author: MOURSUND, J.

text:
    LEAHY et al. v. TIMON et al.
    (No. 6051.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 5, 1918.
    On Motion for Rehearing, July 1, 1918.)
    1. Witnesses <S=al39(l) — Transactions with Decedent — Will Contest.
    In a will contest, testimony by a contestant concerning statements by or transactions with the testator is not admissible over objection based on Rev. St. 1911, art. 3690.
    2. Trial <®=^260'(5) — Instructions—Covered by Other Instructions.
    . Where, in a will contest, the court, in addition to -giving in its main charge a definition of mental capacity which was not objected to, gave a special charge for plaintiffs, again explaining the meaning of mental capacity, it properly refused an additional charge for plaintiffs on mental capacity, even though correct as an abstract legal proposition, since giving it would have unduly emphasized the issue.
    3. Jury <®=>72(1) — Completing Panel.
    Where sheriff’s return shows that, although he served some of the jurors selected by the jury commissioners for a certain week of court, he did not serve the remainder, because “not found after due diligence and search,” the court, at the beginning of such week, on finding that a sufficient number of jurors are not in attendance, is not required to try the question of thei diligence of the sheriff before causing sufficient jurors to be summoned to make up a suitable panel for the week, but, to proceed with the dispatch of business, may complete his panel as provided by Rev. St 1911, arts. 5167, 5168, regardless of the reasons for the absence of jurors selected by jury commissioners.
    4. Jury <⅜=82 (2) — Objections.
    Objections to sheriff’s return of service of jurors selected by jury commissioners, as not stating facts showing diligence, or reasons wliy certain jurors were not summoned, should be made in time to invoke the court’s action, when it would not require discharge of a portion of a panel from which cases have been tried.
    On Motion for Rehearing.
    5. Wills <⅜=>163(1) — Congest — Burden of Proof.
    Notwithstanding suspicious circumstances as to the making of a will, such as that the chief beneficiary wrote the will and maintained secrecy as to its execution and existence until after testator’s death, the burden of the whole caso remains upon contestants as to fraud and undue influence.
    6. Wills <§⅛164(5) — Testamentary Capacity — Advice.
    Where a will is plain, and testator is capable of fully understanding it, and either carefully reads it or has it correctly read to him, that the beneficiaries or' beneficiary fail to advise him fully as to claims of others is immaterial.
    7. Appeal and Error <⅞⅛>994(2) — Review-Credibility op Witnesses.
    Appellants cannot contend that the appellate court is authorized to discredit the testimony of an adverse party, whom they placed on the stand and whom the jury believed.
    Appeal from District Court, Nueces County;, W. B. I-Iopkins, Judge.
    Suit by Cecelia Deahy and others against Walter E. Timón and others. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    D. McNeill Turner, of Denver, Colo., John C. Scott, of Corpus Ohristi, and Beasley & Beasley, of Beeville, for appellants. Kleberg- & Stayton, G. R. Scott, and Boone & Pope, all of Corpus Christi, Dougherty & Dougherty, of Beeville, and C. M. Pollard, of Houston, for appellees.
   MOURSUND, J.

This suit is one by Cecelia Leahy, joined biy her husband, Phillip Leahy, and Laura Dolan, daughters of Mrs. Ellen Timo-n, deceased, and Mary Ellen Ellis, .joined by her husband, C. C. Ellis, Ann Ara-bella Blair, joined by her husband, Sam Blair, John Iíenry Timón, Amos Cecil Timón, Walter Lee Timón, Augusta Margaret Timón, Edward Beasley Timón, a minor, who sued by his mother, Agnes Timón, as next friend, who are the children of John W. Timón, the deceased son of Mrst Ellen Timón, against Walter F. Timón, E. C. Timón, H. J. Timón, and Lizzie J. Barry, children of said Mrs. Ellen Tinion, and Harry T. Dolan, a minor grandson of Mrs. Ellen Timón, to contest the validity of a paper purporting to be the will of said Mrs. Ellen Timón, dated January 17, 1912, and also its probate in the county court of Nueces county under a decree rendered February 4, 1915. The grounds alleged were that at the date of such instrument Mrs. Tlmon was without testamentary capacity, and that such instrument was the product' of fraud perpetrated on her by defendant Walter F. Timón, and of undue influence exercised over her by him. During the pen-dency of the suit, Edward Beasley Timón reached his majority, and thereafter prosecuted the suit in his own name. The suit was filed in the county court of Nueces county on March 16,1915. Claude Pollard was appointed guardian ad litem for the minor, Harry Timón Dolan. Judgment wasi rendered in the county court in favor of defendants, and, upon appeal to the district court, a general verdict was returned by the jury in favor of defendants, upon which judgment was entered, reaffirming the validity of the will and its probate, and adjudging the costs, including a fee of $1,000 for Claude Pollard, against the plaintiffs. Plaintiffs appealed.

Under the instrument an estate of about a. half million dollars was devised, one-third to one-half thereof to Walter F. Timón, property worth about $20,000 to Harry T. Dolan, the minor s,on of plaintiff Laura Dolan, and to each of the other three defendants a substantial portion; no effort being made to provide uniformity in value as to any of the beneficiaries. The plaintiffs were entirely pretermitted. Walter F. Timón was appointed independent executor, trustee to hold and manage the property devised to Harry T. Dolan, and it was further provided that the bequests be divided and apportioned among the devisees by the executor in such manner and form as to him might seem proper. A vast amount of testimony was adduced, the statement of facts containing 900 pages.

In. the charge of the court the issues of mental capacity, undue influence, and whether Mrs. Timón executed the instrument were specifically submitted, and reference made to the issue of fraud. At plaintiffs’ request the court gave special charges drawn by plaintiffs submitting each of the following issues: (1) Fraud; (2) mental capacity; (3) whether the instrument signed by Mrs. Timón had been altered after she signed it; (4) whether Mrs. Timón knew and understood the contents of the instrument at the time she signed it; (5) undue influence. By its general verdict for defendants the jury found in their favor as to each issue submitted. We conclude that the evidence is sufficient, as to each of such issuest to support the verdict of the jury. We conclude, further, that the testimony is not of such character, as to any material issue, as would justify this court in exercising the power, conferred upon it, to set aside a verdict on the ground that it is so contrary to the preponderance of the testimony as to show that manifest injustice has been done. The evidence is discussed at length and with much ability in both briefs, which also disclose an exhaustive investigation of authorities for the purpose of supporting the contentions made with respect to the weight to be given to certain facts. Were we to attempt to follow the discussion, this opinion would be indeed lengthy, and no- useful purpose would be subserved thereby.

Assignments 7 to 13, inclusive, and 16 and 17, complain of the refusal to permit Cecelia Leahy, one of the plaintiffs, to testify to certain statements made by Mrs. Timón to her. By the fifteenth assigmnent complaint is made because the court, on motion of defendants, struck from the evidence and instructed the jury not to consider testimony of Mrs. Leahy relating to a transaction between her and Mrs. Timón. While some portions of tire testimony to which the assignments relate might not be material, there is sufficient thereof material to require a reversal of the judgment, if testimony of this character is admissible in cases of this kind. We conclude, however, that, under the decisions of our Supreme Court, the testimony of Mrs. Leahy, a party to the suit, concerning statements by or transactions with Mrs. Ellen Timón, was not admissible over the objection that it was inhibited by article 3600, R. S. 1911. Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606; Sanders v. Kirbie, 94 Tex. 564, 63 S. W. 627; Lewis v. Aylott, 45 Tex. 190; McCampbell v. Henderson, 50 Tex. 602; Parks v. Caudle, 58 Tex. 216; Reddin v. Smith, 65 Tex. 26; Ross v. Kell, 159 S. W. 120; Clark v. Briley, 193 S. W. 422.

This case cannot be distinguished from the case of Brown v. Mitchell, supra, and if article 3690 applies to any ease involving the probate or validity of a will it appears that it would apply to this case, for it is one by pretermitted heirs against the devisees and executor named in the will. That the statute has application to some cases involving the probate of wills is expressly stated or taken for granted in the cases of Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255, and Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S. W. 56, and 87 Tex. 647, 30 S. W. 869. If it be held not to apply in a will contest case, it can only be upon the grouhd that the suit is not between parties such as are described in the article, or on the ground that the language of the last portion of the article descriptive of the suits to which the provisions of the first part have been extended is not broad enough to include the particular "contest. In the early case of Parks v. Caudle, above cited, our Supreme Court held, in a suit by heirs against heirs, and therefore coming within the latter portion of said article, that the testimony inhibited by the first portion thereof was not merely statements by the deceased to the witness, ■ or transactions between the deceased and witness, but also statements to or transactions between deceased and third persons, and that, too, occurring when the witness had no interest therein. It also held that the expression “transaction with such dec%deht,” found only in the latter portion of said article, is broad enough to include the execution of a deed by the decedent to one whose heirs are claiming under it. The statute was also applied in the case of Reddin v. Smith, supra, which also may be said to have arisen out of transactions by the decedents with others than those who were parties to the suit.

These cases were decided by the court while Judge Stayton, who wrote the opinion in Brown v. Mitchell, was a member thereof. The decision in the last-mentioned case, it appears, is in harmony with the earlier decisions. It is suggested, however, that later decisions of the Supreme Court modify the holding in Brown v. Mitchell. The case of Martin v. McAdams, supra, is especially relied on. It appears that certain reasoning adopted from a Kentucky case not available to us, and used for the purpose of illustrating the rule of construction as to what is a transaction, if such reasoning is followed to its logical conclusion, would limit the application of the statute to suits the purpose of which is to take away funds or property from the estate of a deceased person, and to deny its application to suits involving the rights of heirs to the estate. To give such a broad effect to the language would be to deny the purpose of the statute, as stated by the same great judge in writing the opinion for the court in the case of Moores v. Wills, 69 Tex. 109, 5 S. W. 675, and stated by our courts in other cases. As two members of the court participated in the decision of the case of Brown v. Mitchell, and no comment is. made with regard to such ease, it cannot be presumed that the court intended to announce a rule in conflict therewith. It is also evident that, if the court had been of the opinion that the statute only applied to suits the purpose of which was to deplete the estate, it would hardly have gone to so much trouble to discuss the particular evidence, and hold that the statute did not apply to such evidence.

It is also made a matter of comment that the Supreme Court, in the case of Sanders v. Kirbie, 94 Tex. 564, 63 S. W. 626, based its decision upon the assumption that the statute applied to that case, which asumption had been made by the Court of Civil Appeals in its certified question. It is true the court refrained from committing itself, but whether because it was unnecessary to do so, or because the suit was one in which all parties were legatees or devisees, and therefore not based on the identical facts shown in the case of Brown v. Mitchell, is a. matter of surmise and conjecture. There can be no question in this casé that the suit is by persons such as are specifically named in the statute, and we will therefore not discuss the question of persons.

Recurring to the question whether the case> falls within those covered by the statute, it must be admitted that appellants’ theory is supported by authorities from other states and by statements contained in some of our decisions; also that the question is one upon which there is room for a difference of opinion. It is stated in the case of Parks v. Cau-dle that it was believed the codifiers, in adding the last portion of the article, did so for the purpose of incorporating into the statute the decisions of Lewis v. Aylott, 45 Tex. 202, and McCampbell v. Henderson, 50 Tex. 002. If they intended to incorporate only cases identical in the facts with such cases, the statute, in so far as it relates to suits by or against heirs or legal representatives, would apply only when the suit arose out of a transaction by parties to the suit with decedent. Cut the court did not adopt this strict construction in deciding the eases of Parks v. Caudle and Brown v. Mitchell. As before stated, the case of Brown v. Mitchell i§ controlling, being practically identical as to facts with this case, and we find no ground for believing that it will be overruled by the Supreme Court, especially after it has received legislative sanction by re-enactment of the statute without change of verbiage. The Supreme Court has not, as far as we have boon able to ascertain, been called upon to again pass upon the direct question. It referred the application for writ of error in the Clark v. Briley Case, hereinbefore cited, to the Committee of Judges of the Courts of Civil Appeals, who refused such application. Appel-lees call attention to the fact that in the application in said case, and also that filed in the case of Ross v. Kell, 159 S. W. 120, a conflict was alleged between said decisions and the case of Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441, and that by referring the application in the one and dismissing that in the other the court decided there was no conflict. The assignments are all overruled.

There is no merit in the fourteenth assignment. The court, in addition to defining mental capacity in the main charge, which definition was not objected to, gave plaintiffs’ special charge No. 2, which again explained to the jury what was meant by mental capacity. Plaintiffs were not entitled to an additional charge on mental capacity, even though it be conceded to state a correct abstract proposition of law. To have given it would have been to unduly emphasize the issue, and, in view of the wording of the special charge refused, the court was not only justified in refusing it, but would have committed error had he given’it.

The testimony, the exclusion of which is complained of in assignments 18 to 24 inclusive, is of the same character as that considered in disposing of assignments 7 to 13. In fact, for authorities and remarks we are referred to the seventh assignment. The assignments are all overruled.

By the twenty-fifth assignment complaint is made of the overruling of a motion in writing to have jurors summoned who had been selected by the jury commissioners but not summoned by the sheriff. The facts, as disclosed by the bill of exceptions, are: That the jury commissioners selected 25 jurors for the seventh week of court. The list was issued July 2, 1917, and returned July SO, 1917; the sheriff showing by his return that 10 of the jurors were served by notice in person, and that the remainder were not served because “not found after due diligence and search.” The case was set on August 1, 1917, by agreement of counsel, for the seventh week of the term, which week began on September 10, 1917. On Monday, September 10th, it appearing to the court that a sufficient number of jurors were not in attendance, the panel was completed in the manner prescribed by law, and the' jury impaneled, including the original 10, and sworn as jurors for the week. Other cases were tried by juries selected from such panel, and on September 14, 1917, when this cause was called for trial, the jurors thus impaneled were in attendance on court. The plaintiffs made an oral motion, in substance the same as the written motion, which was overruled. In the written motion plaintiffs alleged that the return stated the conclusion of the sheriff, and did not state facts showing any diligence, or reason why the jurors were not summoned; that some of the jurors, and it may be many of them, were qualified jurors and lived in Nueces county; that the sheriff in fact used no diligence to summon them, and that one of them lived on a farm about seven miles from Corpus Christi. They prayed that they be permitted to question the sheriff as to the residence of said jurors, their availability at that time, and the steps taken to summon them, and requested that the sheriff be required to amend his return and state the facts showing what diligence, if any, he used in an effort to summon said 15 jurors, and whether or not he left notice to them. They further prayed that he be required to summon said jurors forthwith to attend court, and that the jurors, when so summoned, be placed on the list of jurors for the trial of the case.

The defendants demurred generally to the motion, and alleged the facts, substantially as hereinbefore stated, and that, if the motion should be granted, it would tend to affect the disposal of the business of the court. The court sustained the general demurrer, and qualified the bill of exceptions by stating that the statements contained in the answer were at the same time made to appear to the court to be true and correct; that it was the opinion of the court that, even if the jurors were ordered to be summoned, they could not, if found, have been brought into court until after the setting of the case was lost, which would have resulted in a continuance; and that everything appeared to the court as regular, other cases' having been tried before the same panel, and the parties having agreed to a setting of £lie case for the particular week, with their eyes open to the fact that all of the jurors had not been found. As the court did not permit the plaintiffs to interrogate the sheriff, or require the sheriff to amend his return, it must, we think, be presumed that the court was of the opinion that, even though the sheriff had failed to do his duty under the law, plaintiffs were not entitled to object to the panel, which, under the provisions of the statutes, had been provided to serve for the seventh week. The court is not required to try the question of the diligence of the sheriff before causing sufficient jurors to be summoned to make up a suitable panel for the week, but, in order to proceed with the dispatch of business, may complete his panel as provided by articles 5167 and 5168, R. S. 1911, regardless of the reasons for the absence of the jurors selected by the jury commissioners. G., H. & S. A. Ry. Co. v. Perry, 38 Tex. Civ. App. 81, 85 S. W. 63. If it were conceded that circumstances might exist which would require of the court such relief as was prayed for in the motion, it appears to us that steps should be taken to invoke action by the court at a time when it would not require the discharge of a portion of a panel from which cases had been tried for four days out of the week. We overrule the assignment.

The judgment is affirmed.

On Motion for Rehearing.

We shall not undertake to state every fact submitted to the jury, or the conflicting testimony as to material issues, and therefore refuse the request for additional findings, set out in the motion to the extent of more than 30 pages. Our conclusions of fact have been stated in the original opinion. We will briefly discuss the appellants’ contention that certain rules of law require that the evidence in this case should be held insufficient to sustain the verdict, and in doing so it will be necessary to state briefly some of the facts proven.

The contestants called Walter F. Timón to testify, and proved by him that his mother lived alone, after the death of his father, in Corpus Christi, from the year 1900 to the time of her death, December. 30, 1914. He was the only one of her children who resided in Corpus Christi until May, 1912, when E. C. Timón moved to that city. Walter Timon, when in the city, visited her daily, after he moved to Corpus Christi in 1902, and looked after her welfare, and after 1907 assisted her with her business affairs, such as renting houses, collecting rents, and payment of taxes. If she consulted any other lawyers during that time, or any intimate friends, he did not know of it or recall it. He had no knowledge of his mother consulting with any one except himself concerning the making of the will. He testified that upon one of his visits his mother was reading a newspaper, and called his attention to the fact that some one’s will had been probated, and stated that she was thinking seriously of making a will, to which he replied that every one ought to make a will; that she stated she would have given all of her property to his little boy, if he had lived, and that she felt she ought to leave it to him, because he had been so good and kind to her; that he told her to please not make such disposition of her property, and she told him he was a goose; that she told him to bring some paper the next day and take down a memorandum of her will, and then take it over to a lawyer to have him rewrite it; that he came the next day, and she dictated the disposition she wanted to make of her property; tñat he wrote the legal phraseology; that he made no suggestions whatever as to the manner in which any portion of the property should be devised; that Mr. Kleberg, of the firm of Kleberg & Stayton, prepared the will; that it was copied off or reduced to typewriting in Kleberg’s office, but he did not recollect who did the typewriting. He testified that he took the will to his mother, and read it to her, and she read it over carefully, he thought, three times; that he left the will with her; that she asked him to have Hugh Sutherland and Joe Downey come there to witness the will; that he told them of his mother’s wish; that he was at his mother’s house while the will was being signed, but did not go into the room where his mother and the witnesses were signing the will; that he did not think it a proper place for him to be, and so did not go in; that afterwards, he thought the next day, his mother gave him the will to place in the First State Bank; that he did so, and it remained there until after her death, when he took it out and made application to have it probated. He informed no one of the existence of the will until after it was admitted to probate.

Appellants deduce from this testimony, and the disposition made by the testatrix of her estate, the following propositions: (1) That Walter Timón stood in a confidential relation to his mother; (2) that he wrote the will; (3) that he took approximately $200,000 under the will out of an estate worth $500,-000 to $550,000; (4) that he maintained secrecy with regard to the execution and existence of the will; and that he had ample opportunity for exercising undue influence. They also contend that the will is unjust and unnatural, in that the children of Mrs. Timon’s deceased son, John, and her daughters, Mrs. Leahy and Mrs. Dolan, are pretermitted. It appears that John Timón and Mrs. Leahy left the parental home about the year 1879 or 1880, and were given a ranch by their parents, which was charged against them as an advancement after the death of their father. The other children stayed at home. Walter Timón and E. C. Timón testified that Mrs. Timón was not satisfied with the partition made, in so far as it involved John Timon and Mrs. Leahy. Walter Timón stated that this dissatisfaction arose from the fact that the ranch was put in at its value when received, instead of at the date of the partition. He and one of his brothers also testified that it was understood, when John Timon and Mrs. Leahy received the ranch, that it was, all they were to receive. In fact, Walter Timón testified that his mother told him that the reason they should not have any of her property was because the division made after the death of her husband was unfair, and that they got too much. As to Mrs. Dolan, whose son was bequeathed a portion of the property, a motive for preter-mitting her was testified to by Walter Timon, in that he stated she and her mother had frequent bitter disputes, and that Mrs. Dolan was unkind to her mother. That the relations between Mrs. Dolan and her mother were strained is shown by a letter written by Sirs. Dolan to Walter in December, 1910, in which she states that she guessed her mother was still “sore” at her, and requested AValter to ask Mrs. Timón to make her a loan.

There is testimony from which the jury could find that Harry, E. 0., and Walter Timón assisted in building up the parental fortune, and that Mrs. Barry visited her mother more frequently than the other sisters, and that Mrs. Barry visited her mother very often, and showed her many courtesies, and that the relations between them were very pleasant. There was also testimony from which the jury could find that Mrs. Timón had stated that her property was for all of her children, and had mentioned an intention of giving, without stating how, each of her daughters a house in Corpus Olirisli, which the witnesses stated were built exactly alike, but which were shown by Walter Timon’s testimony to be very materially different in size and value. The most valuable of the three was devised to Harry Timon Dolan. It would be useless to discuss all of the testimony. The above is stated merely for the purpose of showing what light the jury had upon the question whether the fact that certain children were pretermitted made the will such an unnatural and unjust one as to stamp it with suspicion.

It is of course well established that fraud and undue influence may be proved by circumstantial evidence, and appellants take the propositions above stated as deduced by them, and contend that the undisputed facts raise a presumption of fraud and undue influence, which they say must be overcome by tire proponents by clear and satisfactory evidence, or at least by a preponderance of the evidence. The circumstances relied on are recognized by courts and text-writers as suspicious ones, which, however, as far as we can ascertain, furnish no such presumption as would authorize a charge shifting the burden of proof, but which do raise presumptions of fact of more or less strength, in view of the other facts adduced, to be weighed and' considered by the jury in determining the final' issue whether the contestants have, by a preponderance of the testimony, shown that the will was procured by fraud or undue influence. In support of this view we cite Schouler on Wills (5th Ed.) §§ 246, 231, 238, 239, 245, 247; Alexander on Wills, §§ 394, 585 to 588, 594 to 597, 615; note, 28 L. R. A. (N. S.) 275. We consider our cases to be in line with the above statement. Barry v. Graciette, 71 S. W. 309; Patterson v. Lamb, 21 Tex. Civ. App. 513, 52 S. W. 98; Goodloe v. Goodloe, 47 Tex. Civ. App. 493, 105 S. W. 533; Gallagher v. Neilon, 121 S. W. 565; Mayes v. Mayes, 159 S. W. 919; In re Bartels’ Estate, 164 S. W. 859; Beadle v. McCrabb, 199 S. W. 355.

We do not regard the cases of Vickery v. Hobbs, 21 Tex. 571, 73 Am. Dec. 238, and Kelly v. Settegast, 68 Tex. 13, 2 S. W. 870, as being in conflict with the rule as above stated by us. There are expressions in the opinion in such cases, made in discussing the evidence, to the effect that the circumstance that a beneficiary wrote the will is a suspicious one, and it ought to be made to appear clearly and satisfactorily that the testator was not imposed upon. These cases cannot be construed as announcing a rule that the burden of proof shifts, so that the court would be authorized to charge thereon, but are to the effect that a circumstance which is so strong in connection with the other facts as to raise a presumption of fact that the testator did not know the contents of a will can only be removed by testimony showing clearly that he did know such contents. In the case of Rounds v. Coleman, 189 S. W. 1086, the court appears to have been inclined to adopt appellants’ theory that the burden of proof shifts, and that the rule as to confidential relations is the same with respect to wills as to gifts inter vivos, but found it unnecessary to decide the point for the reason that it held there was no fiduciary relation to call for the application of any such rule. There is ample authority for the proposition that the strict rule applied to gifts inter vivos does not apply in the case of wills. Schouler on Wills, § 246; note, 22 L. R. A. (N. S.) 1034. In the case of Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904, the court discusses at length, and very satisfactorily, tire reasons upon which the difference is founded.

The appellants made no objection to the charge of the court as to the burden of proof and no request for a special charge on the theory that the burden shifted; but, as we understand their contention, it is that this court, in weighing the evidence, should place the burden, at least as to fraud and undue influence, upon the proponents, and determine whether by clear and satisfactory evidence, or at least by a preponderance of the evidence, they have affirmatively proved there was no fraud or undue influence. Our conclusion is that by the great weight of authority the burden of the whole case remains upon the contestants as to fraud and undue influence. The circumstances designated by courts and text-writers as sufficient to cast suspicion upon the will must be weighed 'by the jury in connection with the other evidence, and it is obvious that the strength of any presumption of fact to be drawn therefrom is dependent upon the other facts in the ease. However, if the testimony as a whole supports the verdict, it must be upheld, and questions of credibility must be decided so as to support the verdict. The evidence was sharply conflicting on the issue of mental capacity and whether or not Mrs; Timón had sufficient eyesight to read at the time she signed the will. Taking the testimony favorable to the verdict as true, it appears that Mrs. Timón was not only of sound mind, but that she was a woman with .a vigorous mind, of good business ability, who had ample intelligence and capacity to fully understand and comprehend the language in which the will was drawn. 'In this connection we will state that tjie will was drawn in very plain terms. No one who read it could have any doubt as to what each person mentioned therein was to receive, and that the entire estate was disposed of. It also appears that Mrs. Timón could read by the aid of her glasses, that she had the 'will in her possession, and had ample opportunity for acquainting herself with its provisions. One of the subscribing witnesses asked her, or stated to her, in a manner implying a question, that she had read it over and knew it was her will, and she replied, “Yes, and it is all right.” The testimony of Walter Timón also shows that he read the will to her, and that she read it herself several times. The testimony supports a finding that Mrs. Ti-món was a woman of great strength of character, independent and determined, who thought and acted for herself, and could not be easily influenced by any one. In view of all of this, the jury was warranted in finding that she actually read and understood the will. It is true that Walter Timón assisted her in such small legal matters as presented themselves after 1907, and helped her rent her houses and collect rent; but the evidence discloses that even in such matters she reserved the ultimate control of her business affairs, and acted contrary to his advice upon certain occasions. The facts were not such as to create what the law would term the confidential relation of attorney and client, for what he did for her was because she was his mother, and the relation of mother and son, between whom there existed a deep affection, precluded the more distant one of attorney and client. Mr. Alexander states in section 594 that:

“The effect of a confidential relationship between testator and legatee, as suggestive of undue influence, is materially different where the legatee is a child, not a stranger, for in the former case the relationship of strict confidence and of participation in the testator’s estate is natural.” t

According to Walter Timon’s testimony he gave her no advice as to how to devise her property, other than that he told her not to bequeath it all to him. Much is said concerning the proposition that it was not shown that Mrs. Timón had competent and disinterested advice, and that Walter Timón did not give her full and disinterested advice, and it appears that this is regarded as conclusive ground for setting aside the verdict. It is true that Walter Timón gave her no ad-vieej except not to will all of her property to him. We do not understand that he was called upon to press the claims of others. The matter of advice does not, as we understand it, go to the question of who is to receive the property, but to the question of whether the testator is fully informed as to the actual contents and meaning of the will. If the’ testatrix has a mind capable of comprehending and fully understanding the provisions of the will, andi is shown to have had it read to her correctly, or to have carefully read it herself, we fail to see howl it-would be necessary for her to have any advice. The absence of advice can only be a circumstance to 'be considered by the jury, and the weight of such circumstance is necessarily dependent on the question whether the terms of a will are plainly drawn, and whether the testatrix is intelligent enough to read and understand the same.

The appellants could not place Walter Timón on the stand without incurring the risk that his testimony would be believed by the jury, and, the jury having believed it, they cannot contend that this court is authorized to discredit it. His testimony as a whole is sufficient to destroy any inferences of fraud or undue influence which can be deduced by considering only certain facts to which he testified. The case is one in which an appellate court, in our judgment, cannot set aside the verdict without a clear invasion of the prqvince of the jury, or giving conclusive effect as a matter of law to certain suspicious circumstances, which we regard as under the great weight of authority to be merely inferences or presumptions of fact to be weighed by the jury.

The motion for rehearing is overruled.
      <g=5Por other eases 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: DUNIiLIN, J.

license: Public Domain

text:
    TEXAS LIFE INS. CO. v. CHILDRESS.
    (No. 8830.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 6, 1918.
    Rehearing Denied May 11, 1918.)
    1. Insurance <§s=>665(6) — Life Policies — Defenses — Suicide—Evidence—Weight and Sufficiency.
    In an action on a life insurance policy stipulating against suicide, evidence held to show conclusively that the insured committed suicide intentionally by the use of carbolic acid.
    2. Insurance <®=665 (6) — Life Policies — Suicide.
    Evidence that insured had at other timos given directions as to the collection of his life insurance policies, in case of death, similar to those given just previous to his death in the absence of proof of disease likely to produce sudden death, hold not to disprove suicide, nor weaken the conelusiveness of evidence thereof. 3. Insurance <§=>668(12) — Life Policies — Actions — Suicide—-Directed Verdict.
    In an action on a life insurance policy stipulating against suicide, evidence of suicide held such that refusal to direct a verdict for defendant was error.
    Appeal from District Court, Tarrant County; R. E. L. Ray, Judge.
    Suit by Maggie Childress, as guardian of the estates of Ruñe D. and Willie D. Turnip-seed, minors, against the Texas life Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Dee, Lomax & Smith, of Ft. Worth, for appellant. Ocie Speer and Marvin I-I. Brown, both of Ft. Worth, and Cal Estill, of Grapevine, for appellee.
   DUNIiLIN, J.

Maggie Childress, as guardian of the estates of Rufie L. Turnipseed and Willie D. Turnipseed, minors, instituted this suit to collect two life insurance policies for the sum of $2,000 each, in favor of said minors issued to Wm. R. Turnipseed, father of said minors, by the Texas Life Insurance Company, and from a judgment in favor of the plaintiff for the full amounts named in the policies the insurance company has appealed.

The two policies were exact duplicates of each other, both dated September 25, 1914, and Wm. R. Turnipseed died during the night of May 21, 1915, less than one year after the date of their issuance. Each policy contained the following provision:

“In case of death by self-destruction, sane or insane, within one year from date of issue thereof, the amount payable shall be equal the total amount of-premiums paid.”

In its answer the defendant invoked thát provision of the policy in connection with allegations that the death of Wm. R. Turnip-seed, the insured, was caused by a dose of carbolic acid taken by him with suicidal intent; and defendant tendered in court for plaintiff’s benefit the total amount of premiums paid by the insured for said policies, the amounts so paid being the premiums charged by the company for the first year.

The insured had been married twice. His first wife died about ten years prior to his death. About two years later he married his second wife, from whom he was divorced six years prior to his death. Miss Maggie Chil-dress, sister of his first wife, had lived with the insured as a member of his family practically ever since the death of her said sister and had looked after his household affairs, taking the place of mother to his two minor daughters who were beneficiaries in the two policies in suit. At the time of his death insured was engaged in the business of buying cotton and writing life insurance. He was then living in Grapevine, and had been buy- < ing groceries for his family from Mr. Blevins, I a merchant doing business in that town, and I at the time of his death owed Blevins about $300 for groceries upon account extending over a period of practically one year. Insured also owed another merchant, Mr. Tates, doing business in Grapevine, a similar account for dry goods covering a period of about one year; also a debt to the Farmers’ National Bank of Grapevine of about $250 and two accounts for merchandise purchased from merchants in Dallas extending over a period of about one year. By reason of financial straits insured had been unable to pay anything on any of those items of indebtedness for several months prior to his death, and three or four days prior to his death a suit had been filed against him on one of the debts he owed a merchant ¿n Dallas, amounting to a sum in excess of $100. S. A. Wall, who also held a small account against him, had been pressing him for payment, and had been told by the deceased that he had lost money in cotton deals, and was unable to pay the account, but that he ejected to pay all he owed and would do so. The total of his debts did not exceed $1,000. At the time of his death insured also had other insurance policies in other companies upon his life aggregating about $7,000, $5,000 of which was in the Federal Life Insuránce Company, $1,-000 of that amount being in favor of Miss Maggie Childress, and $4,000 in favor of his two daughters, and $2,000 in the Woodmen of the World, none of which policies it seems were subject to the defense of suicide urged in the present suit. Insured died on the night of May 21, 1915. On the morning of May 20th he left his home to go to Ft. Worth, and returned the following morning, having spent the night in Ft. Worth. For several days he had had some fever, and was under the treatment of his physician in Grapevine. After his return from Ft. Worth he spent the day at his home, and after the evening meal of that day he played a game, of “42” with his family, and seemed in good spirits, and apparently in good health. He retired to his room about 10 o’clock, and the family knew nothing more of him until the following morning, when one of his daughters discovered his dead body lying across the bed in his room. A two-ounce bottle containing carbolic acid and so labeled was found upon a table in his room, also a glass containing some of the liquid in diluted form either upon a table near the bed or upon the foot railing of the bed. The body was still warm when it was discovered, the feet resting on the floor, and the bed showed no indication that it had been slept in during the night, or of any death struggle of the deceased in his last moments. On one side of his mouth there was a slight discoloration, such as might have been made by carbolic acid, and there was also found in a book kept by the deceased four letters in Ms handwriting and signed by him. One of the letters was addressed to Miss Chil-dress, and was dated, either May 20, or 21, 1915, and on stationery of a Ft. Worth hotel. Another of the same date was addressed to his two daughters. Miss Childress testified that she destroyed those letters, but the contents of the one to her were proven by the testimony of those who read them. In the letter addressed to Miss Childress the deceased gave instructions for the payment of his debts out of his insurance policies. He also expressed the desire to ’have Miss Chil-dress appointed guardian of his children, and that he wanted her to educate them and bring them up to be good girls and send them to Sunday school and church. Miss Childress testified concerning the letter addressed to the two girls as follows:

“He left a letter addressed to the girls. 1 saw that letter. I cannot recall the substance of the letter to the girls. I cannot recall a single sentence of that letter of the substance of it. I suppose I read it a number of times, hut I don’t remember just how many times. Yes, I probably read it more than once. It was destroyed at the same time with the letter that was addressed to me. I destroyed both letters. Tie didn’t write a letter to each one of the girls, hut wrote a letter to both of the girls. The letter to the girls bore the same date as the letter to me. * * * I don’t remember whether it contained anything in the way of advice or counsel to the girls; it may have, but I don’t remember tte words. * * * The letter to the girls wasn’t turned over to the girls first; it was turned over directly to me. It was in an envelope, but not sealed up: I didn’t deliver the letter to the girls; I read it to them.”

One of the letters was addressed to Mr. G. C. Blevins, his groceryman, who was also Counsel Commander of the Woodmen of the World. In that letter the writer stated that he desired Mr. Blevins to collect his account for groceries which the writer owed him out of the insurance policy held by the deceased in the Woodmen of the World. The writer also gave instructions how he wanted to be buried, and named the friends whom he desired to be his pallbearers. It also stated that he desired Walter McConib to drive the hearse. Another letter evidently written during the writer's trip to Et. Worth immediately before his death as above noted was as follows:

“Metropolitan Hotel. Ft. Worth, Texas, 5— 20 — 15. Farmers’ National Bank, City — Gentlemen: My $5,000.00 life insurance in the Federal Life Insurance Company has been paid on three years’ receipt in the policies and is absolutely good except premium note for $216.18 to be deducted from Miss Maggie Childx-ess policy made payable to her. She will pay you what I owe. If you will let her have $100 until she can collect her money. Yours) truly, W. it.- Turnip-seed.”

A. W. McComb, a policeman in Ft. Worth, but who formerly lived in Grapevine, and who was acquainted with the deceased, testified that he had a conversation with the deceased about three days before his death. He further testified as follows:

“He talked to me some about his affairs. The first day, I recollect, he just spoke to me about the condition he was in; the way he put it to me was, we were talking about insurance, and he was after me to take out some more of him or to renew some that I had had, that is the way it came up. He spoke to me about taking out more on his life at that time — that is the way it came up, and he said that he was in pretty hard circumstances; he did not come out and tell me just how far, but he spoke of it, though, that he was in pretty hard shape, really, I think "this is the same time, he told me several times that he would be better off, that is, he would just as soon be dead as living. He talked to me on more than one occasion along that line; he talked to mo several times about it. I knew him pretty well; I was with him a good deal. How I happened to know him as intimately as I did, I worked for him a good deal around his place. The work I did for him was such work as hauling gravel and wood, and such things like that; I was doing that kind of work. He bought cotton, and I hauled some cotton for him.”

None of the letters contained any direct statement of. an intention on the part of the writer to commit suicide, and no witness testified that he ever heard him make any specific statement to that effect. Dr. Lipscomb, who was called in to examine the body soon after it was discovered in his room, testified that the slight discoloration on one’ side of the deceased’s mouth was not such a bum as pure carbolic acid would make, but in his opinion was made by diluted carbolic acid. He further testified as follows:

“Carbolic acid when taken in large doses has a depressive effect — a shocking effect; it is an escharotic, and it produces a state of coma and unconsciousness, and affects the heart,'too. It will paralyze the heart. From the examination I made of him and the physical surroundings in the room, while of course it is surmise because I never held an autopsy, and never made an exhaustive examination, írat my conclusion at the time was- that he died from carbolic acid poisoning; that was the conclusion I came to at the time. I still think his death was caused by carbolic acid poisoning. * * * No, I would not be willing to swear to this jury that carbolic acid killed him; I just arrived at that conclusion from appearances. It is my opinion, but I would not be willing to swear that carbolic acid killed him.”

Miss Childress further testified that deceased while absent from home had written to her letters similar to the one found in his room at the time of his death, and that always in leaving home he would tell her things to do for the children in case anything should ■happen to him. She further testified that there was a medicine chest in deceased’s room containing medicines, but there was no evidence that he was in the habit of keeping carbolic acid in that phest, or that he had ever taken it in any form for illness, or that he was suffering with any ailment which could be relieved by such a drug. Nor was there any evidence that he was in such a physical condition as might reasonably be expected to cause his sudden death. And all the witnesses, including the coroner who held an inquest over the body, by .whom the facts tending to support the defense of suicide noted above were acquaintances residing in his home town, and there is no suggestion in the record that they were in any degree unfriendly towards plaintiff or the minor children or biased in favor of appellant or interested in the suit.

John Bstel, cashier of the Earners’ National Bank of Grapevine, to which insured was indebted at the time of his death, and to which the letter set out above was addressed, testified that the insured had written to him a similar letter prior to that one, containing instructions what to do in the event anything should happen to the writer. In that connection witness further testified that on a former occasion, while insured was absent from home he wrote to the witness telling him that if anything should happen to him, or if he should die while he was absent from home he desired witness to wire for the policies which the writer said would be found in his suit case or in his pocket. Several witnesses testified that they did not notice the odor of carbolic acid in the room on the morning when the body of the deeased was found, while several other witnesses testified that they did discover such odor. Miss Childress further testified as follows:

“I didn’t .find a carbolic acid bottle in the room that morning. I don’t know of my own knowledge that there was a bottle labeled carbolic acid found in the room that morning. I didn’t see a carbolic acid bottle in that room or on the place that morning. I saw a glass sitting oh the railing of the foot of the bed. I didn’t see a small quantity of liquid in that glass: It is true I didn’t make any special examination of the glass. It is true we were naturally very much excited when we found Mr. Turnipseed dead. I didn’t notice any odor of carbolic acid when I went into the room. I didn’t examine that glass to see what it contained. No, I don’t know whether it contained carbolic acid or not.”

We are of the opinion that the evidence shows conclusively that the deceased committed suicide intentionally, and that the court erred in refusing appellant’s request for an instructed verdict in its favor by reason of such proof. Thé testimony of some of the witnesses noted, to the effect that they did not detect the odor of carbolic acid in the room where the body of the deceased was found, and did not see acid in the glass, was strictly of a negative character, and at most amounted to no more than a mere scintilla of evidence to disprove the direct and positive testimony of a number of other disinterested witnesses that not only the odor of carbolic acid was detected by them, but also that there was a bottle containing such acid and some in diluted form in a glass sitting near the bed or on the foot railing of the bed. The letters left bsy the deceased written immediately before his death giving directions for the collection of his insurance, for the pajunent of the debts out of the proceeds, for the burial of his body, and the selection of his pallbearers, show conclusively an expectation on the part of the' writer that he would soon die; -and such proof taken in connection with his straitened financial condition, his statement to his friend McComb that he would just as soon be dead as. living, the fact that the deadly poison was found in a glass so near his body, with no proof to show that the drug might probably have been purchased by him for any other purpose than to end his life, and the further fact that a trace of the acid was found on one side of his mouth, all lead inevitably to the conclusion that he took the poison with suicidal intent.

The proof offered by appellee that on other occasions deceased had given similar directions with'respect to the collection of his: policies and the care of his children in the event, anything should happen to him while absent from home, in the absence of proof of any physical infirmity or disease which might suddenly end his life, taken in connection with the other facts noted above, tended to some extent to show that deceased had contemplated suicide for some time prior to Ms death. At all events, we fail to perceive how such proof, under the circumstances related, tended to disprove suicide, or that it tended in any substantial degree to weaken the conclusiveness of the evidence offered by appellant to prove intentional suicide. Mutual Life Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W, 294; Mutual Life Ins. Co. v. Hayward, 12 Tex. Civ. App. 392, 34 S. W. 801; Grand Fraternity v. Mattie K. Melton, 102 Tex. 399, 117 S. W. 788; Richey v. W. O. W., 163 Mo. App. 235, 146 S. W. 461, 465; Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532.

In the case of Grand Fraternity v. Melton, supra, the defense urged to the suit upon the policy was that the insured committed suicide. The evidence to support the defense in, that case, in our opinion, was no more conclusive than the evidence adduced upon the trial of the present suit to support the same defense. The plaintiff in that suit recovered a judgment which was affirmed by this court, but the judgment was reversed by our Supreme Court, who then rendered judgment in favor of the insurance company. After referring to the evidence the Supreme Court in that case used the following language:

“The jury were the judges of the weight of the evidence, but they could not lawfully deny proper weight to undisputed facts with no suspicion cast upon them. If the jury had the power to discredit any and every witness and to disregard any and all facts their verdicts could not be set aside by the judge nor reviewed by the appellate courts. Xet the law enjoins it upon the courts to set verdicts aside when contrary to the evidence or the law. The trial judge should not have submitted the case to the jury because the evidence did not raise an issue on the intention of Melton in shooting himself. By the evidence the Fraternity established to a moral certainty that Melton shot himself with intent to destroy his life, inflicting a wound from which he died. As a matter of law the defendant below was entitled to the verdict and the tidal judge should have directed the jury to return a verdict for the defendant.”

For the reasons indicated, the judgment of the trial court is reversed and judgment is here rendered in favor of the appellee for the sum of only $156.76, .the amount of premiums properly tendered to plaintiff in court by appellant, and also tendered to and refused by plaintiff before the instigation of the suit. All costs of both courts must therefore be taxed against appellee.

Reversed and rendered.
      '(g^oPor Other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gr^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    KING v. SCHAFF.
    (No. 9012.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 8, 1918.)
    1. Appeal and Error ¡§=>854(1) — Judgment Denying- Relief — Review.
    Where judgment rendered does not purport to give reasons for denying injunction, court on appeal is required1 to affirm judgment, if plaintiff’s petition, was subject to special exceptions directed against it, or if evidence failed to sustain cause of action, though well pleaded.
    2. Navigable Waters ¡§=>1(7) — Navigability — Burden of Proof.
    In suit to restrain defendant from taking and appropriating water from a stream running through plaintiff’s land, where plaintiff alleged ownership in land constituting bed of stream and of land on both sides of stream, burden was on defendant, although plaintiff alleged non-navigability, to establish navigability, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5338, as to navigable streams not being crossed by lines of survey.
    3. Navigable Waters <§=>1 (7) — Navigability — Evidence—Sufficiency.
    In suit to restrain defendant from taking and appropriating water from a stream running-through plaintiff’s land, evidence held, insufficient to show that stream was navigable, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5338, as to navigable streams not being crossed by lines of survey.
    4. Navigable Waters ¡§=>1(2) — “Navigable Stream” — Width.
    By the terms of Vernon’s Sayles’ Ann. CSv. St. 1914, art. 5338, and decisions thereunder a navigable stream must maintain an average width of 30 feet.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Navigable.]
    5. Navigable Waters ¡§=>36(3) — “Bed of Stream.”
    The bed of a navigable stream, to which state has title, is that portion of its soil covered by the water under normal conditions and seasons (citing Words and Phrases, Second Series, River Bed.)
    6. Navigable Waters ¡§=>39(2) — Right of Rifarían Owner.
    Although stream running through plaintiff’s land was navigable, plaintiff had the right to use water therefrom for domestic purposes or natural wants, so long as such use was reasonable, regardless of effect upon lower riparian owners.
    7. Waters and Water Courses ¡§=>39(2) — Trespass.
    Although stream running through plaintiff’s land was navigable, defendant Would not have the right to trespass) upon plaintiff’s land in order to take water from the stream, regardless of method employed.
    8. Waters and Water Courses ¡§=>156(5)— Right of Riparian Owner.
    Although plaintiff, who owned land on both sides of stream, had consented for a consideration to _ defendant’s taking water through pipes on plaintiff’s land, where consideration had failed, plaintiff would have the right to prevent defendant’s use of pipes.
    9. Navigable Waters ¡§=>39(2) — Riparian Owners — Interference with Rights— Remedy.
    Injunction is a proper remedy to a riparian owner on navigable stream, whose rights as such have been unlawfully invaded or interfered with.
    10. Navigable Waters ¡§=>39(2) — Rights of Riparian Owner — Railroads.
    That federal government, under “McAdoo statute,” was exercising supervision over ■ defendant’s line of railway, would not enlarge defendant’s right to trespass upon plaintiff’s land and take water from a stream thereon, since even sovereign cannot exercise right of eminent domain, except by condemnation under due process of law.
    11. Navigable Waters ¡§=>39(2) — Right of Riparian Owner.
    Conceding that defendant had right superior to plaintiff to water in stream crossing plaintiff’s land, it would have no right, in order to use water, to trespass upon plaintiff’s land without compensating him therefor.
    Appeal from District Court, Shackelford County; Joe Burkett, Judge.
    Suit by C. H. King against C. E. Scbaff, receiver of the Missouri, Kansas & Topeka Railway Company of Texas. Relief denied, and plaintiff appeals.
    Reversed and remanded, with instructions.
    W. D. Girand and D. M. Oldham, Jr., both of Abilene, for appellant. Walter L. Morris, of Albany, Scott & Brelsford, of Eastland, 0. O. 1-Iuff, of Dallas, and Theodore Mack, of Ft. Worth, for appellee.
   BUCK, J.

This is a suit by G. H. King against O. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, asking for an injunction restraining the defendant from taking and appropriating water from the Clear Fork river within plaintiff’s lands, located in Jones and Shackel-ford counties. The Clear fork is a tributary and arm of the Brazos river. Plaintiff alleged that the Clear fork is a small stream that runs across his lands, and that the water therefrom was used by him in watering his live stock and for domestic and other purposes in the operation of his farms and ranches; that he owned said water contained in that part of the stream which traversed his lands; that on account of the severe drouth which had existed in that section of the state said water stood in holes; that defendant’s railway line crossed a portion of plaintiff’s lands, but that no part of the stream, and especially the portion mentioned, or the water therein, belonged to defendant; that on defendant’s right of way it had for two years operated a pump plant, and unlawfully and without the consent of plaintiff, and with the intent to appropriate the same to its own use and benefit, used and consumed quantities of said water, bauled and carried it away, sold and delivered it to citizens and tbe people living in and around Albany, Cog-dill, Acapo, and other places .in that section, and had used great quantities of said water for the purpose of operating its line of railway. It was further alleged that, though plaintiff did not know the exact quantity of water so used by defendant, yet that it was at least five car loads a day since February IS, 1916 (two years prior to the filing of the suit), and that said water was of great value to plaintiff and of the reasonable market value of $1 per carload; that, if the taking of said water and the trespasses complained of should be allowed to continue, plaintiff’s live stock would be caused to suffer, and he and his tenants would be forced to do without water, to their great damage. In a supplemental and reply petition, plaintiff alleged that up to about two years prior to the filing of the suit defendant had paid for the water used, by issuing to plaintiff and his wife each an annual pass over its lines, and by paying money therefor in addition, and that for this consideration plaintiff permitted the use of water by defendant. He further alleged that defendant’s pump station was on its right of way, but that defendant, without plaintiff’s consent and in the absence of condemnation proceedings, had run a pipe line over plaintiff’s lands in order to reach the river and the hole of water. It was further alleged that the Clear fork is not a navigable stream, and that the1 appropriation of the water took place at a point 100 to 200 yards distant from where defendant’s right of way crossed the stream. Both pleadings of plaintiff were duly verified.

Defendant pleaded, by way of several special exceptions, to plaintiff’s original petition, to the effect: (1) That the petition was not properly ' verified; (2) that it failed to allege that the Clear fork was not navigable, under article 5338, Vernon’s Sayles’ Tex. Civ. Stats.; (3) that said petition failed to allege the insolvency of defendant, etc. It further pleaded, as to the merits,' that the Clear fork was a navigable stream 30 feet wide, “and that under the laws of this state the title to the underflow and overflow of said water is not in plaintiff, or the party who has abutting property near, but in the state of Texas, and plaintiff has shown no such connection with the hole of water, nor legal appropriation, as provided by law, that would entitle him to the exclusive use and control of said water, which he has appropriated and which is the basis of this suit.” It was further pleaded that defendant, as a common carrier, had transported such water, as it had been taken from the Clear fork, to municipalities and individuals in the drouth-stricken portions of that part of the state, and that it was a public necessity to supply them with water, and to restrain defendant from so doing would result in a public and private calamity ; further, that the defendant was operating its trains and line of railway under direct federal authority, exercised by Hon. ■IV. Gt. McAdoo, Secretary of the Treasury, by virtue of an act of Congress (Act Aug. 29, 1916, e. 418 [U. S. Comp. St. 1916, § 1974a]), and that any act done by it was so done by virtue of said authority. It further pleaded that because of the lapse of years, during which defendant had operated its pump plant and had taken water from the said stream, and the long-continued acquiescence therein by plaintiff, should the injunction be granted, the defendant would not be able to operate its line of railway and perform its functions as a common carrier. This portion of defendant’s answer seems to have been intended as a plea of estoppel, though evidently not sufficient to constitute such plea.

Trial was had and evidence submitted, and the court entered an order and judgment denying the writ, from which judgment the plaintiff has appealed. The judgment rendered does not purport to give the reasons for the court’s action in denying the writ; hence we would be required to affirm the judgment, if it should appear that plaintiff’s petition was insufficient to show that he was entitled to the relief sought, or was subject to any of the special exceptions directed against it, or that the evidence fails to sustain the cause of action, even though well pleaded. The only evidence introduced consisted of the testimony of plaintiff, the deed under which he held title, and the plat showing the location of that part of plaintiff’s land, which included the sections through which the Olear fork ran, and which was crossed by defendant’s right of way, also the pump station, the hole from which the alleged water was being taken, and the defendant’s bridge spanning the river.

. One of the principal grounds of defense, relied on in the court below and urged in defendant’s brief, is that the proof fails to show that the Clear fork, where it crosses plaintiff’s land, and where the hole of water is located, is not navigable, as defined under article. 5338, supra. This statute, under title 78, treating of “Lands — Acquisition for Public Use,” and title 79, c. 5, treating of “Surveys and Field Notes,” is as follows:

“All lands surveyed for individuals, lying on navigable water courses, shall front one-half of the [public] square on the water course and the line running at right angles with the general course of the stream, if circumstances, of lines previously surveyed under the laws will permit; and all streams, so far as they retain an average width of thirty feet, shall be considered navigable streams within the meaning hereof, and they shall not be crossed by the lines of any survey.”

In the case of Bunnell et al. v. Sugg, 135 S. W. 701, it was held that a contention that a survey is void on account of crossing a navigable stream is not available against a patent issued by the state on the part of one claiming under a junior grant; that the statute is merely directory, and though a stream was, within the statutory definition, navigable, the fact that a line of survey crossed it would not render the survey or grant illegal or void. In this case it is also intimated, though not decided, that the statute providing that all streams retaining an average width of 30 feet should be considered navigable streams within the meaning of said statute, should be construed to mean that the width of the water in the stream should average 30 feet rather than the distance between the banks of the stream. In construing this statute, in the case of City of Austin v. Hall, 93 Tex. 591, 597, 57 S. W. 563, 564, the Supreme Court said:

“The first part of the article provides for the location of lands upon waters which are navigable according to the general rule of decisions on that subject. The consequences of such a location would be that the grantee would take title only to the water line of the navigable stream and the title of the bed of the stream would remain in the state. This language, ‘and all streams, so far as they retain an average width of thirty feet, shall be considered navigable streams within the meaning thereof,’ was intended to prescribe a definite rule by which surveyors could determine what are navigable streams so far as it affects the question of locating lands thereon. The result to the locator is the same as if the stream were navigable under the general rule of decision, and he would take title limited to the water line the same as if the stream were navigable. * * * Each grant must give title to the center of the stream, or both must be limited to the water line. The statute places all of these streams which have an average width of 30 feet on equality, whether they are actually navigable or not, and does not undertake to change the rule that limits the title of the grantee when the stream is navigable, but in effect applies that rule to the stream or that portion of the stream which, being within the statutory requirement, would not be navigable, except for its provisions. The grant of a tract of land upon the margin of a stream which retains an average width of 30' feet gives title to the grantee only to the water line of such stream; the title to the bed of the stream being reserved to the state.”

We are of the opinion that in the instant case the burden of proof was on the defendant to establish the navigability of thg stream. Plaintiff had alleged ownership in the land constituting the bed of the stream, and the ownership of the land on both sides of the stream. His deed showed that the survey crossed the river. No objection was made to the character and effect of this deed as tending to establish ownership. While his supplemental petition did contain an allegation that the stream was nonnavi-gable, we do not think that such allegation east the burden upon him to prove the non-navigability of the Clear fork. The proof certainly does not establish the navigability of the stream, but rather is to the contrary effect. The fact that the survey crossed the stream was at least persuasive that the grant from the state to the patentee contained such calls, and that the state regarded the stream as not being navigable. If it be correct, as held in Bunnell et al. v. Sugg, supra, that article 5338 is merely directory, and not mandatory, then, if the state issued a patent to a section which crossed the stream and lay on both sides thereof, such patent would not be void, but at most merely voidable at the instance of the state, and as to third parties would convey title to the bed of the stream. But, in addition to this, the testimony of plaintiff -himself, the only evidence upon this point, except the recitation of the deed under which he deraigned title, rather supports the theory of nonnavi-gability. Under cross-examination he testified:

“I would not say that the Clear fork will not average more than 30 feet in width from bank to bank. I would not say that, for I have never measured it. I would not say. I could not be positive about that, and would not say that it would not average 30 feet.”
Speaking of the hole of water in question, he said:
“I guess it was then about two weeks before about 100 yards long. It was at least 100 yards long or longer, and was 25 or 30 feet wide, and about 3 or 4 feet deep.”

On redirect examination he testified:

“The average width of the Clear fork from bank to bank is not 30 feet. * * * I will say that three-fourths of it is dry. Three-fourths of the bed of the river is dry, and that part does not maintain an average width of 30 feet. The river does not maintain an average width of 30 feet.”

By terms of article 5338, supra, and the decisions thereunder, a stream in order to be held navigable must maintain an average width of 30 feet. As to what constitutes the river bed, which, in streams navigable either under the common law or by statute, is reserved to the state for public use, the authorities seem to be in conflict. Some authorities hold that the “bed” includes all the land between the outer edges of the “shores” that soil which is covered by the water at its highest stage (State v. Gerbing, 56 Fla. 603, 47 South. 353, 356, 22 L. R. A. [N. S.] 337; Sun Dial Ranch v. May Land Co., 61 Or. 205, 119 Pac. 758, 762); while others hold that the “bed” is that part of the-channel covered by water at its low mark (State v. Longfellow, 169 Mo. 109, 69 S. W. 374). Another line of authorities takes the middle ground, holding, as stated in 4 W. & P. (2d Series) 402, that:-

“The ‘bed of the river’ is that portion of its soil which is alternately covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year without reference to the extraordi•nary freshets of the winter or spring, or the extreme drouths of the summer or autumn”— citing City of Peoria v. Cent. Nat. Bank, 224 Ill. 43, 79 N. E. 296, 299, 12 L. R. A. (N. S.) 687; Alabama v. Georgia, 23 How. (64 U. S.) 505, 16 L. Ed. 556.

There are some intimations in certain of the Texas decisions (City of Austin v. Hall, -supra, and Bunnell v. Sugg, supra) to the effect that “the bed” begins at the water’s edge, or water line, yet we have found no Texas authority announcing such doctrine definitely, and we are of the opinion that the rule laid down in the quotation from Words and Phrases, supra, is the rule generally adopted by our state courts in determining what constitutes the bed of a navigable stream; i. e., the bed of a stream is that portion of its soil covered by the water under normal conditions and seasons. We are of the opinion that in the instant case the evidence fails to show that the bed was 30 feet wide on an average, and we are further of the opinion that the burden was on the defendant to establish the affirmative of this issue. In so holding, we are not ignoring the rule that in a petition for injunction the material facts must be alleged with sufficient certainty to negative every other reasonable inference therefrom inconsistent with the right sought to be enforced or protected. Plaintiff alleged that he was the owner of the water, and it devolved upon defendant to plead and establish facts inconsistent with such claim of ownership.

Moreover, even though the stream was navigable, plaintiff had the right to use the water therefrom for domestic purposes or natural wants, so long as such use was reasonable, regardless of the effect upon other riparian owners lower down on the stream. 40 Cyc. p. 564; Baker v. Brown, 55 Tex. 377; Fleming v. Davis, 37 Tex. 173; Rhodes v. Whitehead, 27. Tex. 304, 84 Am. Dec. 631. Furthermore, defendant did not have' the right to commit a trespass by going upon plaintiff’s land in order to take the water from the stream, whether such trespass be committed by the transportation in wagons or other receptacles for holding the water, or by the laying or maintaining of water pipes across plaintiff’s land for the purpose of drawing the water from the bed of the river.

We think this would be true, even though the original laying of the water pipes was with plaintiff’s consent and for a consideration. If the consideration had failed, as shown in this case, and the agreement rescinded by the railway company, and for that reason plaintiff had withdrawn his consent to the further use of the pipes for said purpose, he would have the right to prevent defendant’s use of the pipes on plaintiff’s land as a means of withdrawing the water from the bed of the river.

Injunction is a proper remedy to a riparian owner whose rights as such have been unlawfully invaded or interfered with., 40 Cye. 567, 568. Plaintiff’s evidence tended to establish his cont.ention that the use by the'defendant of the water from this water hole, in the quantities which it had been using it, would probably result in the withdrawal of all the water from said hole, and would cause plaintiff and his tenants, who relied on said hole of water, in part at least, for the watering of their stock and for domestic purposes, great and irreparable damage.

We do not think that the fact that the federal government under the “McAdoo statute,” pleaded and relied on by defendant, was exercising some sort of supervision or control over the defendant’s line of railway, would authorize defendant to take the property of a citizen or to trespass upon his lands any more than if such supervision and control was not in effect. Even the sovereign power, under our democratic form of government, cannot exercise the right of eminent domain, except by condemnation under due process of law. But, even though it might be reasonably contended that the railway company had the right to use the water for the operation of its trains, and that that right was superior to the right of plaintiff to its use for his domestic purposes, yet defendant would not have the right to use the water and trespass upon' plaintiff’s lands in order to do so, without compensating him therefor. Certainly it would not have the right to use said water and commit said trespass for the purpose of selling the water as an article of commerce.

Taking the pleadings and the evidence as a whole, we are of the opinion that plaintiff established his right to the injunctive relief sought, and that the court committed error in not granting such relief. For which reason the judgment of the trial court is reversed, and the cause is remanded, with instructions to the trial court, if the conditions upon another hearing are of the same character as disclosed in the trial below, to grant .and perpetuate the injunction asked.

Reversed and remanded, with instructions.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      (g=For other oases see same topic and KEY-NUMBER in fll Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    VAN GRINDERBECK et al. v. LEWIS et al.
    (No. 7989.)
    (Court of Civil Appeals of Texas. Dallas.
    June 8, 1918.)
    1. Courts @=>472(4) — Jurisdiction—District —Probate—Partition of Property — Texas.
    Where a suit for partition of property was begun after the death of one owner and five days before a temporary administrator was appointed for her estate and about 19 days before application for probate of her will, the district court did not acquire equity jurisdiction to the exclusion of the court of probate and could not by appointment of a receiver subsequent to administrator’s appointment deprive the administrator of control of the property.
    2.' Executors and Administrators @=>3(3)— Necessity of Administration — Evidence.
    The facts that the expenses of funeral and last illness were due and unpaid and1 the estate owed a note of $1,000, and owned property yielding a considerable sum as rents, do not support a judgment that no necessity existed for administering the estate.

      3. Executors and Administrators ⅞=⅛3(1)— Necessity of Administration.
    It is the exclusive province of the county court to determine whether the necessity exists for the administration of an estate.
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by Lee Lewis and others against Eddie Van Grinderbeck and others. From an order appointing a receiver, the defendants appeal.
    Reversed, order set aside, and judgment rendered refusing application therefor.
    Muse & Muse and J. S. Fannin, all of Dallas, for appellants. G. L. Perkinson, Adams & Stennis, and George T. Burgess, all of Dallas, for appellees.
   TALBOT, J.

This is an appeal from an order of the district court appointing a receiver. The suit in which the receiver was appointed is one instituted by the appellees on June 28, 1917, against appellants for the partition of real and personal property alleged to be owned by appellants and appel-lees in equal rights as the heirs of Clemence Van Grinderbeck, deceased. The petition alleges that the said .Clemence Van Grinder-beck died intestate on March 13, 1917; that no administration is pending on her estate, and that no necessity for administration exists; that since the death of the said Clemence Van Grinderbeck the appellant Eddie Van Grinderbeck has been in full possession of all of the property belonging to her estate, asserting title thereto and denying the interest of appellees; that he is collecting the rents and revenues arising from, said property and applying the same to his own use and benefit; that the appellant is insolvent and unable to account to appellees for the amount of the rents and revenues which may be determined to belong to or owing to appellees and refuses to pay over to them any part of the same. They prayed for the appointment of a receiver to collect the rents and revenues arising from the property belonging to the estate to be held pending a final decree; for. judgment for their interest in the property and for partition; for an accounting between themselves and the appellants as to the amount of rents and revenues collected by appellant since the death of the said Clemence Van Grinderbeck; and for general relief. The appellants filed an answer July 17, 1917, in which they pleaded in abatement of the application for the appointment of a receiver that appellant Eddie Van Grinderbeck, on the-day of July, 1917, by order of the county court of Dallas county, Tex., duly made and entered, was appointed temporary administrator of the estate of Clemence Van Grinderbeck, and that he had duly qualified and was acting as such administrator; that a necessity existed for the appointment of such administrator, and that such facts had been so adjudged by said county court; that by reason of the pendency of said administration the district court was without jurisdiction to now hear and determine the cause, or to appoint a receiver, and that the same should be abated or stand continued to abide the termination of the administration upon said estate. The answer; among other things, also alleged that the petition and application for the appointment of a receiver disclosed that they were without merit, in that there was no allegation showing that no necessity existed for administration of the estate in question, and that, as an adminstration had been granted upon said estate and was then pending, exclusive jurisdiction over said estate was vested in the county court. It was further alleged that on July 17, 1917, there was filed in the county court of Dallas county, Tex., by the appellant, an application to have probated the last will and testament of Clemence Van Grinderbeck, deceased. On the 10th day of August, 1917, the appellees’ application for the appointment of a receiver was heard by the court, and after the conclusion of the evidence offered, from which it appeared without dispute that a temporary administration, as alleged by appellant, was pending in the county court, and that an application by appellant had been subsequent to the granting of such administration filed for the probate of a will purporting to be the last will of the said Clemence Van Grinder-beck, and in which appellant and his brother were the chief beneficiaries, an order was made appointing a receiver, and from that order appellants perfected an appeal to this court.

No brief has been filed in this court by appellant, and we are therefore without aid from his counsel in determining the question arising on the appeal. Counsel for-appellees in a short brief urge the following proposition in support of the trial court’s ruling, namely:

“When a court of equity, in a cause over which it has jurisdiction, takes possession of property, through a receiver, the property is withdrawn from the jurisdiction of all other courts.”

This proposition is asserted upon the authority of Lauraine v. Ashe, 191 S. W. 563, and 'that ease is apparently cited as controlling the decision of the question arising on this appeal. The facts, however, in the instant case and those of the case cited are, in material particulars, different, and we are aware of no case directly in point here. Lauraine v. Ashe was a proceeding having for its purpose the issuance of a writ • of mandamus directing the district judge for the Eleventh judicial, district of Texas to vacate as to the property of Mrs. Margaret Allen a receivership pending in the district court of that district and order the delivery of such property to the relator therein as administrator of her estate. The receivership sought to be vacated was an incident of a suit filed in the lifetime of Mrs. Allen and against her and A. C. Allen, her son. “In that suit the plaintiff asserted the ownership of a judgment against Mrs. Allen and A. O. Allen in an amount in excess of $7,000, and constituting a lien upon their real estate situated in different counties in the state.” It was also pleaded in that suit “that Mrs. Allen and A. C. Allen were variously indebted to other persons in large amounts, such indebtedness being in some instances secured by mortgage liens upon their property and having in others been reduced to judgment with the judgments operating as liens upon their real estate; that the * * * various creditors of the Allens were threatening to proceed against their property for the enforcement of their claims, through foreclosure sales, levying of execution, etc.; which, if permitted, would result in its sacrifice, whereas its actual value was more than double tire amount of the entire lawful indebtedness against it.” There were further allegations with respect to the necessity for the appointment of a receiver for the preservation of the property pending the establishment of the claims to rvbich it was lawfully subject. “The prayer was for the appointment of a receiver and an order directing the presentment by all creditors of the Al-lens of their respective claims for adjudication by the court; that the court determine and adjudge the amounts really due upon such claims, and thereafter under its direction so much of the property be sold as should be necessary for their payment. Upon this prayer a receiver was duly appointed. He qualified and took into possession certain real and personal property belonging to Mrs. Allen and A. O. Allen, for the purpose of preserving it.” The suit with the receivership in force was still pending at the time of the institution of the proceedings for mandamus. Some years after the institution of the suit against the Allens and the appointment of tlie receiver therein Mrs. Allen died, and the relator Lauraine, ip. the proceedings for mandamus, was appointed temporary administrator of her estate by the county court of Harris county, and duly qualified as such. Later he was appointed and qualified as permanent administrator. This appointment was contested, and the contest at the time of the filing and hearing of the petition for mandamus was still pending in the district court on appeal undetermined; the county court having continued the powers of the relator as temporary administrator in the meanwhile.

The writ of mandamus was refused, and the Supreme Court in its opinion written by Chief Justice Phillips points out that the receivership sought to be vacated was perfected and the district court’s jurisdiction of the property acquired during the lifetime of Mrs. Allen; that claims in suit at the time of the death of a defendant the action does not abate upon his death; that, if administration be had upon his estate, an administrator may be made a party and the suit be prosecuted to judgment, the proper practice in such cases being to certify the judgment •to the probate court to be paid in due course of administration; and that such is likewise the rule when a suit involves liens upon property given to secure the indebtedness sued on. The court further say:

“The death of the) defendant pending the suit does not abate it and require,, in the event of administration, a new proceeding upon the claim in the probate court. The administrator may be made a party and the cause proceed to judgment establishing the debt and the lien as an incident of it, the judgment to be certified to the probate court and there executed through a sale of the property.”

These views are clearly authorized and sustained by the statute and decisions cited in the court’s opinion, and form in part the basis of the decision rendered. Again, the facts having disclosed that the receiver, and not Mrs. Allen, was in possession of the property which the relator desired to have turned over to him, the court points out, as an additional reason for its ruling, that article 3235 of our statute provides that the administrator of an estate of a decedent shall have the right to the possession of the entire estate “as it existed at the death of the intestate,” and holds that this does not authorize an administrator to assume possession of property not in possession of the decedent at the time of his death, and to the possession of which he was not then entitled. This, the court said, “has been distinctly held, with the ruling -approved by the Supreme Court, in respect to property pledged by a decedent in his lifetime and lawfully in the hands of the pledgee at the time of the decedent’s death,” and that “for the same reason an administrator is not entitled to the possession of property lawfully held by the district court through its receiver at the time of the decedent’s death, and in respect to which its jurisdiction is not exhausted,” citing Fulton, Adm’r, v. Bank, 26 Tex. Civ. App. 115, 62 S. W. 84. The court further aptly and correctly said, as applicable .to the facts in Lauraine v. Ashe, that while it is customary to speak of the jurisdiction of the county court over matters relating to estates of deceased persons under administration as “exclusive,” yet it was plainly recognized that questions may arise affecting estates in regular course of administration, requiring the adjustment of equities for the settlement of which the probate jurisdiction of the county court is-inadequate, and that in such cases, notwithstanding the administration, resort may be had to the equity powers of the district court for tile determination of those questions, the judgment to be performed through the probate court. This, the court say, “is a jurisdiction auxiliary and ancillary to that of the probate court”; that “in some extraordinary instances it may be corrective,” but “is to be exercised only in special cases.” These remarts of the court were pertinent, as the petition for mandamus, as pointed out in the court’s opinion, did not disclose the nature or sfhtus of the controversy in respect to any of the claims involved in the district court suit, and hence, so far as the court was advised, issues may have arisen in connection with such claims for the determination of which the powers of the probate court were “inadequate and its methods imperfect, and as to which accordingly the jurisdiction of the district court is clear and undoubted.” The court, therefore, having no means for determining whether or not the district court was in that respect exercising a lawful authority, held that it would not be justified in disturbing its jurisdiction by ousting its possession of property which the court must assume was rightfully held by it at the time of Mrs. Allen’s death and to which its equity powers may have still extended. The court further announced the general rule embodied in appellees’ proposition quoted above, but evidently the court’s decision was chiefly, if not altogether, based upon the facts and settled law referred to by it in the foregoing statements and quotations of its opinion.

In the case at bar we are confronted with almost an entirely different state of facts. Here the suit in which the receiver was appointed is one for partition, and not an action for debt, founded upon the claim that the appellant and appellees are the joint owners of the property described in the petition as the heirs at law of Clemence Van Grinderbeck, deceased, and subject to partition and distribution. The suit, being one for partition, was necessarily begun after the death of Mrs. Olemence Van Grinderbeck, and not during her lifetime. It was instituted only five days before the appointment of appellant as temporary administrator of Mrs. Van Grinderbeck’s estate, and about 19 days before the filing of an application by appellant to have what he claimed to be the last will of Mrs. yan Grinderbeck probated. There does not appear to have been any objection whatever to the granting of temporary letters of administration upon Mrs. Van Grinderbeck’s estate, or to the appointment of appellant as temporary administrator of said estate. Nor does it appear that a contest of the probate of the will offered by appellant for probate has been filed in the county court, or that such a contest was contemplated and likely to be filed. The receiver was appointed by ■ the district court over the objection of appellant after, and not before, bis appointment as temporary administrator of the decedent's* estate, and notwithstanding it was very conclusively shown, in our opinion, that a necessity existed for the appointment of such administrator. Furthermore, the receiver was appointed some two or three weeks after the filing of the application for the probate of Mrs. Van Grinderbeck’s will and notwithstanding the major part, if not all of the property, was by said will bequeathed to her two sons, the appellant and his brother, Victor, and no contest of the will pending. Other points of difference in the two cases are that in the case before us, unlike the case of Lauraine v. Ashe, the property placed in the hands of the receiver was in the possession of the decedent, Mrs. Van Grinderbeck, at the time of her death, and there were and are no issues in the ease for determination of which the powers of the county court are inadequate. We have thus disclosed the main points of difference in the case at bar and the case of Lauraine v. Ashe, and it is plain that they are so dissimilar in their facts and present such an entirely different situation that the former is not ruled by the latter. Evidently the action of the district court in appointing a receiver in the case is based solely upon the fact that the suit was filed be fore appellant was appointed temporary administrator of Mrs. Van Grinderbeck’s es tate and the filing of appellant’s application for the probate of what he claims is her last 'will and the conclusion that no necessity existed for administration upon said estate. None of the cogent reasons for the holding of the Supreme Court in Lauraine v. Ashe are present here; and to hold that simply because the appellees filed suit for partition in the district court a few days prior to the appointment of appellant as temporary administrator of Mrs. Van Grin derbeck’s -estate and before the filing for probate what purported to be her last will authorized that court to appoint a receivej and clothe him with authority to take irons the administrator the property of the estate being administered, to be by him held subject to its orders, would be to practically set at naught the probate laws of this state and ignore the jurisdiction of the county court in probate matters. If this may be done in the present case, we see no reason why all joint owners of property inherited from a decedent may not, if they so desire, prevent the operation of our probate laws and deprive the county court of the most important part of its jurisdiction, by hurriedly filing suit for partition of the inherited property, in the district court before steps are commenced in the county court to open up administration, or to probate the decedent’s will. Such a result is not to be thought of, and we are aware of no decision and think none can be found going to such lengths. The conclusion of the district judge, as is expressed in the judgment rendered, that no necessity for administration on the estate of Clemence Van Grinderbeck existed, is not supported, we think, by the evidence.

It was undisputed that the funeral expenses of Mrs. Van Grinderbeck and expenses of her last sickness, amounting to about $144.50, were due and unpaid, and that tM estate owed a note upon which installments of interest were due for $1,000. It was also shown without dispute that the estate owned several different pieces of improved property, yielding in the aggregate a considerable sum as rents. But it occurs to us that it was the exclusive province of the county court to determine whether or not a necessity existed for administration on the estate of Mrs. Van Grinderbeck, and that court, without its right to do so under the showing made beihg questioned by appellees, or any one else, so far as is revealed by the record, held that such necessity did exist. It was not necessary for the protection of appellees’ property rights that they invoke the jurisdiction and aid of the district court. At the time the receiver was appointed appellant had duly qualified as temporary administrator, by taking the oath prescribed by law and executing an approved bond in the amount required by the court. There is no complaint that the bond was insufficient in amount or otherwise to give appellees ample protection, but if it was insufficient for that purpose the county court was the proper tribunal to apply to for relief.

The pendency therefore of administration rendered the appointment of a receiver wholly unnecessary, it occurs to us, and the application therefor should, we think, have been refused. We are further of the opinion that proceedings in the case having for their purpose a partition and distribution of the estate left by Mrs. Van Grinderbeck should be stayed until it has been finally determined whether or not the will presented by appellant for probate should be probated. If this will is probated, and if it devises the property as claimed by appellant, his interest and his brother’s interest in the property involved will be much greater than their interest is alleged to be in the petition filed in this suit. A judgment of partition should not be rendered until the court is fully advised as to the interest of the respective parties claiming the property to be partitioned.

The order of the district court appointing a receiver in the case is reversed and set aside, and judgment is here rendered refusing the application therefor.

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

      <§=»Ifor other cases see same topic and KEY-NUMBER in all-Key-Numbered Digests and Indexés