text:
    ANDERSON et al. v. MENEFEE et al.
    (No. 8063.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 23, 1915.
    Rehearing Denied March 6, 1915.)
    1. Perpetuities Enjoyment of Vested Estates — Postponement.
    A bequest or devise is not void as violating the rule against perpetuities so long as the estate vests within the period of a life or lives in being and 21 years thereafter, and it is immaterial how long the mere enjoyment of the estate may be postponed.
    [Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. ⅜^>4.]
    2. Perpetuities ⅞=>4 — “Perpetuity.” «
    A “perpetuity” is a limitation taking the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and 21 years thereafter.
    [Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. <§⅛>4.
    For other definitions, see Words and Phrases, First and Second Series, Perpetuity.]
    3. Remainders “Vested Remainder.”
    A remainder is vested if, at every moment during its continuance, it is ready to come into possession whenever and however the preceding estates determine.
    [Ed. Note. — For other cases, see Remainders, Cent. Dig. § 1; Dec. Dig.<®=>l.
    For other definitions, see Words and Phrases, First and Second Series, Vested Remainder.]

      4. Remainders <©=>4 — '“Contingent Remainder.”
    A remainder is contingent if, and in order for it to come into possession, the fulfillment of some condition precedent other than the determination of the preceding estates is necessary.
    [Ed. Note. — For other cases, see Remainders, Cent. Dig. § 2; Dec. Dig. <®=o4.
    For other definitions, see Words and Phrases, First and Second Series, Contingent Remainder.]
    5. Estates <©=1 — “Vested Estate.” — Nature.
    A “vested estate” is an interest clothed with a present, legal, and existing right of alienation.
    [Ed. Note. — For other cases, see Estates, Cent. Dig. § 1; Dec. Dig. <S=>1.
    For other definitions, see Words and Phrases, First and Second Series, Vested Estate.]
    6. Wills <©=>447, 629 — Construction—Rule Against Perpetuities.
    Where a will, fairly construed, leaves in doubt the question whether a devise or bequest is so remote as to violate the rule against per-petuities, the doubt will be resolved to vest the title at the earliest possible moment, so as to uphold the will; the law favoring the vesting of estates.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 963, 1461, 1462; Dec. Dig. <©=3447, 629.]
    7. Perpetuities <S=o4 — Construction oe Will — Intent oe Testator.
    In determining whether an estate vests under a will within the period of the rule against perpetuities, the legally expressed intention of the testator as found within the four corners of the will is the leading guide of the court.
    [Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. <©=>4.]
    8. Perpetuities <S=>4 — Vesting oe Estates— Liee Beneficiary at Discretion of Executor in Income.
    Where a testator’s will provided that his estate was to vest in executors, subject to certain trusts alleged to be in violation of the rule against perpetuities, and where it was provided that the testator’s widow for her life should be paid by the executors “such portions of the rents, revenues, interest, and income” arising from the property as they might deem proper, such provision vested in the widow no legal or equitable estate in the corpus of the property sufficient to take its disposition from the operation of the rule against perpetuities.
    [Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. <©=>4.]
    9. Perpetuities <©=>4. — Rule Againso>-Be-quest Subject to Defeasance.
    In determining whether the estate vests in some person within the period of the rule against perpetuities so as to avoid the operation of that rule, it is immaterial if the right vested is subject to defeasance by the contingency of the death of the person.
    [Ed. Note. — For other cases, see Perpetuities, Ceht. Dig. §§ 4 — 44; Dec. Dig. <®=>4.]
    10. Perpetuities <©=>4 — Vesting of Estates —Life Beneficiary at Discretion of Executor in Income.
    Where a testator left his property to executors, subject to trusts for the payment of income, in the discretion of the executors, until 30 years after his death, to his wife and daughters, when the principal was to go to such daughters or their heirs in certain proportions, such ultimate disposition of the fund being concededly void as violating the rule against perpetuities, unless the estate vested earlier, the right which the daughters had to receive the income of the fund at the discretion of the executors was not such a vesting of the estate as to take the case from the operation of the rule against perpetuities.
    [Ed. Note. — For other cases. see Perpetuities, Cent. Dig. §§ 4-44; Dee. Dig. <©=>4.]
    11.Wills <©=381 — Construction—Intention of Testatori.
    AVhere a will manifested two plans, a disposition of property to provide for the widow and son of testator, and a disposition, void as creating a perpetuity, to provide for the daughters of testator and their heirs, there being nothing in the will or. in the evidence indicating that the testator would have written his will to provide only for his wife and son, the whole must fall on account of the invalidity of the provisions relating to the daughters under the rule against perpetuities, since where parts of a will are void the whole will be set aside if to sustain the other parts would work an injustice or violate the general scheme of testator.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. <©=>81.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by Mrs. Bessie Menefee and another against Bernie L. Anderson and another, as executors, and another, contesting the validity of the will of Neil P. Anderson, deceased. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Flournoy, Smith & Storer, of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short, David B. Trammell, and Goree & Turner, all of Ft. Worth, for appellees.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

This appeal is from a judgment annulling the last will and testament of Neil P. Anderson, who died in the city of Ft. Worth on the 27th day of February, 1912, at the age of 64 years. The will reads as follows:

“The State of Texas, Tarrant County.
“In the name of God, amen:
“I, Neil P. Anderson, knowing the uncertainty of life and the certainty of death, and being of sound mind and disposing memory, do make and publish this my last will and testament.
“Item First. I direct that my executors hereinafter named shall pay all of my just debts as soon as practicable after the probate of this my last will and testament.
“Item Second. The present homestead occupied by myself and wife, Lizzie Anderson, having been purchased by me with her separate means and funds, and the deed thereto taken in her own name, it is my. will, wish and bequest that the title to the same shall vest in her absolutely upon my death.
“Item Third. I hereby devise- and bequeath all of the estate, right, title and interest, in possession, reversion or remainder which I have or may have at the time of my death of in or to any lands, tenements, hereditaments or rents charged upon or issuing out of them, or which I shall have of in or to any personal property, or in or to any other property whatsoever and wheresoever situated to my executors hereinafter named upon the conditions and subject to the trusts herein specified.
“Item Fourth. It is my wish, will and bequest, and I direct that my said executors shall manage, control and dispose of the property of which I may die possessed, except as herein stated, using their best discretion and judgment during the life time of my said wife, Lizzie Anderson, and that they shall pay over to her such portion of the rents, revenues, interest and income from my said estate as they may deem proper to be used and disposed of according to her own wishes and desires.
“Item Fifth. It is my will, wish and bequest, and I herein provide, that one-fourth (½) of my said estate at the death of my said wife shall pass to and become the property of my son Bernie L. Anderson absolutely, and that the remaining three-fourths (¾) shall pass to and be vested in my executors on the conditions and subject to the trusts herein provided.
“Item Sixth. The remaining three-fourths (%) of my estate not hereinbefore bequeathed and disposed of shall upon the death of my wife, Lizzie Anderson, be used, managed, possessed and controlled by my executors according to their best judgment and discretion. The net income of the same or so much thereof as my executors shall deem proper shall by them be paid to my daughters,. Mrs. Flora Berney (née Flora Anderson), Mrs. Bessie Menefee (née Bessie Anderson), and Hattie May Anderson for the period of thirty years from the date of my death in such proportions as to my executors may seem proper. And should either of my said daughters die before the expiration of said thirty years after my death, then the share of the income of my estate which would under this will go to such daughter, or so much as my executors shall see proper to pay them, shall be by them paid to the descendant or descendants of such deceased daughter until the expiration of the said 30 years. But should either of my daughters die before the expiration of thirty years from my death without issue, then, one-third of the one-fourth of my said estate which would have passed to such daughter under this will shall pass to and vest in my son Bernie L. Anderson, and the title to and possession of the other two-thirds of such property of my estate shall pass to and be vested in my said executors, who shall continue to manage the same and dispose of the net income therefrom in accordance with this will, paying to my surviving two daughters, or the heirs of their body as the case may be, the net income thereof, or such portion of the same as they may deem proper. And if thereafter another one of my daughters shall die before the expiration of said thirty years from the date of my death without issue then one-half of the proportion of the said estate to which she would be entitled shall go to and be vested in my son Bernie L. Anderson, and the title to the other one-half of which shall pass to and be vested in my said executors who shall continue to manage the same in- all respects as herein directed for the" other portions of my estate, and to pay out the net income therefrom to my surviving daughter or to the heirs of her body, or such portions thereof as they may deem proper. And if the other one of my daughters should die before the expiration of the said thirty years from the date of my death without heirs' of her body, then, and in that event, all of said estate shall pass to and be vested in my son Bernie L. Anderson.
“Item Seventh. I will and direct that at the expiration of thirty years from the date of my death my said executors shall pay over and convey to my said daughters or to the heirs of the body of such of them as may have died before said time, all of my estate and the accumulations thereon in equal proportions; that is to say, to each of my daughters one-third, or if either of my said daughters be at that time deceased, the heirs of the body of such daughter one-third.
“If one of my daughters shall have died without issue then the remainder of my estate shall be divided equally between the two survivors, or if one of them shall have died leaving heirs of her body, to the suiwiving daughter one-half, and to the heirs of the body of such other daughter in equal proportion the other half of the remainder of my estate. And if two “ of my daughters shall have died without issue before the expiration of said thirty years, then my executors are directed to pay over all of my remaining estate to my surviving daughter or the heirs of her body. But if all of my daughters shall have died without issue then the entire estate is to pass to my son Bernie L. Anderson according to the method provided for in the sixth item of this will. This item is to be construed in connection with item sixth and not in any way as altering or revoking it.
“Item Eighth. I hereby direct and provide that in as much as my wife Lizzie Anderson is entitled to a half interest in all of our community estate at my death, that should she survive me she shall consent to the terms of 'this will as disposing of the entire community estate herein bequeathed, and which shall be understood to include all of the community property owned by us at my death of whatsoever nature, kind and description save and except, however, out of this partition the homestead hereinbefore specifically mentioned. And my said wife shall within thirty days after the probate of this will duly execute and sign a written acceptance of all of the terms and conditions of this will and deliver the same to my said executors hereinafter named properly proved for record, wherein my said wife shall consent to the terms and conditions of this will, and that the entire community property of ourselves shall be managed, controlled and disposed of by my said executors under the terms, provisions and conditions of this my will.
“But should my wife not see proper within thirty days from the probate of this will to execute and deliver the said acceptance to my executors of the terms and conditions of this will, then I direct that said community estate shall be partitioned, giving to my said wife one-half thereof, to which under the law she is entitled, after paying all of my just debts, and that my one-half of my estate shall be administered, controlled and disposed of by my executors under and in pursuance of the terms, conditions and restrictions of this my last will and testament.
“Item Ninth. It is my will, wish and bequest that if either of my said executors shall die or refuse to qualify and act as executors or trustees, or should either of them become disqualified from acting and carrying out the provisions of this will, then the one of my said executors that shall survive, or who shall qualify, shall be clothed with all of the powers and duties herein conferred on the two executors as fully and amply as if such executor was herein named, designated and appointed the sole and only executor of this my last will and testament.
“Item Tenth. I hereby name, nominate, constitute and appoint Morris E. Berney and Bernie L. Anderson the executors of this my last will and testament, and request and direct that no action be taken in or by the probate court except for the return of an inventory and ap-praisement of my estate and the probate and registration of this my last will and testament, and that my executors be exempt from and relieved ■ of giving any bond as such executors or as trustees hereunder.
“In witness whereof I have hereunto set my hand this the 31st day of October, A. D. 1899, in the presence of A. M. Carter and C. K. Bell who each sign this will at my request and in my presence as witnesses hereto, and who each see me sign the same. Neil P. Anderson.
“A. M. Garter.
“C. K. Bell.”

. Neil P. Anderson left surviving him the following named persons in the relations herein set forth, who were then and are now the only persons entitled to inherit from him or to have any interest in his estate as his heirs at law under the statutes of Texas, to wit: His wife and widow, Elizabeth Anderson, now of the age of 64 years and unmarried, and the following named children and only children, being the children of said Neil P. Anderson and his said wife, Elizabeth Anderson: a son, Bernie L. Anderson, now of the age of 34 years, and three daughters, viz., Bessie Menefee, wife of O. R. Menefee, now of the age of 38 years; Flora Berney, wife of Morris B. Berney, now of the age óf 40 years; Hattie Mae Gwynne, widow of I. A. Gwynne, now of the age of 32 years and unmarried. Flora Berney has no children or descendants of children; Bessie Menefee has two minor children, Elizabeth Menefee, aged 14 years, and Flora Jane Menefee, aged 9 years, and said Bessie Menefee has no other children or descendants of children. Hattie Mae Gwynne has two infant children, Katherine Gwynne, aged 8 years, and Allen Gwynne, aged 6 years, and has no other children or descendants of children.

The entire property involved in this controversy and all the property referred to in the will or in which the said Neil P. Anderson was in any wise interested, was at the time of his death the community property of himself and his said wife Elizabeth Anderson, except certain property named in the will as the separate property of said Elizabeth Anderson. She elected and declared her intention to claim and take half the said community property, independent of and clear of the provisions of said will, by and under her claim of right to said half as survivor in community. She claims the right, and the executors and trustees in the will concede the right in her, to take under the terms of the will the interest provided for her by the will in the other half of the community property. All the property of whatsoever character involved, except the property herein-before referred to as the separate property of the said Elizabeth Anderson, and except a home on Pennsylvania avenue in Ft. Worth, and the furnishings thereof, which are now occupied and held by the said Elizabeth Anderson as homestead, is and has been since the qualification of the executors named in said will, in their custody and control, they holding the same and claiming the right to hold the same and control the same under the terms of said will, and their qualifications as executors in the probate court. No demand has been made by the said Elizabeth Anderson for a partition of the said estate under her said claim of right to half of same as her community property, and no partition of said estate has been made. An inventory and appraisement of the said estate was duly filed in the county court, and the total value of said estate, including the whole of said community estate, consisting of real and personal property, is, according to the said inventory and appraisement, the sum of about $480,000. A considerable and important portion in value of the personal property is made up of stocks and securities in various cotton compress and other corporate organizations. At the time of the trial of the cause in the district court all the debts of said Neil P. Anderson and his said estate, existing at the time of his death, had been paid, and there were no obligations of the said estate at the time of the said trial, except such current and accruing obligations as arose out of the management and control of said property by the said executors, being expenses incident to the said management and control.

The will was adjudged invalid on the ground that it violates section 26, art. 1, of our Constitution forbidding perpetuities, and our revisory power has been invoked to determine whether such construction of the will by the trial court is the proper one. If it is, the judgment must be affirmed. If not, then the judgment must be reversed and here rendered for the executors and Mrs. Elizabeth Anderson, appellants, who are endeavoring to uphold the will.

In the beginning we wish to acknowledge our indebtedness to the counsel of the respective sides of the contention for the industry, painstaking care, and exceptional ability manifested both by brief and on the oral submission. It has greatly lessened our labor and conduced, as we trust, to the accuracy of our conclusions. The several briefs cover some 348 pages, with citation of and quotation from a great number of authorities, all of which, in view of the im-' portance of the issues involved, we have endeavored to carefully consider. As may be well imagined, the presentation of the case covers a wide field for investigation. For the most part, however, the numerous propositions, discussions, and authorities presented are collateral to and revolve around the vital question of whether the will in question created estates in the wife and children of Neil P. Anderson that have already vested, or that will certainly vest within the period allowable by the rule against per-petuities. If, properly construed, the will does so vest the devised estate, then it is not subject to the objection urged against it; for in such case it is immaterial that full possession and enjoyment of the property is postponed' beyond the period of a life or lives in being and 21 years thereafter with the ordinary period of gestation added, this being the time fixed by the courts as the limit allowable for the enforcement of a devised estate under the rule against perpetuities. As said in Bigelow v. Cady, 171 Ill. 229, 48 N. E. 974, 63 Am. St. Rep. 230:

“Perpetuity is a limitation, taking the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and 21 years thereafter. If, by any possibility, a devise violates the rule against perpetuity, it cannot stand. If there is possibility that a violation of this rule -can happen, then the devise must be held void. Waldo v. Cummings, 45 Ill. 421; Post v. Rohrback, 142 Ill. 600, 32 N. E. 687; Deford v. Deford, 36 Md. 176; Sears v. Putnam. 102 Mass. 6; Gray, Perps. §§ 214, 369, 374. Neither will its violation be tolerated when it is covered by a trust any more than when it actually appears in the creation of a legal state. The courts of equity will not permit limitations of future equitable interests to transcend those of legal interest of executory devises and shifting and springing uses at law. Etowe v. Hodge, 152 Ill. 252, 38 N. E.- 1083.”

See, also,. Gray, Rule Against Perpetuities (2d Ed.) § 201, p. 166; 30 Cyc. 1485; 2 Un-derhill on Wills, § 883, p. 1347.

As indicated, the rule deals with the vesting of the title, and not with the actual receiving of the profits of the estate, and though the person who is to take may not be known at the testator’s death, or be entitled to the actual enjoyment, or have the right of possession of the property within the period, the rule is satisfied if he must become certain and his title vested within the period. Laval v. Staffel, 64 Tex. 370; Hancock v. Butler, 21 Tex. 806; Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798; McClelland v. McClelland, 37 S. W. 350; Underhill on Wills, vol. 2, pp. 1350, 1351; Perry on Trusts (6th Ed.) § 381, and note 2; Seaver v. Fitzgerald, 141 Mass. 401.

It becomes important then to have in mind what is meant by vesting of the title. . Mr. Gray in his work on Perpetuities, p. 5, thus defines the distinction between a vested and a contingent remainder:

“A remainder is vested if, at every moment during its continuance it is ready to come into possession, whenever and however the preceding estates determine. A remainder is contingent if, and in order for it to come into possession, the fulfillment of some condition precedent, other than the determination of the preceding estates, is necessary.”

In one of our own cases the following definition is given:

“The word ‘vest’ is defined to mean ‘to give an immediate, fixed right of present or future enjoyment.’ Bouv. Law Diet.; Stewart v. Harriman, 56 N. H. 29, 22 Am. Rep. 408. ‘By vested estate, in relation to interests of a freehold quality, is to be understood an interest clothed, as to legal estates, with a legal seisin, or, as to equitable estates, with an equitable seisin, which enables the person to .whom interest is limited to exercise the right of present or future enjoyment immediately, in point of estate. A vested estate is an interest clothed with a present, legal, and existing right of alienation.’ 1 Prest. Est. 65; Hayes v. Goode, 7 Leigh [Va.] 496. Estates are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom, or the event upon which they are limited to take effect remains uncertain. Tayloe v. Gould, 10 Barb. [N. Y.] 396.” Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798.

See, also, 40 Cyc. 1648; Gray, Rule against Perpetuities (2d Ed.) p. 81.

In this connection it should be noted that the law favors the vesting of estates rather than otherwise; that is, if the will when fairly construed leaves the question in doubt, the doubt will be solved in favor of the vesting of the title at the earliest possible moment, so as to avoid a conflict with the rule against perpetuities and to uphold the will. See Underhill, on Wills, vol. 2, § 861; Sumpter v. Carter, 115 Ga, 893, 42 S. E. 324, 60 L. R. A. 274; Henry v. Carr (Ky.) 163 S. W. 756; Commonwealth v. Wellford, 114 Va. 372, 76 S. E. 917; Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920; Gray v. Whittemore, 192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. SL Rep. 246.

It should also be noted in the beginning that in determining whether the title vests, the intent—the desire or purpose—of the testator as manifested by the will as a whole must control. As said by the Supreme Court of Illinois, in Pearson v. Hanson, 230 Ill. 610, 82 N. E. 813:

“The legally expressed intention of the testator as found within the four corners of the will must be the chart and guide of the court. That this great fundamental rule may prevail .and the property of the testator take the posthumous course intended by the owner other rules are made and unmade.”

With the foregoing rules in mind, let us examine with care the will of Neil P. Anderson, determine his purpose as best we may, and see if his last will and testament can be upheld. If, conformably to established principles of law, it can be upheld, it ought to be done, for the property devised and disposed of was accumulated as the result of his own energy and business capacity, and under our statute he had the right to do with it as he pleased, with such limitations only as are prescribed by law. Revised Statutes 1911, art. 7856.

It seems very clear that by the terms of the will full title to the devised property devolved upon the named executors, subject alone to the specified conditions and trusts, and that such title continued until the death of Mrs. Anderson at least, when by item 5 of the will one-fourth of the estate was made to wholly vest in the son, Bernie L. Anderson. The language of said item 5 in this respect is: “I hereby devise and bequeath all of the estate, right, title and interest.” And by item 4 the executors were given full power to “manage, control, and dispose” of all the devised property (except the homestead disposed of in item 2) during the lifetime of the wife; thus, so far as terms of conveyance can be made to do so, investing the executors with both the legal and beneficial estate in the property, and clothing them with the powers ordinarily made the test of absolute ownership. The only limitation annexed was that during Mrs. Anderson’s lifetime the executors should pay over to her “such portions of the rents, revenues, interest and income” arising from the prpperty as they might deem proper. This provision as to the payment of income cannot, we think, be given the effect of vesting in Mrs. Anderson title of any kind to the corpus or body of the estate. It certainly does not purport to do so, and such cannot be said to be the legal effect of the terms. There are numerous authorities cited in behalf of appellants, to the effect that a grant or bequest of the entire income will carry with it by implication the beneficial interests in the property from which the, income arises. Thus in Gidley v. Lovenberg, 35 Tex. Civ. App. 209, 79 S. W. 830, the court say:

“That an absolute devise of the entire rents of a named property will carry the property also seems to be well settled, and the reason of the rule is obvious. Such a use necessarily includes the corpus.”

See, also, Underhill on Wills, vol. 2, p. 919; Cropley v. Cooper, 86 U. S. (19 Wall.) 174, 22 L. Ed. 113. But we think it will be found that in most cases, at least, where such implication was indulged there was an absolute gift of the income and no clear purpose of opposite effect otherwise manifested in the deed or will granting the income. Thus Mr. Underhill in his work on the Law of Wills (volume 2, § 692, p. 950) says:

“But the rule that a gift of the interest of the fund or of the income of the land is a gift of the fund or of the land itself is only applicable if the testator has not expressly or by implication disposed of the corpus in some other way. The presumption that he intended the legatee of the income to take the corpus, by giving him the interest, is not conclusive, and may be rebutted by evidence appearing on the will. Thus if the testator, after giving the income or issues and profits of land to one for life, provides that, on his death, it shall go to others, or if, giving the income in fee, he devises it over on the contingency of the death of the devisee without issue, the presumption is overcome.”

Again, to illustrate, in De Haven v. Sherman, 131 Ill. 115, 22 N. E. 711, 6 L. R. A. 745, it was said by the Supreme Court of Illinois:

“It is thus, as we think, made clearly to appear from the authorities that the devise of a yearly sum, to be paid by a trustee to whom lands are devised, upon uses and out of the net rents that may accrue from the lands in his possession, and which sum is contingent upon the exigencies of the trust, is in no sense a devise of rents issuing out of such lands, but is in the nature of an annuity. And hence it follows, as it seems to us, that the legatee neither took nor acquired any interest in the particular real estate.”

See. also, to the same effect; Iasigi v. Shaw, 167 Mass. 328, 45 N. E. 627; Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33; Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456, 43. Am. St. Rep. 410.

In item 4 of the will under consideration the- grant of income to Mrs. Anderson is made wholly contingent. It is made subject entirely to the will and direction of the executors. The language of the will goes no further than that the executors shall pay such “portion” (either all or less as the circumstances may require) as they may “deem proper.” There is no restriction whatever expressed. It is reasonably clear, not only from the terms used, but from other portions of the will, that the testator intended it to be so. lie evidently contemplated and expressly provided for accumulations, inferentially, of income, for he directed a disposition of accumulations upon the termination of the trusts. Such direction is inconsistent with the purpose to give a vested right in Mrs. Anderson, capable of inheritance or alienation, to the entire revenues or to any definite part thereof. He evidently contemplated that Mrs. Anderson might, as the record shows she afterwards did, refuse to accept under the will and take an unfettered right to her one-half or community interest in the devised property. The property was large and susceptible of yielding a large income, and it is a reasonable inference that in such contingency the testator intended that his executors, in whose business ability, personal integrity, and fidelity he reposed confidence, should have power, in their discretion, to devote the income not needed for the support of the wife and mother to the accumulation fund of the estate in contemplation, at the same time carefully providing for the possible contingency of the wife’s circumstances becoming necessitous, whether she accepted under the will or not. It seems to us that, exclusive of the homestead, the right acquired by the wife under the terms of the will is in its essence a right merely to compel the executors to give to her during life such part or all of the net income of the devised property as may be reasonably necessary to comfortably maintain her in her statioii in life. A refusal to do this would be regarded by a court of equity as an abuse of the discretion lodged in the executors, and would no doubt he compelled. Beyond this, however, save to protect the estate from waste, we know of no case going.

We, therefore, think that the testator, Neil P. Anderson, certainly intended that all title, both legal and equitable, in the corpus of the devised estate should be vested in his executors during the life of his wife, and that, until her death at least, no part of the same should vest in any one or more of the beneficiaries named. Such being the intent, such must be the declared effect of the will.

As before stated, it is plain that upon the death of Mrs. Anderson one-fourth of the devised property is made to descend to and invest in the son, Bernie L. Anderson, which, therefore, is well within the time required by the rule against perpetuities for the vesting of estates. But what must he said of the status of the title of the other three-fourths between the death of Mrs. Anderson and the 30-year period at which the executors are directed to pay such three-fourths with its accumulations, if any? In other words, can it be said that during this intervening period any title in and to the corpus of the devised property became vested or fixed in any one or more of the daughters, or of the issue of a daughter or daughters, of Neil P. Anderson?

Much that we have said in defining the right of Mrs. Anderson is applicable, we think, to the case of the daughters. Though it should perhaps be stated in this connection, without a discussion of the often difficult distinctions to he made between vested and contingent remainders, that if the will conferred a vested or fixed right in a daughter, or in the issue of a daughter, in the corpus of the estate, if for but a moment, immediately upon the death of Neil P. Anderson, or his wife, then it is immaterial that the right so vested was subject to be defeated by the contingency of the death of the person in whom the right was so devolved before the expiration of the 30-year period. See Laval v. Staffel, 64 Tex. 370; Chace v. Gregg, 88 Tex. 558, 32 S. W. 520; Haring v. Shelton, 103 Tex. 10, 122 S. W. 13; St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S. W. 425, 132 Am. St. Rep. 886.

Now let us address ourselves with more particularity to the question of vested title vel non in Mr. Anderson’s daughters. We have already shown, we think, that until the death of Mrs. Anderson the entire title is by the terms of the will vested in the executors. During this period, neither by the terms of the will, nor by implication from a gift of the income, is any certain vested right conferred, unless perhaps a right to maintain an action to restrain future waste, which may be exercised by a purely contingent remainderman. 40 Cye. 52. Nor in this respect do we think any satisfactory distinction can be made as to the status of title or right in the daughters during the period before or after the death of Mrs. Anderson until the expiration of the 30-year period. On the death of the wife, as will be seen by an examination of item 5 of the will, the title to the estate intended to ultimately go to the daughters is again expressly vested in the executors. As to this the testator reiterates and thus emphasizes the terms of the original conveyance to them. He there says in the event named, the estate ultimately intended for the daughters “shall pass to and vest in” his executors, subject only to the “conditions” and the “trusts” provided in the will. The only conditions to be found in the will are that upon the death of a daughter without issue an aliquot part of the property should immediately pass to the son, and that the remainder, continued under the trust as before, shall be conveyed at the end of the 30 years from the date of his death. The “trusts” committed to the trustees are to manage and control the property, and within their discretion to pay income, as in the will provided. As in the case of the wife, no fixed portion of income beyond the control and discretion of the executors is given to any daughter or to the issue of any daughter. Nor is there anything appearing from the face of the will, or in the agreed facts in this case, that indicates that at the time the will .was prepared, or at the time of the testator’s death, either daughter was in any immediate need, or that she would probably become so, thus favoring a desire of the testator that is manifested by the will as a whole to increase his estate as far as circumstances would permit by adding thereto income not necessary for the maintenance of his wife and daughters, the daughters or their issue to receive the full benefit of the augmented property at the end of the 30-year period. The mere grant or gift of income to the daughters limited as to times and amounts to the discretion of the executors, falls short, in our judgment, under the authorities to a definite investiture of any fixed right in praesenti to the corpus of the estate. See Leake v. Robinson, 2 Mer. 363, 35 English Reprint, 979; Farrell v. Cogley, 146 S. W. 315; Lewisohn v. Henry, 179 N. Y. 352, 72 N. E. 239; Reid v. Voorhees, 216 Ill. 236, 74 N. E. 804, 3 Ann. Gas. 946; Iasigi v. Shaw, 167 Mass. 328, 45 N. E. 627; Bartlett v. Sears, 81 Gonn. 34, 70 Atl. 33; De Haven v. Sherman, 131 Ill. 115, 22 N. E. 711, 6 L. R. A. 745; Keyser v. Mitchell, 67 Pa. 473; Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456, 43 Am. St. Rep. 410; In re Kountz’s Est., 213 Pa. 399, 62 Atl. 1103, 3 L. R. A. (N. S.) 639, 5 Ann. Cas. 427; Morrison v. Schorr, 197 Ill. 554, 64 N. E. 545; Frantz v. Race, 205 Pa. 150, 54 Atl. 714; 2 Underhill on Wills, p. 950, § 692; 2 Underhill on Wills, § 872, p. 1325; 1 Perry on Trusts, § 386a.

Nor can there be found in all the will any word of gift, grant, or conveyance, legally apt or in common use for the passing of a present interest to the daughters, notwithstanding that the will manifests the testator’s knowledge of such terms and of their appropriate office. For in item 5 the testator directs that upon the death of his wife one-fourth of his estate “shall pass to and become the property of my son Bernie L. Anderson.” In the same connection and in evident opposition he directs that the remaining three-fourths “shall pass to and be vested in” his executors, thus unmistákably manifesting a purpose to hold the full title of the. daughters in abeyance until the appointed time for distribution. Of like import are the terms of conveyance in item 7. The testator there directs that “at the expiration of thirty years” his executors “shall pay over and convey” to the daughters the estate and its accumulations. At no time are the words “vest” or “vested” used with reference to either of his daughters or their issue, but in each and every instance where they are referred to words of futurity are used, and in no instance is there any language from which it is to be 'implied that the descendants of the daughters were to have any character of vested interest in the corpus of the property until the end of the 30 years, when the testator in explicit and certain terms directed that the estate and its accumulations should be paid over and conveyed. . In brief, it seems ' to us that the will clearly shows that the testator not only knew what he wanted, and the effect of terms to accomplish his desires, but also willed that the beneficial interest in his estate intended for the daughters should not become their very own until the expiration of the 30 years, this postponement of right being doubtless .for the supposed benefit of the daughters and arising from, some real or fancied want of need other than as provided, or some real or fancied want of capacity in the daughters to prudently manage large properties.

From the foregoing conclusions we can but hold that, regardless of any distinction between real and personal property, the estate intended for Mr. Anderson’s daughters did not, under the terms of his will, pass to them upon his death nor at any time thereafter. Nor will it so pass until the expiration of the 30 years named in the will. If this be true, then the able counsel for appellants admits with commendable frankness that the provisions of the will relating to the daughters are invalid under the rule against perpetuities. Under the authorities from which we have heretofore quoted, it can readily be seen, aside from counsel’s admission, that if we indulge, as it seems it is our duty to do, the supposition of the possible death of the wife, daughters, and grandchildren of Neil P. Anderson within a year or two after his decease, the will as to the interest intended for the daughters by its terms would prevent alienation and disposition to a period beyond lives in being and 21 years thereafter. But in this event it is insisted that we should reject the invalid portions of the will and enlarge the estates of the daughters to indefeasible equitable fees, subject to the control of the trustees during the daughters’ lives within the 30 years, and thus leave effective the trusts intended to benefit the wife and the vested remainder at her death to the son.

But we are of opinion that this insistence cannot be upheld. It seems evident that Mr. Anderson undertook to dispose of his entire estate in accord with a general plan that eompréhended, not only the wife and son, but also the daughters. There is nothing in the will nor in the facts that indicates that he would have made his will as he did with the provisions relating to the daughters eliminated. It cannot be said, as we have seen, that the will confers on Mrs. Anderson any fixed right to the income for life, nor under the discretion given to the executors can it be said that she will in fact ever need or receive any part of such income. As to the son, with the invalid portions rejected, his portion of the estate is merely postponed until his mother’s death. It cannot be said that this is either desirable or beneficial to the son, in view of the fact that under our statute of descent and distribution he would, in the absence of a devise, be entitled to the same portion immediately. The will reasonably indicates that the burden of the testator’s care was for his daughters. The testator had knowledge of the wife’s community right and full faith in his son’s business ability, as is manifested by his appointment as executor, and the daughters, as indicated, were the more probable objects of his solicitude., And in considering the whole we find nothing in the will nor in the evidence indicating that Neil P. Anderson would have written his will to provide alone for the wife and son. We think the case well within that line of authorities which hold that where parts of a will are void, the whole will be set aside, if to sustain the other parts would work an injustice or violate the general scheme or plan of the testator. See Barrett v. Barrett, 255 Ill. 332, 99 N. E. 625; Reid v. Voorhees, 216 Ill. 236, 74 N. E. 804, 3 Ann. Cas. 946; Kountz’s Estate, 213 Pa. 390, 62 Atl. 1103, 3 L. R. A. (N. S.) 639, 5 Ann. Cas. 427; Lawrence v. Smith, 163 Ill. 149, 45 N. E. 259; Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487; In re Fair’s Estate, 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000, 84 Am. St. Rep. 70; Shepperd v. Fisher, 206 Mo. 208, 103 S. W. 998; Johnson v. Preston, 226 Ill. 447, 80 N. E. 1001, 10 L. R. A. (N. S.) 564; Gully v. Neville (Miss.) 55 South. 289; Eldred v. Meek, 183 Ill. 26, 55 N. E. 536, 75 Am. St. Rep. 86; Central Trust Co. v. Egleston, 185 N. Y. 23, 77 N. E. 989; Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225.

We conclude that the will of Neil P. Anderson is void as a whole, on the ground that it violates the rule against perpetuities. The judgment below, therefore, so declaring must, in all things, be affirmed.
      <g=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    PURE ICE & COLD STORAGE CO. v. WEINBERG.
    (No. 8096.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 6, 1915.
    Rehearing Denied March 13, 1915.)
    WAREHOUSEMEN <&wkey;24r — DELIVERY BY WARE-HOUSEMEN — Liability for Negligence.
    One with whom the owner of apples stores them for purposes of resale, a bailee for hire, under duty to redeliver either to the bailor or to another as might be required, having, on direction of the bailor to deliver them to one to whom it had sold them, undertaken to reload them for delivery by railroad, is not only liable for its negligence in loading them, proximately causing injury to them, but such liability is to the purchaser.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 111-123; Dec. Dig. &wkey;>24.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Action by M. Weinberg, by next friend, F. Weinberg, against the Pure Ice & Cold Storage Company? Judgment for plaintiff, and .defendant appeals.
    Affirmed.

      J. M. Moore, of Cleburne, for appellant. Goldsmith & Warren, of Cleburne, for ap-pellee.
   CONNER, C. J.

In so far as it is necessary to state, M. Weinberg, by his next friend, F. Weinberg, instituted this suit in a justice court of Johnson county against the appellant herein and- the Gulf, Colorado & Santa Fé Railway Company, for damages to a shipment of apples. The plaintiff alleged that he had purchased in the city of Dallas 595 boxes of apples, paying appellant therefor, which had been shipped by appellant over said railway company to Cleburne, Tex.; that upon arrival in Cleburne there were 11 boxes short and 78 boxes of the apples mashed and otherwise injured. The trial in the justice court resulted in a judgment in the plaihtiff’s favor against the Gulf, Colorado & Santa Fé Railway Company, but acquitting appellant of any liability. On appeal to the county court by the railway company, however, the plaintiff was awarded judgment against appellant for the sum of $100, and the railway company was acquitted, and appellant has appealed.

The substantial facts are that the apples in question were owned and shipped by the Roswell Fruit Growers’ Association of Roswell, N. M., to the appellant company, for storage. After the receipt of the apples by the appellant company, it kept them as bailee for about four months, when appellee purchased them through an agent of the fruit growers’ association in the city of Dallas. Upon the completion of the purchase, appellee, as directed, gave his check in payment to the cold storage company, which was directed to forward the apples to appellee at Cleburne. At this time the entire shipment received by appellant, 506 boxes, were found to be intact and in good order. The effect of the testimony on the part of appellant’s employés is that the entire 506 boxes were loaded in good order and the shipment forwarded. There is evidence, however, tending to show that, when loaded by the appellant company, the car was sealed with its seal, and that, as shown by the testimony in behalf of the railway company, the car arrived at Cleburne with the seal undisturbed, but that when examined by appellee the apples were found to be 11 boxes short, with a number of other boxes broken and the apples injured.

The amount of the damage done is not questioned by any assignment of error. Appellant’s assignments, all but one, in one form or another question appellant’s liability! It is insisted that no negligence on its part was shown, hut, if so, that it acted as the agent merely of the Roswell Fruit Growers’ Association, and that, as such, the association, and not appellant, is liable for negligence arising out of any mere want Of care, which may have caused the damages in question. .

The testimony of the employés of the railway company is, as before stated, to the- effect that the car in which the shipment was made was received under the seal of the appellant company as delivered to them, and that the shipment throughout was with due care and without negligence. The testimony in behalf of the appellee tended to show and authorized the conclusion that the apples were not loaded as they should have been in order to preserve them against injury. So that it can by no means be held by us that the evidence is insufficient to sustain the verdict of the jury on the issue of appellant’s negligence. With appellant’s greater contention — the one most vigorously presented— that its liability was only that of the agent of the fruit growers’ association, we must differ. Appellant was undoubtedly a bailee of the apples for hire and as such, among other things, rested under the duty to redeliver the thing bailed, either to the bailor or to another, as might be required. See Schouler’s Bailments and Carriers (2d Ed.) §§ 2, 3, 6. The evidence shows that the apples in question were stored with appellant for the purposes of resale, and that the Fruit Growers’ Association of Roswell, through its agent, not only directed appellant to deliver the apples to appellee, but appellant also actually undertook to do so. At least, it actually undertook to reload the apples for ultimate delivery by the railway company, and we think it must undoubtedly he held to be liable for any negligence on its part in making the delivery or shipment which proximately caused the injury. See Schouler’s Bailments and Carriers (2d Ed.) §§ 101, 117. And appellant’s liability for negligence was not alone, if at all, as is insisted, to the Roswell Fruit Growers’ Association. In one of the sections of Mr. Schouler cited (section 117) it is said:

“The main duty of the hired bailee, when his bailment terminates, is to make delivery of the think back or over in suitable order.”

In another section (section 119) the author says:

“Where the bailed chattel has been sold and the bailee is duly notified thereof, he holds it under a transfer of title which he and all others are bound to regard.”

Upon appellee’s purchase he became the true owner, and appellant was legally bound, as it indeed undertook to do, to redeliver the apples, not to its bailor, but to-appellee; and, such being its duty, its liability for a failurq to properly perform that duty was to the appellee and not to the fruit growers’ association. See Bank v. Bates (D. C.) 1 Fed. 702; Clay v. Gage, 1 Tex. Civ. App. 661, 20 S. W. 948; Nelson v. King, 25 Tex. 656; Roberts v. Yarboro, 41 Tex. 449; 40 Cyc. 419 et seq. We accordingly overrule all assignments of error involving the questions discussed.

The court did not err in refusing appellant’s special instruction to the effect if the jury believed from the evidence that the defendant railway company furnished appellant the ear in which the apples was loaded, and thus made appellant the agent of the railway company, to. find for the defendant, as the evidence wholly fails to raise such an issue. Nor do we think the court’s charge subject to the criticism made in the sixth assignment of error.

The suggestion that the county court was without jurisdiction, we think, is also without merit; and, believing that the evidence supports the verdict and judgment, it is ordered that the judgment be affirmed.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    WHITE et ux. v. LOVE et al.
    (No. 8094.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 20, 1915.
    Rehearing Denied March 13, 1915.)
    1. Principal and Agent <&wkey;>103 — Exceeding Authority — Liability or Person Dealing with Agent.
    Plaintiff executed a power of attorney to B. to sell, convey, or trade 200 acres of land upon such terms for cash or credit or other property as to him might seem advisable. B., purporting to act thereunder, conveyed to defendants, in consideration for a conveyance of city property to B.’s wife. Meld that, as a power of attorney to sell property does not authorize a sale on credit in the absence of a stipulation in the instrument giving that authority nor for the benefit of some one other than the party who gives the power of attorney, and as defendants therefore knew that B. was acting beyond the scope of his authority, their reliance in good faith on an attorney’s advice that B. could give a good title, and their lack of any intention to defraud plaintiff, did not relieve them of liability to plaintiff for the value of the 200 acres on the theory that they participated in B.’s fraud.
    [Ed. Note. — Por other cases, see Principal and Agent, Gent. Dig. §§ 278-293, 353-359, 367: Dec. Dig. &wkey;>103.j
    2. Principal and Agent <&wkey;103 — Exceeding Authority — Liability of Person Dealing with Agent.
    That B. and his wife had disposed of part of the city property transferred to the wife by defendants did not entitle defendants to have the amount so received charged against plaintiff.
    [Ed. Note. — For other cases, see Principal and Agent, Gent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. &wkey;103.]
    3. Stipulations <&wkey;14 — Agreed Statement of Facts — Construction and Operation.
    Where, in an action to recover the value of land tried on an agreed statement of facts, though the agreed statement stated that prior to 1905 plaintiff executed a contract to attorneys in Kentucky conveying to them a one-half interest in whatever land should be recovered in litigation then pending, and that such attorneys employed B. to assist them, and contracted to give him two-tliirds of t'heir one-half interest, and that the land involved was recovered in that litigation, it was further agreed therein that plaintiff in February, 1907, was the owner in fee simple of the land in question, a judgment for plaintiff for two-thirds of the value of the land was not erroneous on the ground that the Kentucky attorneys were the owners of an undivided one-sixth interest, and that the recovery should have been only for one-half the value of the land.
    [Ed. Note. — For other cases, see Stipulations, Gent. Dig. §§ 24-37; Dec. Dig. <&wkey;>14.]
    4. Limitation of Actions &wkey;>l00 — Commencement of Period of Limitation — Discovery of Fraud.
    Where though, purporting to act under a power of attorney, the attorney in 1909 conveyed land to defendants in exchange for other land, title to which was taken in his wife’s name, the attorney’s principal did not discover the fraud practiced upon her until about one month prior to the institution of a suit against defendants for the value of the land in 1913, and it did not appear that by the exercise of ordinary diligence she could have discovered it any earlier, her cause of action was not barred by the statutes either of two or three years’ limitation.
    [Ed. Note. — For other cases, see Limitation oi Actions, Cent. Dig. §§ 323, 4S0-493; Dec. Dig ⅞=»100.]
    5. Principal and Agent <&wkey;189 — Wrongful Acts — Actions—Petition.
    Plaintiff executed a power of attorney to B. to sell 200 acres of land, and, purporting tc act thereunder, .he conveyed the land to W., in consideration for city property conveyed to his wife, the conveyance of the city property retaining a vendor’s lien to secure the payment of notes for a part of the purchase price. W. conveyed the land to an innocent purchaser. Plaintiff sued W., her husband, B. and his wife, alleging that a trust resulted in favor of plaintiff in the city« property, .that she became the legal and equitable owner thereof to the extent of the value of the 200 acres, and that by reason of W.’s acts she became the owner of a right in, title to, and lien upon such property superior to W.’s rights under the vendor’s lien, and praying for judgment against each of the defendants, establishing a trust in her favor in such property and a lien thereon for the value of the 200 acres, superior to the rights of all of the defendants, and that such city property be sold for the satisfaction of such judgment. Meld that, taken as a whole, the petition could not be interpreted as showing that plaintiff had elected to claim title to the city property, thereby requiring her to take it burdened with the vendor’s lien; as, properly construed, the allegation that title to the city property was held for plaintiff’s benefit was merely to show the basis for t'he equitable lien asserted.
    [Ed. Note. — For other cases, see Principal and Agent, Gent. Dig. §§ 713-717; Dec. Dig. <&wkey;> 1S9.]
    Appeal from District Court, Tarrant County; F. O. McKinsey, Judge.
    Action by Maggie Myrtle Love and husband against George E. White and others. Judgment for plaintiffs, and defendants White appeal.
    Affirmed.
    Carlock & Oarlock, of Et. Worth, for appellants. K. C. Fuller and Clendenen & Simmons, all of Et. Worth, for appellees.
   DUNKLIN, J.

On the 11th day of February, 1907, Mrs. Maggie Myrtle Love, joined by her husband, .W. M. Love, executed a power of attorney to J. G. Browning authorizing and empowering him to “sell, convey, or trade said property upon such terms for cash or credit or other property as to him may seem advisable, or as his judgment may dictate,” 200 acres of land situated in Caldwell county, which was claimed as the separate property of Mrs. Love. On July 15, 1909, Browning, purporting to act under that power of attorney, conveyed the land by deed to Attie H. White, wife of Geo. E. White, in consideration for a conveyance of even date by Geo. E. White and Attie IT. White to Mrs. E. W. Browning, wife of said Browning, of certain lots and blocks of land in the Dixie Wagon Manufacturing Company’s addition to the city of Et. Worth. In the latter conveyance a vendor’s lien was retained upon the property therein conveyed- to secure the payment of promissory notes to Geo. E. White and At-tie H. White, aggregating the sum of $7,500, executed by the said J. G. Browning and wife, Mrs. E. W. Browning. Neither Mrs. Love nor her husband have ever received any consideration for said 200 acres of land. On May 11, 1910, Geo. E. and Attie H. White conveyed that land to G. M. Stewart for the sum of $2,500 cash, and G. M. Stewart was an innocent purchaser thereof.

This suit was instituted by Mrs. Love, joined by her husband, against Geo. E. White and wife, Mrs. E. W. Browning, and J. G. Browning, to recover the value of the Caldwell county land. J. G. Browning was alleged to be non compos mentis, and p. guardian ad litem was appointed to represent him.

The sale of the land to Stewart as an innocent purchaser was alleged in the petition, together with other facts recited above. It was further alleged that the conveyance by Browning to Mrs. Attie H. White was for the purpose of defrauding Mrs. Love of her said land; that Browning had no legal authority or right so to do, and the lack of such authority was well known to White and wife, who thereby became participants in the fraud practiced upon Mrs. Love by Browning. It was further alleged that an equitable lien existed in favor of.Mrs. Love upon the lots and blocks of land deeded by the Whites to Mrs. Browning, and plaintiffs prayed for a foreclosure of that lien for the satisfaction of their claim for the value of the land.

The suit was tried by the court without the aid of a jury upon an agreed statement of facts, and from a judgment in favor of the plaintiffs establishing their debt for $1,666.66 with a foreclosure of lien upon the lots and blocks last mentioned, and an order to sell the same to satisfy said debt, as against all the defendants, but with no personal judgment against any of the defendants for the amount of said debt, Geo. E. and Attie H. White have appealed.

Two of the paragraphs in the agreed statement of facts read as follows:

“It is further agreed that in the making of the said trade and exchange of lands with the said Browning that the defendants George C. White and wife relied upon an abstract of the title to the Caldwell county lands furnished to them for examination by said Browning, and also the power of attorney, marked Exhibit A, and that said White and wife had the said titles examined by a competent attorney in Et. Worth, who approved of the said title and the said power of attorney before the passing of the deeds between the said Browning and the said Whites, and that in said transaction the said George E, White and wife acted in good faith and without any intention to defraud any party connected with this lawsuit.
“It is further agreed that at the date of the said transactions between the' defendants, George E. White and wife and the said James Gilford Browning and wife, that the said Browning was a lawyer in Et. Worth and a citizen of said town, and a man of reputation and standing, and had been county attorney of Tarrant county for a number of years, and at that time his mind was normal, and nothing the matter with it so far as the public or anybody knew, or so far as the defendant knew anything about it, and that he continued to transact Business and was apparently all right in his mental faculties for about three years aft'er the passing of the said deeds.”

Appellants insist that, as Browning was given the power to trade the Caldwell county lands upon such terms as might seem to him advisable, and as it was admitted by the appellees that appellants acted in good faith and without any intention to defraud appel-lees, the court erred in rendering judgment for the appellees.

It is well settled that one holding a power of attorney to sell property for another is not authorized to sell the same on a credit in the absence of a stipulation in the instrument giving that authority, nor for the benefit of some one other than the party who gives such power of attorney. As the Whites had full knowledge of the fact that Browning was acting beyond the scope of his authority, the fact that they acted in good faith, in the sense that they did not intend to defraud ap-pellees, amounted to no defense to plaintiffs’ suit. It is quite natural and probable that they believed that the advice given to him by their attorney who examined the title before the trade was closed was dependable, but it is too well settled by the authorities that the advice so given was erroneous, and it is too plain for argument that one cannot escape the legal consequences of a transaction simply upon the ground that he in good faith was acting upon the advice of a competent attorney. Hunter v. Eastham, 95 Tex. 648, 69 S. W. 66.

Another paragraph of the statement of facts reads as follows:

“It is further agreed that, after said deed was executed by George E. White and wife to the said Mrs. E. W. Browning to the lands in Dixie Wagon Manufacturing Company’s addition to Ft. Worth, the said Browning and wife at different dates before the institution of this suit sold and conveyed various lands out of said addition, and received the proceeds thereof, «.mounting to as much as $2,000, and that these moneys have never_ been paid over to the defendants White and wife, or to the plaintiffs in the case.”

By another assignment of error appellants contend that the money so received by Browning and wife for the sale of equities in the lots transferred to Mrs. Browning should be charged against the plaintiffs. If the disposition of the land made by Browning was unauthorized, we fail to understand how it could be said that the mere fact that Browning and wife realized funds out of the transaction would destroy, or in any manner change, plaintiffs’ cause of action, in the absence of any showing that they in any manner ratified the trade.

Other paragraphs in the agreed statement of facts read as follows:

“It is further agreed that the value of the tract of land in Caldwell county above mentioned was, at the date of the deed from James Gil-ford Browning to Attie H. White, and at the dat'e of the deed from the Whites to G. M. Stewart, the sum of $2,500.
“It is agreed by and between the plaintiffs and defendants in the above numbered and entitled cause that the plaintiffs, Maggie Myrtle Love and her husband, William Love, did execute prior to 1905 a contract t'o Blue & Nunn, attorneys of Marion, Ky., which said contract was in writing, and conveyed to them a one-half interest in whatever could be recovered out of the Miles estate in Caldwell county, Tex., for and on behalf of the said plaintiffs; that said contract was duly signed and acknowledged and executed by the plaintiffs, and delivered to the said attorneys, and the same has been lost, and the original thereof cannot be found and produced.
“It is further agreed that the said Blue & Nunn did employ James G. Browning, of Ft Worth, Tex., to assist them in said litigation, and did contract with the said Browning in writing to give him two-thirds of their one-half interest in the money or lands that might he recovered for the plaintiffs in said litigation, being equivalent to a one-third interest in the entire amount that might be recovered; that suit was brought by the said Browning and attorneys acting with him on behalf of the plaintiffs, in Caldwell county, Tex., under and by virtue of said contract, and the land involved in this suit, among other things, was recovered for and on behalf of the plaintiff, and it is agreed without further proof that the said James G. Browning was entitled to a one-third interest in the proceeds of the said suit or the lands recovered thereby.”

It will be noted that the judgment rendered in favor of the plaintiffs was for two-thirds of the agreed value of the Caldwell county land.

Upon the proposition that there was an outstanding title to an undivided one-sixth interest in the Caldwell county land in Blue & Nunn, appellants insist that the court erred in rendering a judgment in favor of appel-lees for two-thirds of the value of the land, instead of for one-half of that value. The first paragraph of the agreed statement of facts reads as follows:

“It is admitted that on the 11th day of February, 1907, Maggie Myrtle Love, the plaintiff, whose husband, William Love, is joined herein, was the owner in fee simple and as her separate estate of the tract of 198⅛ acres, a part of the Miles G. Dykes survey described in plaintiffs’ petition; that on the above-mentioned date the said Maggie Myrtle Love and William Love executed and delivered to defendant James Gilford Browning the power of attorney introduced in evidence and marked Exhibit A.”

It will be observed that the contract with Blue & Nunn was made prior to the year 1905. Whatever interest they acquired in the land must have been conveyed to appellees later, otherwise the admission in writing of appellants’ attorneys that on February 11, 1907, Mrs. Love owned the land in fee simple could not be given effect.

The following agreement is in the statement of facts:

“It is agreed that the plaintiff Maggie Myrtle Love and her husband first learned that' the said James G. Browning had conveyed or attempted to convey the tract of land in Caldwell county above mentioned some time in the month of March, 1918, and, upon discovering that such deed had been made by Browning, caused this suit to be filed as soon thereafter as she was able to do so.”

It was further agreed that appellants never at any time contracted with the appel-lees to account to them for any of the proceeds of the land, and that they have at all times since the date of the deed to Mrs. White claimed and asserted adverse title in themselves to the proceeds of such trade. This suit was instituted April 22, 1913. It was further agreed that immediately after appellants acquired the deed from Browning which was dated. July 15, 1909, they took possession of the Caldwell county land and held peaceable and adverse possession thereof by tenant until they sold the land to

G. M. Stewart, and that ever since the latter conveyance Stewart has held continuous, adverse, peaceable possession of the land. It was further agreed that prior to the institution of the present suit there was never any revocation of the power of attorney given by appellees to Browning referred to above.

In view of the agreement that appellees did not discover the fraud that had been practiced upon them until March, 1913, about one month prior to the institution of the suit, and with no facts to show that by the exercise of ordinary diligence they could have discovered it earlier, there is no merit in appellants’ contention that appellees’ cause of action was barred by the statutes either of two or three years’ limitation.

By other assignments appellants insist that appellees in their pleading have elected to claim title to the property deeded to Mrs. Browning by the Whites, and, having elected so to do, they cannot recover a money judgment in this case, but must take said property burdened with the vendor’s lien fixed thereon in favor of the Whites by the Brown-ings; the amount due upon said vendor’s lien notes at the date of the trial being the sum of $11,000, as shown by the agreed statement of facts. In their petition plaintiffs, after setting out the transaction between the Whites and the Brownings and the fraud practiced upon the plaintiffs, alleged:

“That, by reason of the premises, a trust resulted in favor of plaintiff Maggie Myrtle Love in the several lots and blocks of land above described and being the premises conveyed by At-tie H. White and Geo. E. White to the said El. W. Browning, and that plaintiff became the legal and equitable owner of said last-mentioned real estate, at least to the extent of the value of plaintiff’s said farm located in Caldwell county, Tex., and that, by reason of the acts and conduct of the said George E. White and Attie H. White above set forth, plaintiff became the owner of a right in, title to, and lien upon the last-described lots and blocks of land superior to the rights of said G. E. and A. H. White therein, and superior to the right of said defendants to foreclose the pretended lien upon said real estate for notes executed by James G-ilford Browning and E. W. Browning to said A. H. White and Geo. E. White as and for a part of the pretended pur-chase price of said real estate.”

But, after a further allegation that the defendants and each of them became liable to the plaintiff Mrs. Love for the value of the Caldwell county land, the petition concludes with the following:

“Wherefore, plaintiff sues and prays that the defendants and each of them be cited to answer herein, and that she have judgment against each and all of said defendants, establishing a trust in her favor in the said lots and blocks of land, and a lien thereon for the value of said tract of land in Caldwell county superior to the rights of each and all of the defendants in said lots and blocks of land in Pt. Worth, and that plaintiff have judgment against each and_ all of the defendants for the value of her said tract of land, and that the said lots and blocks of land in Ft. Worth be decreed to be sold for the satisfaction of said judgment, for cost of suit, and for such other and further relief both at law and in equity as she may show herself entitled to receive.”

Taken as a whole, we believe that the petition is not subject to the interpretation placed, upon it by appellants. Properly construed, the allegation, in effect, that Mrs. Browning held title to the lots in trust for the benefit of appellees was merely to show the basis for the equitable lien asserted and which was established and foreclosed by the trial court. The statement of facts further shows that the vendor’s lien reserved by the Whites in the deed to Mrs. Browning was later foreclosed, and, in the foreclosure sale which followed, that the Whites became the purchasers of all the property which they had conveyed to Mrs. Browning and which she did not sell. Appellees in this suit were not parties to that proceeding.

For the reasons indicated, the judgment is affirmed.
      ©xx>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PECOS & N. T. RY. CO. et al. v. RAYZOR.
    (Nos. 7094, 7111.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 28, 1911.
    On Motion for Rehearing, March 6, 1915.)
    Limitation of Actions <§^>120 — Jurisdiction — Filing Suit as Suspension.
    Where the trial court has absolutely no jurisdiction of an action under the pleadings the filing of the petition cannot suspend the running of the statute of limitations on the cause of action, but where a petition was susceptible of the construction that it asked $975 as damages, with interest on the judgment, and not $975, and interest as a part of the judgment, the first construction would be adopted to support the county court’s jurisdiction of the suit, so that the filing of the petition suspended the statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 536; Dec. Dig. <⅞=>120.]
    Conner, C. J., dissenting.
    Appeal from Denton County Court, Lee Zumwalt, Judge.
    Action by J. N. Rayzor against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in accordance with Supreme Court’s (172 S. W. 1103) answer to certified questions.
    Emory C. Smith, of Denton, and Spoonts, Thompson & Barwise, and J. M. Chambers, all of Ft. Worth, for appellants. Owsley & Sullivan and Alvin M. Owsley, all of Denton, for appellee.
   CONNER, C. J.

The Pecos & Northern Texas Railway Company and the Ft. Worth & Denver City Railway Company have appealed from a judgment in appellee’s favor for $750 apportioned equally between them. The suit was for damages because of injuries to a shipment of pianos from Denton over the railway lines of appellants, and on a former appeal from a. judgment in appellee’s favor we reversed the judgment on the ground that the amount claimed in the plaintiff’s petition was in excess of the jurisdiction of the county court. See Ft. W. & D. O. Ry. Co. v. Rayzor, 125 S. W. 619, where a more complete statement of the case and material parts of appellee’s petition may be found. On the present appeal the material question presented is one of limitation. Ap-pellee’s original petition was filed in the county court October 5, 1907, alleging that the shipment in'question was on September 12, 1906, and claiming damages in the total sum of $975 “with legal interest thereon.” In this respect appellee’s first amended original petition, upon which the case was formerly tried, is the same. After the reversal of the judgment mentioned appellee, on April 25, 1910, filed in the county court his second amended petition, alleging his cause of action substantially as in his two former petitions, except that there was no prayer for interest, the averments in this particular being: •

“That the plaintiffs herein have never sued for or sought to recover interest upon the damage suffered by them as aforesaid, except from and after the rendition of a final judgment in this cause, and have not sought to recover, either by way of damages, interest, or otherwise any sum exceeding the sum of $975, and they do not now seek to recover any amount in excess of said sum of $975, but they have laid their damages at said sum of $975 to cover the full amount herein sued for, including their damages and such interest as they may be entitled to from and after the rendition of the judgment herein.”

Appellants insist that appellee’s former efforts to recover judgment were nullities for the reason that the court was without jurisdiction, and that appellee’s suit must be held to have first begun by the filing of his second amended original petition on April 5, 1910, more than two years after his cause of action accrued, and that hence the action is barred. Appellee concedes that in the condition of the record the two, instead of the four, year statute of limitation applies, if limitation applies at all, but insists that from the beginning the amount declared upon was within the jurisdiction of the county court, the contention being that the prayer for interest was referable to the judgment sought, and not to the damages claimed, or if mistaken in this, that the claim in the original and first amended original petitions for $125, expended in his “endeavor to lessen the damage as much as possible,” was subject to general demurrer, and hence not to be computed in determining the amount originally in controversy. If either of these contentions be correct, it is clear that appellee’s petitions from the first stated an amount within the county court’s jurisdiction, for our ruling to the contrary on the former appeal can be sustained only upon the theory that the prayer for interest related to the claim for damages from their inception, and that the claim for expense to prevent further damage was well pleaded in the absence of special exception. Regardless of whether our opinion and judgment on the former appeal is now conclusive, we all feel content with the construction then given to appellee’s first amended original petition. So that we are thus brought squarely to the question of whether the filing in the county court of ap-pellee’s original and first amended original petitions had the effect of suspending the statute of limitation. The majority think not. They are of opinion, in harmony with appellants’ contention and Ball v. Hagy, 54 S. W. 915, and I. & G. N. Ry. v. Flory, 118 S. W. 1116, that, the county court being without jurisdiction of the amount claimed, all proceedings therein relating to such claim were nullities, and that the commencement of appellee’s suit was when he filed his second amended original petition on April 5, 1910, and not before. It.follows that other questions become immaterial, and that the judgment should be reversed and here rendered for appellants. The writer, however, is not prepared to adopt the view of the majority; and, inasmuch as a writ of error to the Supreme Court does not lie in this case, and because of the importance of the matter to appellee, he feels impelled to briefly enter his dissent.

No very satisfactory authority, perhaps, has been found by the writer that can be said to be directly in point. It is said by the author of 25 Oye. p. 1299, § 4,. that:

“The fact that the court in which the action is brought has no jurisdiction does not defeat the effect of bringing suit as an interruption of prescription.”

'This statement of the law, however, is based on Georgia and Louisiana cases cited in the notes, which in turn seem to be founded on statutes peculiar to those states, and hence may be said to be of little, if any, force as authority here where no such statutes exist. In my judgment, however, the text quoted, as applied to the peculiar facts of this ease, states a sound proposition. The justness of appellee’s claim is not attacked — is undisputed. Excluding interest on the claim as originally presented, it must be also undisputed that the county court had jurisdiction. It was only upon the theory that the prayer for interest was referable to the claim and to be computed in determining the amount in controversy that we held the county court without jurisdiction on the first appeal. Looking at'it practically, then, what change in the real controversy was brought about by the amendment after the reversal? Substantially none, as it seems to the'writer. The amendment, referred to in almost the same language, set up the same shipment, charged the same neglect and breach of shipping contract, claimed the same resultant damage to his goods, and the same expense as was done in the original and first amended original petitions. In other words, the plaintiff’s camse of action was the same in all petitions, and over this the county court undoubtedly had full power. The only change was in tire form of the prayer relating to interest, the last amendment merely excluding by express terms that which by construction we held to be part of plaintiff’s claim. This being true, it seems unduly technical to say that there was not sufficient virtue in appel-lee’s first two petitions to form the basis of the second amendment. If not, why should the case have been reversed rather than dismissed on the former appeal? It is stated generally in W. U. Tel. Co. v. Brown, 62 Tex. 536 (quoting from the headnote) that:

“If the facts set forth as a basis of recovery are the same in an original and an amended petition, though the relief prayed for in the amended pleading be different, on account of a larger measure of relief being asked for, the character of the cause of action remains the same.” McDannell & Co. v. Cherry, 64 Tex. 177; Miller v. Newbauer, 61 S. W. 974.

To the same effect is the case of Lee v. Boutwell, 44 Tex. 151. See, also, Taylor v. Lee, 139 S. W. 908. It has also been decided a number of times in this state that a petition bad on general demurrer will interrupt the statute of limitations. See Killebrew v. Stockdale, 51 Tex. 529; Kauffman v. Wooters, 79 Tex. 214, 13 S. W. 549; T. & P. Ry. Co. v. Johnson, 34 S. W. 187; Sherman Oil & Cotton Co. v. J. D. Stewart, 17 Tex. Civ. App. 59, 42 S. W. 241. So, too, a mere enlargement of a plaintiff’s cause of action is not the institution of a new suit so as to subject it to the operation of the statute. See Johnson v. Texas Cent. R. R. Co., 42 Tex. Civ. App. 604, 93 S. W. 433; Tex. Cent. R. R. Co. v. Johnson, 51 Tex. Civ. App. 126, 111 S. W. 1098; Atchison, T. & S. F. Ry. Co. v. Veale & Co., 39 Tex. Civ. App. 37, 87 S. W. 202; Love v. Southern Ry. Co., 108 Tenn. 104, 65 S. W. 475, 55 L. R. A. 471. Why, then, should it be so when, as here, there is but a mere abandonment of an item in the prayer for relief? It is not as if appellee’s suit had been one in trespass to try title. In that event no amendment would confer upon the county court jurisdiction of the same subject-matter, and hence the suit would indeed be a nullity — the same as if no suit had ever been filed — and would constitute no impediment to the running- of the statute. Our statute (Rev. St. 1911, art. 5687) on the subject reads, so far as is necessary to quote, that:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description”

—and then follows the character of suits to which it applies, including one like the present ease. It is evident that a distinction is to be made between “cause of action” and the “action or suit” by means of which the plaintiff seeks to recover, and the statute does not define the character of action or suit that must be instituted, nor impose a penalty for the institution of a suit upon a cause of action imperfectly stated. More, doubtless, could be well said, but it is perhaps sufficient to conclude that, in the writer’s judgment, appellants’ plea of limitation is not well taken, and that the judgment should be affirmed.

In accordance with the conclusion of the majority, however, the judgment is reversed and here rendered for appellants.

CONNER, C. J., dissenting.

On Motion for Rehearing.

CONNER, C. J. This suit was one for damages because of injuries to a shipment of pianos from Denton over the line of the appellant railway company. On a former appeal the judgment in appellee’s favor was reversed on the ground that appellee’s petition stated a cause of action beyond the jurisdiction of the county court. See F. W. & D. C. Ry. Co. v. Rayzor, 125 S. W. 619. After the reversal referred to appellee amended his petition, alleging a cause of action substantially as before, but specifically disclaimed a right to interest until after the rendition of a final judgment. He again succeeded in recovering a judgment, from which an appeal was again taken. On the second appeal the majority of this court held that the amended petition was substantially the filing of a new suit, and that appellee’s cause of action was therefore subject to the two-year statute of limitations, which had been invoked by appellant, after the amendment referred to, all of which will be more fully seen by the original opinion rendered by us on this appeal. There was a dissent, however, and the point of difference was certified to our Supreme Court for determination. The Supreme Court has answered the certificate, holding that ■ plaintiff’s cause of action was not barred ; and, inasmuch as this is the only question presented on the present appeal,. it is ordered, in accordance with the opinion of the Supreme Court, that appellee’s motion for rehearing be granted, and the judgment in his favor be now affirmed.
      (g^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes