that he was only allowed a minute in which to sign said instrument, and that the whole of said instrument was prepared and signed in only three or four minutes of time, and that, in fact, said instrument was very lengthy in form, consisting of a multitude of paragraphs in exceedingly small type, very difficult for the ordinary eye to read without considerable strain, all of which paragraphs impose on the shipper a variety of restrictions, limitations, and responsibilities, and concurrently exempt the company from many of the duties and liabilities of a common carrier for hire; that said instrument could not have been read by the plaintiff in less than one hour, and that the plaintiff could not have interpreted the contract thereof after reading, as the provisions of said instrument are couched in such language that only the skilled lawyer would be able to comprehend, and plaintiff further says that the first time that the plaintiff had an opportunity to see said contract, and that the first time same was offered to him, was after said train was ready to go, when the agent of said company required plaintiff to sign, and that under such circumstances it was a physical impossibility for the plaintiff to become familiar with said instrument or to know the contents thereof, or the exceptions that the defendant now claims as an excuse for its negligent delay and damage to said cattle during the three or four minutes only allowed by the defendant.”

By supplemental answer the defendant replied that at the time the shipment moved there were two freight rafes in effect from Abernathy to Kansas Oity upon cattle, one of which was. based on a valuation of $30 per head for each cow and $10 for each calf, and the execution of a release liability contract of shipment, as executed, by plaintiff, and alleged by defendant, and that the other was a higher rate upon shipments not so released, and the higher nonreleased was 20 per cent, per hundredweight higher than the released valuation rate, which two rates were evidenced by tariffs duly filed with the Interstate Commerce Commission and published according to law; that the plaintiff executed the written contracts pleaded by the defendant voluntarily and without misrepresentations or deceit, duress, fraud, or concealment on the part of the defendant or its agents, and paid the rate based upon such released liability contract and valuation.; that the defendant, in consideration of the limited liability, terms, conditions, and stipulations contained in such contract, accepted the lower rate recited therein, etc.

The demurrers were all overruled and exceptions' reserved.

Under the first assignment of error the appellant contends that there can be no valid, verbal contract for an interstate shipment of live stock since the enactment of the Carmack Amendment, and that, where the carrier has duly filed tariffs and has caused the same to be published, providing for two rates applicable under different specified conditions to a shipment, and the shipper accepts from the carrier a bill of lading, specifying the lower of the two rates and the conditions of shipment so applicable thereto according to the published tariffs, such shipping contract and the tariff sheets become, by operation of law, the contract governing the shipment. The Carmack Amendment provides:

“That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws.” U. S. Comp. St 1913, § 8592, par. 11.

Under existing law appellee could sue and recover upon the verbal agreement, provided his proof warranted such recovery. Gulf, Colorado & Santa Fe v. Vasbinder, 172 S. W. 763; Barnes on Interstate Transportation, § 307. And he is entitled to recover even without an express contract. Hannibal Ry. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423. It is stated in the contract that the rate given under this contract is lower than the rate made by the railway company and connections for the transportation of stock at carrier’s risk, and without limitation of liability. Appellee testified that he did not read the contract and did not know what was in. it; and we held in the case of Pecos & Northern Texas Ry. Co. v. Stinson, 181 S. W. 526, that such a contract, signed under such circumstances, was not binding and mutual. It has been held in the case of Hovey v. Tankersley, 177 S. W. 153, that the burden of proof, under the Carmack Amendment, was upon the carrier to show that a provision in its bill of lading is reasonable and supported by a consideration. I. & G. N. Ry. v. Rathblath, 167 S. W. 751. See, also, C., R. I. & G. v. Whaley, 177 S. W. 543; C., R. I. & G. v. Dalton, 177 S. W. 556. No consideration is shown by the appellant for the stipulations exempting it from such liability. Cau v. Texas, etc., Ry. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; York v. Illinois Central R. Co., 3 Wall. 107, 18 L. Ed. 170; Arthur v. Texas, etc., Co., 204 U. S. 505, 27 Sup. Ct. 338, 51 L. Ed. 590; Charnock v. Texas, etc., Ry. Co., 194 U. S. 432, 24 Sup. Ct. 671, 48 L.Ed. 1057. The Interstate Commerce Commission, in construing section 20 of the Carmack Amendment (Act Cong. Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, as amended [U. S. Comp. St 1913, § 8592]), uses this language:

“If a rate is conditioned upon the shipper’s assuming the entire risk of loss, the condition is void as against loss due to the carrier’s negligence or other misconduct.
“If a rate is conditioned upon the shipper’s agreeing that the carrier’s liability shall not exceed a certain specified value, (b) the stipulation is valid, even when the loss is due to the carrier’s negligence and, if the shipper has himself declared the value expressly or by implication, the carrier accepting the same in good faith as the real value and the rate being fixed in accordance therewith.
“(c) The stipulation is void as against loss due to the carrier’s negligence or other misconduct if the specified amount does not purport to be an agreed valuation, but has been fixed arbitrarily by the carrier without inference to the real value.
“(d) The stipulation is void as against loss due to the carrier’s negligence or other misconduct, if the amount specified while purporting to be a valuation is, in fact, purely fictitious, and represents an attempt to limit the carrier’s liability to an arbitrary amount.
“The carrier must not make use of its released rate as a means of escaping liability for the consequences of its negligence, either wholly or in part.” Barnes on Interstate Transp. § 310.

According to appellee’s testimony, he did not fix the value, but it was fixed by the agent, and at his request written into the contract by the appellee.

The rulings above quoted seem to us to be a fair and just construction of the statute in question, and, when applied to this case, under the facts, we think the appellee was entitled to recover. Especially is this true since the evidence does not show that the cattle were actually shipped upon the lower rate fixed by the commission. The burden was upon the railway company'to show, not only the acceptance of the bill of lading in lieu of the oral contract by Jones, but bis assent to its terms, and sucb assent and acceptance cannot be presumed from its use as means of transportation by bim. 4 R. C. L. “Carriers,” § 240. Appellant alleged that the shipment was made under the lower rate, but, aside from the recital of that fact in the contract, which- the uneontradicted evidence shows ap-pellee did not read, there is no testimony to sustain the allegation. The written contract is neither mutual, nor is it sustained by a consideration.

The several stipulations pleaded by appellant cannot therefore be set up as a defense, since they were no part of the verbal contract under which the cattle were accepted and loaded. What is here said disposes of appellant’s principal assignments.

There may be some technical errors in the charge of the court, but, taken as a whole, we think it is a fair presentation of the case, and these assignments will be overruled.

Upon consideration of the whole case, we are of the opinion that a proper judgment has been rendered, and the errors insisted upon by appellant, if errors in fact, are harmless, and the judgment is affirmed.
      ©=»For other eases see same topic and ICEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    STRATTON v. WESTCHESTER FIRE INS. CO. OF NEW YORK et al.
    (No. 6997.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1915.
    Rehearing Denied Dec. 9, 1915.)
    1. Vendor and Purchaser <&wkey;54 — Passing of Title — Retention of Lien.
    Where land is conveyed by deed retaining an express lien to secure part of the purchase money, legal title to the land remains in the vendor until the purchase money is paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. <&wkey;>54.]
    2. Homestead <&wkey;96 — Purchaser’s Right.
    Such a vendee cannot hold the land as a homestead against such vendor holding vendor’s hen notes for part of the purchase money.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <@=»96J
    3. Exemptions @=334 — Proceeds of Insurance.
    Money paid upon an insurance policy upon a house not the insured’s homestead is not exempt from garnishment for the payment of the insured’s debts.
    . [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 36, 37, 74; Dec. Dig. <@=»34.]
    4. Homestead <&wkey;88 — Equitable Estates or Titles.
    An equitable title founded upon a conveyance in which an express lien is retained to secure unpaid purchase money may be the subject of a homestead, and exempt from the payment of ordinary debts.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 126; Dee. Dig. &wkey;>88.]
    5. Homestead &wkey;>79 — Extent of Exemption-Insurance Monet.
    Where land was conveyed with express reservation of a vendor’s lien to secure the unpaid portion of the price, there being no agreement that the purchaser, who occupied the place as a homestead when he insured it, should do so for the benefit of the vendor, upon burning of the house the purchaser was entitled to the insurance money, and not the vendor, to satisfy the unpaid balance on his foreclosure judgment, since insurance money on a homestead, in the absence of an agreement that the policy was for the benefit of the vendor holding the superior title and note for unpaid purchase money, is not subject to the payment of the indebtedness.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 111; Dec. Dig. <&wkey;>79.]
    6. Vendor and Purchaser &wkey;>295 — Vendor’s Lien — Election to Foreclose — Effect.
    Where the vendor of realty by deed reserving a vendor’s lien foreclosed, he could not thereafter claim that he continued to hold the superior title for the purpose of making out his right to the insurance money payable for burning of the house, since a vendor has only the election to abandon the contract and recover the land, or to aifirm and have judgment for his debt with foreclosure of his lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 831; Dec. Dig. <&wkey;>295.]
    7. -Appeal and Error <&wkey;877 — Party Entitled to Allege Error.
    The vendor of realty, who had no interest in the insurance money payable the purchaser for burning of the house, could not complain of the amount of recovery allowed the purchaser against the insurance company in the vendor’s garnishment proceeding against it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. &wkey; 877.]
    8. Garnishment <&wkey;191 — Costs — Recovery by Garnishee.
    In a vendor’s garnishment proceeding against the insurer of the realty, where the answer of the garnishee was not denied, and it was discharged from the garnishment upon its answer, although judgment went against it for the purchaser, such garnishee was entitled to recover of the vendor its costs, including a reasonable attorney’s fee, under Rev. St. 1911, art. 307, providing that, where the garnishee is discharged upon his answer, costs, including reasonable compensation to the garnishee, shall be taxed against plaintiff.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 372-379; Dec. Dig. &wkey;191.]
    Appeal from District Court, Lavaca County; M. Kennon, Judge.
    Action by John Stratton against John Ma-gee, in which the Westchester Fire Insurance Company of New York was made garnishee, and the latter impleaded John Magee. From a judgment for Magee, and for the garnishee for its costs, plaintiff appeals.
    Affirmed.
    Patton & Schwartz, of Hallettsville, for appellant. John S. Patterson, of Austin, for ap-pellee Westchester Fire Ins. Co.
   LANE, J.

On the 6th day of February, 1914, suit was brought by John Stratton against John, Magee upon 23 vendor’s lien notes, each for the sum of $32, and foreclosure of vendor’s lien upon the tract of land upon which was the house destroyed by fire, and insured for the benefit of Magee by a policy issued by the Westchester Fire Insurance Company of New York, “as his interest may appear.” The fire occurred on the 6th of March, 1914. A judgment of foreclosure of Stratton’s vendor’s lien was entered on the 17th of March, 1914. On the 7th day of July, 1914, the property was sold under Stratton’s foreclosure proceedings, and was bought at the sale by the said Stratton for the sum of $200, which was credited on the judgment against Magee, leaving a balance due thereon of $1,121.09. The property was conveyed by Stratton to Magee by deed dated October 1, 1912; vendor’s lien being expressly reserved in the deed of conveyance to secure the deferred payments. Writ of garnishment was issued out of the trial court against the insurance company by Stratton on the 23d day of March, 1914, and served on the same day of issuance. At the time of the purchase of the premises in question Magee paid Stratton $100, and prior to the destruction of the house by fire made further payments amounting to $209.05; the total amount paid before the fire being $309.65.

The garnishee, insurance company, answered, truthfully stating its obligation and indebtedness to Magee, and had him made a party defendant so as to protect it against double payment of its obligation under its policy of insurance.

The defendant in the foreclosure proceeding, Magee, having been made a party to the garnishment suit, answered, setting up the contract of insurance, the adjustment of the loss, and prayed judgment against the insurance company therefor, and pleaded the exemption of the debt from garnishment because the property insured was his household furniture and his homestead. In the adjustment of the loss between Magee and the insurance company it was agreed that the loss was $187 for the destruction of his household furniture, and $831.45 for the destruction of the house. At the time of the destruction of the house and furniture by fire Magee occupied the house with his family as a home and it was his homestead, and he had a homestead interest in the house and that was insured “as his interest may appear.”

The case was tried before the court without a jury on the 22d day of October, 1914, and judgment was rendered that Stratton taire nothing by his suit, and that the defendant, John Magee, recover of the Westchester Fire Insurance Company the sum of $496.65, viz., the sum of $187, value of his household furniture destroyed by fire, and the sum of $309.65, the sum that he had paid upon the premises upon which the house destroyed by fire was situated, and that the garnishee, insurance company, recover of plaintiff, Stratton, the sum of $100 attorney’s fees and all costs of court. From such judgment, John Stratton has appealed.

Appellant’s first assignment submits:

“That the trial court erred in holding that the money due on a fire insurance policy for the burning of a house on premises occupied by the beneficiary as a homestead is not liable for his indebtedness for the purchase money of said premises secured by an express lien retained by the vendor in the deed of conveyance under which he holds.”

Appellant submits under this assignment only four propositions:

First. That, where one conveys land by deed to another and retains in such deed an express lien to secure a part of the purchase money, the legal title to the land conveyed does not pass to the vendee, but remains in the vendor until the purchase money is paid.

Second. That such vendee cannot hold the land conveyed as a homestead as against his vendor who holds vendor’s lien notes for a part of the purchase money.

Third. That money paid upon an insurance policy upon a house not the homestead is not exempt from garnishment for the payment of the insured’s debts.

Fourth. That an equitable title founded upon a conveyance in which an express lien is retained to secure unpaid purchase money may be the subject of a homestead, and exempt from the payment of ordinary debts.

We think none of the propositions submitted can be successfully controverted, but none of them are germane to the assignment under which they are made, and therefore do not call for any consideration from this court, but, as the assignment is a proposition within itself, and may be submitted as such, we will consider the same.

The agreed facts show that appellant, Stratton, conveyed to Magee the land on which was situated the house which was insured and which was destroyed by fire; that in the deed of conveyance Stratton retained an express vendor’s lien upon the land to secure a part of the purchase money; that Magee with his family was occupying said house as his homestead at the time it was insured, and at the time it was destroyed by fire; that he procured a policy of fire insurance upon said house, which, among other things, provided for the payment of loss to him “in so far as his interest may appear”; that before the house was destroyed he had paid of the purchase money on the premises purchased by him from Stratton the sum of $309.65; that the contract of insurance was between Magee and the insurance company, and was intended to be for the benefit of Ma-gee, and not in the interest or benefit of Stratton; that there was no agreement by Magee to insure the property for Stratton; that the house was destroyed by fire on the 6th day of March, 1914, and that thereafter the loss had been adjusted between the insurance company and Magee as being $831.-45; that Stratton sued Magee upon certain vendor’s lien notes given for part of the purchase price of the land conveyed by Stratton to Magee, and took judgment thereon for the sum of $1,321, and a foreclosure of his vendor’s lien on the 17th day of March, 1914; that on the 23d day of March, 1914, Stratton caused a writ of garnishment to issue upon Ms said judgment against the insurance company, and thereby sought to subject the insurance money due to Magee to his said judgment.

The trial court held' that Stratton had no lien nor any other right in or to the insurance money; that it was not subject to the writ of garnishment issued upon Stratton’s judgment, because it was money due upon a policy of insurance upon the homestead of Magee.

Appellant insists that he held the superior title to the premises sold to Magee upon which the house destroyed was situated, and held a vendor’s lien thereon, and that the house, if in existence, could have been subjected to sale to pay his judgment for the purchase money, and therefore the insurance money for its destruction is likewise subject to the payment of such judgment. We do not think the court erred in the holding complained of. Insurance money upon a homestead, in the absence of an agreement that the policy was for the benefit of the vendor holding the superior title and note for unpaid purchase money, is not subject to the payment of such indebtedness unless agreed to by the debtor. Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479; Cameron v. Fay, 55 Tex. 58; Chase v. Swayne, 88 Tex. 218, 30 S. W. 1051, 53 Am. St. Rep. 742; Pennsylvania Fire Ins. Co. v. Wagley, 36 S. W. at page 998.

We also conclude that Stratton cannot, since he took judgment on his debt against Magee and foreclosed his lien, successfully claim that he continued to hold the superior title to the property sold to Magee. “When the right of rescission exists, the vendor has his choice of remedies. He may abandon the contract and recover the land, or he may affirm the contract and have judgment for his debt, with a foreclosure of the vendor’s lien.” Curan v. Land & Mortgage Co., 24 Tex. Civ. App. 499, 60 S. W. 466; Douglass v. Blount, 67 S. W. at page 489, 58 L. R. A. 699; Gardener v. Griffith, 93 Tex. 355, 55 S. W. 314. But he must choose one or the other of such remedies; he cannot exercise both. Stratton sued and recovered judgment upon his contract of sale and foreclosed his vendor’s lien on March 17, 1914, and therelby divested himself of the superior title to the property. Having so parted with his superior title, he cannot be heard to say that he should be entitled to the insurance money in question because he was, in fact, the owner of the house at the time it was destroyed by fire. See authorities above cited. We do not think that appellant Stratton had any interest, either legal or equitable, in the insurance money which he seeks to recover by his garnishment.

Appellant’s second assignment insists that the court erred in not rendering judgment against the Westchester Fire Insurance Company for $831.45 in favor of Magee; that being the agreed loss for the destruction of Magee’s house.

We have already held in our conclusions under the first assignment that appellant has no interest in the insurance money in question, and therefore the amount of the recovery in this ease is not a matter about which he is concerned. Magee, the only party who has the right to complain of the inadequacy of the judgment, is not complaining. We therefore overrule the second assignment.

Appellant’s third assignment insists that the court erred in rendering judgment against him in favor of the insurance company. for $100 attorney’s fees, because he says the garnishee was not discharged on its answer, but was held thereon in a judgment in favor of Magee, the beneficiary under the policy of insurance. The contention here made is not tenable. The answer of the garnishee was not controverted, and the garnishee was discharged from the garnishment upon its answer, and, under article 307, Revised Statutes 1911, is entitled to recover his costs, including a reasonable attorney’s fee, and, as no complaint is made that the fee allowed in this case is unreasonable, we are not called upon to question its being a reasonable fee in this case. The rendition of the judgment in favor of Magee against the garnishee upon his policy of insurance in no way affected his discharge on his answer to appellant’s garnishment.

This disposes of all of appellant’s assignments, and, as we find no such error committed by the trial court as should cause reversal, the judgment of the trial court is affirmed.

Affirmed.
      <©^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    GALVESTON, H. & H. R. CO. v. HODNETT.
    (No. 6972.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Appeal and Error <&wkey;1060 — Trial &wkey;> 120 — ARGUMENT OP COUNSEL — PREJUDICIAL Effect — Duty op Court.
    Eor plaintiff’s counsel in argument to the jury to say, relative to cross-examination by M., another counsel for plaintiff, of L., seeking an admission that L. had made a statement to M.contrary to his testimony, that there is a prejudice against lawyers going on the stand in their own cases about matters to which witnesses have testified, to dispute them, and that M. would as soon jump out of the window as to have been guilty of putting questions to a witness to deceive any one into believing that the witness had admitted to him what agreed with his theory of the case, was, in effect, an assertion, without evidence to justify it, that the witness had testified to facts directly variant from his former statements, constituting improper conduct, likely prejudicial, so that the court, on objection, should have arrested the argument and directed the jury to disregard it.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;106O; Tidal, Cent. Dig. §§ 285-287; Dec. Dig. &wkey;
    2. Trial &wkey;>118 — Argument op Counsel.
    So far as argument of counsel, in a case submitted to the jury on special issues, explains to the jury the legal effect of their answers, it is improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §| 290-293; Dec. Dig. &wkey;118.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge.
    Action by W. J. Hodnett against the Galveston, Houston & Henderson Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also (Sup.) 163 S. W. 13.
    Baker, Botts, Parker & Garwood, C. L. Carter, and AValter H. Walne, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.
   McMEANS, J.

This suit was brought by W. J. Hodnett against the Galveston, Houston & Henderson Railroad Company, for damages on account of personal injuries alleged to have been received on the 10th day of August, 1910. At the time of the accident appellee was a section foreman in appellant’s employ, and, with a gang of Mexicans under his direction, was engaged at the time in unloading steel rails from a flat car. The accident happened early in the morning, shortly after the plaintiff began work. To do this work, an engine was coupled onto either two or three cars, one of which was a flat car loaded with steel. The appellee and those working under him were standing on the flat car. The flat car was moved, in each instance, a distance of a rail’s length, approximately 30 feet, two rails were thrown off, after which the engine and cars were then moved the proper distance, where two more rails were unloaded. After a number of stops had been made, the plaintiff was standing on the end of the flat car furthest from the engine, and when the car came to a stop he fell to the ground. The gravamen of the plaintiff’s complaint was that, being in the employment as section foreman of the defendant, a corporation operating a railroad in this state, and in the ordinary discharge of his duties, he was jerked from the car and injured, and that such fall and injury was due to the negligence of the defendant: (a) In handling the train and car so that the car came to an unnecessarily sudden and abrupt stop, and consequent bump and jerk back; and (b) in failing to maintain the drawhead of one of the cars in a reasonably safe condition, so that it was defective, and admitted of undue slack. Appellant defended on the theory that there was no slack in the cars and no rough handling, hut that the plaintiff became overbalanced and fell from the car, without any negligence on appellant’s part. A trial before a jury resulted in a verdict and judgment in plaintiff’s favor for $8,650, from which the defendant has appealed.

Appellant’s fifth assignment of error is as follows:

“The court erred in failing to charge the jury to disregard, and in failing to reprimand counsel for the use of, the following language used by plaintiff’s attorney in his opening argument to the jury: ‘Now, I say, but do not say because I am associated with Maj. Lovejoy — for any man in Houston or elsewhere in the state, knowing Maj. Lovejoy, knows of his high and honorable character — that Maj. Lovejoy would as soon have jumped out of that window as to have been guilty of putting questions here to a witness to deceive or mislead anybody into believing the witness had admitted to him what agreed with his (the major’s) version of the case.’ Because the language used with reference to Maj. Lovejoy was not warranted by any facts in evidence, was an effort on the part of plaintiff’s attorney to impeach the witness Lancaster by the acts and conduct of Maj. Lovejoy during the trial of the case, contrary to any of the known rules for impeachiug the witness of an adversary, and was an effort to substitute the virtues attributed to Maj. Lovejoy for legal evidence.”

On the trial, while the defendant’s witness, Lancaster, was on the stand and testifying on cross-examination, the examination being conducted by Maj. Lovejoy, one of plaintiff’s attorneys, the following questions were asked by counsel and answers made by the witness:

“Q. Didn’t you say to Hodnett that you got a hard fall, and it is a wonder they didn’t kill every man on that car? A. No, sir. Q. Didn’t you call afterwards at St. Joseph’s Hospital to see Hodnett? A. No, sir. Q. Up here in this city? A. No, sir. Q. He called to see you, didn’t he; you were up there sick? A. I was hurt. Q. Up in St. Joseph’s hospital? A. Tes, sir. Q. And didn’t yon and Hodnett again talk over the way in which he was thrown off of that car? A. No, sir. Q. And didn’t you say up there that ‘it is a wonder it didn’t kill every man on that ear’? A. No, sir. Q. Mr. Lancaster, didn’t you tell Mr. Hodnett that he could call on you at any time in undertaking to maintain his rights for the injuries he said lie had sustained, and that you would testify to that in court? A. Not as X remember of. Q. Didn’t you express your sympathy with him, and tell him that there was no necessity of that man handling that engine in that way, and that he ought to recover? A. I might have expressed my sympathy with him for being hurt Q. you went to see Mr. Hodnett when he was in his room there? A. No, sir. Q. Did you ever talk with anybody else about how Mr. Hodnett was thrown olí of that car? A. No, sir. Q. You are certain of that? A. Yes, sir. Q. Did anybody connected with Mr. Hodnett’s case ever ask you to tell them how he was hurt? Stop a minute and refresh your memory. A. X had a little talk with Mr. Hodnett about a year afterwards. I met him on Main street here', and asked him how he was getting along, and he said very well, considering. Q. And did you go with him to any lawyer’s office? A. No, sir. Q. Did you ever tell any of his lawyers how he was hurt; how he was jerked off that train? A. Not as I know of. Q. Are you certain of that? A. Yes, sir. Q. Didn’t you tell me that you would come here at any time I w'ould notify you if I would pay your expenses and your time, and that you would come here and testify for Mr. Hodnett? A. I don’t remember that. Q. Didn’t you come to my office and volunteer that statement? A. No. Q. When you got hurt, I represented you, didn’t I? A. Yes, sir. Q. Didn’t we talk over how Mr. Hodnett got hurt, and something about his case? A. Yes; I believe so. Q. All I want to do is refresh your memory. Didn’t you, on more than one occasion, offer to make a written statement for me in this case, to the effect that Mr. Hodnett was jerked off of that train down there, and hurt because of the way in which that engine was handled? Now stop one minute and think. A. Put the question to me again. Q. Did you offer to make a statement in writing that you would testify to it that Mr. Hodnett was thrown off of that ear down there and hurt because of the violent way in which that engine was handled? A. No, sir. Q. You talked about it, didn’t you? A. I talked to you regarding the case. Q. Didn’t you offer to come here and testify in the case for Mr. Hod-nett that he was thrown off of that car down there and hurt by the violent way in which the engine was handled, at any time that we would pay your expenses and pay you for your time? A. No, sir. Q. Are you certain of that? A. Certain. Q. You told him that you would testify in his ease, didn’t you? A. I told him I would testify in his case, yes. Q. What did you offer to testify in his case for if you didn’t know that your testimony would be in his interest? Didn’t you tell Mr. Hodnett that you would come here and testify in his case any time he would let you know? A. No, sir. Q. You said awhile ago that you told him that you would come here and testify; you said that awhile ago? A. No, sir. Q. Didn’t you tell me you would testify in his case? A. No, sir; not as I remember. Q. What were you talking to me about it for, then? A. You were asking me some questions in regal’d to it. Q. Mr. Lancaster, didn’t you say — didn’t I tell you what Mr. Hodnett had said; that you had said to him — didn’t I repeat this to you at that time? That Mr. Hodnett told me that you had told him, when you picked him up and asked him if he was hurt, that it was a wonder that they hadn’t killed every man on that car? A. Not as I remember of. Q. And didn’t you say that you did say that to him, and that it was a wonder they didn’t kill them? A. No, sir. Q. And you did talk to me about it, and you did agree to come here and testify if I would pay your expenses? A. No, sir. Q. Didn’t you agree to let me know where your address was? A. No, sir. Q. Did you give any reason to me why, or what I must do in addition to that in order to get you to testify? A. No, sir. Q. Mr. Hodnett, didn’t you, down at the hospital here, St. Joseph’s Hospital— No, I will ask you this: Do you know whether — one of the box cars there — one, anyhow, was an M., K. & T. car, wasn’t it? A. I don’t remember the initial. Q. Do you know where they picked it up? A. I don’t remember where we got it. Q. Didn’t you tell Mr. Hodnett down in the hospital, when he went down to see you, that when you did testify in this case, you would show that both drawheads on that car were in bad order, and that you would tell where they got it from? A. No, sir. Q. Was anything said of the car, that you recollect of? A. No, sir. Q. You don’t recollect anything that was said about it? A. There was nothing said about it as I remember.”

In the opening argument to the jury Mr. Presley K. Ewing, also counsel for plaintiff, made' use of the following language:

“Take Lancaster. He didn’t testify on the former trial, but he did testify on this trial. You heard the major’s (reference to Maj. Love-joy, one of the plaintiff’s attorneys) questions to him. Y[ou .know, of course, and you are entitled to know, of the prejudice against lawyers going on the stand in their own cases about matters to which witnesses have testified to dispute them. It is simply regarded as not professional to do it. I do not mean to say but that at times we may, and some of us do, testify to important matters, but pot generally. Now, I say, but do not say because I am associated with Maj. .Lovejoy — for any man in Houston or elsewhere in the state, knowing Maj. Lovejoy, knows his high and honorable character — that John Lovejoy woujd as soon have jumped out of that window as to have been guilty of putting questions here to a witness to deceive or mislead anybody into believing the witness had admitted to him what agreed with his (the major’s) version of the case.”

Whereupon the defendant’s attorney, without interrupting counsel for the plaintiff, called the attention of the court to the remarks of counsel with reference to Maj. Lovejoy and his questions to the witness and excepted thereto, but the court took no action with reference to the argument made or the exception thereto. The witness I/an-caster, on direct examination, had testified:

“I was present down there at the time when Mr. Hodnett had a fall from a flat car. * * * The train consisted of a box car and a flat car and the engine. Mr. Hodnett was on the end of the flat car; the train was headed east; the flat car was in' front going east, then came the box car. * * * There were two cars in that string, a flat car and a box car. I saw Mr. Iíodnett as he was falling. * * * At the time he fell the engine and cars had come to a stop — just about the same kind of a stop we had been making for 15 or 20 stops before. I did not notice any sudden stop with a jerk. I did not notice any more slack in the drawheads of those cars than is usual. * * * The speed at which that train was moving at the time the accident happened was so slight that it would be hard to estimate it. * * * After we finished unloading the steel, Smith did not give us any instructions to put a bad-order box car on the repair track out of this train. There were no bad-order ears on this train, not as I know of; we had no bad-order cars in it.”

The argument complained of was not only improper, but in our opinion extremely prejudicial to defendant. To make the truth of this statement apparent, it is only necessary to say that Hodnett, the plaintiff, alone testified to the rough handling of the train and the unusual slack due to the defectiveness of the drawheads in one of the cars, to each of which he attributed his fall and consequent injury, while five or six witnesses, all of whom were then employés of the defendant, and some of whom were in its employment at the time of the trial, testified that there was no rough handling and no unusual slack. Thus the fact issues were sharply drawn, and the testimony, in point of number of witnesses, greatly preponderates against the plaintiff’s theory of the cause of his injury. We do not mean to be understood as holding that the verdict was so manifestly against the great weight and preponderance of the testimony as to authorize the court to set it aside; for that question we do not decide, and in view of the disposition we shall make of this appeal, it would be improper to now decide it. But it is our opinion that in the circumstances stated the effect of the argument was calculated to convince the jury that Dancaster had made statements to Maj. Lovejoy wholly at variance with his testimony and corroborative of plaintiff’s theory of the case, and that the only reason that Maj. Lovejoy did not take' the stand and by his testimony impeach the witness was because of the—

“prejudice against lawyers going on the stand in their own cases about matters to whieh witnesses have testified to dispute them.”

To say in direct connection with the language used as above quoted that Maj. Love-joy “would as soon have jumped out of that window as to have been guilty of putting questions here to a witness to deceive or mislead anybody into believing the witness had admitted to him what agreed with his (the major’s), version of the case” was in effect an assertion, without evidence to justify it, that the witness had testified to facts directly variant from his former statements; and the probable, if not the necessary, effect of this was to induce the belief in the minds of the jury that he had sworn falsely, and this was calculated to east suspicion upon the testimony of all of defendant’s witnesses with which the testimony of Lancaster agreed. We readily accept as true the statement of counsel that he made the argument merely to relieve his associate from a possible wrong impression of his act by the jury, and not with any thought of having the jury think that the plaintiff could get benefit from the statements of the witness inquired about when unproved. The lofty character of the distinguished and able counsel acquits him in the mind of this court of any intention to mislead or deceive the jury, and it is probable that the fact of his prominence gave greater weight to his statements .with the jury; but we cannot look .to the intention of the counsel in making the argument, but only to the probable effect it had upon the jury in determining the weight of the evidence; and, believing, as we do, that the argument was extremely prejudicial to defendant, it is our opinion that the trial judge erred in failing to arrest the argument when his attention was called to it and in not instructing the jury to disregard it, and that this error requires a reversal of the judgment.

Appellant by its sixth assignment complains that:

“The court erred in failing. to instruct the jury to disregard, and in failing to reprimand counsel for his closing statement to the jury as to how they should answer the special issues submitted to them by the court if they wanted plaintiff to recover.”

Under this assignment .the following proposition is advanced:

“Where a case is submitted to a jury on special issues, it is reversible error for the court to permit counsel, without rebuke, to advise the jury "in his argument what the legal effect of their answer will be.”

The case was submitted to the jury on special issues in the form of interrogatories. During the argument plaintiff’s counsel used the following language:

“We claim that every question submitted here to you should be answered, ‘Yes,’ down to the question for damages, and we submit to you that the question for damages should be answered in the amount that you find, and we submit that all of the questions after the questions for damages there should be answered, ‘No,’ if you want the plaintiff to recover and believe he ought to recover; that is the way we want you to answer it.”

Without interrupting the attorney in his argument the defendant’s attorney called the court’s attention to the argument, and excepted to it on the ground that it was an effort of counsel to explain to the jury the legal effect of their answers to the special issues submitted; but the court did not instruct the jury in reference thereto. It seems to us that the argument went far toward explaining to the jury the legal effect of their answers, and to the extent it went in this direction the argument was improper. In Fain v. Nelms, 156 S. W. 281, this court had occasion to. pass upon a similar question and there held that the argument, under the circumstances of that case, was improper, and that the court should have stopped it when attention was called to it. In writing the opinion of the court our late Associate Justice Reese uses the following language:

“The jury, as triers of fact solely, had nothing to do with the legal effect of their findings, This was a matter which could not properly concern them. They were only to find the facts. The argument came very near a direct invitation to the jury to consider, in finding this fact, what the legal effect would be. The argument should not have been made, nor should the court have allowed it to be made, and to give tacit approval of it by disregarding appellant’s objection.”

We adhere to the ruling in the Bain Case, and will continue to do so until convinced of its erroneousness by reasoning more cogent than that offered by appellee’s attorneys. Nor can we agree with appellee’s attorneys that in that case we indulged in reasoning to be “deplored.”

However, as the judgment must be reversed for tile error hereinbefore discussed, and as the error here complained of will not likely arise upon another trial, we do not think it necessary to commit ourselves upon the question as to whether the error, under the facts of this case, requires a reversal.

We have examined all the other assignments of error presented by appellant in its brief, and are of the opinion that none of them points out reversible error. 'For the error first indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      (S^sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    FEEGLES et al. v. SLAUGHTER et .al.
    (No. 7427.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 18, 1915.
    Rehearing Denied Jan. 22, 1916.)
    1. Wills @=600 — Construction — Estate Conveyed.
    Where a will, in the first clause, gave testator’s property to his wife without limitation, hut declared in another that whatever property the wife might own at her death should be equally divided between her relatives and testator’s, but that she should have full power of control and disposition during her life, such will did not limit the wife’s rights in the property to a life estate, since it is a primary canon of construction that the intention of the testator should be discovered and effectuated whenever possible, and in case of repugnancy that construction is favored which admits of immediate vesting of the entire estate.
    [Ed. Note, — For other cases, see Wills, Cent, Dig. §§ 1835-1839; Dec. Dig. @=600.]
    2. Wills @=.487 — Action to Construe — Ambiguity — Admitting Paeol Evidence.
    Where testator’s will gave his property absolutely to his wife, and provided that whatever might be left at her death should be equally divided among their relatives, also giving her full power to control and dispose of the property during her life, the latter clause was not such a legal limitation upon the estate granted the wife at first as to make the will ambiguous and permit evidence of the maker’s intention different from the legal import of the will itself.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. @=3487. |
    3. Wills '@=693í — Power of Disposition-Exercise — Effect.
    Where testator’s will gave his wife a life estate, with remainder to their relatives, and full power to control and dispose of the property, the wife’s acts of disposition during her life cut off the remaindermen’s contingent right.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1655-1661; Dec. Dig. @=693.]
    4. Wills @=3600 — Power of Disposition-Following Proceeds.
    Where testator’s will gave his property to his wife with power of control and disposition, whatever should be left on her death to go to their relatives, such relatives could not pursue the proceeds of the property sold by the wife.
    [Ed, Note. — For other cases, see Wills, Cent. Dig. §§ 1335-1339; Dec. Dig. @=>600.]
    5. Wills @=>693 — Poweb of Disposition-Gift.
    Where testator’s will gave his wife absolute power to control and dispose of the property left her, whatever might be left on her death to go to their relatives, a disposition by the wife by gift was effectual to bar the relatives’ right.
    LEd. Note. — For other cases, see Wills, Cent. Dig. §§ 1655, 1861; Dec. Dig. @=693.]
    6.Deeds @=17 — Consideration.
    Where the grantee of realty paid the grantor 810 cash, provided an annuity of $600 for her, and agreed to render her personal services in earing for her as a daughter would her mother, which she did until the grantor’s death, there was consideration for the conveyance.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 26-37; Dec. Dig. @=17.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by Mrs. S. A. Feegles and others against C. O. Slaughter and others for the construction of a will and the recovery of property. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Henry P. Edwards and Cockrell, Gray & McBride, all of Dallas, for appellants. Thompson, Knight, Baker & Harris, Towne Young, and Carden, Starling, Carden, Hemp-hill & Wallace, all of Dallas, for appellees.
   RAINEY, C. J.

Appellants, relations of J. B. D. Young, deceased, brought this suit against the appellee to construe the last will and testament of the said Young, and to recover the property devised therein, which property was willed by the said Young to his wife, Mrs. L. Y. Young, and by her willed to Mrs. Ann A. Knight, and to recover the property or proceeds alleged to have been devised by the will to plaintiffs. The general issue was joined, and upon hearing the evidence the court instructed the jury to return a verdict for the appellees, which was done, and judgment was so rendered, from which this appeal is prosecuted.

J. B. D. Young and L. Y. Young for years lived together as husband and wife. He was over 65 years old and she was over 60 years old when he died. They had only one child, which died in early infancy. They, as husband and wife, accumulated the property which is the subject of this suit. J. B. D. Young came to Texas in an early day, leaving his relatives in one of the older states, and thereafter had no contact with them. Mrs. Young had some relatives, whose names and addresses are not known, except a sister, Mrs. Feegles, one of the appellants, whose personal relations with Mrs. Young were not congenial. None of the appellants were dependent on Mr. and Mrs. Young.

On May 1, 1901, J. B. D. Young executed his last will and testament, and thereafter on June 3, 1901, died, owning the property in suit. His will was_ duly probated, and Mrs. Young qualified as sole executrix. . Said will is as follows:

“The State of Texas, County of Dallas.
“Know all men by these presents: That I, J. B. D. Young, of the above named county and state, being of sound mind and disposing memory, do make this my last will and testament.
“I. It is my will and desire, and I do hereby bequeath all my property, both real and personal, to my beloved and faithful wife, Mrs. L. V. Young.
“II. I do hereby constitute and appoint my wife my sole executrix, and direct that no bond shall be required of her.
“III. I desire and direct that no proceedings shall be had in court in reference to my estate, other than probate of my will, and the filing of an inventory and appraisement.
“IV. I direct that all my just debts shall be seasonably paid.
“V. I further desire and hereby will and direct that upon the death of my wife the property which she then owns shall be equally divided between her relatives and my relatives, it being intended that she shall have full power to control and dispose of the property during her life.
“Witness my hand this May the 14th, 1901.
“J. B. D. Young.
“Witnesses:
“Ñ. W. Einley.
“V. E. Armstrong.”

Soon after the probate of this will Mrs. Young took charge of said property and sold to Guy Sumpter one tract for $15,200 cash, which was used by her in building a home and for other things. In 1902 she sold to R. E. L. Knight for a valuable consideration a tract, the consideration being $3,000 cash, and in 1905 she sold to said Knight a tract for a consideration of $300 cash. Knight was J. B. D. Young’s attorney during his lifetime, and after his death continued to be Mrs. Young’s attorney.

On September 23, 1902, Mrs. Young executed her last will and testament, by the terms of which she devised all her property to Mrs. Ann A. Knight, wife of R. E. L. Knight. On April 23, 1913, Mrs. Young died, making no other will, which will was probated in July, 1913.

In 1902 Mrs. Young deeded to Mrs. Knight the Slaughter tract, the consideration recited in the deed being “$10 and other valuable considerations.” The deed retained a life estate in Mrs. Young. Said tract was renting at the time for $150 per month. Mrs. Young received the rents on said property until December 24, 1908, when she and Mr. and Mrs. Knight executed a deed to O. O. Slaughter for said tract for $35,000 cash paid; $10,000 of the money Mrs. Young transferred to Mrs. Knight, upon Mr. and Mrs. Knight’s agreement to pay her thereafter $600 a year for her life. The remaining $25,-000 of the consideration they invested in the purchase of the Bosbyshell tract on Elm street, near Lamar, taking a deed from Bos-byshell to Mrs. Young, and she in turn, within a few days thereafter, executed a deed to Mrs. Knight, wherein she undertook to reserve the life estate in the tract and convey the remainder to Mrs. Knight; the deed being exactly similar in form to the one that she had formerly executed to Mrs. Knight to the Slaughter tract. Mrs. Young continued thereafter to receive the rents, amounting to about $175 a month, on the Bosbyshell tract, and to use them, until August 30,1912, when Mrs. Young and Mr. and Mrs. Knight, for a consideration of $40,000, deeded said’ Bosbyshell tract to one Hart, $9,000 of the consideration being, a lot on Ross avenue (Ross avenue tract), and the remaining $31,000 being Hart’s notes. Mrs. Young and Mr. and Mrs. Knight then made an agreement, and carried it into execution, by which Mr. and Mrs. Knight agreed to pay Mrs. Young $150 a month for her life and relieve her of taxes, in consideration whereof Mrs. Young made over to Mrs. Knight the $31,000 Hart notes, and the Ross avenue tract was deeded to R. E. L. Knight for Mrs. Knight’s benefit.

Mrs. Knight’s testimony is quite lengthy, but is practically uncontradicted, and from which excerpts are taken to the effect as follows:

“I remember the occasion in January, 1902, when Mrs. Young made deed to me to the Slaughter tract of land. The deed recites the consideration of $10 and other valuable considerations. The first conversation that Mrs. Young and I had concerning her intention to deed me that property was on my way home from town. I had been down in Dallas shopping with her, and going home she made that proposition, and we discussed it going home, all the way out from gangers. She just simply said she wanted to make a trade with me. She had a proposition to submit. She said she was alone, and that she missed Mr. Young very much, and she felt her dependence, and she thought this matter over and had decided to buy my services. She had to buy somebody’s, and she wanted to have me promise that I would take care of her and do these things I have said for her, and in fulfillment of that she would deed me this property. She said I should take care of her and look after her. I don’t mean financial support; she was able to take care of herself financially. In addition to the $10 that I was to pay for the deed to this property, I was to give her love and affection, and my attention, and administer to her during her lifetime. I was to respond to any call at any time that she should make on me. I was to look after her while she was sick, and do all that a daughter should have done, and Í was to look after her during her sickness, and see that she was properly buried, look after her grave after she was gone, also that of Mr. Young. I don’t remember what was said exactly when she handed me the deed; she just merely asked me for the $10, and responding to that I paid her the $10. We talked it over and I explained to her that I felt that I would be willing. We had always been friends of long standing, and I was sure I was generous and kind enough at heart to look after her without, and I didn’t like to sell my services to a friend, but she would have it that way, because, she said, she might live to be a very old woman, and become a very great tax and a care on me, and she would not be satisfied or comfortable until she was sure she had bought me and 1 would accept it on that condition; that is, that I would permit her to buy me, and the obligation did not end with her death. It is going on now. I told her I would not consider it at all until I discussed it with my own family, my mother and brothers. I thought it was too great a task, too great a responsibility, and I was not sure of my own character. I did not know whether or not I had the dignity of character to keep a trade like that, and I was not willing to go into it unless I had advised with my family. I did not accept the proposition at once, but certainly within two days I accepted her proposition. I cannot tell you all the services I performed for Mrs. Young after she made me that deed. I called her up over telephone frequently to know how she was doing, and, if she needed anything, or wanted anything, and I helped hep to rent the house when it was vacant. I put advertisements in the newspapers and looked up people to go out and live with her, I shopped with her, helped her buy her clothes, hats, furniture, helped her buy a horse and buggy. and there was nothing that you could detail that could be done for anybody that I didn’t do for her, or help to do, and frequently did it all. She went away awhile in the summer, and she came to my house and visited in the home of my family. Yes; in my pleadings I have alleged that I was to give Mrs. Young all the nurture, assistance, aid, and every attention that might be required in sickness or health during her lifetime, and I would render unto her just everything that she ever demanded or ever wanted. I gave her exactly what I gave to my mother. I responded to her requests, to any requests that she might make at any time, regardless of what my condition was. She never phoned me to come down there that I didn’t go, unless I wasn’t well. I was never phoned to or called for that I didn’t respond immediately at any time. The agreement was that I was to give her my time, give her all the nurture, assistance, aid, that she needed, and my position, my duty, toward Mrs. Young was that of daughter. She demanded of me exactly what my mother would have, and I used to look after her when she was sick, took care of her, and protected her in every way. I looked after her in any way just as I would have done my own mother. X was present at the death of Mrs. Young. When she died she lacked 2 days of being 77 years of age. I would like to say this: X felt doubly responsible for her welfare, not only because she had paid me to take care of her and look after her, but Mr. Young had asked me to do it the Sunday I went out there. He turned her over to me. 1-Ie was dying, and he asked me to take care of her, because he knew her condition of loneliness. I was very fond of Mrs. Young or I could not have done what I did for all the money she had. I felt as a daughter toward her. I am quite sure I would have done this without a dollar. I am quite sure X would have. I did not exact of her any agreement to give me her property before I agreed to it. Xt was her own proposition. I remember the sale of the tract of land to Col. Slaughter, for which he paid $35,000. There was ¡¡¡25,000 of it paid for the Bosbyshell property. I kept the other $10,000. It was mine. I bought Mrs. Young’s ¡ufe estate in the $10,000 by paying her $600 a year for life. I kept the $10,000 and paid her $600 a year as long as she lived, two payments a year, $300 at each time. The other $25X100 was used in the purchase of this tract on Elm street, known as the Bosbyshell tract of land. Immediately after purchasing the Bosby-shell tract, which was deeded to Sirs. Young, she in turn deeded it to me, and reserved a life estate in it. It was understood between her and me before Bosbyshell made the deed that that should be done. In 1912, about a year before she died, she and I sold the Bosbyshell tract to Mr. Hart for $40,000. The consideration was in part a lot on Ross avenue, and the balance in notes. The notes aggregated $31,000. I have those two small notes yet. The $20,000 note has been disposed of. I paid a debt off with it. It is a fact that when we sold the Bosbyshell tract of land to Mr. Hart Mrs. Young turned the notes over to me. Mr. Knight was Mrs. Young’s attorney at the time she made that proposition in the buggy, and he continued so at all times thereafter up to the time of her death, but he had nothing to do with this deed. I know that Mrs. Young had the supremest confidence in Mr. Knight, and Mr. Young did too. I suggested to Mrs. Young that she go to Mr. Coke. Nobody suggested it to me. Mr. Knight did not suggest it to me. I made the suggestion myself. I wanted Mr. Coke to do it. ' I didn’t want it to be a family matter. I wanted Mrs. Young to get a lawyer who could advise her, and with whom feel perfectly free to discuss this matter, and I wanted it fixed in the best way possible to protect Mrs. Young during her lifetime. I wanted it to be a valid transaction. I had already discussed it with Mr. Knight in Mrs. Young’s presence. I do not know that Mrs. Young knew that she could not will away the property. She never said anything to me about not being able to will it away. I never knew anything about Mr. Young’s will. I suppose I knew that he had left one, but there was never any discussion of it. I suppose that fall when I returned from Kentucky after the will was probated was when I first knew of it, if at all. I did not read it. I never saw it. I don’t know what he said about his relatives. Nobody ever told me he had made a will in which he mentioned his relatives and her relatives. The first time I ever saw a copy of the will was in these pleadings. There was no discussion between us about Mr. Young’s will, no discussion between Mrs. Young and myself. I suppose she knew all about his will, and she certainly thought she had the right to do as she pleased. The Mr. Coke who attended to the matters for Mrs. Young was Mr. Alex Coke. When Mis. Young turned the notes over to me that were given for the Bosbyshell tract, I bought her life interest in those notes, and the proceeds of the B'osby-shell tract, by paying her $150 a month during her lifetime, which was a little more net than she had realized monthly from the building, and I agreed, with Mr. Knight’s approval, and in his presence, to do that. I also agreed to pay the taxes on the home place, which was perhaps all the taxes she had. I did not have possession of the place, but thereafter I was to pay the taxes on the home place. The Bosby-shell tract of land was sold in August, and we were to pay all of her taxes after that year. That was in 1912. My understanding was that I was to pay all the taxes beginning with the year 1913. The notes were turned over to me in August, and we paid her in August, September, October, November, December, January, and straight on up to the time of her death in monthly installments of $150 each. Mrs. Young was talking to me, and she says: ‘Whatever happens to me, Miss Ann — if I die, or whatever comes to me and my lot, do not call those people. I don’t want those people notified, because they turned the back of their hand to me when I needed them, and now I don’t want any of them, and I don’t want any of them apprised of my condition or of my death.’ That interview must have been two weeks before Mrs. Young died. Mrs. Eeegles did not come over until after Mrs. Young was dead. I have already related the facts about Mrs. Young going away with us on a vacation trip to Chicago. She went every summer from 1902 to 1912 with us. We went one summer to Hot Springs for a month. One summer we went to Kentucky, and Mrs. Young went with me and visited my friends. One summer we went to Quebec and Toronto, and down there on Lake Champlain, Lake George and down to Boston and New York. One summer we went to the Jamestown Exposition. One summer to Michigan, and then we went three years in succession, I think, to New York City. I don’t know whether that covers the period of years or not, but it is as nearly correct as I can be just now. She always went with us as a friend and equal. The members of my -family always treated her as the most respected one of the family, and she was looked upon by strangers and people in the hotels as the children’s grandmother, and it pleased her very much. They were so considerate of her that it pleased her to have people think that she was the grandmother of those children. Her mental vigor was just wonderful. She was as strong-minded as I ever knew a woman to be. She had extraordinary intelligence. She had taken advantage of every opportunity that came her way, and she regretted very much not having had the experience of traveling and the advantages of traveling until it came to her in later years. She enjoyed it very much. She was younger and entered into the spirit of it even more than the younger members of the family. Her attitude toward every one was just youthful, interested in everything, theaters, and after that the café, and that feature of life. -We stopped a.t the very best of hotels. The attitude of the children toward her, and the attitude of her toward my children, was the attitude of a grandmother. She was just as fond of them as she could be, and made a great deal more over them than either of their own grandmothers. Mrs. Young’s reading in her later years was this way: She could read the paper. It took her some little time to read over the fine print, but she could read the transfers of property. She was always interested in the business affairs of Dallas, and she could read about the permits being issued for new buildings. She kept up with all the growing conditions of Dallas by reading the paper. I do not think she read books to a very great extent. She read the Bible. I do not know of her reading generally except the paper and the Bible. I do not know that she read anything else much. She was a member of the Methodist Church. There never was a time after we made the trade when I felt that I could overlook a single want of Mrs. Young’s. She did not want to accept the services she wanted me to render, unless she felt that sh'e was paying for it that way. Said she did not feel at liberty to call upon me at any time for anything, and that is why she wanted it to be a business contract strictly. I could not tell you all the things I did for her. I asked her to go to Mr. Coke at the time she made this deed. I wanted her to be protected. I did not make any suggestions, except that I wanted her to be absolutely protected against everything, and I would not touch it or consider it under any circumstances until she had gone to Mr. Coke and discussed it with him so she would be thoroughly protected. I have been looking after her grave; am still doing it. That was part of my promise, part of my contract, and I am taking care of Mr. Young’s grave as well. Mrs. Young had Dr. Embree with her. He was a neighbor, and he treated her for any little troubles that she had, but in her last illness I called in Dr. Embree and asked him to let me call my own family physician. I felt that I would be better satisfied to have his opinion, his diagnosis of the case, so I called my family physician. Dr. Embx-ee visited Mrs. Young frequently. The physician I called was Dr. Baird. Dr. Embree called him at my request, and I called him too. Dr. Baird and Dr. Embree are doctors of standing. She used my automobile, and the nurse, myself, and frequently some neighbors would go with her, and whenever she wanted it she would telephone me that she wanted it, say she wanted to go driving, and telephone me just like it was hers. She would telephone me (¿at she wanted to go driving at 2 o’clock, or 4 o’clock, just as she wanted to. She did not have a car. She used my car, and it would be sent for her when she telephoned, just as if it wei'e her very -own. She had no expenses, no upkeep of the car, no driver to pay. Mrs. Young knew that she had a standing invitation, and I always fixed a place for her at the table. She knew she was welcome; and that she was expected. She would come in without an invitation; she dropped in just like my own family did. It was as definitely understood as if I were her daughter and she my mother. She would do that without formal invitation. She always felt at liberty to ask anybody that was in her home, and in that way entertained many of her friends. After Mr. Young’s death the relations that existed between Mrs. Young and myself were just as close, just as binding, just as affectionate as you could imagine. Mrs. Young’s personal appearance was very aristocratic, very highborn, very elegant looking. She dressed very elegantly, in keeping with her birth and her money and her position. She was cheerful, wholesome, truthful, and honest, and splendid and noble, in every sense of the word. There wasn’t a little, malicious, dis-agi’eeable thing in her. I am sure of that because I had ample opportunity to know in the most intimate fashion that it was possible for a human being to know. At the time Mrs. Young made the deed to me I was not dictating to her. She was doing the things she wanted to do. She and Mr. Ooke settled that. I made no dictation whatever to her. I never attempted to alienate Mrs. Young from Mrs. Eeegles, or any of her relatives. I would not stoop that low. I could not do a thing like that. I have no disposition to be a home breaker, or disturber of families in any way. On the other hand, I urged and begged Mrs. Young to look over the shortcomings and all the hurts that she might have received, because I thought life too short to harbor a grudge against anybody for any reason whatever. I do not harbor them myself, and I certainly would not urge Mrs. Young to do a thing like that. I don’t know anything about the law in regard to the making of wills.”

Mrs. Feegles testified that:

“Mrs. Young, seemed to think the world and all of Mrs. Knight. There was no one came in between them. That was what disgusted me, because I thought I, ought to come in before anybody else. It was in 1902, in July or August, when she deeded me that property. She said the reason she gave me that property was because she .wanted to do something for me. I was living with her at the time. After that Mrs. Young wanted! me to deed the property back to her, and she came to my house and asked me to do it. She said she would give me a good price for it, and I says ‘I don’t think you ought to have it back.’ Mrs. Young asked me not to take any steps after her death to recover back her property. The consideration in the deed wMch Mrs. Young made to me after Mr. Young’s death was $1. She said it had to be $1. She made the same trade about that piece that she made about all the rest of her property; she got all the rents from it while she lived. She told me she was going to give it to me, but that she was to get the rent out of it while she lived. I was living with her at that time. She was feeding me at that time, and that was all. I left after she'told me she had made me a deed, because she didn’t treat me right. I won’t be positive when she told me she had deeded me the property, but I had made up my mind about two weeks before she told me about the property, to go. She told me she was going to deed it to me when I first came to live with her. I came down town and went to the courthouse to see if it was there, because I doubted it. I doubted it because they had treated me so funny and cool that I had come to the conclusion that I couldn’t believe what she told me about the property, but they showed me the deed at the courthouse. I sold the place last year some time. I am to get $5,000 for the place, and I have already got $2,-000 of it. I believe they paid me $1,500 in cash and the balance in notes. I do not know whether my contention in this case is that my sister ought not to have sold anytMng but her life estate or not. I do not know anything about it.I claim in this case that the relatives of Mr. and Mrs. Young ought to be allowed to participate in the distribution of this estate,' on the ground that Mrs. Young did not have the right to make any deeds to that property. I did not go back to her after I left her the last time. I couldn’t have been of much service to her. We are commanded to return good for evil, but it don’t seem like we do it, and I did not do it. I did not have anything to do with her funeral arrangements. I did not have anything to do with looking after her grave. I have been to her grave since she has .been dead once, about a year ago. Mrs. Young was kind of like myself,„high-temper'ed. I am not so high-tempered as I was once. I try to keep my .temper under control now more than I used to. She was just in some things and in some she wasn’t. When she got mad at anybody she was terribly mad, and I am kind of like her. There were some good traits in my sister’s character, some tilings when she took a notion, when she took a notion to Mrs. Knight there was nothing would be too hard for her to do for her. She would have done anything on earth for those people. Besides, the deed to the lot, my sister gave me a little money sometimes. Directly after she sold the Sumpter property she gave me $500. After that a few dollars now and then, amounting to about $700 or $900 altogether. She gave me the $500 before I came down there, because Mr. Young had requested her when she sold some property to pay me $500. I suppose he wanted to try to pay for that place I deeded back to him, that $200 difference that he owed me. lie said when she sold some of it to give me $500. I never considered the $900 much of a gift because I had worked for her years and years before, and I thought I had earned it.”

The testimony of Mrs. Knight and Mrs. Eeegles is quite voluminous, and we have copied only excerpts therefrom, deeming that the part so copied is all that is necessary for a proper decision of the case.

Por a proper determination of the propositions in controversy herein it becomes necessary to construe the last will and testament of J. B. D. Young. It is provided by the first clause of the will as follows:

“It is my will and desire and I do hereby bequeath all my property, both real and personal, to my beloved and faithful wife, Mrs. L. Y. Young.”

This clause standing alone vested absolutely the fee-simple title in all the property then 'owned by J. B. D. Young in Mrs. Young. This does not seem to be controverted, but it is contended by appellant that clause 5 of said will limits and prevents clause 1 from having the effect its language imports. Clause 5 reads:

“I further desire and hereby will and direct that upon the death of my wife the property .which she then owns shall be equally divided between her relatives and my relatives, it being intended that she shall have full power to control and dispose of the property during her life.”

Appellant’s contention, as we understand it in effect, is that clause 5 of said will limited Mrs. Young’s rights in said property to a life estate, that the disposition of said property during her lifetime in the manner it was done by her was unauthorized and fraudulent and done for the purpose of circumventing and defeating the terms of said will, and- that said will made Mrs. Young a trustee for the benefit of his and her relatives at the end of her life. We do not concur in the contention of the appellant..

“It is a primary canon of construction of wills that the intention of the testator shall be discovered and effectuated whenever that can be done within legal limitations, but in case of re-pugnancy that construction is favored which admits of immediate vesting of the entire estate.”

The will of J. B. D. Young, in our opinion, clearly shows on its face that he intended to invest in Mrs. Young an absolute fee to the property therein bequeathed, and it was to be in no way affected by clause 5, which gave her “full power to control and dispose of the property during her life.” This clause is not such a legal limitation upon the estate granted to Mrs. Young in the first clause of the will as to make it ambiguous and permit evidence of the maker’s intention different from the legal import of the language of the will itself. We see nothing in the evidence which, in our opinion, tends to show that Young had any other intention than to place the fee to the property in his wife. All the property had been accumulated during their married lives, and was therefore community property, except the homestead tract, which was the separate property of Mrs. Young, it having been so made by conveyance from her husband. They were very devoted to each other and had lived together for over 30 years, and at the time of his death there was existing on the part of neither any special attachment for any of their relatives, who were the plaintiffs. From the circumstances surrounding him at the time of making his will Young’s solicitude was for his wife’s welfare, and that clause 5 was placed in the will merely to provide for a contingency j that is, if any of the property remained on hand at her death, it was to be equally divided among their relatives; in other words, we construe clause 5 in connection with clause 1, to mean that Mrs. Young should have the absolute right to dispose of the property during her life, and thereby vest a title in fee to it to the exclusion of his or her relatives. The use of the term, during her life, was not intended to limit the title to the property in Mrs. Young to a life estate, but to designate the time when the relatives should take in the event she had not disposed of it, and there was any remaining in her hands at the time of her death. There was no property remaining in Mrs. Young’s hands at her death, except her separate property, and J. B. D. Young’s will did not deal with that, and Mrs. Young had the right to do as she pleased with it.

In support of our view that Mrs. Young was vested under the will with an absolute fee-simple title in all the property and empowered to dispose of it, we cite the following authorities: Article 1106, R. S. 1911; Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133; Spea v. Ligon, 59 Tex. 233; Livingston v. Koenig, 20 Tex. Civ. App. 398, 50 S. W. 463; Young v. Campbell, 175 S. W. 1100; Irvin v. Putnam (Ky.) 89 S. W. 521; Ide v. Ide, 5 Mass. 503; Halliday v. Stickler, 78 Iowa, 388, 43 N. W. 228; Silvers v. Canary, 109 Ind. 267, 9 N. E. 904; Leggett v. Firth, 132 N. Y. 7, 29 N. E. 950.

If it should be conceded that the will conferred a life estate in Mrs. Young, which we do not, it also gives to lier full power to control and dispose of tlie property, wliieli power is broad and unlimited.

In Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133, where like power was conferred upon a life tenant the tenant conveyed the property, and the remaindermen sought to set aside the conveyance. In construing the extent of the powers granted by the will, Mr. Justice Stay ton, speaking for the court, said:

“The power conferred on Mrs. Hinkly by the will of her husband was as broad as could well be conceived, and no limitation was placed on its exercise other than such as her own wish and pleasure might dictate. The will declared that she should have power to ‘absolutely dispose’ of the property, not for some specific purpose pointed out by the testator, but ‘according to her pleasure.’ * * * Appellants do not stand as creditors or persons having fixed rights in the property, not to be divested unless by a conveyance made on valuable consideration Mrs. Hinkly felt compelled for her own support or any other consideration to sell it. Whether they should ever receive or become entitled to the property Walter Hinkly made dependent upon the volition, pleasure, and act of his wife, who was the mother of the persons who were to take if the wife did not execute the power conferred on her. Speculation as to why he conferred on her such a power would be unprofitable, but it is likely that he felt he could safely intrust to a mother a power in the nonexercise of which her own children were interested. She having exercised the power conferred upon her, through whatsoever motive, or upon whatsoever consideration, their contingent right was forever cut off when it was once exercised, and the fact that the property was reconveyed to her is a matter of no importance. * * * The plaintiffs showing no title in themselves, it is unnecessary to consider other questions presented in the record.”

In Livingston v. Koenig, 20 Tex. Civ. App. 398, 50 S. W. 463, where a like power was given a life tenant, Mr. Justice Williams said:

“The pronoun ‘same’ evidently refers in each instance to the same antecedent, viz., the property, and the power is given over that and not merely over the life estate. A grant of power to dispose of the latter would be wholly useless and senseless. The power is ‘discretionary and unrestricted,’ not only to sell, but to dispose of, the property. This embraces the power to give it away unless it is limited by other parts of the will. The only other part which could be claimed to have that effect is the third clause, wherein the testator bequeaths to her children the remainder of her estate after the termination of the life estate. This does not impair the force of the language used in conferring the power, because it is only what is to remain of the property; that is, such as has not been taken out of her estate by the exercise of the power that is bequeathed to the children.”

In both the above cases the property was community and conveyed without valuable consideration.

It is insisted by appellant that the will conferred a trust on Mrs. Young only in the property for the benefit of relatives, subject to use by her for her support, etc. That the sale and transfer of the Slaughter tract was without consideration, fraudulently conveyed, and that the purchaser had notice thereof.

On the proposition that Mrs. Young was a trustee as claimed, the case of McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412, is cited in support of appellant’s contention. In that case a will similar in some respects to the one here involved was being construed. A demurrer had been sustained to the petition, and in passing upon the case Mr. Justice Stayton, as was his custom, wrote an able opinion in which, among other things, he said:

“We are of the opinion that N. G. Bagley took, under the will, an estate in fee in the entire property, but that this was in trust for the beneficiaries named in the fourth paragraph of the will, except as their right was limited by the right given to him to use and dispose of the property during his lifetime, which was given by the express terms of the will.”

He further says:

“If Mrs. Bagley had provided in express terms in her will that the part of her estate remaining at the time of her husband’s death should go to the persons named in the fourth paragraph, then a legal estate therein would have vested in them under the will; but this she did not. * * * It is evident from an inspection of the will before us, that it was not the intention of the testatrix, by force of the will alone, to vest in Jessie McMurry and Flora Brown a legal estate in remainder to be enjoyed by them after the termination of the life estate in N. G. Bagley.”

In the Young will there is no express provision that the remaining property at his death should go to his relatives, so no estate vested in them under the will. The McMur-ry Case clearly decides that where the will provides for the disposition of the property by the first taker as in this case, and there is a disposition, the title vests absolutely in the grantee. It is shown that all of the property had been disposed of before Mrs. Young’s death, except the homestead tract, and this was her separate property. This she had the right to devise, as it was not affected by the will of Mr. Young.

As to the right of appellant to pursue the proceeds of the property sold by Mrs. Young, we are of the opinion that this proposition is settled adversely to appellant by the opinion in the McMurry Case, supra, which holds that:

“There is nothing in the relationship of the parties or the purposes for which the power to use and dispose of the property was most positively given to the husband which would authorize a holding that the testatrix intended that her nieces should have the right to follow and have the proceeds of any part of her estate that might be disposed of by her husband.”

Now as to tlie proposition of no consideration for the disposition of the Slaughter tract: As we hold the will gave to Mrs. Young an absolute right to dispose of the property, there being no limitations expressed as to the manner, mode, or purpose for its disposition, we think it immaterial how and for what purpose it was disposed of. We take it, however, that there was a valuable consideration for its transfer. The testimony of Mrs. Knight shows that there was paid to Mrs. Young $10 in cash, which was nominal, and further that at Mrs. Young’s suggestion an annuity of ¡5600 was provided for her, and also that at Mrs. Young’s solicitation Mrs. Knight was to render her personal services in caring for and looking after her as a daughter would her mother. This Mrs. Knight did faithfully until Mrs. Young’s death. How Mrs. Knight performed her contract is detailed in her testimony above set out. This shows, we think, a consideration that cannot be measured by dollars and cents, and to a lone woman in Mrs. Young’s condition of inestimable value. This testimony of Mrs. Knight is not controverted, and we see no reason why it should be ignored.

There is no evidence of deception practiced on Mrs. Young by Mrs. Knight or by her husband, R. E. L. Knight. In this transaction it seems Mrs. Young had another attorney representing her; at least, there is no proof that Mrs. Knight and her husband unfairly and fraudulently induced Mrs. Young to make the transactions, but that she acted in accordance with her own wishes.

The judgment is affirmed.
      ®=For other'oases see same topic' and KEY-NUMBER in all Key-Numbered Digests and Indexes