text:
    FITZGERALD et al. v. AYRES et al.

    (No. 7350.)
    (Court of Civil Appeals of Texas. Dallas.
    June 19, 1915.
    Rehearing Denied Oct. 16, 1915.)
    Death &wkey;>5 — Wills <&wkey;775 — Construction— Survivorship — Intention.
    A husband and wife made their wills, each naming the other as primary beneficiary, but each in the event of prior death of the other naming their foster son as sole beneficiary. They were frozen to death in the same snowstorm. There was no evidence as to which died first. Held, that the son would take, there being no presumption as to survivorship or simultaneous death, and, it being the evident intention of both that he should take, the wills would stand as if they contained only the bequest to the son.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 7; Dee. Dig. <&wkey;5; Wills, Cent. Dig. " 1997-2000; Dec. Dig. &wkey;775.J
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by W. H. Fitzgerald and others against R. C. Ayres and L. R.'Terry, executors of Willis A. Skinner and of Sallie E. Skinner, deceased. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    Wood & Wood, W. H. Clark, and W. T. Strange, all of Dallas, for plaintiffs in error. Chas. F. Clint and Chilton & Chilton, all of Dallas, for defendants in error.

      Application for writ of error penning m Supreme Court.

   TALBOT, J.

This suit was-instituted in the district court of Dallas county, Tex., by the plaintiffs in error, W. H. Fitzgerald and others,' hereinafter called plaintiffs, as the next of kin and sole heirs of Willis A. Skinner and Sallie E. Skinner, deceased, against the defendants in error, R. C. Ayres and L. R. Terry, executors of the estates, respectively, of the said Willis A. Skinner and Sallie E. Skinner, Carnagie Frank Skinner, a minor, and Charles F. Clint, guardian ad- litem of said minor, hereinafter called defendants, to recover all the real and personal property belonging to the estates of said deceased persons, which property is fully described in the petition. There is no controversy over the pleadings, and it is unnecessary to set them out. The material facts are as follows : Some of the plaintiffs are the next of kin and sole heirs of the said Willis A. Skinner, and the others are the next of kin and sole heirs of Sallie E. Skinner, and Willis A. Skinner and Sallie E. Skinner were husband and wife. On the 21st day of August, 1911, the said Willis A. Skinner and his said wife died in a snowstorm while ascending, on foot, Pike’s Peak, in the state of Colorado, and they were buried in the city of Dallas, Tex., at the same time, on the succeeding Sunday. They had resided in the said city of Dallas a number of years, and had acquired and owned at the time of their death property of the estimated value of $60,000, the larger part, if not all, of which was situated in said city. The dead bodies of Mr. and Mrs. Skinner were found about a half mile from the summit of Pike’s Peak. They were lying almost side by side, and there was snow on the ground. The body of Mr. Skinner was lying on its back, almost touching that of his wife, with one arm in a folded position across his chest and the other arm and hand lying partly across his body. He had on a light alpaca coat, and the sleeves of both his coat and shirt were pushed back from his wrist. The body of Mrs. Skinner was lying face downward, with her arms under her face. There is testimony to the effect that Mr. Skinner appeared to be about 60 years of age, and a light, frail man; that Mrs. Skinner was rather robust and the stronger and heavier of the two. There were no tracks in the snow where the bodies were found. Mr. and Mrs. Skinner were seen about 12 o’clock, or a few minutes after, at a place called Mountain View, on the cog railroad leading to the top of the mountain. They remained at this point about 20 minutes, and were there informed that “a storm was coming over the mountain” and advised to take the train. Mrs. Skinner then remarked: “We are from Texas, and I will show you that we will walk it.” She was then offered coats and wraps for herself and husband, but she declined them, saying that they did not need them. Mr. and Mrs. Skinner were again seen making the ascent of the mountain about 3 o’clock in the afternoon. At this time they were about 2 or 2% miles from the summit of the mountain, and the wind was blowing hard, and it was quite cold. They were here told that it was “a bad day to be walking to the Peak,” and Mrs. Skinner replied: “It is bad, but it does not seem to be getting any worse.” It does not appear that they were again seen until.they were found dead as above related. Neither Mr. Skinner nor Mrs. Skinner ever had any children, but some years before their death a child, who took the name of Carnagie Prank Skinner, and who is one of the defendants in error in this suit, was given by his mother to them, and they had raised and cared for him since his infancy. At the time of their death this boy was about 13 years old. On the 28th day of July, 1904, Willis A. Skinner and Sallie E. Skinner made their wills, and on the 2d day of August, 1904, made codicils to their respective wills. These wills and codicils were made at the same time, attested by the same witnesses, and provided for the same executors. Both the wills and codicils were properly executed, were duly probated in the county court of Dallas county, and the executors named therein qualified thereunder. Charles P. Clint was duly appointed guardian at litem of the said Carnagie Prank Skinner. The clauses of the will and codicil of Willis A. Skinner are as follows:

“I, Willis A. Skinner, of the county of Dallas, state of Texas, being of sound mind, do make and publish this my last will and testament, hereby revoking all former wills at any time made by me:
“ítem One. Should my beloved wife, Sallie E. Skinner, survive me, I give and bequeath to her all of my estate, real, personal and mixed, wheresoever situated.
“Ttem Two. In the event my said wife dies before I do, then and in that event I give, devise and bequeath to Carnagie Prank Skinner, the adopted son of myself and my said wife, all of my estate, both real, personal and mixed, and wheresoever situated.
“The boy, Carnagie Prank Skinner, has not been formally adopted by us, but his mother by an instrument in writing, gave him to me and my said wife, when he was an infant, and myself and wife have raised and cared for him since infancy.
“Item Three. In the event I survive both my said wife, Sallie E. Skinner, and my said adopted son, Carnagie Prank Skinner, then and in that event I give, devise and bequeath to Buckner’s Orphans’ Home and the Julia Fowler’s Orphans’ Home, both situated in Dallas county, Texas, all my estate, real, personal and mixed, and wheresoever situated, to be divided between said orphan homes, share and share alike.
“Item Pour. Should my said wife, not be living at the date of my death, I give and bequeath to Mrs. Jennie Loughery, of the county of Dallas, the sum of $200.00, which my executors will at once pay to her without interest.
“Item Five. I hereby nominate and appoint Leroy R. Terry and R. C. Ayres, both of the city of Dallas, the executors of this, my last will and testament, and I direct that my said executors be not required to give bond, and that no action of. any kind be had in any of the courts of this state in reference to my estate, except the probate of this will, and the return of the inventory and appraisement of my estate.
“Item Six. I hereby give to my executors, or the survivor of them the absolute power to sell and dispose of any part of my estate, except such lot or lots as are situated on Main street in the city of Dallas, and to use the interest, rents and revenues arising or growing out of my estate, for the support, education and maintenance of my adopted son, Carnagie Prank Skinner. And for this purpose my said executors shall retain possession and control of my estate until the said Carnagie Prank Skinner reaches the age of twenty-one years.
“Item Seven. It is my wish that the said Carnagie Prank Skinner be given a liberal education; my preference being the public schools of Dallas. The amount to be expended in sup-1 ort, education and maintenance of my said adopted son I leave to the discretion of my executors, admonishing them that labor is honorable, and that many boys have been ruined by extravagant allowances of money.
“Item Eight. Should the contingency happen upon which my estate vests in Buckner’s Orphan Home, and the Julia Fowler Orphan Home, as above provided, it is my wish that my executors surrender the estate to said orphan homos immediately upon the probate of this will.
“Item Nine. Should either of my said executors die or refuse to qualify, the other executor is hereby vested with the power and authority which by the terms hereof is vested in both. In the event that both of my executors herein named die or fail or refuse to qualify I direct that an- executor or executors be appointed by the proper court, which executors so appointed by the court shall execute such bond as the law may require.
“Item Ten. I direct that my body be buried by the side of my beloved wife, and that a suitable but not expensive monument be erected over our grave, bearing the following inscription:
‘They remembered the fatherless and the orphan.’
“Witness my hand this the 28th day of July, 1904. Willis A. Skinner.
“At the request of the testator and in his presence and in the presence of each other we sign as witnesses this the day and date above written. M. L. Crawford.
“W. L. Crawford, Jr.”
“Codicil No. One.
“Item One. My real estate in Dallas, Texas, shall not be sold by my executors unless the rents and revenues from my estate, economically administered are insufficient for the education and support of the said Camagie Frank Skinner.
“Item Two. I wish my executors to pay to Mrs. Jennie Loughery $50.00 in addition to the $200.00 heretofore mentioned.
“Item Three. In case said Camagie Frank Skinner leave no child or children living by him lawfully begotten, then and in that event, it is my will that the whole of my estate be divided between the Buckner’s Orphan Home and the Julia Fowler Orphan Home, share and share alike.
“Item Four. This codicil in no wise modifies or changes item one of my will dated July 28th. 1004.
“This August 2, 1904.
“Willis A. Skinner.
“Witness:
“M. L. Crawford.
“W. L. Crawford, Jr.”
The will of Mrs. Skinner provides in item 1 that:
“Should my beloved husband, Willis A. Skinner, survive me, I give and bequeath to him all of my estate real, personal and mixed, wheresoever situated.”
Item 2 of her will is as follows:
“In the event my said husband dies before I do, then and in that event, I give, devise and bequeath to Carnagie Frank Skinner, the adopted son of myself and my said husband all of my estate, both real, personal and mixed, and wheresoever situated.
“The boy, Carnagie Frank Skinner, has not been formally adopted by us, but his mother by an instrument in writing gave him to me and my said husband when he was an infant, and myself and husband have raised and cared for him since infancy.”
Item 3 reads thus:
“In the event I survive both my said husband, Willis A. Skinner, and my said adopted son, Carnagie Frank Skinner, then, and in that event, I give, devise and bequeath to Buckner’s Orphans’ Home and Julia Fowler Orphan Home, both situated in Dallas county, Texas, all my estate, real, personal and mixed, and wheresoever situated, to be divided between said orphan homes share and share alike.”

In other respects the will of Mrs. Skinner is practically the same as that of her husband, Willis A. Skinner. The case was tried by the court without a jury, and, upon the conclusions of law and fact found and filed in writing, judgment was rendered that the plaintiffs take nothing by their suit, and that the defendants go hence and recover their costs.

As matters of fact the court found that on August 21, 1911, Willis A. Skinner and his wife, Sallie E. Skinner, died in a snowstorm on Pike’s Peak, in Colorado, and that the evidence introduced in the case was not sufficient to show which one died first. As a matter of law the court concluded, as far as we need state, that:

As it was “unaseertainable from the evidence which one, if either of the testators, Willis A. Skinner or Sallie E. Skinner, survived the other, their property rights are to be disposed of and adjudged as if death occurred to both at the same time; that the failure of proof as to which of the two testators, if either, survived the other, brings into operation items 2 of the wills and items 3 of the codicils, respectively, and the other parts of said wills and codicils, respectively, and under the said wills and codicils of each testato.r all the property of each was devised to and vested in the defendant Carnagie Frank Skinner.”

The correctness of these conclusions of law is challenged by plaintiffs, and the principal propositions urged are, in substance: First, that under the statute, as at common law, the lands of decedents pass to their next of kin and heirs, and a devisee claiming adverse to the heirs under a will must establish his right through the will, but an heir is not required, before taking as heir, to prove that the deceased died intestate; second, that the rule has been long established in England, and is now well established in Texas, and most of the American states, that when it is shown that two or more persons perished in the same calamity, there is no presumption of law that one survived the other, or that they died simultaneously, and he whose right or claim depends on the fact of survivorship or simultaneous death, must prove the one or the other by legal and competent evidence, and the law allows no presumption in reference thereto; third, that a will which is to become effective only upon the happening of a certain contingency or condition is a contingent will, and in case the contingency does not .arise, or is unaseertainable, the will' becomes, by the failure or inability to prove the happening of the event, of no effect, and the property of the decedent goes to his next of kin and sole heirs, under and by virtue of the statutes of descent and distribution, the same as if the decedent had died intestate; and, fourth, that Carna-gie Frank Skinner having failed to prove survivorship or simultaneous death, this rule of the law operated on the wills, and caused them to lapse, whereupon the title and ownership of the property vested in the plaintiffs, the next of kin and sole heirs of the decedents, by operation of law. These propositions, although plaintiffs have propounded others, raise the questions presented by the assignments of error for our decision.

The decisions of the appellate courts of this state cited by plaintiffs are unquestionably to the effect that there is no presumption either of survivorship or of the simultaneous death of persons who perish in a common disaster, and that, as applied to this class of cases, the general rule is “that courts will not change the existing status or possession of property except upon adequate proof of facts authorizing such change.” Hildenbrandt v. Ames et al., 27 Tex. Civ, App. 377, 66 S. W. 128; Paden, Administrator, v. Briscoe, 81 Tex. 563, 17 S. W. 42. It has also been, held, in effect, as contended by plaintiffs, that ordinarily “a condition in the will of survivorship must happen or be fulfilled before the estate can vest under the will.” As has been shown by the will of Willis A. Skinner, he bequeathed to his wife, Sallie E. Skinner, all of his property in the event she survived him, and in the event she died before him he bequeathed it to Oarnagie Prank Skinner; and by the will of Mrs. Skinner all of her property was bequeathed to her husband, Willis A. Skinner, in the event he survived her, and in the event he died before her,’ it was bequeathed to Oarna-gie Prank Skinner. So, the rule being that no presumption of survivorship or simultaneous death will be indulged in case of persons who perish by a common disaster, and there being no evidence in this case showing which one of the testators died first, or that they died at the same instant, the question for decision is: Did the property of Mr. and Mrs. Skinner pass to and vest in Oarnagie Prank Skinner under the second item of their respective wills? We do not regard any decision of the courts of this state to which our attention has been called or of which we have any knowledge decisive of the question. But we think the construction to be given the wills in question, under the evidence and findings of fact made by the trial court, is made plain by decisions of other jurisdictions cited by appellees upon similar states of facts, and especially by the decision of the Supreme Court of the United States in the case of Young Women’s Christian Home v. French, 187 U. S. 401, 23 Sup. Ct. 184, 47 L. Ed. 233. That case was appealed from the Court of Appeals of the District of Columbia to review a decree which reversed a decree of the Supreme Court of the District, and involved the construction of the will of Mrs. Sophia Rhodes. In item 1 of Mrs. Rhodes’ will she devised to her husband during his life one-half the income of her property. In item 2 she devised all her property to her son, Eugene Rhodes, subject to the life estate of her husband. In item 3 she devised, in the event of the death of the son before the death of herself or her husband, the income to her husband for life, and at his death all the property to the Young Women’s Christian Home; and in item 4, in the event of her becoming the survivor of both husband and son, she devised all her property to the Young Women’s Christian Home. The husband died in January, 1895, the wife and son were later lost in a shipwreck, and the court held that the proof was not sufficient to show the order in which they died. The next of kin of Mrs. Rhodes claimed the property, but their claim was denied. The statement of the case as made by Chief Justice Puller, who delivered the opinion of the court, shows that the Supreme Court of the District held that there’ was no ■presumption of survivorship as between Mrs. Rhodes and her son, Eugene; “that the will manifested an unmistakable desire to guard against intestacy;” and that the intention of Mrs. Rhodes was clearly apparent that, if her husband and son should not survive her so -as to receive the property, or if it remained under her control at the time of her death, it should go absolutely to the charity she had named, the Young Women’s Christian Home, and decreed accordingly. Prom this decree Barbara Paul and Andrew Wasner, next of kin of Mrs. Rhodes, and John L. Preneh, administrator of Eugene Rhodes, carried the case to the Court of Appeals of the District of Columbia, which concurred in the view that there was no presumption of survivorship as between the testatrix and her son, but held that:

The terms of the will “ ‘vesting the estate in Eugene Rhodes immediately upon testatrix’s death, we agree that it raises a prima facie right in the personal representatives of the son, and imposes the burden upon her next of kin of displacing them by proof of his mother’s survival,’ and that the representatives and next of kin of the son were entitled to the entire fund.”

The decree of the Supreme Court of the District was thereupon reversed, and the cause remanded to the court below, with, a direction to enter a decree in conformity with that conclusion. Prom this decree of reversal an appeal was taken to the Supreme Court of the United States, and resulted in a reversal by the court of the decree of the Court of Appeals, with direction that the case be remanded, and that the decree of the Supreme Court of the District of Columbia be affirmed. In remanding the case with the direction stated the Supreme Court of the United States recognized the rule that there is no presumption of survivorship in the case of persons who perish by a common disaster, in the absence of proof tending to show the order of dissolution, but held that the question of actual survivorship, in such a ease, is regarded as unascertainable, and that “descent and distribution take the same course as if the deaths had been simultaneous,” citing a number of cases. It is also declared that the cardinal rule in the construction of a will is that the intention of the testator, as expressed in the instrument, or clearly deducible therefrom, must prevail, if consistent with the rules of law, and that another familiar rule is that the law prefers a construction which will prevent an intestacy to one that will permit it, if such a construction may reasonably be given. These rules being declared, the court proceeds to say that:

It is “apparent that Mrs. Rhodes designed to dispose of her entire property; to provide for her husband by securing to him for life an income from one-half of her estate; to provide for her son by leaving him the estate absolutely, subject to the husband’s income; and, if her son died before his father, that the husband should have the income of the whole estate for his life, and at his death the estate should go * * * at once to the charitable institution, that is to say, that if- they did not survive her, the property on her death was immediately to take that destination.”

The principle announced is supported by a citation of cases and quotations therefrom, based upon similar facts, among them being the case of Robison v. Female Orphan Asylum, 123 U. S. 702, 8 Sup. Ct. 327, 31 L. Ed. 293.

“In that case Robison left a will providing, thirdly, that his widow should have the income of all his estate, with the right to spend it, but not to have it accumulate for her heirs; fourthly, that if his sisters, Ann Smith and Eleonora Cummings Robison, ‘be living at the death of myself and wife, Jane S. Robison aforesaid, that they or the one that may be then living shall have the income of all my estate so long as they may live, and at their death to be divided in three parts, one-third part of the income to go to the Portland Female Orphan Asylum,’ and one-third to each of two other institutions. Both sisters died before the testator.”

In construing this will and determining to whom the property passed under the facts the court, after stating that the question was one “of the reasonable interpretation of the words of the particular will, with the view of ascertaining through their meaning the testator’s intention,” ruled that:

The fact that the sisters died before .their brother, the testator, “ ‘whereby the legacy to them lapsed altogether, is not material, because if property be limited upon the death of one person to another, and the first donee happen to predecease the testator, the gift over would, of course, take effect, notwithstanding the failure, by lapse, of the prior gift’; that unless it appeared on the face of the will ‘that the gift to the defendants was not intended to take effect unless the prior gift to Ann Smith and Eleonora Cummings Robison took effect, the former must be considered as taking effect in place of and as a substitute for the prior gift which, by reason of the contingency, has failed’; and that, considering the third and fourth subdivisions together, the limitations were to be taken as a complete disposition of his estate in the mind of the testator, who did not intend to die intestate as to any portion thereof, giving to the widow an estate for life, with an estate over for life to the sisters, contingent on surviving the widow, and with the ultimate remainder to the charitable institutions.”

In the case of Newell v. Nichols, 12 Hun (N. Y.) 604, affirmed in 75 N. Y. 78, 31 Am. Rep. 424, it was held that:

“Where a devise is limited to take effect upon a condition or contingency annexed to a preceding estate, if that preceding estate should not arise, the remainder over will take place; the first estate being considered as a preceding limitation, and not as a preceding condition. * ® * As when a testator meant to dispose of all his property and uses the words ‘if the legatee should not survive,’ held to mean ‘if the preceding legacy should from any cause fail.’ ”

This holding in Newell v. Nichols is approved by the Supreme Court of the United States in the ease of Young Women’s Christian Home y. French, supra, and the court, after citing and reviewing several other analogous cases, and after reviewing and discarding the conclusions reached in Underwood v. Wing and Wing v. Angrave, 19 Beav. 459, 4 Deg. M. & G. 632, 8 H. L. Cas. 183, says:

“As in all of these eases, so in this, we are remitted to the language of the will to ascertain the intention of the testatrix, and if that intention is clearly deducible from the terms used, taking the whole will together, then we are bound to give that construction which will effectuate, and not defeat, it. Reading this will from the standpoint of the testatrix, as we must, we think it not open to doubt that she intended to dispose of all her estate, and did not intend to die intestate as to any part of it; that she had in mind only three objects of her bounty, her husband, her son, and the home; and that her intention, failing husband and son, was that the home should take. If husband nor son sui-vived, it was to go to the home at once. Is her manifest intention to be defeated because, instead of saying, ‘If neither my husband nor my son should survive me, ,1 give and bequeath my property to the home,’ she said, ‘In the event of my becoming the survivor of both my husband, Oliver Wheeler Rhodes, and of my son, Eugene Rhodes, I then give, devise, and bequeath all my property to the Young Women’s Christian Home’? We do not feel compelled to so hold, and, by accepting so technical and literal a view, to reach an adverse result on the theory of a change in the burden of proof, or of an accidental omission to prevent it. This is not a case of supplying something omitted by oversight, but of inteution sufficiently expressed to he carried out on the actual state of facts. And as the estates of persons perishing in a common disaster, intestate, notwithstanding the statutes of descent and distribution, may not have made provision in respect thereof, are disposed of as if each survived as to his own property, we think, upon principle, that the property of Mrs. Rhodes should go as directed as if she survived her son, in the absence of proof to the contrary.”
The court also announced that:
“Whether in a given case a condition precedent, a condition subsequent, or a conditional limitation is prescribed is, in the absence of unmistakable language, matter of construction, and that conditions cannot be annexed from words capable of being interpreted as mere description of what must occur before the estate given can arise.”

We have thus liberally quoted from the case of Young Women’s Christian Home v. French, supra, for the reason we believe the principle therein enunciated and the language used peculiarly applicable to the instant case, and settles the controversy initiated thereby against the plaintiffs. But the decision of the question need not be rested alone upon that case. There are others, we think, not mentioned therein, that support the contention of defendants here. St. John v. Andrews Institute, 191 N. Y. 254, 83 N. E. 981, 14 Ann. Cas. 708, appears to be in point. In that ease Andrews made a will bequeathing his property to his wife, but provided that, if she should die before him, the property should go to the Andrews Institute. The testator and Mrs. Andrews perished together in a fire which destroyed their home, and the court having found that as between the husband and wife survivorship was un-ascertainable, and after announcing the rule that there is no presumption of survivorship in case of persons who perish by a common disaster, in the absence of proof tending to show the order of dissolution, held that there was no point of time when the title of Mr. Andrews was divested at which Mrs. Andrews could have taken it, and that her simultaneous death was, in effect, the same as a death before his death, and the will of Mr. Andrews was therefore given effect in favor of the Institute.

In Supreme Council of Royal Arcanum v. Kacer, 96 Mo. App. 93, 69 S. W. 671, it is said:

“Whether based on a presumption of synchronous death or not, the law is settled that, if two or more persons are lost in the same catastrophe, and the ownership of property is afterwards drawn into litigation by contesting parties, each claiming to derive his right from one of the deceased persons as being the actual owner of the property when he died, and the question of which * * * turns on which survived longest, and there is no proof on that subject, the right to the property will be adjudged as it would be if it were known that both died at the same instant.”

In 13 Cyc. 308, the rule that, where two or more persons perish in a common disaster, there is no presumption that one survived the other or that they died at the same moment, is stated, but it is further stated in that connection, sustained by many authorities cited, that:

“However this may be, it is certain that when two or more persons have perished in a common disaster, and there is no evidence as to which died first, the courts will dispose of property rights as though death occurred at the same time.”

In Loving v. Rainey, 36 S. W. 335, decided by this court, the language of Mr. Redfield in his work on Wills, to the effect that, “where the words of a will are in the form of a condition precedent, but the intention of the testator as collected from every part of the will clearly indicates a different purpose, the latter will prevail,” is quoted with approval.

So we think the authorities from which the foregoing quotations are taken establish, as in effect argued by counsel for defendants, that where the maker of a will and his primary devisee die in a common disaster, and there is no proof as to the order of death, the primary devisee will be treated as not surviving, and the gift to the secondary or substituted devisee shall take effect; that when the condition or limitation upon which the second devisee shall take is stated as the death of the primary devisee “before” the testator, and there is no evidence as to which died first, the condition or limitation is satisfied by the death of both the testator and the primary devisee in a common disaster. It is very plain, we think, that it was not the intention of either Mr. Skinner or Mrs. Skinner to make the devise of their property to their adopted son, Carnagie Frank Skinner, depend upon a condition precedent which would admit of the property going to third persons. They manifestly had in mind only three objects of their bounty: Upon the part of Mr. Skinner, bis wife, his adopted son, and the Buckner’s Orphan Home and the Julia Fowler Orphans’ Home; upon the part of Mrs. Skinner, her husband, her adopted son, and said homes — the intention of each being that, if for any reason the primary devisee could not receive the property, then it should go to the adopted son, the boy whom they had raised and for whom they evidently entertained great affection, and that, should neither the primary devisee named in the wills nor the adopted son be capable of receiving the property, then it was to go to the homes in the proportion devised. This being the clear intention of the testators, and both of them having died in the same calamity, and there being no proof as to the order of their dissolution, the wills stand as if they contained only the bequest to their adopted son. Re Willbor, 20 R. I. 126, 37 Atl. 634, 51 L. R. A. 863, 78 Am. St. Rep. 842. It necessarily follows, therefore, that the property devised by the wills passed to the defendant in error Car-nagie Frank Skinner, and that the judgment of the district court denying the claim of plaintiffs in error was the proper one to be rendered.

As before indicated, we do not regard the ruling here made as being at variance with any former decision of the Supreme Court or 'Court of Civil Appeals. In no case cited by plaintiffs in error or known to us was the precise question involved in this case before the court. No similar question as- to the construction of a will was involved in either of the cases cited, and it seems to us that no one can read the wills of Mr. and Mrs. Skinner without recognizing that, unless the primary devisee named lived to receive the gift intended, each purposed that it should pass' to their adopted son, Carnagie Frank Skinner, and that in the event he was not living to receive the gift, it should go to the orphans’ homes. We therefore readily follow the sound and just rule announced in Young Women’s Christian Home v. French, supra, and other similar eases, and affirm the judgment of the court below.

Affirmed.
      <§£5>For other cases see same topic and KEY-NXJMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HABB, J.

license: Public Domain

text:
    FIRST STATE BANK OF AMARILLO v. COOPER et al.
    (No. 817.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 26, 1915.
    Rehearing Denied Oct. 9, 1915.)
    1. Appeal and Errok <§=>1040 — Harmless Error — Rulings On Pleading.
    In an action on a note, error, if any, in overruling plaintiff’s exception to a part of defendants’ answer, because not presenting the issue of fraud, was harmless, where that issue was presented by the supplemental answer, on which the case was tried.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <§= 1040.]
    2. Evidence <§=>43íL-Parol Evidence — Note —Fraud.
    Where fraud was alleged in the answer of sureties to an action on a note with respect to the plaintiff's representation as to the application of collateral to the note, parol evidence of the agreement was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. <§=>434.]
    3. Principal and Surety <§=>156 — Action-Answer — Issues.
    In an action against a surety on a note, the answer alleged that at the time of its execution the plaintiff had certain collateral, that defendants asked plaintiff as to it and were assured by the president of plaintiff that part of the collateral was being collected, and that the amount collected would be credited on the note, and that the part not collected would remain as security for the note. Held, not a defense to the note, but a recital of statements that the collateral would be held to secure the note.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 423-426; Dec. Dig. <§=> 156.]
    4. Principal and Surety <§=>156 — Action Against Surety — Answer—Certainty.
    In an action against a surety on a note, an answer failing to specify the collateral which plaintiff was alleged to have misapplied, and alleging that defendants were unable to give a more accurate description of the collateral notes, or what part of them had been so used, and that such notes were in the hands of the plaintiff, who was in a position to know the description of it, was not objectionable, as indefinite and uncertain.
    [Ed. Note. — For other cases, see Principal and Surety, Cent.Dig. §§ 423 — 426; Dec.Dig. <§=>156.]
    5. Appeal and Error <§=>1046 — Trial <§=>25 —Argument—Right to Open and Close.
    Vnder rule 31 for district and county courts (142 S. W. xx) providing that plaintiff shall have the right to open and close, unless the burden of proof under the pleadings rests upon the defendants, or the defendants make the admission of record at the stage prescribed by the rule, including the provision of Rev. St. art. 1953, relating to the argument, plaintiff bank, in an action on a note, where defendant had the burden of showing its right to recover, that defendants were liable because of their interest in a company, and their assumption of its debt, and where plaintiff had the burden of showing a proper application of the proceeds of collateral, and an agreement that the proceeds were to be applied upon two different debts, the granting to defendants of the right to open and close was reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Gent.Dig. §§ 4128-4131,4134; Dec.Dig. <§=> 1046; Trial, Cent.Dig. §§ 44r-75; Dec.Dig. <§=>25.]
    6. Trial <§=>85 — Admission of Evidence-Objections — Evidence Admissible in Part.
    There was no error in overruling an objection to the whole of testimony, part of which was admissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. <§=>85. ]
    7. Evidence <§=>471, 472 — Fact or Conclusion.
    In an action on a note, where one of the issues of fact and law made by the pleadings was whether one M. was a principal or a surety, his statement that he was a surety involved a legal conclusion from the facts and circumstances of the transaction, and invaded the province of the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2195, 2248; Dec. Dig. <§=> 471, 472.]
    8. Bills and Notes <§=>511 — Action—Issues and Evidence.
    In an action on a note, with an allegation of an agreement that the collateral should be divided between the note and another, evidence that a defendant, át the time the agreement was made, objected to switching any of the collateral to protect the other note, was admissible.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1760-1770; Dec. Dig. <§=> 511.]
    9. Bills and Notes <§=499 — Action—Burden of Proof.
    In an action on a note, defendants, whose pleadings raised the issue that plaintiff had failed to account for certain collateral, and sought relief to the extent of the value thereof, had the burden of showing the value of the securities not accounted for.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1682, 1695-1697; Dec. Dig. <§=>499.]
    10. Trial <§=>252 — Submission of Issues — Evidence to Support.
    In an action on a note, where there was no evidence to support the issue as to whether plaintiff had failed to account for collateral, it should not have been submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. <§=>252.]
    11. Trial <§=>191 — Instructions — Assumption of Fact.
    In an action on a note, an instruction that if the note was executed by two of the defendants on condition that it should not be delivered or be effective until a company and the other defendant should sign as principals, and should be held until such condition was complied with, defendants would not be liable on the note, was not objectionable, as assuming that the court thought that the first two defendants were sureties.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. <§=>191.]
    12. Principal and Surety <§=>27 — Delivery —Conditions.
    Two signers of a note as principals had the right to sign and deposit it with the payee, on condition that it should not become valid until other principals had signed it.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 56; Dec. Dig. <§=>27.]
    13. Appeal and Error <§=699 — Instructions —Harmless Error.
    In an action on a note, where it appeared that defendants had given three separate notes for the debt in question, one dated April 25, 1912, renewed by note dated November i, 1912, and again renewed by the note in suit dated April 1, 1913, and the court on appeal could not determine upon the record upon which note the general verdict was based, it could not determine whether or not the failure to give-charges intended to instruct with reference to the rights of plaintiff under each of the notes was error.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dee. Dig. <©=> 699.]
    14. Appeal and Error <@=>928 — Presumption in Support op Judgment.
    In the absence of any information enabling it to determine error in the refusal to give charges, the presumption must be in support of the judgment.
    [Ed. Note, — Por other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. <§=> 928.]
    15. Trial <©=>194 — Instruction—Weight op Evidence.
    In an action on a note, where there was a dispute as to whether or not other collateral had been substituted for the stock of defendant’s company, the refusal of a requested charge that the jury could not consider the capital stock of the company which had been put up as collateral, because part of it had been sold before the execution of the renewal note with knowledge of the defendants that the proceeds had not been applied, but that other collateral was substituted, was proper, as being upon the weight of the evidence.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <@==>194.]
    16. Bills and Notes <@=5430, 537 — Renewal N otes — Eppect.
    If either of two renewal notes constituted a novation, the note for which the renewals were given was no longer a binding obligation, and this was a question for the jury.
    [Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. §§ 1251-1256, 1862-1893; Dec. Dig. <@=430, 537.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by the First State Bank of Amarillo, Tex., against W. P. Cooper and others. Judgment for defendants, and plaintiff appeals.
    Reversed, and cause remanded.
    Turner & Rollins, of Amarillo, for appellant. Jones & Miller, of Amarillo, for appel-lees.
   HABB, J.

The original petition filed by appellant bank was to recover the amount due on a promissory note of $2,500, dated April 1, 1913, bearing interest at 10 per cent, from date and providing for 10 per cent, attorney’s fees, signed by W. P. Cooper, R. R. Wheatley, and Prank Morris, Jr. The note contained the usual provision waiving presentment for payment, notice of nonpayment, protest, etc. The following credits were admitted in the petition: $587.50, paid August 26, 1913; a number of small credits from $1 up to $10, aggregating $116.33, being dated from- June 6,1913, at various times, to November 8,' 1913.

Defendants’ original answer alleged in substance that the note sued upon was given in lieu of a prior note for the same amount, and that collateral to the value of $2,500 had been put up with said previous note to protect the signers of the note in suit, and that the defendants signed the note sued upon •solely as sureties for an indebtedness due by Bankford Furniture Company; that at the time of the execution of the note in question, in suit, the president of plaintiff bank claimed to have collateral security, consisting of certain furniture notes due the Bankford Furniture Company, amounting to about $1,700; that other such notes, worth about $800, were in process of collection at Panhandle and other neighboring towns, and that something more than $280 of said $800 in notes had been collected; and that the bank would at once look up the exact amount and credit same on the back of the note in suit; that the remainder of the $800 worth of collateral would remain as security to the note sued upon. It was further alleged that plaintiff bank, without defendants’ consent, thereafter took away half, or about half, of the collateral notes, and applied them to the payment of another note due plaintiff bank, upon which defendants were liable; that plaintiff had been negligent in failing to collect the collaterals, by reason of which defendants had sustained a loss; that Prank Morris, Jr., took a number of the collateral notes for collection, some of which he collected, turning the proceeds over to the bank, amounting to $264.65, which should be credited on the note sued on, together with about $126.50 worth of furniture, which was sold by the bank and the proceeds of which should be applied as a credit. Defendants also claimed a further credit of $280, being the amount which plaintiff admitted was in its possession at the time of the execution of the note in suit; that, if plaintiff did not have in its possession said $800 worth of collateral notes, it perpetrated a fraud on defendants in making such representations; that, at the time the note in suit was executed, defendants signed it upon condition that the Bankford Furniture Company and H. C. Lankford individually would also sign it, and that this was never done, thereby releasing them.

Plaintiff filed several supplemental petitions, alleging, among other things, that the defendants were stockholders and directors in the Bankford Furniture Company, a corporation, which had become bankrupt prior to the execution and delivery of said note; that the indebtedness evidenced by the note had existed in varying amounts for several years, and that there was therefore no necessity for any new consideration in order to render defendants liable thereon; that the benefit received by them was the extension of time on the indebtedness already due. It is further alleged that, at the time the note described in the original petition was executed and delivered, .plaintiff had certain collateral notes, which were attached to another note made by said Bankford Furniture Company, in the principal sum of $1,175; that, at the request of defendants, plaintiff’s president agreed with them that in the future in would divide said collaterals in half whenever money should be collected thereon, crediting one half on the last-named notes and the other half on the note in suit; that this was done, and the credits made simply as a favor to defendants without any consideration or legal duty resting upon plaintiff to do so; that all sums of money paid by defendants through Prank Morris, Jr., to plaintiff, have been credited in accordance with said agreement, with the full knowledge and consent of all defendants.

By first supplemental answer, defendants, among other things, alleged that the note in suit was given in lieu of a note dated November 1, 1912, executed by the Lankford Furniture Company, H. C. Lankford, Prank Morris, Jr., R. R. Wheatley, and W. P. Cooper, in the sum of $2,500, due and payable April 1,1913; that it was executed in such manner as entitles the defendants to all of the defenses urged to the note originally sued upon and that they set up all of said defenses to said note of April 1, 1913, and further pleaded that said note was delivered with collateral notes worth $2,500, which last-named notes were secured by contracts and written liens on furniture sold by the Lankford Furniture Company; that large sums were collected on said collateral notes and the proceeds not applied to either of said notes; that the col-laterals were changed several times by plaintiff or its agents, substituting for the original collateral others of a later date; that the note sued upon and set out in the original petition was procured through fraud and fraudulent representations on the part of the plaintiff, to the effect that the signature of the Lankford Furniture Company and H. C. Lankford would be secured thereto, and that the bank would immediately ascertain the amount collected upon collaterals and credit thereon, and that all collateral notes would remain with the note last executed, and but for such fraudulent representations the note first sued upon would not have been executed.

In its last supplemental petition, plaintiff prayed in the alternative that, if it should be held that it was not entitled to recover upon the note described in the original petition, then that it be allowed to recover upon the note for which it was substituted, dated November 1, 1912. There was a trial before a jury, resulting in a general verdict for the plaintiff in the sum of $100.98, and from a judgment entered accordingly this appeal is prosecuted. There is nothing in the record to indicate upon which note the jury based the verdict.

The first assignment is based upon the action of the court in overruling plaintiff’s special exception to all that part of the answer alleging that the president of bank told defendants that $800 worth of collateral was in process of collection and that something more than $280 .of said amount had been collected, and that the exact amount would be looked up at once and credited on the back of the note. Appellant insists that the effect of this allegation is to vary' the terms of the written note signed by defendants by oral evidence, and that the effect of the evidence was to prove an amount really different from that stated in the face of the obligation. Fraud in the execution of the note, described in the original answer was not alleged therein; but in the first supplemental answer (which repeats many of the facts set up in the original answer, and by reference to the original answer urges the defenses there set up to the note originally sued upon also in defense of the note dated November 1, 1912), it is alleged that the statements made by plaintiff’s president, to the effect that the amount collected upon the collateral would be looked up and credited on the renewal note, were fraudulently made. The error of the court, if any, in overruling this exception, is harmless. The issue of fraud being squarely presented by subsequent pleadings, and the case having been tried with reference to the issues contained in such supplemental pleadings, no injury has resulted by the court’s ruling. In Ablowich v. Bank, 22 Tex. Civ. App. 272, 54 S. W. 794, it is said:

“No fraud, accident, or mistake in execution was alleged and we must indulge the legal presumption that all prior agreements, so far as assented to, had been merged in the written instruments executed, and that they contained the exact terms upon which the minds of both parties thereto met. The instrument sued upon evidenced an absolute promise to pay $450 within a specified time, without condition, and we do not think it was competent to show by parol that the agreement in effect contained a condition upon which a less sum was to be paid.”

We must imply from the language quoted that, in accordance with the general rule, if fraud, accident, or mistake had been alleged, parol evidence of the agreement would have been admissible. This assignment is overruled.

In effect the same contention is made under the fourth and seventh assignments. It seems clear to us that, if the appellees signed the last note for an amount greater, than was actually due, but upon the assurance that the proper credits would be made thereon, thereby reducing it to the correct amount, and their pleadings alleged fraud on the part of the bank president in making such promise, it is a matter of inducement which they are entitled to prove. These assignments present as error the action of the court in not sustaining a specific exception to one paragraph in the original answer, setting up the execution of the note and the statement by the president that the proper credit would be made, but in which no allegation of fraud is found. Technically, this paragraph of the answer was insufficient; but if fraud is set up elsewhere in the answer, or by supplemental pleadings,' as appears to be the case here, we think no harm has been done by the ruling of the court in this instance. The fourth and seventh assignments are also overruled.

The fifth paragraph of defendant’s answer is as follows:

“Defendants allege that at the time of the execution of the note sued upon the plaintiff bank had as collateral for the same $1,700 worth of the same paper that was placed up with said previous note, and defendants asked the plaintiff, through its president, what had become of the remaining portion of said collateral security, to wit, the $800 worth of collateral notes, whereupon the said president, who was the duly authorized agent and representative of the plaintiff bank, told the defendants and informed them that said $800 worth of collateral was in process of collection, some of it being at Panhandle and at other places, and that something more than $280 of said $800 worth of collateral notes had been collected, and that the bank would at once look up the exact amount that had been collected and credit the same on the back of said notes as the various items were shown on the bank book, but that it would take some little time to figure up the exact amount, and that the remaining portion of the $800 worth of collateral would remain as security for said note sued upon, making the entire amount equal to the notes; that said collateral notes were of the value of $2,500, and said $1,700 worth of notes were in the bank at said time, and were to be as collateral for said previous note, and were placed as collateral for the note involved in this suit, and the remaining portion of said collateral was to be held, as above explained, to secure the payment of the note in suit, though said additional collateral notes were out in process of collection.”

The objection urged in the exception to this paragraph is:

“It seeks to vary the terms of the written note, signed by defendants, by oral evidence, and thus defeat the payment of the amount shown to be due by said note, and does not set up any defense worthy of being considered by this court, or that could properly be urged to defeat the payment of the said note, or any part thereof.”

In the absence of any allegation of fraud, this paragraph of the answer should have been stricken out. We are unable to agree with appellant in its construction of the language. As we understand appellee’s allegation, referring to the $1,700, it is not an effort to set up a defense, but merely a recital of the statements made by the bank’s president as to the existence and location of the collateral notes and as assurance that they would be held to secure the note for $2,500. Reference to the bill of exception shows that the evidence did not sustain the allegation in full. Of course, if the language used by the pleader means what appellant claims it does,' the exception should have been sustained; but, as we understand it, the assignment is without merit.

Under the third assignment, appellant insists that paragraph 2 of the defendant’s first supplemental answer is too indefinite and uncertain, in that it fails to particularize the collateral which it is alleged was misapplied and changed from one note to another by the bank. Appellees excuse their inability to point out the particular note or notes and other collaterals which had been collected and misapplied by the following allegation:

“These defendants are unable to give a more accurate description of said $2,500 worth of notes, which were attached to that note and put up with the same as security; but they say that a part of the same was the same collateral as they put up with the note originally sued on by plaintiffs, but the defendants are unable to state what part of the same was so used, but they allege that said collateral notes were at all times in the hands of plaintiff bank, and they were in position to know the description of'the same and the contents of the same.”

A pleader is not required to allege matters peculiarly within the knowledge of the opposite party, and which he shows a good excuse for not being able to state. Florida Athletic Club v. Hope Dumber Co., 18 Tex. Civ. App. 161, 44 S. W. 10.

In the fifth assignment complaint is made of the action of the court in permitting defendants to open and conclude in the introduction of evidence and in the argument of the case. From the brief synopsis of the pleadings, which we have heretofore made, we think the burden of proof of the whole ease rested upon the plaintiff. Rule 31 for the government of district and county courts (142 S. W. xx) provides that the plaintiff shall have the right to open and conclude, both in adducing his evidence and in the argument, unless (1) the burden of proof of the whole case under the pleadings rests upon the defendant; or (2) the defendant make the admission of record at the proper stage of the proceedings prescribed by the rule. This rule, as originally promulgated (47 Tex. 623), did not contain in the first clause the words:

“Unless the burden of proof of the whole case under the pleadings rests upon the defendant.”

This language was no doubt added in the revision, in order that the rule might include the provisions of article 1953, Revised Statutes, on this subject. The rule relates to both the evidence and the argument, but the statute relates to the argument alone. Hittson v. Bank (Sup.) 14 S. W. 780. The bill of exceptions under this assignment shows that appellee declined to make the admission required by the rule. We therefore conclude that the court permitted them to open and close upon the idea that the burden of proof upon the whole case under the pleadings rested upon them. The decisions in cases where the defendant made the required admission, or endeavored to do so, in order to gain the right to open and close, have little or no bearing upon the question here presented. The- first part of rule 31 merely states the common rule with reference to the onus probandi and the incident right to open and close. The note to Brunswick & W. R. R. v. Wiggins, 61 L. R. A., 513, 563, states and discusses what we understand to be the common-law rule thus:

“In Best’s little work, ‘Right to Begin and Reply,’ it is stated that by the affirmative of the issue is meant the affirmative in substance, and not the affirmative in form; i. e., that the judges, in examining the record in order to see on whom the orms probandi lies, and consequently in whom the right to begin resides, will consider, not so much the form of the pleadings, as the substantial question between' the parties, and will cast the onus probandi on the party with whom the real affirmative seems to lie. The author then goes on to give two cases which afford, in terms, two different tests for the discovery as to with which party the affirmative lies, and states that they are the same proposition in different dresses. In the first of the cases mentioned, Amos v. Hughes (1835) 1 Moody & R. 464, the test was laid down by Alderson, B., to be which party would be successful if no evidence at all were given, as upon the opposite party would necessarily rest the onus probandi, and, according to the author, the consequent right to begin. In the other case, Willis v. Barber (1830) 1 Mees. & W. 425, 5 Dowl. P. C. 77, 2 Gale. 5, 5 L. J. Exch. N. S. 204, the same judge, in holding that a defense to an action on a bill of exchange against the exceptor that the bill had been accepted without consideration for the accommodation of the drawer, and had been subsequently indorsed to the plaintiff without consideration, * * * placed the onus pro-bandi on the defendant notwithstanding the affirmative shape of the replication, said: ‘The replication is in the affirmative, but it is in answer to a negative. Upon the question as to who is to begin, is it not the proper test to examine whether, if the particular allegation be struck out of the plea there will or will not be a defense to the action?’ Thus the two general rules * * * are: (1) To conceive the negative and affirmative allegations by which the issue is joined both struck out of the record, and then the onus probandi lies on the party against whom the judgment must, in their absence, pass; (2) to consider at the trial which party would succeed if no evidence at all were given, as the onus probandi must lie upon his adversary. In the natural course of litigation this burden and right usually reside with the plaintiff, the party who initiates the action, proceeding or suit; and, this being so, it follows that, so long as the affirmative of any substantial issue, however slight, remains with the plaintiff, he retains the right to open and close, even though the affirmative of a majority of such issues is with the defendant. * * * Whenever the general issue is in the case, the plaintiff has the right to open and close. * * * The result of an examination of all the authorities on the subject shows that the general rule or principle at common law is that, where the defendant does not admit the entire demand of the plaintiff, and where there are several issues, if the plaintiff is called on to maintain a single one, he retains and has the right to open and close; * * * that the burden of proof, with its incident right to open and close, naturally and necessarily is, in the first instance, with the plaintiff, or party who initiates the action, suit, or proceeding, and remains with such party so long as it continues incumbent on him to make any proof whatever; that when the defendant, either by an admission in express ami absolute terms, or by refraining from denial of plaintiff’s cause of action and alleging affirmative matter in avoidance of it, renders it wholly unnecessary for the plaintiff to give any evidence whatever to have a complete recovery of all that he claims, the burden and right are with the defendant.”

The rule is further illustrated by the Supreme Court, in Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308, where appellee offered a will for probate. Appellant contended that the instrument offered by appellee and the codicil offered by him (appellant) should be taken together and probated as the last will of the deceased. The appellee charged that the codicil was a forgery, and Judge Stayton held that in this state of the pleadings the appellee had the burden upon the whole case. To the same effect is the holding in Heath v. First National Bank, 19 Tex. Civ. App. 63, 46 S. W. 123. In the instant case, notwithstanding the admissions in appellees’ original answer and supplemental pleading, the burden rested upon appellant to show its light to recover upon one of the notes declared upon; that defendants were liable because of their interest as stockholders in the Lankford Furniture Company, and their assumption of the debt and the pleadings of defendants necessarily cast upon them the burden of showing a proper distribution and application of the proceeds of the collaterals, as well as the agreement that the proceeds were to be applied upon two different debts. The right to open and close is a valuable right and especially so in cases’ where the issues of fact are clearly drawn and sharply contested, as in the instant case. We think the court committed reversible error in granting the right to appellee. Cunningham v. Daves, 141 S. W. 808; Meade v. Logan, 110 S. W. 188; Sanders v. Bridges, 67 Tex. 93, 2 S. W. 663. In the case last cited, Willie, Chief Justice, said:

“The right of which he was deprived is statutory, and in this case may have been of importance to the plaintiff, and we cannot say that his rights were not prejudiced in being deprived of his proper position in the trial of the cause.”

The correct rule we think is announced in Ann. Cas. 1912D, 254, note, where it is said:

“In Texas * * * it seems to be the rule that the denial of the right to open and close is not a ground for reversal, if it is apparent from the record that no injury resulted, but that if it is not so apparent a new trial will be granted.”

Appellant insists that the court erred in permitting the defendant Wheatley to detail a conversation alleged to have taken place between himself and I,e Master, president of appellant bank. This contention is made the basis of the sixth assignment of error. Most of the evidence objected to we think was admissible, under the issue, tendered by appellees’ pleadings, that the proceeds of some of the collateral attached to the debt as evidenced by the various notes, had been misapplied by the bank. The objection being to the whole of the testimony and part of it being admissible the court did not err in overruling the objection. Wandelohr v. Grayson County National Bank, 106 S. W. 413; Id., 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046.

The defendant Morris was permitted to testify that he signed the note of April 1, 1913, as a surety. We think this was error. One of the issues made by the pleadings is whether Morris was a principal or a surety. Appellant contended that he had executed the note under circumstances which made him liable as a principal debtor. His status and relation to the debt was a mixed question of law and fact, and the effect of his testimony was a construction of tlie agreement under which he signed and we think invaded the province of the jury. His statement that he was a surety involved a legal conclusion from the facts and circumstances surrounding the transaction. Connor v. Uvalde National Bank, 172 S. W. 175; McClung v. Watson, 165 S. W. 532; Sackville v. Storey, 149 S. W. 239.

Under the ninth and tenth assignments appellant complains of the admission of certain evidence from the defendant Wheatley, in which Wheatley objected to switching some of the collaterals to protect a note of $1,100. The evidence is as follows:

“The night before we decided to throw Lank-ford Furniture Company into bankruptcy there was a meeting of a bunch of us in the Lankford Furniture shop and we talked the matter over. We talked in regard to the collateral security of the $2,500 on the note. Mike (Le Master) said he would switch it to another note at the time, and I said, ‘You won’t do no such thing.’ We talked about something else then, and Mr. Zimmerman brought the matter up, and said we ought to help the bank out, and Mike said he would switch the collateral security from that $2,500 note, and I spoke up and said he would do no such thing. X said, if the bank had to lose their amount, I will keep my part of the balance, whatever it is, and take care of our home people, and let the others suffer.”

In the thirteenth paragraph of the first supplemental petition appellant alleged, that there was an agreement that the collateral should be divided between the $2,500 note and the $1,175 note, and we think this testimony was pertinent and admissible upon that issue. A material issue made by the pleadings was that the plaintiff had failed to account for certain collateral securities held by it as security for the indebtedness of the defendants, and defendants sought relief to the extent of the value thereof. This issue having been raised by defendants, the burden of proof was upon them to show the value of the securities unaccounted for, and no evidence was introduced upon that point.

The fifth paragraph of the main charge authorized the jury to find for plaintiff, less the reasonable value of any such collaterals not accounted for. There being no evidence to support the issue, it should not have been submitted.

Complaint is made in the twelfth and thirteenth assignments of paragraph 3 of the court’s charge, as follows:

“If you find and believe from a preponderance of the evidence that the note dated April 1, 19X3, was executed by the defendants R. R. Wheatley and Frank Morris, Jr., on the condition and agreement that the same should not be delivered or become effective until H. C. Lankford Furniture Company and H. C. Lankford should-sign the same as principals, and that the same was to he held until such condition was complied with, then in such event the said defendants would not ■be liable upon said note, and you will, if you so find and believe, return your verdict in their .favor upon this issue.”

There is nothing in this charge which indicates that the court thought Wheatley and Morris were sureties. • In our opinion the charge does not assume that fact. Even though Wheatley and Morris be considered as principáis, they had the right to sign the note and deposit it with the payee, upon condition that it should not become valid and binding until other principals had also signed it. The charge is not subject to the criticism. Merchants National Bank v. McAnulty, 31 S. W. 1091; Parker v. Naylor, 151 S. W. 1103. This also disposes of the fourteenth assignment.

The fifteenth assignment is disposed of by what we have said with reference to the first, fourth, and seventh assignments.

Under the sixteenth and eighteenth assignments appellant complains that the court refused to give two special charges with reference to the alleged failure of the plaintiff to exercise diligence in collecting the collateral securities. It appears that the defendants had given three separate notes for the debt in question — one dated July 25, 1912, which was renewed in a note dated November 1, 1912, and again renewed by note described in the original petition, dated April 1, 1913. We agree with appellant that, if for any reason defendants could escape liability on the note last signed, they might nevertheless be liable on the note immediately preceding it, and, if relieved from liability on that note, they could probably then be held on the first note executed. These special charges were intended to instruct the jury with reference to the rights of the plaintiff under each of the notes; but since the verdict was a general one, and we are not able to determine from the record upon which note it was based, we cannot, of course, decide whether or not the failure to give either of the charges was error. If the finding of the jury was based upon the note last executed, the failure to give the charge was harmless, but if upon the first or second note we think the charges should have been given. In the absence of any information upon this point, the presumption must be in support of the judgment.

Appellant requested special charge No. 6, to the effect that the jury should disregard all evidence on the question of whether the bank had failed to collect and apply the proceeds of certain collateral notes, because the evidence was too general, and did not show with sufficient certainty any amount which the bank had failed to collect or apply, and because the evidence further failed to show what notes could have been, collected by diligence and were not so collected. This charge was clearly upon the weight of the evidence and should not have been given.

Appellant also requested the court to instruct the jury not to consider the capital stock of the Furniture Company, which had been put up as collateral, in making their verdict, because it had been admitted on the trial that $1,500 worth of it had been sold prior to the execution of the note dated November 1, 1912, with full knowledge on the part of the makers that the stock had been sold and the proceeds not applied, but that other collaterals were substituted for the same and accepted by the defendant in lieu thereof. There seems to be some dispute in the record as to whether or not other collat-erals had been substituted for the stock, in which event the charge would have been upon the weight of the evidence. Of course, if there was no dispute upon the question, the charge should have been given.

Under the last assignment it is insisted that the verdict is contrary to the law and evidence, in that it was shown that Wheatley was bound by the note executed December 1, 1911, and was' therefore without regard to any agreements thereafter made with reference to the renewal notes, liable upon the debt as originally created and that after allowing the credits, to which he may have been entitled, from the amounts collected on collateral notes, judgment should have been rendered against him in any event for the balance. If either of the renewals constituted a novation, then the note for which the renewal was substituted was no longer a binding obligation, and this is a question which should have been submitted to the jury. Rushing v. Bank, 162 S. W. 460; Heath v. First National Bank, 19 Tex. Civ. App. 63, 46 S. W. 123.

For the errors pointed out, the judgment is reversed, and the cause remanded.
      <®^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>1?<«: other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes