author: RAINEY, C. J.

text:
    McKNIGHT et al. v. CAGE et al.
    (No. 7447.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 12, 1916.
    Rehearing Denied March 11, 1916.)
    1. Wills @==>487(1) — Construction — Evidence.
    Testatrix, after making numerous devises and bequests, declared that an agreement relating to a banking partnership of which testatrix was a member should be carried out, and that the residue of her property should be used by the trustees to erect a suitable main building for a college or a suitable boys’ dormitory; the remainder to be used by the trustees as a permanent fund of the college in the manner and for the same purposes as its present permanent fund. Plaintiffs contended that as heirs they ■were entitled to the testatrix’s share in the banking firm, which, under the agreement, was to be continued for five years after her death. This agreement, which was probated with the will, declared that at the expiration of five years all stock and interest held or deposits owned by the party dying should be delivered by the surviving members of the firm to the heirs of the party dying or to his or her legal representatives. Held, that evidence of the value of the testatrix’s estate was admissible to show that plaintiffs were not entitled to such interest as heirs, for otherwise there would not be sufficient property to discharge all the bequests; such evidence not being inadmissible under the rule that parol evidence is not receivable to change the meaning oí the word “heir,” the law giving it a definite meaning, for the testatrix’s intent governs.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1029, 1031; Dec. Dig. @=>487(1).]
    2. Wills @=506(1) — Construction — Interest Devised.
    In such case, heirs of the testatrix not mentioned in a will are not entitled to her interest in the banking firm; the agreement declaring that it might go to the legal representatives of the deceased member as well as the heirs.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1090; Dec. Dig. @==>506(1).]
    3. Charities @=>12 — Validity.
    In such case, the devise and bequest of the residue to the college was valid.
    [Ed. Note. — For other cases, see Charities, Cent. Dig. § 36; Dec. Dig. @=>12.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by Bertha McKnight and others against Bruce Cage and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    C." M. Smithdeal, of Dallas, for appellants. Thompson, Knight, Baker &) Harris, of Dallas, and Marshall Ferguson, of Stephenville, for appellees.

      Application for writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellants brought this suit against appellees to construe the last will and testament of Mrs. M. J. Crow, deceased. The cause was tried with the aid of a jury, and a verdict was instructed by the court for the appellees; judgment was rendered accordingly, from which this appeal is taken.

The will of Mrs. Crow is lengthy, and we will confine ourselves to summary thereof, as shown by appellees’ brief, with the exception of items 14 and 15, about which there is controversy, which items are copied in full, as follows:

“Item 1. Provides for payment of debts and funeral expenses.
‘'Item 2. She gives to her sister Mrs. Allday, and to her sister’s four children, collectively, $15,000.
“Item 3. She gives her sister Mrs. Daw, and her sister’s seven children, collectively $24,000.
“Item 4. She gives to the widow of her deceased husband’s brother, and to his six children, collectively, $21,000.
“Item 5. She gives to certain nephews and nieces of her deceased husband, collectively, $15,-000.
“Item 6. She gives to business associates, collectively, $33,000.
“Item 7. She gives to J. H. Cage and Bruce Cage the bank building in Stephenville.
“Items 8 and 9. She gives all her real estate to her foster daughters, Mrs. Hanie Cage and Mrs. Bamah Young, the devises being in each case of'specific tracts of land..
“Item 10. She provides that the real estate given in items 8 and 9 to Mrs. Hanie Cage and Sirs. Bamah Young, respectively, is valued at $40,000 to each, and that each may elect to take $40,000 in money in lieu of the real estate specifically devised, and provides: ‘And in the event either one of them, or both of them, shall elect to receive $40,000 in cash in lieu of the property herein bequeathed to them, then I direct that this $40,000.00 in cash shall not be paid to them until the expiration of five years from my death.’
“Item 11. She gives a friend a horse and buggy and $1,000.
“Item 12. She gives another friend $3,000.
“Item 13. She provides against lapse of gifts previously made by making bequests inure to the benefit of descendants of devisees specifically named, providing that, ‘if there be no child or children of such deceased person surviving, then such share shall become a part of the residue of my estate, to be disposed of by my executor for the uses and purposes and in the manner as hereinbefore provided.’
“Item 14. T expressly will, declare and direct that the agreement in writing made between me and J. H. Cage, John Cage, Day Cage, Jessie White and F. S. White, who with me constitute the firm of Cage & Crow, shall be in all respects adhered to, observed, and carried out, which agreement is dated September 14, 1910, and executed by myself and the above named parties and acknowledged by us before P. D. Pittman, a notary public in and for Erath county, Texas.’
“Item 15. ‘And subject to all the foregoing legacies bequests and conditions and having in mind the affection my deceased husband, Doctor M. S. Crow, had for the people of Erath county, where we spent most of our life, and where we acquired most of our property and having ever had in my heart a deep interest and sympathy for worthy young men ambitious to better their lot in life, I hereby devise and bequeath to the Board of Trustees of John Tarle-ton College of Stephenville, Texas, for the use aDd benefit of said college forever all the residue of my estate of whatsoever nature and wherever found. And it is my desire that said trustees erect a suitable main building for said institution out of this bequest or out of so much thereof as they may deem necessary and practicable, should no such building exist at the time of my death or at the time that this bequest takes effect; and should a main building be erected before such time then it is my desire that such portion of this bequest as may be necessary shall be used by said trustees to erect a suitable boys’ dormitory the balance of this bequest after the erection of either of said buildings, should any remain, to be used by said trustees as a permanent fund of John Tarleton College, and in the manner and for the same purposes as its present permanent fund is used and authorized to be used by the original will of John Tarleton establishing said institution.’ ”

The agreement mentioned in item 14 of the will, and made a part thereof, is as follows:

“This memorandum of agreement, made and entered into the day and year last herein written, by and between J. H. Cage, Day Cage, John Cage, Jessie White, joined pro forma by her husband, F. S. White, and Mrs. M. J. Crow, a widow, witnesseth: That whereas the parties hereinbefore named now constitute all the members of the firm of Cage & Crow, bankers, now engaged in a general banking business in the city of Stephenville, Texas, and realizing that in the event of the death of any one of us this partnership would be by operation of law dissolved, unless otherwise agreed among us, and desiring to protect our own interest and the interests of our bank, we hereby agree and covenant, one with another, that in the event of the death of any one of us, that the firm of Cage & Crow, bankers, shall not be by that event dissolved, but shall continue in force and opei-ation as it existed at the death of any one of us, for a period of five years, and any deposit or other interest owned, or held by any one of us, in the firm of Cage & Crow, bankers, at the date of cur death, shall remain in the custody and control of the surviving members of said firm of Cage & Crow, bankers, from the date of such death, for a period of five years, and after the expiration of five years from the date of the death of either one of us, all stock and intei’est held, or deposit owned by the party dying shall be delivered by the surviving members of the firm to the heirs of the party dying, or to his or her legal representatives. And we by this contract expressly annul the agreement and contract entered into between us of date November 10, 1905.

“Witness our hands this 14th day of September, 1910. John Cage,
“J. H. Cage,
“Day Cage,
“M. J. Orow,
“F. S. White,
“Jessie White.”

Said will and said agreement were executed at the same time and were duly probated as one instrument, and about this there is no controversy.

The evidence shows that Mrs. Orow’s will was executed on September 14, 1910, and she died about nine days thereafter. She left no husband, nor heir in the descending or ascending line, and no nearer relative than two half-sisters who survived, and the children of three half-sisters, through whom appellants claim. Mrs. Orow’s estate consisted of various tracts of land valued at $107,225, of shares of stock in the bank of Cage & Orow, valued at $35,000, and cash on deposit in said bank, $171,000, and Mrs. Crow had before her a statement of the foregoing properties when her will was written and -presumably acted upon it.

Appellants’ first assignment of error is:

“The court erred in permitting the witness, John Cage, to testify, over the objection of the plaintiffs, to the value of Mrs. M. J. Orow’s estate on July 1, 1910, and at the time her will was made, as fully shown by bill of exception No. A.”

The proposition submitted is:

“The will of Mrs. M. J. Orow plainly provided that, upon the termination of the partnership, the money of the testatrix on deposit with Cage & Orow and her interest in the partnership assets should be delivered to her heirs; and, there being nothing in the context of the will itself to indicate that the testatrix intended to use the word ‘heirs’ in other than a technical sense, it was error to permit the introduction of extraneous facts tending to prove that the word ‘heirs’ meant legatees.”

We think there was no error in admitting the testimony complained of. While parol evidence is not admissible to alter or change the meaning of the word “heir,” because the law gives it a definite meaning, yet, when used in a will, the intention of the maker being the prime object of ascertainment where there is a contest and legitimate testimony is introduced to show that intention, such testimony will not be excluded, because it has a tendency to vary the strict technical meaning of the word “heir.” Here the testimony pertained only to the value of the estate of Mrs. Orow, which was material and pertinent to the issue of Mrs. Orow’s intention in the making of her will, and therefore cannot be objectionable because it has a hearing upon the meaning of the term heir in the connection it was used by her. In Weller v. Weller, 22 Tex. Civ. App. 247, 54 S. W. 653, in discussing, the rule for the construction of wills, it is said:

“Bearing in mind that the supreme rule of construction of wills is the ascertainment of the intentions of the testator, and to this end we should consider the condition of his estate at the time of making his -will, the circumstances under which it was made, and the primary object of the testator in executing the instrument, and for this purpose technical words and terms in conflict with the evident intention of the testator may be disregarded, and that construction adopted which seems to conform more closely with his main purpose in executing the will.”

We think the value of an estate would be of importance in shedding light upon the condition of the testator’s estate and circumstances which surrounded him, because he is at the time of making the will dealing with the conditions and circumstances surrounding him.

What is here said disposes of the second assignment of error, which also complains of the testimony relating to the value of the estate.

It is contended by appellant that by item 14 of Mrs. Orow’s will she intended that the shares' of stock and the deposit in the Cage & Orow bank should be taken over by appellants as a specific legacy as their property.

In item 14, Mrs. Orow refers to the agreement between herself and the partners constituting the firm of Cage & Crow, and was executed at the same time as the will. Said agreement provided for the continuation of the partnership for five years, at the end of which time “all stock and interest held, or deposit owned by the party dying shall be delivered by the surviving members of tbe firm to the heirs of the party dying, or to his or her legal representative.” Said item 14 makes no testamentary disposition of property by its terms, nor does the agreement referred to do so. The will merely refers to the agreement as having been entered into by Mrs. Crow and evidences an intention that the partnership existing shall continue for five years after the contingency named should happen; then, as between the partners the interest and deposits of each was to be turned over to the parties entitled thereto. The appellee claims that the appellants as heirs were entitled thereto and should receive it. They ignore the expression “legal representatives,” used in the agreement. We do not concur in appellants’ claim. Mrs. Grow died testate, and by her will she made numerous bequests, naming the legatees and a special bequest of the residue which disposed of all her property, and in none of said bequests were the appellants specifically named.

The supreme object in the construction of a will is to ascertain the intention of the maker. When we consider the condition of Mrs. Crow’s estate, the circumstances surrounding her, and the wording of her will, we conclude that she never intended that the appellants should inherit any of her estate.

She provided for an executor who qualified and tools: possession of her estate, and who was authorized, as representative of Mrs. Crow, to take charge of her property in the partnership, in accordance with the agreement she had entered into.

A circumstance showing Mrs. Crow’s intention against appellants’ faking under the will is to be found in items 8 and 9 of the will, which bequeaths to two foster daughters of herself and husband certain tracts of land, the part allotted to each valued at 810,000, and item 9 provides that, if either shall elect to receive cash in lieu of the land, cash was to be paid. If these two parties had elected, to receive cash instead of land, that, with the other cash legacies, would amount to more than the cash on hand, and thereby defeating the object of the will to at least the amount of the deficit. This Mrs. Crow evidently intended not to do.

We are of the opinion that the objections urged to the clause of the will bequeathing the residue of the estate to John Tarleton College are without merit, and are overruled.

Believing as we do that it was the intention of Mrs. Crow that the appellants should not receive anything under her will, the judgment is affirmed.
      <2£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    COLLETT v. QUANAH, A & P. RY. CO.
    (No. 912.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 2, 1916.
    Rehearing Denied March 1, 1916.)
    Subscbiptions <3=>15(4) — Peefobmance—Es-toppel.
    Plaintiff executed a note to a railway company for $420 as a subscription to induce the extension of the railroad. The subscriptions were based upon the acreage of land owned by the subscribers at $1 an acre. Plaintiff and his brother were equally interested in certain land, and it was plaintiff’s claim that his note was not to be binding until Ms brother signed it. The brother subsequently executed a note for $200 to a member of the right of way committee, and subsequently plaintiff told such member that he had already signed a note for the full amount of the subscription, and did not think the company should have both notes. Thereafter the member of the committee sent plaintiff the brother’s note for ffie $200, and plaintiff retained such note. Plaintiff had acquired his brother’s interest in the land. Selcl that, in a suit by plaintiff for the cancellation of his note, judgment was properly rendered for defendant in the absence of any tender or offer to return the $200 note to the railway company, though plaintiff testified that Ms brother was insolvent, as he must have known there was some intended surrender of some right, and must have retained the note in pursuance of the conversation with the member of the committee.
    [Ed. Note. — For other cases, see Subscriptions, Cent. Dig. § 17; Dec. Dig. ⅞=>15(4); Kail-roads, Cent. Dig. §§ 80-86.]
    Appeal from Motley County Court; O. B. Whitten, Judge.
    Action by F. F. Collett against the Quanah, Acme & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    T. T. Bouldin, of Matador, for appellant. D. E. Decker, of Quanah, and G. E. Hamilton, of Matador, for appellee.
   HENDRICKS, J.

The appellant, Collett, sued the Quanah, Acme & Pacific Railway Company for the purpose of canceling a note for the amount of $420, executed as a subscription note to said railway company in consideration of the proposed and consummated extension of said railroad to Roaring Springs, Tex. Plaintiff alleged that this bonus note was executed with the understanding that his brother, J. H. Collett, was also to sign the same, and that the note, until signed by his brother, was not to be a binding obligation against him, and on account of the nonexecution of same by his brother, J. H. Collett, the instrument was void.

The defendant railway company, among other things, pleaded;

“That after the execution by plaintiff of the note herein sued on for $420 plaintiff’s brother, * * * J, H. Collett, executed and delivered to one J. W. Chalk, payable to this defendant, his promissory note for the sum of $200, in consideration that defendant would construct its line of railway to Roaring Springs; * * * that said $200 note was delivered to said J. W. Chalk, who was a member of said right of way committee for said railway, to raise the bonus. * * * ”

It was further alleged in defendant’s answer;

“That after the execution and delivery of said note to said Chalk by J. H. Collett this plaintiff informed Chalk that he (plaintiff) had already given a bonus note for the sum of $420, which was at the rate of $1 per acre for all the land owned by both plaintiff and J. H. Collett, and stated that, if said $200 note were delivered to defendant, the two notes together would amount to $200 more than $1 per acre, and therefore asked said Chalk to give Mm (plaintiff) said $200 note, and that he would pay the $420 note, and J. H. Collett could pay him (plaintiff), the $200 note, and that in response to said request * * * said Chalk did turn over to plaintiff said $200 note.”

Chalk testified:

“Some time after we signed up the bonus contract J. H. Collett was in my store at Matador, and 1 got him to sign this $200 note. Some time after J. H. Collett had signed this note F. F. Collett (meaning the plaintiff) was talking to me about this note, and told me that he had already signed a note for him and J. H. Collett for the full amount, and that he did not think they ought to have to pay both notes. After this I sent the $200 note to F. F. Collett.”

The Colletts owned equal undivided interests in the land, and the bonus notes were based upon the acreage of the land owned by the subscribers at $1 per acre.

The record shows that the plaintiff, according to his own testimony, subsequent to his execution of the $420 note, and acquired, without consideration, his brother’s half interest in the land, upon which, according to the acreage of each, the bonus notes for each amount was executed by the two brothers. Plaintiff also said the J. H. Collett note was handed to him by his father, and he turned it over to an attorney immediately after receiving it. At the time his father delivered the note he said no reason was given “why J. W. Chalk handed me the $200 note.”

There is no denial, however, whatever of the conversation testified to by Chalk with plaintiff in reference to the subscription contract and the two notes. Plaintiff must have known that there was an intended surrender of some right in regard to the transaction, in pursuance of the conversation between the two men, when Chalk of the right of way committee sent him the note, and his retention of the note must have been in pursuance of the conversation.

The railroad company pleads a ratification and estoppel on account of these matters. This $200 note executed by J. H. Collett as a bonus to the railway company has never been tendered to said company, nor even offered to be tendered in the pleadings. The pleadings of defendant disclose to the plaintiff that he had such a note in his possession, delivered to him, in pursuance of the conversation referred to and as an evidence of the surrender of some right.

The plaintiff not having even tendered or offered to return this $200 note to the railway company, notwithstanding plaintiff testified his brother! was insolvent, upon such consideration we think the judgment of the trial court should be affirmed, and that, as presented, no other judgment in reality should have been rendered. The other assignments are immaterial in this view of the case.

Affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    HUNTING et al. v. JONES.
    (No. 7021.)

    (Court of Civil Appeals of Texas. Galveston.
    Jan. 21, 1916.
    Rehearings Denied Feb. 10, 1916.)
    1. Common Law <§=312 — Adoption—Effect.
    Under the statute first adopted in 1810 (Acts 1810, p. 3), providing that the common law of England so far as it is not inconsistent with the Constitution and laws of the state shall, together with such Constitution and laws, be Sie rule of decisions, and continue in force until altered or repealed by the Legislature, the rule in Shelley’s Case became and still is an integral part of the law of the state.
    [Ed. Note. — Por other cases, see Common Law, Cent. Dig. § 10; Dec. Dig. <§=>12.]
    2. Wills <§=>008 — Consteuction—Natuee of Estates Devisee — “Heies by his Peesent Wife.”
    A will gave the testator’s daughter A. certain real estate for life, and at her death to revert to her bodily heirs equally. It also gave certain real estate to a son for and at his death to revert to his “heirs by his present wife,” provided that such wife should during her lifetime have a homestead in the property. It provided that if the daughter or the son died without any surviving heirs, such property should go to the testator’s other heirs equally. It provided for certain payments to another daughter J., and directed that if she died prior to the time of payment, the specified amounts should be set apart for her bodily heirs, and if she left no bodily heirs, should revert to the testator’s other heirs equally. The final paragraph provided that 15 years after the testator’s death one-half of the funds in the hands of the executors should be paid to the testator’s wife, and the remainder distributed equally between his children or their heirs, the heirs to take such part as the father or mother would have been entitled to had they been living, if any of the children should not be living. Held, that under the rule in Shelley’s Case the son took a fee-simple title to the property devised to him, as the phrase “his heirs by his present wife” created under the common law a fee tail special'which, by statute, is enlarged to a fee-simple estate, and there was nothing in the other provisions of the will to show that the word “heirs” was used in other than its technical and legal sense, especially as even conceding that the final paragraph used the words “heirs” and “children” interchangeably, the devises to the son and the daughter A. were to be construed by virtue of the paragraphs expressly relating thereto.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. <§=>608.]
    3. Wills <§=>495 — Consteuction—“Heies”— “Heies of the Body” — “Heies of the Body Male” — “Heies by his Peesent Wife.”
    The words “heirs,” “heirs of the body,” “heirs of the body male,” and “heirs by his present wife” are all words or terms of limitation, and have a well-defined and fixed meaning in law and, as respects real estate, must, when not explained by other words or by the context, always be understood in a technical sense.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1001-1064; Dec. Dig. <§=495.
    For other definitions, see Words and Phrases, First and Second Series, Heirs; Heirs of the Body; First Series, Heirs Male of his Body.]
    4. Wills <§=>608(3) — Consteuction — Natuee of Estates' Ceeated.
    When there is a devise to a person for life with remainder at his death to his heirs, whether the remainder be limited to general heirs, heirs of the body general, or heirs of the body special, the fee-simple title vests in the first taker.
    TEd. Note. — For other cases, see Wills, Cent. Dig. §§ 1374, 1378; Dec. Dig. <§=>608(3).)
    5. Wills <§=>440 — Consteuction — Ascee-taining Intent.
    A testator’s intention must be gathered from the context of the will and the language used to express his intention.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 956; Dec. Dig. <§=>440.)
    6. Wills <§=>456 — Consteuction — Meaning of Language Used.
    It must be assumed in construing a will and ascertaining the intention of the testator that he used the language of the will in its usual and ordinary sense, unless it clearly appears from the will that he used it in a different sense.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 974; Dec. Dig. <§=>456.]
    Appeal from District Court, Harris County; We. Masterson, Judge.
    Trespass to try title by W. E. Jones against Mrs. Augusta Hunting and others. Judgment in favor of plaintiff, and defendants appeal.
    Affirmed.

      W. O. Huggins, of Houston, for appellants Augusta Hunting and others. Ghas. O. Guynes, of Houston, for appellant M. T. Jones, Jr. Thos. H. Stone, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   LANE, J.

This suit was brought by W. E. Jones against Mrs. Augusta Hunting, Mrs. M. T. Jones, Miss Jeanette Jones, M. T. Jones, Jr., a minor son of plaintiff, and John Goodwin Locke, a minor son of Mrs. Hunting, in the ordinary form of trespass to try title to certain various and sundry tracts of land which plaintiff alleges were devised to him by the will of his father, M. T. Jones, deceased. It may be said that the essential or main purpose of this suit is to obtain a judicial interpretation of the will of M. T. Jones, deceased, under which plaintiff, W. EL Jones, claims title to the land sued for.

Appellants contend that the words “his heirs by his present wife, Mary B. Jones,” in section 4 of said will, were used by the testator in the sense of “his children by his present wife,” and that having been so used, a life estate only to the land sued for, being the same devised by said section 4 of said will, passed to W. E. Jones by said will, with remainder to such children as were or might be born to him by his present wife, and therefore the words used were words of purchase, and not of limitation, and had the effect to pass the title to such children of W. E. Jones as were or might be bom to him by his present wife, and that therefore such provision in said will does not come within the rule in Shelley’s Case.

On the other hand, appellee Jones contends that when considered in connection with the word “heirs,” as used in all the other sections of said will, said words mean such of his heirs, his children, his grandchildren, his great grandchildren, etc.; that the word heirs, as used in section 4 of said will, has a well-defined, technical, and legal meaning, and that there is nothing in the will, as an entirety, to lead to the conclusion that the testator used such words in any other sense, and therefore said section 4 of said will comes under the rule in Shelley’s Case, and the effect of said section was to convey to said W. E. Jones a fee-simple title to the land sued for.

The case was submitted to the court without the intervention of a jury upon an agreed statement of facts, which shows that the will introduced in evidence was the last will of M. T. Jones, deceased; that it has been probated; that M. T. Jones left surviving him his wife, Mrs. M. T. Jones, his daughter, Mrs. Augusta Locke, who later married Hunting; his daughter, Jeanette Jones; his son, W. E. Jones, plaintiff herein; a grandson, M. T. Jones, Jr., defendant herein, a son of plaintiff, W. E. Jones; a grandson, John Goodwin Locke, a son of Mrs. Augusta Hunting; his brother A. L. Jones; two nephews, Jesse H. and John Jones; and several nieces and other collateral kindred not named herein; that Mary B. Jones is the wife of plaintiff, W.. E. Jones; that the property in controversy was the community property of M. T. Jones, deceased, and his wife at the time of his death; and that Mrs. M. T. Jones has accepted the bequest made to her under the terms of said will. Under such facts judgment was rendered for plaintiff.

That this opinion may be more comprehensive, we here set out so much of the will of M. T. Jones, deceased, as has any bearing on the issues presented by this appeal, as follows:

Section 2. I give and bequeath to my wife, Louisa Jones, to be paid to her out of my life insurance, twenty-five thousand dollars ($25,-000.00) inclusive of the amount payable to her by the terms of such policy. I also give and bequeath to her all my bank stock.
Section 3. I give to my daughter, Mrs. Augusta Locke, all of my real estate in Ellis county, Texas, and improvements thereon. To have and to hold during her lifetime, and at her death the property shall revert to her bodily heirs equally.
Section 4. I give to my son Willie E. Jones (with the exception of block 180, in the town of La Porto, and improvements thereon) all my real estate in Harris county, Texas, known as the Deep Water tract, consisting of the property I bought of A. J. Vick and J. H. Burnett, and the improvements thereon, to have and to hold during his lifetime, and at Ms death the same to revert to his heirs by his present wife, Mary B. Jones (neé Mary B. Gibbs), provided that his present wife, the said Mary B. Jones, shall, during her lifetime, have a homestead of this property to the valuation of ten thousand dollars ($10,000.00), the value to be determined by my executors.
Section 5. Should my eldest daughter, Mrs. Augusta Locke, or my son, W. B: Jones, either or both of them, die without any surviving heirs, I direct that tlie property above designated for her or him shall go to my other heirs, each sharing alike.
Section 7. I direct that at five years from the date of my death five thousand ($5,000) be paid to my youngest daughter, Jeannette Jones, or invested by the executors as she may direct; ten years from the date of my death I direct that five thousand dollars ($5,000.00) more be paid to her or invested by the executors as she may direct; in fifteen years from the date of my death I direct that five thousand dollars ($5,000.00) more be paid to her or invested by the executors as she may direct, provided should she die prior to the stipulated times of. payments and should leave any bodily heirs, this amount shall be set apart for her bodily heirs; should she leave no bodily ■ heirs, then it shall revert to my other heirs equally.
Section 11. I direct that my executors shall appropriate at the proper time five thousand doUars ($51)00.00) to educate my grandson, M. T. Jones, Jr., provided he lives to receive the education.
Section 12. I alsp direct that my executors shall appropriate at the proper time five thousand dollars ($5,000.00) to educate my grandson, John Goodwin Locke, son of my daughter, Mrs. Augusta Locke, provided he lives to receive an education.
Section 13. At the expiration of fifteen years after my death my executors shall wind up the business of my estate and all funds remaining in their hands not distributed as hereinbefore provided shall be distributed by them as follows: One-half to my wife, Mrs. Louisa Jones (if she be living), and the remainder they shall distribute equally between my three children, or their heirs; if any of my children should not he living, the heirs to take such part as the father or mother would have been entitled to had they been living. In case my said wife should not be living when the final distribution is made, as above provided, then all of the said property shall be distributed between my heirs as here-inbefore provided for the distribution of the one-half.

Upon the foregoing facts the trial court concluded and found, that the effect of the will of M. T. Jones, deceased, was to vest in plaintiff, W. E. Jones, a fee-simple title to the property sued for by him in this cause, and rendered judgment' for him for the same. From this judgment all the defendants have •appealed.

In response to a request of defendants, the learned trial judge prepared and filed very able and exhaustive conclusions of the law applicable to the facts proven, which, after a most careful examination of the agreed facts and the able briefs of counsel for all parties, we have not without difficulty, however, concluded announces the law applicable to the case, and, having reached such conclusion, we here substantially adopt the same as our opinion in this case, as follows:

The contest between the parties to this suit arises by virtue of the terms of the will of M. T. Jones, and the sole question involved is whether or not, under the terms of said will, and particularly under the provisions of section 4 of said will, W. E. Jones took the fee-simple title to the property described in said section, or took a life estate only.

The plaintiff, W. E. Jones, contends that by virtue of the provisions of section 4 the fee-simple title to the property therein bequeathed vested in him under rule in Shelley’s Case.

The defendants deny that the provisions of section 4, standing alone and disconnected from any other provision of the will, would vest in W. E. Jones the fee-simple title to the property; they contend that the context of will, considered as a whole, indicates with clearness and force sufficient to overthrow the provisions of section 4, that the words of limitation used in section 4 were not used in their legal and technical sense, but in fact mean “children,” and not “heirs by his present wife” in a technical sense.

This statement fairly presents the issue of law between the parties.

The act of 1840 (Acts 1840, p. 3) adopting tlie common law in the then republic of Texas, which act has continued consecutively by virtue of statutory enactments, declares the common law of England, so far as it is not inconsistent with the Constitution and laws of this state, shall, together with such Constitution and law, be the rule of decisions, and shall continue in force until altered or repealed by the Legislature. The rule in Shelley’s Case is now, and was then, an integral part of the common law of England, and therefore became an integral part of the law of Texas. It is still as effectively in force in this state, in those cases wherein its application arises, as it was in 1840. Lacey v. Floyd, 99 Tex. 118, 87 S. W. 665.

Without entering into a discussion of the rule in Shelley’s Case, and putting aside any consideration of the rule which rests upon the distinction between words of purchase and words of limitation, the question arises here: Do the words in section 4, “to have and to hold during his lifetime and at his death the same to revert to his heirs by his present wife,” bring the bequest within the rule in Shelley’s Case, and vest in W. E. Jones the fee-simple title to the property therein devised?

The words “heirs,” “heirs of the body,” “heirs of the body male,” “heirs by his present wife” are all words or terms of limitation,, and have a well-defined and fixed meaning in law, and “as respects real estate, must, when not explained by other words, or by the context, always be understood in a technical sense and no other.” 21 Cyc. 412; also 430-432.

The phrase “his heirs by his present wife” creates, in common law, a fee tail special. The exclusion of estates tail from the system of land tenure and the statutory enlargement in this state of all estates to fee-simple estates in cases in which lesser estates are not expressly limited, give rise to fee-simple estates in all cases in which fee tail estates, whether general or special, would have arisen under the common law. The practical result of this is that in determining the quantity of interest devised the terms “heirs of the body” or “heirs by his present wife” (or any named person) are to be given the same significance and the same effect as if the testator had merely used the term “heirs.”

Under the laws and decisions of this state when there is a devise to a person for life, with remainder at his death to his heirs, whether the remainder be limited to heirs general, heirs of the body general, or heirs of the body special, the fee-simple title to the land vests in the first taker. Calder v. Davidson, 59 S. W. 301; Pearce v. Carrington, 124 S. W. 469; Same v. Pearce, 104 Tex. 73, 134 S. W. 210.

It follows from this that, looking alone to the provisions of section 4 of the will of M. T. Jones, the court is of the opinion that the fee-simple title to the land bequeathed vested in W. E. Jones, unless there are other provisions in the will which are so repugnant to the provisions of section 4 of the will as that it will appear clearly and certainly that the testator did not use the phrase “heirs by his present wife” in their technical and legal sense.

' It is earnestly insisted by counsel for defendants that looking to the context of the will, and particularly to the provisions of paragraph or section 13 thereof, the testator used the phrase “heirs by his present wife,” not in its technical and legal sense, hut to indicate and to mean “children.” They further refer to sections 3 and 4, and also section 7, wherein the bequest is made to his daughter, Jeanette Jones, in which the words “bodily heirs” is used in reference to Jeanette Jones and “my other heirs equally” with respect to the heirs of the testator.

Considering the various sections of the will which defendants propose as nullifying the use of the phrase “heirs by his present wife” in a technical sense, it seems to the court that section 3 of the will making the bequest to Mrs. Locke, wherein the term “bodily heirs” is used, was intended to, and did, embrace all who should be the bodily heirs of Mrs. Locke at her death under the technical interpretation of the term; i. e., the living children, children of deceased children, the children of deceased children of deceased children (grandchildren, great grandchildren), etc., including all lineal descendants who would be entitled by common law to inherit as bodily heirs.

The use of the term “surviving heirs” in section 5, as it relates to section 3, means bodily heirs of Mrs. Locke as last defined; and as it relates to section 4, means the bodily heirs of W. E. Jones by his present wife.

The term “other heirs,” used in section 5, means and includes all of those who would have been the heirs of M. T. Jones if he had died intestate; i. e., his wife and children, W. E. Jones and Mrs. Locke being subject by the terms of the provision to exclusion by death without surviving heirs of the classes set out in the devises to them.

It is urged by defendants that by virtue of section 13 the use of the words “mother” and “father” renders the words “heirs” and “children” interchangeable.

Section 13 provides for the distribution, after 15 years, of the estate as follows:

“One-half to my wife, Louisa Jones (if she be living) and the remainder they shall distribute equally between my three children, or their heirs; if any of my children should not be living, the heirs to take such part as the father or mother would have been entitled to had they been living.”

The testator provides for the distribution between his wife and “my three children or their heirs.” He further provides that if any of the children should not be living, the “heirs to take such part as the father or mother would have been entitled to had they been living.” It does not appear to the court that “children” and “heirs” are used interchangeably herein; on the contrary, the testator, refers to “my three children,” but provides “if any of them be dead, the heirs take such part as the father or mother would have had they been living.” This indicates that the testator desired his estate to descend as in course of inheritance; that is to say, the heirs shall take through their father or mother; i. e., per stirpes, and not per capita.

After a will is written and executed by the testator, his intention must be gathered from the context of the will and the language used to express his intention. If the testator is inapt in the use of language to express his intention, it must nevertheless be assumed, for the purpose of construing his will and ascertaining his intention, that he used the language in its usual and ordinary sense, unless it clearly appears from the will that he used it in a different sense. In the construction of wills it is assumed that the testator meant what he said and said what he meant, and it is not for the court to make him say what the court thinks he should have said, for that would be to make for the testator a will which he in fact did not make for himself.

As the words “heirs,” “heirs of the body,” “heirs by his present wife,” etc., have well-defined, technical, and legal meanings, and as it does not appear to the court from a careful inspection of the will that dt is made sufficiently plain from other parts of the will, or from the will as a whole, that the testator did not use the words “heirs by his present wife” in their technical and legal sense, the court is of the opinion that the fee-simple title to the property vested in -W. E. Jones.

The court is further strengthened in this opinion by reason of the fact that section 4 makes a specific bequest to W. E. Jones, and takes away from the corpus of the estate the land bequeathed to him and removes it from consideration in the final partition of the estate of M. T. Jones, except in the event that W. E. Jones should die without any “surviving heirs.” (Section 5.) The same evident desire of the testator to remove the property bequeathed to Mrs. Locke in section 3 is reflected therein and shows a purpose on the part of the testator to reduce the general corpus of his estate by making said special bequests to W. E. Jones and Mrs. Locke, after which the remainder of the estate shall be divided equally between the heirs of M. T. Jones, of which W. E. Jones and Mrs. Locke were two.

With these facts apparent in the will, we feel constrained to hold that any seeming repugnance therein is removed, and even though under section 13 the testator may seem to have used “heirs” and “children” interchangeably, it nevertheless seems to the court (although not entirely free from doubt and uncertainty) that section 4 of the will, in dealing with a specific bequest and not with reference to the entire estate, must be construed by virtue of its provisions and the provisions in section 5 which follows. Considering, then, these two sections of the will as they relate to the subject-matter therein bequeathed, and as they relate to each other, the court is of the opinion that the intention of the testator, as expressed in the language used by him in said sections, was to give to W. E. Jones the fee-simple title to said property; however, it is unimportant what the intention of the testator may have been; the controlling factor is what the testator actually did, and the law, assuming that he meant what he said, gives effect to his expressed intention. The consequence, therefore, of a correct interpretation of the will is to vest in W. E. Jones the fee-simple title to the property described in section 4 of the will of M. T. Jones, and, this court so finding, affirms the judgment rendered by the lower court.

Affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all ICey-Numhered Digests and Indexes


author: HUFF, C. J.

text:
    FIRST NAT. BANK OF GARNER, IOWA, v. SMITH.
    (No. 910.)

    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 2, 1916.
    Rehearing Denied March 1, 1916.)
    1. Bills and Notes <&wkey;537 — Actions—Evidence— Sufficiency.
    In an action on a note, the question whether plaintiff acquired it before maturity for value without notice held for the jury.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. &wkey;>537.]
    2. Trial <&wkey;244(3) — Instructions—Singling out Facts.
    In an action on a note plaintiff claimed to have acquired for value without notice before maturity, which was given for the purchase price of silos sold in February, and was subsequently listed with plaintiff as part of the collateral to secure a debt of the seller, the court should not, though the note bore the date April 15th, have submitted to the jury the question whether the note was, as claimed, pledged to plaintiff on April 16th; for, if plaintiff obtained possession of the note at any time before maturity, it was a holder in due course, and, though the seller of the silos might not have had possession of the instrument, it might, knowing it was to be received, have listed it on April 16th, and so the submission of such issue' was improper, giving undue prominence to particular facts. ”
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 579; Dec. Dig. &wkey;244(3).]
    3. Appeal and Error <&wkey;262 — Presentation' op Grounds of Review in Court Below— Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, declaring that the giving, refusing, or qualifying of instructions shall be regarded as approved, unless duly excepted to, appellant cannot complain of the refusal of a special issue which it tendered, where no exceptions were taken below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1582-1589, 1593-1595; Dec. Dig. 262.]
    4. Evidence <&wkey;441 — Parol Evidence Rule —Admissibility.
    Where a contract for the sale of silos provided that it should contain all of the agreements between the parties, a purchaser cannot, without any pleading or proof of fraud or misrepresentations made in inducing the contract, prove a contemporaneous parol agreement varying the written instrument; for that would permit the varying of a written instrument by parol.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2080-2047; Dec. Dig. <&wkey;441.]
    5. Principal and Agent <&wkey; 104 — Representations by Agent — Authority.
    Where a sales agent had no authority to make warranties other than those contained in the written contract signed by the purchaser, which declared that it should contain all of the agreements between the parties, a parol warranty by the sales agent is not binding unless ratified by the seller.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 294-297; Dec. Dig. <&wkey;> 104.
    6. Appeal and Error <&wkey;877 — Persons Entitled to Allege Error.
    In an action on a note for the purchase price of a silo brought by a bank to which it had been negotiated, the bank, having been defeated, cannot on appeal complain that judgment was in favor of the buyer against the im-pleaded seller; the seller not complaining.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dea Dig. &wkey;877.]
    7. Bills and Notes <&wkey;497 — Actions—Bona Fide Purchaser.
    One claiming to be a bona fide holder of a note has the burden of showing that it acquired the note before maturity.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. <&wkey;497.]
    8. Bills and Notes <&wkey;496 — Actions—Presumptions.
    As under Rev. St. 1911, art. 58S, tha validity of an indorsement of a note cannot be attacked unless it is specially questioned in the pleadings, there is a presumption that an in-dorsement in blank was made before maturity, and the holder is presumed to be the owner.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1665½, 1669-1674; Dec. Dig. <&wkey;>496.]
    Appeal from District Court, Lubbock: County; W. R. Spencer, Judge.
    Action by the First National Bank of Garner, Iowa, against Morton J. Smith, who filed a cross-petition and attached the property of the Des Moines Silo Manufacturing Company. From a judgment for defendant against plaintiff and the impleaded defendant, plaintiff appeals.
    Reversed and remanded, save as to judgment against impleaded defendant
    Ferguson & Puckett, of Lubbock, for appellant W. F. Schenck, of Lubbock, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

The appellant bank sued ap-pellee, Smith, on a note dated April 15, 1913, due February 1, 1914, for the sum of $1,094, payable to the order of the Des Moines Silo Manufacturing Company, with interest from date at the rate of 8 per cent, per annum, and alleging that the payee therein, Des Moines Silo Manufacturing Company, indorsed and transferred the same to appellant before maturity for valuable consideration, in due course of business.

The appellee answered, in effect, that appellant was not the owner and holder of the note before maturity for value without notice of the equities of appellee, defeating the consideration of the note, or a purchaser in good, faith, in due course of trade. He also alleged, in effect, that one J. F. Burrows, as agent for the Des Moines Silo Manufacturing Company, about February 2, 1913, contracted to sell to appellee two silos to he delivered May 1, 1913, freight prepaid to Lubbock, Tex., at which time appellee—

“executed some sort of a written of printed contract in keeping with the terms and agreements made with reference to the sale and purchase of said silos, and that it was agreed at the time and in said contract a warranty or guaranty should be in writing, which this cross-complainant [appellee] alleges was written therein; that the silos so purchased and delivered, or to be delivered, should be put up by said Morton J. Smith at his own expense, and they should be paid for within nine months after such delivery, provided said silos stood the weather and wind of the plains country, and particularly of Lubbock county, Tex., and did not fall down or shrink to where they could not be used, and further provided said silos each and both stood up against the wind and windstorms in said Lubbock county, Tex., thereby guaranteeing that said silos would not fall down nor shrink and become loose so that they would not fall down, and that they would not blow down by any windstorm.”

He further alleged, in effect, after the execution of the written contract appellee heard that this particular make of silos would not stand the winds of that country, and, having determined to cancel the contract or order, as he had the right to do, at any time before Burrows left town, he informed Burrows of his purpose; whereupon Burrows informed the appellee that he had full authority to make any trade he saw fit for the manufacturing company, and again warranted and guaranteed that the silos would stand up as above set out; that, should they blow down, the contract should be canceled, and the note given therefor should he canceled and null and void, and that appellee would not be compelled to pay for either one or both of the silos; that the salesman or agent also agreed to lay down the silos f. o. b. cars Lubbock for $1,094, no part of which was to be paid until they had been tested nine months or more. No part nor all the money was to be paid unless each silo came up to the requirements. He also alleged at lengtfi that the silos arrived April 24, 1913, apd that the company gave instructions to one Penny, its local agent, to collect from appellee the freight, which he refused to pay; that he then informed Penny of his contract which he had made with Burrows, substantially as above set out, and that Penny wired in full his claim to the silo company; that appellee set up the silos after they had been delivered to him, and they afterwards fell to staves or blew down, etc.; that after the silos were delivered to him he signed the note sued on, dated April 15, 1913, under the agreement above set out, upon the condition that, if the silos fell down, etc., he should not be liable on the note. He also alleges damages to his crop harvested to go into the silos by reason of the fact that they fell down, and seeks to make the silo company a party to the cross-petition and to obtain judgment for the amount sued for against it.

Upon special issues and the answers of the jury thereto the trial court entered judgment against appellant and the silo company and rendered judgment against the silo company for $600, foreclosing an attachment lien on the silos.

The first assignment is to the effect that the court erred in not setting aside the findings of the jury, especially the sixth finding; and the fifth assignment is that the court was in error in submitting to the jury the fifth issue, which is as follows:

“Did the First National Bank of Garner, Iowa, acquire the note sued on from, the Des Moines Silo Manufacturing Company on April 16, 1913?”

The jury answered this question: “No.”

The sixth issue submitted is as follows:

“If you have answered the last issue in the affirmative, then you need not answer this issue, but, if you answered it in the negative, then you ascertain and state in answer thereto what time, if at all, said plaintiff bank acquired said note.”

The jury answered: “Not at all.”

Appellant asserts under the first assignment that there was no evidence to support the sixth issue submitted to the jury. The facts relied on by appellee to show there was no acquisition of the note before maturity are circumstantial in their nature, and, we believe, sufficient to support a finding by the jury. Bolt v. Bank, 145 S. W. 707; Jones v. Bank, 160 S. W. 126; Bank v. Ricketts, 152 S. W. 646; s. c., 177 S. W. 528. The testi mony of the bank officers is that they acquired this note with other collaterals, which were deposited as collateral security to the company’s note given to the bank for $6,000 on April 16, 1913, and that the note in question was acquired April 16, 1913. The note •bears date April 15, 1913, but there is testimony that it was not delivered until April 24, 1913. The order for the silos, agreeing to give a note for the price of the silos, was dated February 2, 1913, and forwarded to the company. There are letters in the record showing that the bank was the holder of the note before maturity, notifying appellant to that effect; several witnesses testifying for the bank that the note was held as collateral security; in fact, the silo company notified appellee it would dispose of the note, and that it, in effect, had been sold before maturity. There are several circumstances which the appellee relied on to show that the claim made by appellant was and is fictitious, and not bona fide. We shall not set them out in detail.

Special complaint is made of the submission of issue No. 5 because it required the jury to find that the transfer was made on April 16, 1913. We do not think the court should single out in its charge a specific date, requiring the jury to ascertain whether or not the acquisition of the note was had at that time. The issue in this case was whether the note was acquired before maturity. The facts may have authorized the finding that the witnesses who gave the date of its acquisition were in error as to the time, and only gave that date as approximate, or that it was in fact then simply listed as one of the collaterals. The silo company knew that the contract had been accepted and the amount for which the note should be given, and, while there was no actual or manual delivery of the note, it could and would be delivered, and that the witness simply referred to the time of listing the collaterals with the bank. The jury should have been left free on this point without the issue suggested by the court that a finding of acquisition on that day was in any way essential. Bell v. Hutchings, 41 S. W. 200; Ry. Co. v. Green, 49 S. W. 672; McHay v. Peterson, 52 Tex. Civ. App. 195, 113 S. W. 981; Railway v. Gilmore, 62 Tex. 391. However, a finding that it was not on that day delivered to appellant would not defeat a recovery, yet the jury may have concluded, if not then delivered, it was, in fact, never acquired under the peculiar facts of this case. Under the holdings of the courts on the submission of a case upon special issue, this issue and finding might be treated as immaterial. It is, however, a singling out of a fact which the appellee contends in this court, and doubtless did in the court below, as showing appellant never, in fact, became the holder of the note before maturity. Emphasis should not have been given to such a fact by the court in the submission of the issues, especially when it is not such as will defeat a recovery. While we think this issue as submitted error, yet, in the light of the sixth issue above quoted and the jury’s finding, perhaps no injury is shown such as will require a reversal. We believe the issue requested by the appellant set up under the sixth assignment was the proper issue to have been submitted, and was the issue in the case, but the appellant did not except in the court below to the refusal of that issue and take his bill of exceptions thereto. We cannot therefore consider it. Article 2061, Vernon’s Sayles’ Civil Statutes.

The sixth assignment is to the effect that the trial court erred in admitting the parol evidence of appellee to contradict the written contract for the purchase of the silos. On February 2, 1913, the appellee made an order for the silos through the agent or salesman of the Des Moines Silo Manufacturing Company, which was forwarded to the silo company at that place, and who accepted the order and shipped out the silos. The following is the order:

“Lubbock, Texas, Feb. 2, 1913.
“Des Moines Silo Mfg. Co., Des Moines, Iowa: Please ship to me at Lubbock, Texas, on or before May 1st, or at your earliest convenience, goods specified below, which I will receive and pay for at the prices, terms and delivery as stated below, under each head:
Articles. Price.
2 18 x 361 Pience Fir Silo.$1,000.00
2 Roofs. 94.00
“Terms, cash on' note on delivery. Note for nine months at eight per cent. Delivery f. o. b. Lubbock, Texas. Bill of lading for the shipment and settlement papers to be sent to Lubbock State Bank, where settlement is to be made at the time of delivery, according to the above price, terms, and delivery. Failure to make settlement as above specified releases the Des Moines Silo Mfg. Co. from all responsibility, and makes the entire amount due, and this order cannot be countermanded either before or after acceptance. Title to goods ordered hereby and right to reclaim possession thereof for balance of purchase price shall remain in the Des Moines Silo Mfg. Co. until paid for in money, and in case of suit thereon reasonable attorneys’ fees for vendor’s attorneys may be taxed as part of the costs. This order is not binding on the Des Moines _ Silo Mfg. Co., unless accepted by them at their office in Des Moines, Iowa, and after acceptance I, or we, agree to hold them blameless for failure to deliver from causes beyond their control. In case of violation of this contract, it is agreed that twenty-five per cent, of the purchase price shall be taken as stipulated damages for said violation. It is understood that this order constitutes the entire and only agreement between the parties hereto and any and all verbal agreements made with the salesmen or agents that are not written on the. order are waived by purchaser. If this order is for ensilage cutter, it is so subject to the manufacturer’s guaranty as printed in catalogue.
“[Signed] Morton J. Smith.
. “F. J. Burrows, Salesman.
“R. T. Penney, Agent.
“Accepted: Des Moines Silo Mfg. Company. March 8, 1913.”

The appellee testified:

“After signing this written contract, I had a different agreement from what this writing expresses which was made with Mr. Burrows. The first agreement that these things were to be shipped here and me pay nothing on it. I was to take them out there and put them down, and he would guarantee them to stay on the ground for nine months, put them up under the contract like he wanted me to, and it would not cost me anything, but when they were shipped here he wanted to pay $221 freight. I talked to Penny. He joined in as agent for Burrows and wanted me to pay the freight, and I told him I would not take these silos. I said: ‘You wire to Burrows and ask him about the contract. I will follow that contract.’ tie wired there, and they wired back and said: ‘Let Smith have those silos like he wants them.’ I had a strict understanding with Burrows before witnesses there. I took him,...(town and introduced him to a man and let them make an agreement as to how to put them up. I offered to pay him for an expert to put them up, but he said he would be satisfied with a first«elass carpenter. * * * It was guaranteed to me for nine months, to be put up after I got it, and set there a while empty, and then fill it, and then stay there nine months. I told him I would be satisfied. The agent told me my note was here in the bank, and if it Mowed down he would allow us for putting them and hauling them there. I asked him what kind of right he had to make that kind of deal. He said he was state agent, and had an interest in the company. All of this took place after I signed the written contract. The verbal contract was made after I signed the written contract. It was its final closing up. I think it was ten days — something like that. T think he wired there to have these things shipped, or wrote immediately, and in about ten days these silos came in. I took them out under the telegram which has been read. I would not have moved them under the statement to pay the freight down. I did not agree to that. I took them out under the verbal agreement. I refused to he hound by that written agreement. I would not even touch it.”

The witness, while testifying, was handed the written order above set out, and admitted that the signature to the paper was his and that he signed it, and admitted that Mr. Burrows had the paper there when they closed the deal, and that lie showed it to him and he signed it.

The appellant objected to the oral testimony:

“First, because the original contract is in court, and it is better evidence than parol testimony ; and, second, because it is to impeacii the written contract by showing conditions and provisions that are not contained in the writing; and, third, because there is no pleading by the defendant to warrant the introduction of any kind of evidence, and particularly parol evidence, but to impeach or contradict either the contract for the sale of the silos or the note that was given for them which has been introduced.”

The allegation of the appellee is: First, an alleged contemporaneous parol agreement ; the second is that he had the right to countermand the order before Burrows, who sold to him the silos, left town, and that he (Burrows) again “stated that he would write into the contract the warranty guaranty that he was then making, and that he had previously made.” The third is contained in the fourteenth paragraph of the answer, which simply amounts to an allegation that he was not to pay the freight, and that he told one Penny, who was the local agent, what the warranty agreed upon was, and that Penny understood the conditions and wired such conditions, “or gave said company such notice as he saw fit,” and delivered the two silos to appellee. The telegrams referred to by ap-pellee in his testimony are, in effect, an instruction to Penny from the silo company that the appellee refused to pay the freight, $221.20. The company by wire instructed Penny to pay the freight and draw on the company for the amount. There is no evidence that he ever wired or instructed the company that there was any such warranty as claimed in this case. The note sued on in this ease is a plain promissory note, without any other conditions.

The effect of the testimony given by appel-lee was to ingraft a parol contemporaneous agreement upon a written contract. The pleadings and evidence amount to the fact that an agreement was made, but left out of the writing, and that the appellee knew that fact. We find no allegation of fraud or mistake alleged, which caused the omission. We think this testimony contradicts the written contract, and under the state of the pleading it was error to admit it. Phelps v. Parker, 30 S. W. 305; Aultman v. York, 1 Tex. Civ. App. 484, 20 S. W. 851; Case v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Seitz v. Brewers, 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837.

Appellee did not allege a case of frauduent representation inducing a contract occasioned by representation of facts outside the purported agreements as in Commonwealth v. Bomar, 169 S. W. 1060'. The representations in that case were that the company had $200,000 paid up capital in cash, when, in fact, it had less than $20,000, thereby inducing Bomar to subscribe for stock. Or like the U. S. Gypsum Co. v. Shields, 106 S. W. 725, afterwards affirmed by the Supreme Court. To induce the order in that case, the agent represented that the government contractors would use their products in constructing government buildings at Ft. Sam Houston. These were representations of facts outside the order, and were not part of it, but inducements to it. The agreement here sought to be shown by parol is part of the agreement alleged not to have been placed in the writing, and contradicts the terms of the original contract. This we understand is not permissible. The order, when accepted by the company, imports by its terms a complete and legal obligation. It, in fact, asserts:

“It is understood that this order constitutes the entire and only agreement between the parties hereto, and any and all verbal agreements made with the salesmen or agents that are not written on the order are waived by the purchaser.”

With this stipulation the appellee sent the order to the silo company, and on the faith of this order the goods were shipped. To admit the testimony to prove this parol contract and add to or vary the written contract would be to violate a cardinal rule of evidence when there is no fraud, accident, or mistake alleged in omitting the warranty so to be ingrafted. This assignment, we believe, should be sustained.

For the same reasons, we will sustain the third and fourth assignments.

We also believe under the facts of this ease the trial court should have submitted the special issues requested by the appellant set out under the seventh assignment of error. It occurs to us, if there was no authority to make such a warranty by the agent or salesman, and if he made it, the principal should not be bound. Ordinarily the warranty given by the salesman authorized to sell may be presumed to have been upon the authority of his principal; but, when it is shown by evidence he had no such authority and the declaration of the purchaser, that the order constituted the entire agreement, and that all such representations, etc., not written in the order are waived, we think the principal would not be bound by such representations, unless after knowledge thereof the company ratified the warranties so made.

The appellant bank attacks, the verdict and judgment of the trial court m rendering a judgment on the cross-petition against the silo company for $600 damages. The silo company is not appealing. The judgment so rendered may be void, as suggested by appellant, for the reason that the silo company was a nonresident of the state. .It may also be that the attachment upon an unliquidated demand would not authorize such service as would support a judgment in rem against the property seised under the attachment; but, if so, it is a matter about which appellant is not concerned.

The tenth assignment is sustained. We see no issue presented in the pleadings which would render the letter introduced, dated January 16, 1914, admissible. It is simply a refusal to pay the note upon demand and contains a lot of self-serving declarations.

The trial court put the burden of proof on the appellant to show a transfer to it and to show when it was transferred, if at all. The blank indorsement on the note proves the transfer unless the same is attacked as not being genuine or as being-forged. The assignment of the note, when no such attack is made, is regarded as fully proved. In other words, as to the indorsement non est factum, in effect, must be pleaded. Article 588, Revised Civil Statutes; Schauer v. Beitel, 92 Tex. 601, 50 S. W. 931. The appellant was required to show only that it purchased the note before maturity. The charge of the court imposed the burden on appellants to establish the fifth and sixth special issues first above set out. The law presumes the indorsement was made before maturity, when the indorsement does not show otherwise, and the holder of a note indorsed is presumed to be the owner unless the indorsement is denied under oath or attacked under oath. This charge is not objected to by the appellant, but we thought it proper, inasmuch as the case is to be reserved, to refer to the matter. We call attention .to the case of Daniel v. Spaeth, 168 S. W. 509, where this court expressed its views upon the matters last above mentioned.

The case will be reversed and remanded as to appellant, except that part of the judgment against the silo company, which is not appealing in this case.
      gr^sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    DAWSON et al. v. GROESBEECK.
    (No. 536.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 24, 1916.)
    Adverse Possession <S=»27 — Evidence—Stnr-eiciency.
    In an action of. trespass to try title, evidence held to sustain the findings that the predecessor in interest of the plaintiff had occupied the land in question for more than the statutory period for grazing purposes.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 121, 122, 652, 664, 684; Dec. Dig. <S=2T.]
    Appeal from District Court, Jeff Davis County; W. C. Douglas, Judge.
    Action by J. N. Groesbeeek against the unknown heirs of J. C. French and another, and S. S. Dawson and others intervene. From a judgment for plaintiff, the interveners appeal.
    Affirmed. -
    J. R. Hill, of Ft. Davis, for appellants. J. D. Martin, of Alpine, for appellee.
   HARPER, C. J.

J. N. Groesbeeek instituted this suit as plaintiff against the unknown heirs of J. C. French, deceased, and the unknown heirs of James Dawson, deceased, in trespass to try title to the lands described in the petition. The unknown heirs were cited by publication. An attorney was appointed to represent them. Afterwards appellants intervened as defendants, pleaded their title specially; that Mrs. P. H. Groesbeeek, as executrix of the last will of J. B. Groesbeeek, deceased, joined in a deed with John C. French in which they conveyed the land herein sued for to one James Dawson, who was alleged to be the father of the interveners. The case was tried by the court without a jury, and judgment was entered in favor of plaintiff against defendants cited by publication, and also against interveners.

The appellants, by two assignments, attack the findings of fact and law upon the ground that the findings as to limitation are not supported by the evidence, but are against the weight and preponderance of it.

“Findings of Fact.
“(1) Surveys 31 and 32 (the two 160-acre tracts of land herein sued for) were patented to John D. Groesbeeek and John C. French under date of January 19, 1859.
“(2) John D. Groesbeeek died October 11, 1856, leaving a will under which his .widow (Phoebe H. Groesbeeek) was made independent executrix. His widow was bequeathed his estate in trust for his three children, John N., Henry S., arid Charles F. Groesbeeek. Henry S-. Groesbeeek died in 1899, intestate, unmarried, and without issue.
“(3) On February 24, 1859, Phoebe H. Groes-beeck, as executrix of the estate of John D. Groesbeeek, deceased, and John 0. French, conveyed said surveys 3l and 32 to James Dawson. No possession was ever taken by any one claiming under said deed, and no taxes were ever paid by the grantee or any one claiming under him, and it does not appear that any claim was ever asserted thereunder.
“(4) Under date of January 12, 1884, Mrs. Phoebe H. Groesbeeek, in her own right and as independent executrix of the Estate of John D. Groesbeeek, deceased, conveyed said surveys 31 and 32 to Chas. F. Groesbeeek by deed which was forthwith placed of record.
“(5) Ohas. F. Groesbeeek married in May, 1884, and died intestate in July, 1884, leaving no children or their descendants, but survived by his widow, Mollie W. Groesbeeek.
“(6) On March 30, 1893, Mrs. Mollie W. Groesbeeek (widow) made a general power of attorney to Gregg & Young.
“(7) On June 30, 1893, Gregg & Young, as attorneys in fact of Mollie W. Groesbeeek conveyed said surveys 31 and 32 to Mrs. Phoebe H. Groesbeeek by deed which was forthwith placed of record.
“(8) On December 16, 1893, Mrs. Phoebe H. Groesbeeek made a written lease for five years expiring December 16, 1S98, of said two tracts to Jesse W. Merrill. Said lease was duly recorded, and said Merrill used said lands continuously under said lease until its expiration, and afterwards under renewals of said lease until 1905, when Merrill transferred his said leasehold to George McGuire. Said lands were so used by said Merrill for grazing cattle in connection, with certain other lands owned by Merrill, all situated in an inclosure exclusively controlled by Merrill, and known as bis ranch. Said ranch was in Limpia Canyon, and consisted of seven to ten sections of land inclosed by a fence upon the east and south, precipitous mountains upon the north and west forming reasonably effective natural barriers, but over which cattle did at times get out of said inclosure as often and as frequently as through the fence.
“(9) George McGuire in 1905 bought out said Jesse Merrill ranch, and continued to hold said surveys 31 and 32 under lease from the Groes-beecks until 1913, making the same character of use of said lands and having the same sort of inclosure as aforesaid.
“(10) Taxes were regularly paid by the Groes-beecks upon said lands as they accrued.
“(11) Mrs. Phcebe H. Groesbeeek died July 24, 1904, leaving a will under which John N. Groesbeeek was sole legatee and devisee of her estate.”

Based upon foregoing findings, the court concluded that plaintiffs had title under the five-year statute of limitation.

The testimony of witness Merrill as to the character of plaintiff’s possession is uncon-tradieted. In substance, it is as follows:

“My name is J. W. Merrill. I have lived in Jeff Davis county since 1883. I am acquainted with surveys 31 and 32 lying in Limpia Canyon. I have known these surveys for about 30 years. I used to live — had a little ranch house and kept cattle there between those surveys No. 76 in Limpia Canyon. I located there in 1887 or 1888. No one was living on either of the surveys when I first knew Them. I am the J. W. Merrill who signed the contract of lease between J. W. Merrill and Mrs. P. H. Groesbeeek and dated December 21, 1893. After the execution of the lease I grazed cattle on the two quarter sections. I was already in possession of them. I didn’t know who owned them for a long time. My house was located right between the two. It wasn’t more than 200 yards from the northwest corner of that survey. After I leased these quarter sections, I just let my cattle graze on them; the lower survey I had a watering place. There wore two little springs in the south side of the canyon, but they gave so little water that I developed water in the creek bed. There was a deep wash, perhaps 7 or 8 feet deep and 20 or 30 feet wide, and the water passing down had washed that out, and there was water right at the surface in the bottom of that little gulch, and I walled that two sides, a place about perhaps 20 feet square. I walled the three sides and let the cattle in, dug down in against the wall, and set a trough inside, and kept that up as long as I owned the ranch. I must have kept that up there for 15 years. It was a watering place for my cattle that I owned. I kept that watering place and grazed cattle on that land as long as I had the lease and as long as I owned the lands in the canyon there until the time I sold to McGuire; I think it was in 1905. At one time there was a corral on the other section built of cedar poles for the purpose of branding cows. Yes; those two sections were enclosed by an enclosure. There was no fence on the line or near the line of those surveys, but there was a fence on the east and south, a wire fence and mountain, high barriers on the north and west. The string of fence on the south never has been removed; I mean it has never been taken away. The position of it has been changed a little, but it is there yet, not exactly where it was, but almost. That string of fence was 2 or 3 miles long; it was a three- ' wire fence and cedar posts. On the east there was about the same kind of fence, perhaps four wires most of the way. The end of the fences joined to mountain bluffs, abrupt mountain, steep mountains, and the object of joining onto these mountain bluffs was to avoid further fencing. It wasn’t considered necessary. In answer to your question as to whether that barrier was sufficient to turn cattle, I will say that there were places on that mountain where cattle could go over, but they didn’t pass over the mountains certainly any more than they did through the wire fence. I considered it a sufficient barrier to keep cattle in and out, although cattle would pass over. I considered it a sufficient fence, although it was possible for cattle to pass over, and cattle did at times pass over just as they would pass over or through a wire fence. The east fence was between a mile and two miles east of the lower section, and the south fence was something like the same distance south of the two. Yes, sir; that fence was there during the entire time I had possession. Those surveys 31 and 32 were inclosed the same way all the time that I had possession; that is, by this wire fence on the south and east and the mountains on the north and west.”

We are of opinion that this evidence is sufficient to support the findings of fact and conclusions of law filed by the trial court. The assignments must therefore be overruled, and cause affirmed; and it is so ordered. Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 130; Dunn v. Taylor, 107 S. W. 953; Id., 102 Tex. 80, 113 S. W. 265; Alley v. Bailey, 47 S. W. 821; Parker v. Newberry, 83 Tex. 432, 18 S. W. 815.

Affirmed.
      (gssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes