author: JENKINS, J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. LANDA & STOREY.
    (No. 5576.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1916.)
    1. Cabbiees <©=227 — Carriage oe Live Stock —Pleading—Damages.
    In an action by shippers of live stock for delay in transit, the petition, alleging that the cattle should have reached destination on a given date, but did not, so that plaintiffs were compelled to hold them over for the next market, was insufficient as failing to allege when they arrived and why they were held over.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. <©=3227.]
    2. Cabbiees <©=3227 — Caebiage oe Live Stock —Issues and Pb'ooe.
    In an action by shippers of live stock for delay in transit, where the petition alleged only that the cattle should have arrived on a certain date, but did not, whereby the shippers were compelled to hold them over for the next market, proof of an additional shrinkage in weight after arrival and of the decline in the market at which the cattle were sold was inadmissible for want of basis in the pleadings.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 232, 953-956; Dec. Dig. <©=3227.1
    3. Teial <©=3251 — Insteuctions — Issues to be Submitted — Pleading to Support.
    In an action by shippers of live stock for delay in transit, where there was no basis in the pleadings for proof of shrinkage in weight after the shipment’s -late arrival, or for the decline in the market for which the cattle were held over, the court erred in submitting such matters to the jury, as well as an item for additional feed, as recovery should have been confined to the damages suffered by reason of the shrinkage in weight on account of the cattle’s failure to arrive before a time which, though late, was nevertheless early enough to make a market before the one at which they were actually sold.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dee. Dig. <©=3251.1
    4. Carbiers <©=3229 — Carriage oe Live Stock —Delay in Transit — Damages.
    The measure of damages recoverable by shippers of live stock for delay in transit was the difference in the market value of the cattle on arrival at market and their market value when and in the condition in which they should have arrived, unless the carriers’ negligence caused the shipment to be held over for market after arrival.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <©=3229.J
    5. Trial <©=3253 — Instructions — Ignoring Evidence.
    In an action by shippers of live stock for delay in transit, peremptory instructions for defendants on the ground that the evidence was insufficient as a basis for damages on account of a decline in the market on the day after the cattle arrived late were properly refused, where the evidence raised the issue of shrinkage in weight.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <©=3253.]
    6. Carr'iees <©==213 — Carriage oe Live Stock —Duty oe Caeeiee.
    Carriers of live stock are not responsible for the usual and ordinary delays incident to the ordinary conduct of their business.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. <®=213.]
    7. Appeal and Error <©==1067 — Harmless Error — Refusal oe Charge.
    In an action by. shippers of live stock for delay in transit, in view of the shippers’ pleadings and the court’s charge, the refusal to give a requested charge, that defendants were not responsible for usual and ordinary delays incident to their business, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <©=31067; Trial, Cent. Dig. § 475.]
    8. Carriers <©=230 — Carriage oe Live Stock —Requirements oe Federal Act.
    In an action by shippers of live stock for delay in transit, where the shipment was interstate and required at least 60 hours to make, the jury should have been instructed with reference to the requirements of the federal law as to the unloading of cattle for resting, watering, and feeding.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <®=230.]
    9. Evidence <©=383 — Contract of Shipment —Admissibility.
    In an action by shippers of live stock for delay in transit, where plaintiffs read in evidence part of the contract of shipment, the clause that the live stock were not to be transported within any specified time, etc., not contrary to the federal statute touching the watering, etc., of live stock in transit, and not an attempt to contract against defendants’ negligence, was admissible on behalf of defendants as showing the entire contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. <®==3S3.1
    10. Appeal and Error <©=31050 — Harmless Error — Evidence.
    In an action for damages occasioned the shippers'of live stock by delay in transit, the introduction of the file mark of the original petition, an immaterial matter, was harmless to defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <⅜⅛050.]
    11. Witnesses <§=>387 — Inconsistent Statements.
    In an action by shippers of live stock for delay in transit, testimony of a plaintiff, on cross-examination as to his testimony in another action, tending to show that it would take a longer time to make a shipment of cattle from the shipping point to destination than was testified to by him, was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1228-1232; Dec. Dig. <®=>387.]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Action by Lauda & Storey against the International & Great Northern Railway Company and another. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    Fisher & Fisher and Robert L. Thompson, all of Austin, and Guinn & McNeill, of San Antonio, Wilson, Dabney ⅞ King, of Houston, and George Thompson, of Ft. Worth, for appellants. E. M. Capé and O. T. Brown, both of San Marcos, for appellees.
   JENKINS, J.

Appellees alleged; That they shipped over the International & Great Northern Railway, the Texas ■& Pacific and the St. Louis, Iron Mountain & Southern Railways, connecting carriers, certain cattle from Cotulla, Tex., to the stockyards in East St. Louis, Ill., for sale in that market. That said cattle should have arrived at their destination in time to be sold on the market of May 17, 1910, but that, by reason of the negligent delay of appellants in shipping said cattle, they did not arrive until the 18th, by reason of which they were compelled to, and did, hold them over until the 20th. That they were damaged by such negligence (a) in the decrease in the market value, (b) shrinkage in weight, and (c) by increased expense for feed. All of these items of damage were submitted to the jury. There was a general verdict for appellees, apparently for all of the items claimed by them.

Appellants the International & Great Northern and the Texas & Pacific Railway Companies have filed jointly 41 assignments of error, and the St. Louis, Iron Mountain & Southern Railway Company has filed 14 assignments of its own. We will not undertake to pass upon the assignments in this case seriatum, but will discuss briefly the issues raised by them in what appears to us to be their logical order.

Appellants excepted to appellees’ petition as not alleging a proper measure of damages, in that: (a) It did not allege when ■was the first market after the arrival of the cattle on the 18th; (b) it did not allege a decline in such market; and (c) it did not allege any fact showing a necessity for holding the cattle over until the 20th. We sustain this exception. The petition alleges that the cattle should have arrived on the 17th, that they did not do so, by reason of which the appellees were compelled to hold them over until the 20th. It should have alleged when the cattle arrived, and, if they were not sold on the next market, why they were held over.

The uncontradicted evidence shows that the cattle arrived and were delivered at the stockyards at 9:30 a. m. Saturday, May 18th, in time for the market of that day, and that they were held over and sold on the 20th. For the reason that there was no proper basis in the pleading for x>roof of additional shrinkage in weight after their arrival on the 18th, nor of the decline in the market on the 20th, appellants’ objections to such evidence should have been sustained, as should also their objection to the item for additional feed. For a like reason, the court erred in submitting to the jury these items of damages. Recovery should have been confined to the damages, if any, suffered by reason of the shrinkage in weight on account of their failure to arrive prior to 9:30 a. m. on the 18th, and the decline in the market on that day, as compared with the previous day, when, it was alleged, they should have arrived. Appellees’ measure of damages was the difference in the market value of their cattle on the day of their arrival, and in their condition at that time, and their market value on the day and in the condition that they would have arrived but for the negligence of appellants or of one of them, unless it was the negligence of appellants that caused them to be held over until the 20th, which fact was not properly alleged, nor was it proven.

Appellants asked for peremptory instructions in their favor, based upon the theory that the evidence was insufficient to show negligent delay. The evidence raised this issue. Peremptory instructions were also requested upon the ground that the evidence was insufficient as a basis for damages by reason of a decline in the market on the 18th, as compared with the 17th. If it be granted that appellants are correct as to these facts, the requested charges were properly refused, in that they ignored the issue of shrinkage in weight. For which reason we overrule the first, second, third, fourth, and fifth assignments of error.

The sixth assignment relates to the refusal of the' court to instruct the jury that appellants were not responsible for usual and ordinary delays incident to the ordinary conduct of their business. Such being the law, it would not have been error to so instruct the jury. But, looking to the pleadings of appellees and the charge of the court, we do not think that appellants were injured by the refusal of the court to give the requested charge. These observations apply also to the seventh assignment of error.

The eighth assignment is as follows:

“The court erred in refusing to submit to the jury special instruction No. 4, requested by defendants jointly, wherein the jury-were instructed with reference to the requirements of the federal law requiring the unloading of cattle and other live stock; for resting, watering, and feeding.”

It appearing that this case involves an interstate shipment of live stock, and that it required at least 60 hours to make the shipment, it was error to refuse the requested charge. Railway Co. v. Jarman, 138 S. W. 1133; Railway Co. v. Moore, 149 S. W. 302; Railway Co. v. Carlisle, 34 Tex. Civ. App. 268, 78 S. W. 554; Railway Co. v. Jones, 104 Tex. 99, 100, 134 S. W. 328; U. S. Comp. St. 1913, §§ 8651-8654.

■ [9] That portion of the contract of shipment showing that the cattle were to be shipped from Cotulla, Tex., to Longview, Tex., “consigned to Godair-Russell, Nat. Stk. Yrd. Ill.,” having been read in evidence by appellees, the appellants offered the following clause of said contract:

“That the live stock covered by this contract are not to be transported within any specified time, nor delivered at destination at any particular hour, nor in season for any particular market.”

This was objected to on the ground that, this being an interstate shipment, “any stipulation therein is void, and not binding upon plaintiffs.” Had this stipulation been contrary to the provisions of the federal statute, or an attempt to contract against appellants’ negligence, it would have been void; but, as it was neither the one nor the other, it should have been admitted as showing the entire contract between the parties, a portion of which had been read i.n evidence by the appellees. Levy v. Goldsoll, 131 S. W. 420.

We overrule the thirtieth assignment of error, as to the introduction of the file mark of the original petition. This appears to us to have been immaterial, but we do not see how appellants were injured by the admission thereof.

L113 H. O. Storey, one of the appellees herein, testified as a witness in his own behalf that he was experienced in the business of shipping cattle over the roads of appellants from points in Texas to East St. Louis, and that he knew the distance per hour ordinarily made over said roads, with stock shipments, the usual and necessary stops made by such trains, and the time that was usually consumed in shipping stock from Cotulla to East St. Louis. Appellants, upon cross-examination of said witness, sought to show by him that he had a similar knowledge as to such shipments from New Braunfels and San Marcos, Tex., in June, 1910, and in 190S, and that he had so testified in another suit by the witness against these appellants, and offered to prove by him what he had so testified as to such time, and what was the fact as to such time. It was admitted that New Braunfels and San Marcos were stations on the International & Great Northern road between Cotulla and East St. Louis, through which appellees’ cattle passed, as was also the distance from Cotulla to said stations, and the reasonable time consumed in running from Cotulla to them, and also the actual time so consumed in the shipment here involved. The purpose of said testimony was to show that adding the reasonable and necessary time consumed between New Braunfels or San Marcos and East St. Louis, as testified to by the witness on a former occasion and as he would have testified on this trial,'to the reasonable and necessary time for the run from Cotulla to New Braunfels or to' San Marcos, it would take a longer time to make the shipment from Co-tulla to East St. Louis than was testified by the witness on the trial then being had. We think this evidence was admissible, and that the court erred in sustaining appellees’ objection thereto. Sterling v. DeLaune, 47 Tex. Civ. App. 470, 105 S. W. 1172.

We overrule assignments of error Nos. 37, 38, 39, 40, and 41. The assignments herein * referred to are those filed by the appellants the International & Great Northern Railway Company and the Texas & Pacific Railway Company. Our decision applies also to the assignments of error by the St. Louis, Iron Mountain & Southern Railway Company, which, so far as they go, raise the same issues as those presented by its codefendants.

For the reasons stated, the judgment of the trial court herein is reversed, and this cause is remanded for a new trial in accordance with this opinion.

Reversed and remanded.
      (gsaEor other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

      <g=Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    EMERY et al. v. BARFIELD et al.

    (No. 7588.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 8, 1916.
    On Motion for Rehearing, Feb. 5, 1916.)
    1. Husband and Wife <§=264^-Community Property — Evidence.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4622, providing that all property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed common property where daughters to whom a wife conveyed her separate property reconveyed to the husband, the land prima facie became community property.
    [Ed. Note. — For other cases, see I-Iusband and Wife, Cent. Dig. § 916; Dec. Dig. <§=3264.]
    2. Husband and Wife <§=3264 — Community Property — Sufficiency of Evidence.
    In trespass to try title, evidence held to sustain the conclusion of the trial court that a husband paid out of community funds a valuable consideration for two tracts of land re-conveyed to him by daughters to whom his wife had previously conveyed.
    [Ed. Note. — For other cases, see Husband and Wife, Gent. Dig. § 916; Dec. Dig. ©=>264.]
    S.Husband and' Wife ©=119, 266 — Conveyance to Wife — Effect.
    As between a husband and wife and their heirs, a conveyance of separate property of the husband 0⅝ of community property to the wife vests the title in her separately.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447, 925-928; Dee. Dig. ©=119, 266.]
    4. Husband and Wife ©=119— Gratuitous Conveyance to Wife.
    Where a husband conveys to his wife, title to the land is vested in her as her separate property, as between the parties and those claiming- under them, as fully when the deed is without a valuable consideration' as when with it.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. ©=il9.]
    5. Husband and Wife ©=262 — Community Property — Presumpiio n .
    Where a deed is made to a wife without limiting it to her separate use, the presumption prevails that it was intended as a conveyance of a community estate, but the presumption is otherwise where the husband is the grantor, or the consideration was paid out of the wife’s separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. ©= 262.]
    6. Husband and Wife ©=119 — Conveyance to Wife of Incumbered Pbofeety — Wife’s SEDABATE ESTATE.
    A husband’s conveyance to his wife vests a separate estate in her to the extent of the equity conveyed, even if the conveyance is subject to an incumbrance which the wife assumes to pay, or subject to which she accepts the conveyance.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. ©=119.]
    7. Husband and Wife ©=266 — Conveyance to Wife of Incumbebed Pbopebty — Payment of Incumbbance — Effect.
    Where a wife accepts a conveyance from her husband subject to an incumbrance and thereafter pays it off out of her separate estate, full title will vest in such estate, but if the in-cumbrance is paid off with community funds, the community estate will be credited with the amount.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 925-928; Dec. Dig. @= 266.]
    8. Husband and Wife ©=119 — 'Wife’s Sepa-bate Pbopebty.
    If a wife, out of her separate estate, paid the consideration which induced the husband’s judgment creditor to convey to her the husband’s land on which such creditor had levied under writ of execution, the creditor’s deed vested title in the wife for the benefit of her separate estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. ©=119.]
    9. Husband and Wife ©=262 — Conveyance to Wife — Wife’s Sepabate Title — Burden of Pboof.
    The burden of proof was on the party asserting the separate nature of a wife’s estate in her husband’s land, conveyed to her by the latter’s judgment creditor, who had.levied thereon, to overcome the legal presumption of the community character of the property conveyed.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. ©=
    10.Husband and Wife ©=262 — Community Pbopebty.
    Where a deed from the husband’s judgment creditor, who had levied upon the land under execution, to the wife who paid off the incum-brance, did not, 'by apt words, limit the conveyance to her separate estate, the legal presumption of the community character of the land obtained.
    lEd. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. ©= 262.]
    11.Husband and Wife ©=264 — Wife’s Sepabate Title — Sufficiency of Evidence.
    Evidence held sufficient to sustain the trial court’s finding that a wife did not pay her separate funds to the. judgment creditor of the husband who had levied upon the latter’s land for a conveyance thereof to herself.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 916; Dec. Dig. ©=264.]
    '12 Appeal and Ebeob ©=994(3), 1012(1)— Province of Trial Coubt — Credibility of Witnesses.
    The trial court is the judge of the credibility of witnesses and of the effect to be given to the testimony.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3904r-3905%, 3990-3992; Dec. Dig. ©=004(3), 1012(1).]
    13. Fraudulent Conveyances ©=104 — Fbaud as to Ceeditoes — Ceeditoe’s Ri&bct to Question Conveyance to Wife.
    The creditor of a husband who conveyed land to his wife could question the deed to the wife.
    [Ed. Note.' — For other cases, see Fraudulent' Conveyances, Cent. Dig. §§ 337-344; Dec. Dig. '©=104.]
    On Motion for Rehearing.
    14. Husband and Wife ©=2G6 — Quitclaim Deed — Effect.
    Where a husband quitclaimed to his wife as to land which - was part of the community estate, the deed conveyed into the separate estate of the wife only such title as the husband, or the community estate, had at the time of the conveyance.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig, §§ 925-928; Dec. Dig. ©= 266.]
    15. Husband and Wife ©=266 — Community Pbopebty — Conveyance to Wife.
    Where the judgment creditor of a husband levied upon community lands before the husband quitclaimed to his wife, and the consideration for a deed to the wife from the judgment creditor was paid out of community funds, such deed from the judgment creditor vested title in the community estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 925-92S; Dec. Dig. ©= 266.]
    16. Estoppel ©=39 — Quitclaim Deed — After-Acquired Title.
    Though before a husband’s judgment creditor levied on community lands, the husband had executed a quitclaim deed to the lands to the wife, the judgment creditor’s deed did not vest title in the separate estate of the wife, since an after-acquired title does not necessarily inure to the benefit of a prior conveyance by quitclaim deed, nor is the grantor, or Ms heirs, estopped by a quitclaim deed to assert an after-acquired title.
    [Ed. Note. — Eor other cases, see Estoppel, Cent. Dig. §§ 108, 109; Dec. Dig. <@=>39. ]
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Suit by E. H. Barfield and others against S. E. Emery and others. Erom a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Ben L. Cox and Eugene De Bogory, both of Abilene, for appellants. J. M. Wagstaff, of Abilene, for appellees.

      Applieation for writ of error pending in Supreme Court.

   BUCK, J.

This is the third time this case has been before us on submission. In the first appeal, 138 S. W. 419, the trial court having rendered judgment for plaintiffs, the defendants appealed, and the judgment was reversed for error in the charge, Justice Speer speaking for the court. On the second presentation the cause was remanded for failure of the trial court to file his findings of fact and conclusions of law in due time, Chief Justice Conner, while writing the opinion for the majority, dissenting, inasmuch, as stated in said dissenting opinion, as there appeared in the record a statement of facts duly approved by the court. See 156 S. W. 311. Later, appellees’ motion to certify was overruled by the majority, Chief Justice Conner dissenting as before. Appel-lees, plaintiffs in the court below, having applied for a writ of error to the Supreme Court and defendants in error having answered, the Supreme Court reversed the judgment of this court (177 S. W. 952), holding that, inasmuch as it did not appear that the omission of the trial judge to duly file his conclusions prevented a proper presentation of the question involved in the appeal, or that it could have operated to the prejudice of appellants in that court, the judgment of this court was erroneous, and the cause was remanded to this court for further consideration.

On November 20, 1915, the appellants’ motion for a resubmission was granted, and the cause was set down for hearing on December 11th. Suit was filed by appellees in the district court of Taylor county at the July term, 1909, in the form of trespass to try title, involving title to some 650 to 700 acres of land out of a tract of 13½ labors patented October 28, 1859, to Samuel Andrews, or Anders, who was the grandfather on his mother’s side of defendant S. E. Emery and of some of the plaintiffs and the great-grandfather of the Barfields. The defendants S. E. Emery, Susan Sullivan, and W. L. Grogan, after a plea of not guilty, interposed pleas of three and five years’ limitation. The defendant Grogan specially pleaded, as to the 100 acres conveyed to him by Emery, the plea of bona fide purchaser for value. The defendants S. E. Emery and Susan Sullivan further pleaded that, in addition to the common source of title from which both plaintiffs and defendants claimed originally, they held under and by virtue of a junior and superior outstanding title acquired by defendant Susan Sullivan, by a deed from R. H. Parker of date March 29, 1892; and as to.the 200 acres included in the homestead designation, they pleaded the fee-simple title from their ancestor Samuel Andrews. Judgment was rendered by the court, a jury having been waived, for plaintiffs as against all defendants to an undivided one-half interest to all of the land described in the deed to R. H. Parker by the sheriff, except that part of the land theretofore conveyed to J. H. Williams; second, in favor of S. E. Emery against the plaintiffs of a tract 475 varas by 1353 varas; third, and in favor of defendants Emery and Gro-gan for one-half undivided interest in the balance of the land not otherwise disposed of by the judgment; fourth, and against Susan Sullivan, plaintiffs recovering their costs as against Emery — from which judgment defendants appeal.

S. E. Emery and Mrs. Mary Crutcher, formerly Mrs. Mary Murray, were children of Mrs. Susan Sullivan by a former marriage. There were five children born to Mr. and Mrs. Sullivan as follows: Mrs. John De Shazo, Mrs. Frankie Greenwood, Mrs. Annie Houser, James W. Sullivan, and Mrs. Sarah E. Barfield. At the time of the suit James W. Sullivan was dead, and also Mrs. Bar-field. The three daughters first mentioned, joined by their husbands, as well as the heirs of the other two children deceased, were plaintiffs.

To get a clear conception of the facts involved we will here note the documentary evidence introduced. Plaintiff offered: (1) The patent from the state, October' 28, 1859, to Samuel Andrews of said 14½ labors of land located in Jones county on the west bank of the Elm fork of the Clear fork of the Brazos, containing some 2,106 acres; (2) deed dated December 17, 1868, from Samuel Andrews, or Anders, to his daughter Susan Sullivan to 1,151 ¾ acres, being the south one-half of the tract covered by the patent; (3) deed of December 14, 1880, from J. M. and Susan Sullivan to their daughter Sarah E. Barfield, conveying 500 acres fronting on Elm fork, it being off of the southwest comer of the patented tract; (4) deed of August 12, 1880, of 555.75 acres by J. M. and Susan Sullivan to Mrs. Mary Murray; (5) deed of July 3, 1882, from J. W. and Sarah E. Bar-field to J. M. Sullivan, reeonveying the 500 acres theretofore conveyed by the Sullivans to Mrs. Barfield; (6) deed of October 24, 1882, from Mrs. Murray to James M. Sullivan, reconveying 651 ¾ acres described in the deed to her from the Sullivans; (7) deed from the Sullivans to J. H. Williams, July 6, 1892, 550 acres off the west side of the tract originally conveyed by Samuel Andrews to his daughter Susan Sullivan.

Defendant offered: (1) The patent from the state to Samuel Andrews. (2) A quitclaim deed of J. M. Sullivan to Susan Sullivan of date December 10, 1891, and filed for record February 23, 1892, deed records of Jones county; consideration recited $10.00 paid and tbe further consideration that said Susan Sullivan is to assume and pay off a certain indebtedness of $2,500, together with all interest due the Jarvis-Conklin Mortgage Trust Company.” This deed covers 1,150 acres, being apparently the tract conveyed by Samuel Andrews to Mrs. Sullivan. (3) A general warranty deed from Susan Sullivan to S. E. Emery of date August 10, 1907, conveying “all that certain tract or parcel of land described and known as the west one-half of the Samuel Andrews survey No. 191, except 550 acres out of the south part of same, which is now held and claimed by Mr. Wright, the land herein conveyed consists of 700 acres, more or less, and is all the land now owned by me under my control of the said Samuel Andrews survey.” The consideration recited is, “$1.00 and the further consideration set out herein to me in hand paid by S. E. Emery, and with the further consideration that he, S. E. Emery, will care for and provide for me during the remainder of my life, and in consideration of the fact that he, the said S. E. Emery, has devoted himself for the last several years to my happiness and well-being when there was no one to care for me, and in consideration of the love and affection I have for my son, the said S. E. Emery.” (4) Deed of November 16, 1908, from S. E. Emery to W. L. Grogan, conveying 100 acres in the northeast corner of west one-half of the Samuel Andrews survey.

Plaintiff further introduced the original papers in the justice court of Taylor county, styled R. H. Parker v. J. M. Sullivan, wherein plaintiff secured a judgment for the sum of $22.50 and costs, and the levy under alias execution issued December 9, 1891, by the sheriff of Jones county on “951 acres of the Samuel Andrews survey No. 191, being all of the west one-half of said survey except 200 acres, homestead of J. M. and Susan Sullivan”; (2) designation of homestead, by J. M. Sullivan, of date June 30, 1887, of the 200 acres exempted from the levy in the Parker v. Sullivan suit; (3) certified copy of a sheriff’s deed, conveying 951 acres to R. H. Parker “for $25.00,” by which “all the right, title and interest which said J. M. Sullivan had on October 26,1891, or at any time after-wards” to said tract was conveyed; (4) quitclaim deed from R. H. Parker to Mrs. Susan Sullivan of March 29, 1892, and filed for record March 31, 1892.

The case hinges upon the issue as to whether, at the date of the death of J. M. Sullivan, the land in controversy was community property, or the separate property of Susan Sullivan, the surviving wife, under whom appellants claim. As will be noted, 1,151% acres conveyed by Samuel Andrews to Mrs. Sullivan was originally her separate property. Eater, as evidenced by deeds to Mrs. Murray, a daughter by her first marriage, and to Mrs. Barfield, a daughter by her second marriage, Mrs. Sullivan, joined by her husband, disposed of her entire holdings under the deed from her father. Thereafter, by reason of the reconveyance by these two daughters of the two several tracts mentioned, the title to the same was vested in J. M. Sullivan, the husband of Mrs. Sullivan, and therefore became prima facie community property. Article 4622, Yernon’s Sayles’ Texas Civil Statutes. There is ample evidence to sustain the conclusion, evidently reached by the trial court, that J. M. Sullivan paid out of the community funds a valuable consideration for these two tracts conveyed. J. W. Barfield, son-in-law of Mr. and Mrs. Sullivan and surviving husband of Sarah E. Barfield, deceased, testified, in part as follows:

“I remember my wife received some property from Mr. and Mrs. J. M. Sullivan. There was 500 acres of land. That is the deed from Sullivan and wife to Mrs. Barfield which has been introduced in evidence here. I don’t re-ír ember about how long she held the property; only a few years. * * * I then sold it to J. M. Sullivan. J. M. Sullivan paid me $750 cash for it, $1.50 per acre. I know a Mrs. Murray. She was a daughter of Mrs. Sullivan. I know whether any property was ever conveyed to her. I don’t know whether Mrs. Murray ever conveyed that back to J. M. Sullivan only in a way; only what he told me. When he wanted to buy this 500 acres he told me that he had seen Mrs. Murray, and she offered to let him have the land, and he would buy mine if I would sell it. She had offered to let him have hers, and-1 told him then to go ahead and buy hers, and I would let him have — after I had talked to my wife and she said all right — and I told him to go ahead.- He said that he had offered Mrs. Murray just what he had me, $1.50 per acre. * * * I sold the land for $1.50 per acre, and it was worth that. It was not worth $4 or $5 per acre. * * * He paid me cash. I sold it to him in Karnes county, and he sent me a check to San Angelo. * * * It is not a fact that J. M. Sullivan was involved and wanted to borrow money on that property, and that under advice of attorneys, in order to pass the title of his wife’s property into my wife, he conveyed it first to my wife and this other daughter, and then had them to convey it to him so as to pass the title of his wife into him, so that he could borrow the money. I know that is not a fact. At the time old man Sullivan bought this 500 acres from me he had $12,000 in the bank at San Antonio, and he had 1800 head of cattle on the range. * * * Old man Sullivan was worth $40,000 when he made this trade with me.”

We then come to tbe question as to whether, by virtue of the quitclaim deed from J. M. Sullivan to his wife, Susan Sullivan, of December 10, 1891, and the quitclaim deed from R. H. Parker to Mrs. Sullivan of date March 29, 1892, one or both, the land conveyed became the separate property of Mrs. Sullivan. If not, the land in-controversy would be the community property of Mrs. Sullivan and her deceased husband, and plaintiffs would be entitled to recover a one-half undivided interest in same. But, on the other hand, if the character of the property was changed from community to separate by reason of either of these conveyances, Mrs. Sullivan would have been fully authorized to convey full title in the same to her son, S. E. Emery, in which event the defendants would have been entitled to judgment. As between husband and wife and their heirs, a conveyance of separate property of the husband or of community property to the wife vests the title in the wife’s separate estate. Lewis v. Simon, 72 Tex. 470, 10 S. W. 554; Storey v. Marshall, 24 Tex. 306, 76 Am. Dec. 106; Tison v. Gass, 102 S. W. 751; Baker v. Baker, 55 Tex. 577. And in Peters v. Clements, 46 Tex. 114, it is held that where under a sale enforcing the vendor’s lien in favor of the husband, the land was bid off by the agent of the husband, and the sheriff’s deed made to the wife by the direction of the husband, the amount of the bid being credited on the judgment, title will be considered as being vested in the wife as her separate property. And this is true, as between the parties and those claiming under them, as fully when the deed is without a valuable consideration as when with it. See Speer on Law of Married Women, p. 79, § SI. While it is true that ordinarily property acquired by either husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the husband and wife, and where a deed is made to the wife without limiting it to her separate use, the presumption prevails that it was intended as a conveyance of community estate, yet the presumption is otherwise where the husband is the grantor, or where the consideration therefor was paid out of the separate estate of the wife. As stated in the opinion of this court on the first appeal:

“As between husband and wife, and necessarily their heirs, a conveyance by the husband to the wife has the effect of vesting a separate estate in the wife; and this, too, whether the instrument so limits the estate or not. The deed could have no other effect. Jones v. Humphrey, 39 Tex. Civ. App. 644, 88 S. W. 403, and authorities there cited.”

And this would be true to the extent of the equity conveyed even if such conveyance was subject to an incumbrance, which the wife assumed to pay, or subject to which she accepted the conveyance. If thereafter she paid off the indebtedness out of her separate estate, full title would vest in her separate estate; but if the incumbrance should be paid off out of community funds, then the community estate would be credited with such amount as was contributed out of said community estate. See Emery et al. v. Barfield et al., 138 S. W. 419. It, therefore, follows that if at the time of the execution and delivery of the deed from J. M. Sullivan to his wife said Sullivan had any interest or title in and to the property sought to be conveyed, such instrument would vest such title in the separate estate of his wife.

We next come to the question of the effect, if any, of the deed from Parker to Mrs. Sullivan. It will be remembered that the levy under the writ of execution issued in the case of Parker v. Sullivan was made on the same date as that of the deed from Sullivan to his wife. Which was made at the earlier hour the record does not disclose. If the consideration for the subsequent deed from Parker to Mrs. Sullivan was paid out of the separate estate of Mrs. Sullivan, undoubtedly such deed would vest title in Mrs. Sullivan for the benefit of her separate estate. Upon this question testimony was introduced by defendants of Mrs. Sullivan, given upon the trial of this cause on March 21, 1910, in part as follows:

“I remember about the land being sold and about me giving Mr. Sullivan some money about that time for a purpose. * * * You know the land was to be sold, and he came to me and he says to me, he says, ‘Susan, we will lose the land.’ He says, T haven’t got the money.’ ‘Well,’ I says, T have got it.’ I gave him the money to redeem the land. I gave him $85 or $87, somewhere. The money that I gave him at that time I got from my father Samuel Andrews. * * * I have got some of that original money now that I got from my father’s estate. It is gold. I have got a right smart of it now. * * * That $S5 was a part of the original money that I got from my father’s estate.”

But as contradictory evidence upon this issue, the plaintiffs introduced certain portions of the testimony of Mrs. Sullivan, given on a prior trial, to wit:

“I know R. H. Parker, a man who used to live here in Taylor county. I was not much acquainted with him. I had seen him. I don’t have any recollection of a deed from R. H. Parker to me. I remember that before Mr. Sullivan’s death the land was to be sold for taxes, and it was mortgaged, you know, wasn’t it? I think it was mortgaged, and I sold a lot of it to Williams. That was this end of it. The money I let Mr. Sullivan have was to redeem the property from taxes. * * * I do not know anything about anybody going there and selling the land. I never saw anybody come in there and sell the land that I know of. * * * I have no recollection of it, I gave him the money, of course, to recover the land. I got that money from my father.”

There being a legal presumption of the community character of the property conveyed by the Parker deed, such legal presumption must be overcome by the party asserting the separate nature of the estate. As Judge Speer states, in his valuable work on the Law of Married Women in Texas, § 182, pp. 188, 189:

“The effect of this, like all legal presumptions, is subject to be overcome by proper evidence, and whatever tends to show that such property is not in fact community, but separate in character, is, as between the parties and their privies, admissible for such purpose. This presumption makes only a priina facie case in favor of the community, which must prevail in absence of contrax-y proof. In all cases where this presumption obtains, he who asserts the separate character of property has the burden of proving it, whether it be the wife or husband” (citing a number of Texas cases).

We think, therefore, that, inasmuch as said deed from Parker did not, by apt words, limit tlie conveyance to the separate estate of Mrs. Sullivan, the legal presumption of its community character would obtain. The testimony of Mrs. Sullivan, as introduced by defendants, coupled with the execution of the prior deed from Sullivan to his wife, might be, in the absence of evidence of a contrary import, sufficient to overcome the legal presumption. But in the face of Mrs. Sullivan’s other testimony, introduced by plaintiffs, we cannot say that the court was not authorized in giving credence to the latter and disbelieving the former. If he did so, which is apparent from the judgment, he would be, in so doing, acting within his province as the judge of the credibility of the witnesses and of the effect to be given to the testimony. Furthermore, Parker, as a creditor of J. M. Sullivan, was in a position to question the deed from the latter to Mrs. Sullivan. This may explain why Sullivan and wife did not rely upon the efficiency of the deed of gift from husband to wife to relieve the land from the binding effect of the levy and sale under execution, and why the judgment was satisfied by payment.

While we recognize that from the evidence in the record, a judgment for defendants would be sustainable, yet, we feel, on the other hand, that we cannot disturb the judgment which has been rendered in favor of the plaintiffs.

All assignments are overruled, and the judgment is affirmed.

On Motion for Rehearing.

Counsel for appellant seems to have failed to understand the purport of certain language used in our original opinion. The deed of December 10, 1891, from J. M. Sullivan to his wife, being only a quitclaim, conveyed out of the community estate into the separate estate of Mrs. Sullivan only such title as J. M. Sullivan, or the community estate, had at the time of the conveyance. Rogers v. Burchard, 34 Tex. 442, 7 Am. Rep. 283.

If as a matter of fact, as found by the trial court, and which finding is evidence to support, the consideration for the Parker deed was paid out of the community funds of the Sullivans, and the levy under the Parker judgment was made prior to the execution of the quitclaim deed from Sullivan to his wife, then the deed from Parker to Mrs. Sullivan would vest title in the community estate of the Sullivans. Nor would the fact that prior to this Parker deed Sullivan had executed a quitclaim deed to his wife cause the Parker deed to vest title in the separate estate of Mrs. Sullivan. An after-acquired title does not necessarily inure to the benefit of a prior conveyance under a quitclaim deed, nor is the grantor or his heirs under a quitclaim deed estopped from asserting such after-acquired title against such prior conveyance. Perrin v. Perrin, 62 Tex. 477; Willis v. Smith, 72 Tex. 573, 10 S. W. 686; 1 Devlin on Deeds, § 27. The motion for rehearing is overruled.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: LANE, J.

text:
    FERGUSON et al. v. DODD et al.
    (No. 7027.)

    (Court of Civil Appeals of Texas. Galveston.
    Jan. 6, 1916.
    Rehearing Denied Feb. 10, 1916.)
    1. Action <§=>57 — Consolidation — Propriety.
    The court did not err in consolidating two suits in trespass to try title, where the parties and issues in both were the same.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. <§==>57.]
    2.Husband and Wise <§=>131 — Conveyance —Presumption op Gift.
    Where title to land, the community property of husband and wife, is passed by two simultaneous deeds for nominal consideration by the husband to a third person, and by such third person to the wife, the conveyances are equivalent to a deed from the husband to the wife and raise the presumption that there was a gift by the husband to make the land the wife’s separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 203-209; Dec. Dig. <§=>
    3. Contracts <§=>104 — Simultaneous Contracts — Construction.
    In construing simultaneous contracts, the court should seek the inteution of the parties from the words used, the subject-matter, and the purpose of the contracts, reconciling conflicting clauses, if any, and consider the instruments in the light of surrounding circumstances, so as to give them fair and customary construction.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. <§=>164.]
    4. Deeds <§=>99 — Simultaneous Deeds — Construction.
    Two deeds executed at the same time between tlie parties thereto, both referring to the same subject-matter, are to be taken as parts of the same contract, and as forming one entire agreement.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. <§=>99.]
    5. Vendor and Purchaser <§=242 — Bona Fide Purchasers — Burden of Proof.
    Where .a wife held the legal title to lands, and conveyed it away, the burden was upon the heirs of her husband, seeking to assert their equitable title in trespass to try title, to show that the purchasers of the legal title from the wife were not innocent purchasers.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. <§=>242.]
    Appeal from District Court, Harris County; J. W. Woods, Special Judge.
    Suits by Mrs. A. M. Ferguson and others against H. W. Dodd and others. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    John A. Kirlicks, John M. Cobb, and John B. Warren, all of Houston, for appellants. Ross & Wood and Stewarts, all of Houston, for appellees.

      Applieation for writ of error pending in Supreme Court.

   LANE, J.

Mrs. A. M. Ferguson, the widow, and W. E. Ferguson, C. B. Ferguson, T. E. Ferguson, and H. K. Ferguson, the children, respectively, of J. T. Ferguson, deceased, filed two suits in the Eleventh district court of Harris county, Tex., against H. W. Dodd, J. W. Brown, J Bobit, B. Adoue, J. H. Agen, and S. S. Z. Thompson, in the ordinary form of trespass to try title. The first was a suit to recover a one-fourth undivided interest in a tract of land of about 1,000 acres, a part of a survey of 3,000 acres of land patented to J. L. Stanley in 1838, said suit being numbered 55744 on the docket of said court, and the second was a suit to recover a one-fourth undivided interest in a tract of about 400 acres of land, which is also a part of the same survey, and is numbered on said docket 55750. Upon motion of defendants, the trial court consolidated the two cases and tried them as one case. All of the defendants, except Dodd, Brown, and Agen, were dismissed from this consolidated cause, in so far as the issues presented by this appeal are concerned. The remaining defendants answered by plea of not guilty. After having heard the pleading and evidence adduced, the court found that all that portion of the said Stanley 3,000'-acre survey which J. D. Stanley had not sold prior to his death, and consequently the land sued for by plaintiffs, was at the time of Stanley’s death the separate property of Mrs. Mary A. L. Stanley by virtue of two deeds, one from J. L. Stanley to A. Wynn, and the other from A. Wynn to Mrs. Mary A. D. Stanley, hereinafter more fully described, as a matter of law. The jury having found all issues submitted to it in favor of defendants, judgment was rendered for them for the land sued for. From this judgment, the plaintiffs Fergusons have appealed.

That the assignments of error presented by appellants may be clearly understood, we deem it necessary in the outset to make the following statement:

Three thousand acres (17 labors) of land, situated in Harris county, Tex., was patented to Jonathan L. Stanley in 1838. At the time said land was patented, J. L. Stanley and Mary A. L. Stanley were husband and wife, and said land was their community property. On the 1st day of October, 1840, J. L. Stanley, by his deed of that date, for a recited consideration of $150, conveyed to A. Wynn the said 3,000 acres of land, and for a recited consideration of $100 he conveyed, by the same deed, to said Wynn 100 head of cattle. By a deed dated October 2, 1840, but which was in fact acknowledged and recorded on the 1st day of October, 1840, A. Wynn, for a recited consideration of $100 for the land and $100 for the cattle, conveyed the same land and cattle conveyed to him by J. L. Stanley to Mary A. L. Stanley. Both of said deeds were acknowledged at 10 o’clock a. m., on the 1st day of October, 1840, before the same officer, and were both filed for record at the same hour and actually recorded on the same date, to wit, October 1, 1840. There was no evidence tending to explain the intention of the parties, other than what is shown by the deeds, except the fact that Archibald Wynn was a lawyer, and was, at or about the time of the execution of the deeds mentioned, performing legal services for J. L. Stanley, and in about five or six months after the execution of said deeds he was representing Stanley in a suit brought by J. W. Oates against Stanley to compel him to convey 1,000 acres of the said 3,000-acre survey, to which Stanley had executed a title bond to Oates on the 1st day of October, 1838. In April, 1841, by order of court, Stanley conveyed said 1,000 acres to Oates.

J. L. Stanley died intestate in 1843. There was never any administration on his estate. He left surviving him his widow, Mrs. Mary A. D. Stanley, and his two children, William T. Stanley and Martha A. E. Stanley. Mary A. B. Stanley, after the death of J. L. Stanley, executed and delivered to Wm. Anders a deed to 400 acres, more or less, of the land involved in this suit, and she also executed and delivered to J. J. Cain and George W. Hagey a deed to 1,000 acres, more or less, of said land. Thereafter Wm. Anders conveyed the land so purchased by him to Cain & Hag-ey. The.defendants hold under Cain & Hag-ey, or their assigns. On the 23d day of April, 1870, William T. Stanley, son of J. B. Stanley, deceased, conveyed to J. T. Ferguson “all title, interest and claim” he had in and to any and all lands, lots, and premises to which he was by law entitled, formerly belonging to his father, J. B. Stanley, deceased.

It is apparent from what has been stated that the plaintiffs, who are the heirs of J. T. Ferguson, deceased, base their suit upon the theory that, at the time of the death of J. B. Stanley in 1843, the land involved in this suit was the community property of said Stanley and his wife, Mary A. B. Stanley, and that upon the death of J. B. Stanley one-half undivided interest therein, by law, passed to W. T. Stanley and Martha A. E. Stanley, surviving children of said J. B. Stanley, and that by the deed of W. T. Stanley before mentioned J. T. Ferguson became the owner of a one-fourth ¡undivided interest in said lands, and that defendants’ defense is that by the two deeds hereinbefore mentioned, one from J. B. Stanley to A. Wynn, and the other from said Wynn to Mary A. B. Stanley, passed the title to said land to said Mrs. Mary A. B. Stanley, as her separate property; that Mrs. Stanley had conveyed 400 acres thereof to Anders and 1,000 acres thereof to Cain & Hagey; and that the title to all of said land had passed by mesne conveyances from Cain & Hagey to defendants.

Defendants also insist that, if it be conceded that the two deeds of Stanley to Wynn and Wynn to Mrs. Stanley did not pass the title to said land to Mrs. Stanley as her separate property, they did at least pass the legal title thereto to her, and, this being true, the title of the heirs of j. B. Stanley, or their assigns, was only an equitable title, and that as such equitable owners had the burden of showing that the purchasers of the legal tb tie from Mary A. L. Stanley were not innocent purchasers for value without notice, etc.

Appellants’ first assignment is that the trial court erred in consolidating the two cases upon the motion of appellees.

We do not think the court erred in consolidating the two cases. The parties and issues in both cases were the same, and therefore no harm could have resulted to appellants by such consolidation. We therefore overrule the first assignment.

The only question remaining necessary to be decided, which if decided in favor of ap-pellees puts an end to the entire controversy, is: Was the land involved in this suit, at the time of the death of J. L. Stanley, the community property of J. D. Stanley and wife, Mary A. L. Stanley, or was it the separate property of said Mary A. L. Stanley? If it was the separate property of Mrs. Stanley, William T. Stanley could not, and did not, inherit any interest therein from his father, J. L. Stanley, deceased, and his deed to J. T. Ferguson conveyed no interest in the same to said Ferguson, under whom appellants claim.

Where land is community property of husband and wife, and the title by two simultaneous deeds for nominal considerations is passed by the husband to a third person and by such third person to such wife, as in this ease, such conveyances are equivalent to a deed from the husband to his wife, and would raise the presumption, that it was a gift by the husband to the wife to be her separate property.

In construing simultaneous contracts, the court should seek the intention of the parties- from tlie words used, the subject-matter, and the purpose of the contracts, reconciling conflicting clauses, if any, and consider such instruments in the light of surrounding circumstances, so as to give them fair and customary construction. If we place ourselves in the position of J. D. Stanley and his wife and A. Wynn, Stanley’s lawyer, parties to the two deeds of date October 1,1840, we cannot conceive that Wynn, the lawyer, would undertake by such instruments to make it appear that property which was already community property was in fact such community property, nor that it was his purpose or that of his client, in the preparation and execution of such instruments, in the manner and form as they were prepared and executed, to undertake to place such property beyond the reach of Stanley’s creditors, if any he had. Therefore we must conclude that the parties to such instruments were not undertaking to do such foolish things as above suggested; but, on the contrary, we are driven to the conclusion that J. L. Stanley intended by said two deeds to give his wife, Mary A. L. Stanley, his interest in the 3,000 acres of land conveyed, and that such deeds had the effect to pass the title to said land to Mrs. Stanley as her separate property. Such being the fact, J. L. Stanley had no interest, in the land in question at the time of his death, and consequently W. T. Stanley, his son, inherited no interest therein from his father, and that by his deed to J. T. Ferguson he conveyed no interest in the same to Ferguson.

It is well settled by the uniform holdings of our courts that two deeds or instru-' ments of writing executed at the same time between the parties thereto, both referring to the same subject-matter, are to be taken as parts of the’same contract and as forming one entire agreement. Whitby v. Duffy, 135 Pa. 620, 19 Atl. 1065; Hamilton v. Rathbone, 175 U. S. 414, 20 Sup. Ct. 155, 44 L. Ed. 219; Dicken v. Cruse, 176 S. W. 655; Vinson v. Carter Bros., 161 S. W. 49; Sanger Bros. v. Brooks, 101 Tex. 115, 105 S. W. 37; Howard v. Davis, 6 Tex. 180 ; Wallis v. Beauchamp, 15 Tex. 306.

In the case of Whitby v. Duffy, supra, which is a case presenting practically the same question as presented in the present case, the court said:

“The learned judge below held that the deed from Henry Whitby to Albert E. Carpenter, and the deed of Carpenter to Kate Whitby, wife of the said Henry Whitby, constituted one transaction, the object and effect of which were to transfer the title of the real estate in question from Mr. Whitby to his wife. In this there was.no error. Both deeds were for the consideration of one dollar; they were executed on the same day, and witnessed by the same persons. It is evident that Carpenter was the mere conduit through which the title was to pass. In contemplation of law, the fee never vested for a single moment in him; it passed -through him, without stopping. It is almost absurd to suppose that he was to take any interest, however slight, in the property. It was strongly urged, however, that the learned judge below traveled out of the case stated, in order to reach this conclusion. We do not think so. It was the proper, legal construction of the papers, and their construction was for the court. That, in part at least, is what courts are for.”

We feel that it is unnecessary to continue this discussion further in order to show that the trial court correctly held that the two deeds, the one from Stanley to Wynn, and the other from Wynn to Mrs. Stanley, conveyed all the interest J. L. Stanley had in and to the said 3,000-aere survey, at the date of said deeds, as her separate property. . Such being true, it follows that as the title of the land in question was in Mrs. Stanley at the time of the death of 3. L. Stanley, and that the same was her own separate property, her deeds passed the legal and equitable title thereto to Anders and to Cain & I-Iagey, and that the defendants (appellees) who claim under said last-named parties are now the lawful owners of said land. Of course, it also follows that, as J. L. Stanley had no interest in said land at the time of his death, W. T. Stanley, his son, inherited no interest therein from him, and that his deed to J. T, Ferguson conveyed no interest whatever in the same.

What lias been said disposes of all of appellants’ assignments, as the question already decided hereby renders the errors of the court, if any, complained of by appellants’ other assignments, immaterial, unless it be the second proposition under their second assignment.

Appellants' second proposition under their second assignment insists that J. T. Ferguson in his purchase from W. T. Stanley was authorized to rely upon the record as to the title of the land in controversy; that such record showed that said land was community property of J. L. Stanley and wife at the time of the death of said J. L. Stanley in 1843. Since his deed from W. T. Stanley was over 30 years old at the time of the institution of the suit of plaintiffs, and, as all parties to the two deeds of Stanley to Wynn and Wynn to Mrs. Stanley were dead, it should be presumed by the court that he (Ferguson) paid value without notice, etc.

We think, from what has been already said, it has been shown that the record discloses that the land in question was the separate property of Mrs. Stanley. It is at least clear that she held the legal title, and that it passed to her grantees by her deeds, and that if appellants held any title it was at most an equitable title; and, such being the case, the burden was on them to show that the purchasers of the legal title from Mrs. Stanley were not innocent purchasers before they could recover. No contention is made that such burden was discharged or even attempted. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Eddy v. Bosley, 34 Tex. Civ. App. 116, 78 S. W. 565; Godley Lumber Co. v. Teagarden, 135 S. W. 1109; Texas Loan Ass’n v. Taylor, 88 Tex. 47, 29 S. W. 1057; Taylor v. Doom, 43 Tex. Civ. App. 59, 95 S. W. at page 6; Turner v. Cochran, 63 S. W. 152; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Barnes v. Jamison, 24 Tex. 362.

We have disposed of all of appellants’ assignments, and finding no such error, if any, as should cause a 'reversal of the judgment rendered by the lower court, the same is affirmed.

Affirmed.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McLEAN et al. v. BREEN et ux.
    (No. 8319.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 29, 1916.
    Rehearing Denied Feb. 19, 1916.)
    1.Wills <©=>682 — Construction — Trust — “Last Illness.”
    Under a will devising all property of testatrix in trust to be managed and the net income used exclusively for the maintenance of a sister during her natural life, and on her death and the payment of the expenses incurred in her last illness, to a religious body, the trustee was liable for the reasonable expenses incurred during her “last illness,” that term meaning the sickness which is terminated by the death of the patient as found from the circumstances and facts of the case, and such expenses were to be paid out of the estate before vesting the remainder in the residuary legatee.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1602, 1607-1611; Dec. Dig. <§==>082.
    For other definitions, see Words and Phrases, Second Series, Last Illness.]
    2. Trusts <©=263 — Action Against Trustee —Question for Jury — Last Illness of Devisee.
    In an action against the trustee under such will to recover for services rendered and expenditures incurred by plaintiff in the care of such devisee, the duration of the devisee’s last illness was a question for the jury under all the facts and circumstances.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 373; Dec. Dig. <©=>263.]
    3. Appeal and Eirrob <©=>1053 — Harmless Error — Reception oe Evidence — Cure by Instructions.
    In such action, the court’s action in admitting over objection testimony as to extra services required and expenditures made on behalf of the devisee by plaintiff prior to the time when the devisee took to her bed for the last time, was not reversible error, where the question when her last illness began was left to the jury, with instruction that plaintiff could not recover for expenditures of services rendered prior to such illness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178 — 4184; Dec. Dig. <©=> 1053.]
    4. Trusts <©=263 — Action Against Trustee —Instructions.
    In such action, an instruction that if plaintiff’s wife undertook and agreed to care for the devisee during her last illness and until her death at $30 per month, and that if her husband ratified such agreement, the verdict should be for defendant, Otherwise for plaintiff, was not erroneous, or at least was favorable to the defendant.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 373; Dec. Dig. <©=>263.]
    5. Appeal and Error <©=>216 — Instructions —Necessity of Request.
    If such instruction was unduly restrictive, it was defendant’s duty to tender a charge from which the restrictive terms had been eliminated, and, upon his failure to do so, the objection to the instruction would be held waived.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©=>216; Trial, Cent. Dig. §§ 627-641.]
    6. Appeal and Error <§=>742 — Assignments op Errob^-Proposition.
    In an action against a testamentary trustee to recover for services rendered to a beneficiary entitled to maintenance for life and the expenses of last illness, an assignment of error in that an instruction that if plaintiff’s wife agreed to care for the devisee during her last illness at $30 per month and if plaintiff ratified such agreement, the defendant was not liable wias on the weight of the evidence, and that the evidence showed that the plaintiff was a party to the contract and that his ratification should not have been submitted, was not sustained by a proposition thereunder that there was nothing in the record justifying the plaintiff’s ratification of the agreement, as no contract was set up with reference to the devisee’s care other than that plaintiff’s wife was to take her from an infirmary and care for her on the same terms on which the infirmary was caring for her, and that plaintiff was acquainted with the terms of testatrix’s will, as it might be assumed that they agreed to care for the devisee on the understanding that the expenses of her last sickness should be paid out of the estate.
    [Ed. Note. — For other oases, see Appeal and Error, Cent. Dig. § 3000; Deo. Dig. <§=>742.]
    7. Appeal and Error <§=1064 — Harmless Error — Instructions.
    Error in such instruction, if any, was not prejudicial, where the trustee would have been chargeable for the reasonable and proper expenses of the last sickness of the devisee in any event, and where the court limited the recoyei'y to the expenses of her last sickness.
    [Sd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <§=1064.]
    8. Trusts <®=2G2 — Action Against Trustee —Evidence—Last Illness.
    In such case, where the question of what constituted the devisee’s last illness was one for the jury, evidence relating to alleged special services rendered to the devisee, expenses incurred in her behalf, the condition of her health during her residence with plaintiff and the character of food required by such condition of health, though relating only remotely to the issue, was admissible.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 372; Dec. Dig. <§=262.]
    9. Trusts 261 — Services Rendered Beneficiary — Action Against Trustee — Amount of Recovery — Pleading.
    In such case, plaintiff could not recover as to any one item an amount in excess of that claimed to be clue.
    [Ed. Note. — For .other cases, see Trusts, Cent. Dig. § 371; Dec. Dig. <§=26L]
    10. Work and Labor <§==>29 — Personal Services — Value.
    , In an action by plaintiff and his wife against the trustee of an estate to recover for services and. expenditures in behalf of a devisee seeking to recover in the sum of $2,360 for nurse hire for 15 weeks at $25 a week, for liquors furnished, for fuel, washing, linen, carpeting, and extra nursing and care, where there was evidence that the devisee’s last illness was not limited to the 15 weeks, that she required a great deal of care, that her affliction was so offensive that no trained nurse could he induced to attend her, a verdict of $1,000 was not excessive.
    [Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 56-58; Dee. Dig. <§=29.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by J. J. Breen and wife against W. P. McLean, Senior, trustee, and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    McLean, Scott & McLean, of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short, of Ft. Worth, for appellees.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

This action was brought by J. J. Breen against W. P. McLean, Sr., trustee of the estate of Rose A. Dodd, deceased, and the Congregation of the Sisters of Charity of the Incarnate Word, on account in the sum of $2,360, alleged to have accrued to him by virtue of services and expenditures rendered and incurred by himself and wife, and for and on behalf of Mrs. Anna Morey. Plaintiff alleged in his petition that said Anna Morey lived at his house for about two years and eight months prior to her death, and that during said residence there he expended money in her behalf, and his wife rendered services to her, to the amount above named, and that under the terms of the will of Mrs. Rose A. Dodd, sister of Mrs. Morey, the trustee of the estate of Mrs. Dodd was liable to him out of the assets of said estate in said sum of money.

Mrs. Dodd and Mrs. Morey were aged sisters, both being widows for many years before their respective deaths, and lived together for many years before the death of Mrs. Dodd. Neither one had children or descendants, or known relatives, so far as the record shows. Mrs. Dodd was possessed of an estate of the estimated value of some $4,-000, and producing an income of some $30 to $35 per month. Mrs. Morey received a pension from the United States government of about $12 per month, and had at the time of her death a cash deposit in bank of about $630. In 1908, Mrs. Dodd and her sister, Mrs. Morey, went to St. Joseph’s Infirmary, a hospital under the control of the Congregation of the Sisters of Charity of the Incarnate Word, an incorporated charitable body, and made arrangements for her and her sister to board at said Infirmary for a stipulated sum. Some months thereafter, Mrs. Dodd died, leaving a will, by the terms of which W. P. McLean, Sr., was made trustee to carry out the provisions of said instrument. The following are the items of the will, pertinent and material to the questions raised in this suit;

“Item Fourth: I hereby devise and bequeath to my said above-named trustees, one at a time in the order named in the last preceding item of this, my will, all of my property, real and personal, wherever situated, in trust for my sister, Anna Morey, of Fort Worth, Texas, as follows:
“I direct that whichever one of my said trustees shall have charge and management of my property, shall turn over the annual income to be derived therefrom, to my said sister during her natural life. I desire that the income of my said property shall he vised exclusively for .the support and maintenance of my said sister during her natural life, after deducting therefrom the taxes and other expenses necessarily incident to the management, control and safe keeping of said property.
“Item Fifth: I will and direct upon the death of my said sister and the payment of whatever expenses may be incurred in her last sickness and for her funeral expenses, that all property real and personal of my estate hereby bequeathed to my said trustees for my said sister, then on hand, shall go to the Congregation of the Sisters of Charity of the' Incarnate Word, a religious body, and my trustee, then in possession of said property as such trustee, is hereby directed to pay over and deliver to said Congregation of the Sisters of Charity of the Incarnate Word, all of said property so remaining in tha hands of my said trustee after payment of the said expenses of last sickness and funeral expenses of my said sister.”

After Mrs. Dodd’s’ death, Mrs. Morey continued to live at the St. Joseph’s Infirmary until some time in the early part of 1910; W. P. McLean, Sr., as trustee, paying for her $30 per month for room and board. Mrs. Breen was a friend of Mrs. Morey, and had been of both sisters during the lifetime of Mrs. Dodd, and often visited Mrs. Morey subsequent to Mrs. Dodd’s death. In January or February, 1910, Mrs. Morey, with the consent of the trustee and of the management of the Infirmary, went to live with the family of plaintiff, and continued to live there up to the time of her death. The trustee, W. P. McLean, Sr., informed Mrs. Breen that the income from the estate of Mrs. Dodd would not exceed $30 per month, and that, therefore, he could not pay for Mrs. Morey’s board and room more than said amount. Plaintiff alleged, however, that said McLean agreed with Mrs. Breen to pay for additional expenses incurred in behalf of Mrs. Morey, and for extra services performed in taking care of her, but that such payment could not be made until Mrs. Morey’s death. This was one of the sharp issues made by the pleadings and the evidence ; the defendant claiming that Mrs. Breen had consented to take Mrs. Morey to board and room for the sum of $30 per month, and that Judge McLean, as trustee, told Mrs. Breen that he was not authorized to pay or promise more than that amount, and it is denied, both in the pleading and testimony of defendants, that any promise or agreement was made as to compensation further than the $30 per month stipulated. Defendant also> denied the account of plaintiff, and pleaded that the same' was fictitious and fraudulent in its entirety, and that the $30 per month paid for Mrs. Morey’s board and lodging, together with her pension of $12 'per month, and the further sums, amounting to $365, paid Mrs. Morey, but alleged to have been used by the plaintiff and his wife in payment of expenses incurred and services rendered by them for Mrs. Morey, were amply sufficient to meet all the expenditures and to pay for all of the services rendered for Mrs.- Morey by plaintiff and his wife.

Upon a trial a verdict and judgment were rendered in favor of the plaintiff for the sum of $1,000. The defendants appeal.

Plaintiff’s account, rendered to Judge McLean as trustee, prior to the suit, included charges for nurse hire, 15 weeks at $25 per week, or $375; liquors furnished during 2 years and 8 months at 25 cents per day, $242; fuel, 16 months at $12 per month, $192; for washing, 4 years at $5 per month, $240; for mattresses, pillows, and linen spoiled and replaced or used and worn out, $45; carpet alleged to have been furnished and worn out, $40; and extra care in addition to amount contracted and paid for, for 2 years and 8 months, at $500 per year, $1,333.33; the items totaling, $2,467.83. In the suit, plaintiff asked judgment for only $2,360.

There is a mass of testimony, the statement of facts covering some 107 pages, and voluminous pleadings, the transcript covering some 89 pages; and we have examined the statement of facts and pleadings in detail, in order that we might intelligently consider the questions presented in appellants’ 10 assignments. We do not think, however, it is necessary to discuss in this opinion each of the assignments presented, but merely to pass upon the vital questions involved.

'[1,2] We think, undoubtedly, under the terms of Mrs. Dodd’s will, trustee W. P. McLean, Sr., was liable for the reasonable expenses incurred by Mrs. Morey on her behalf during her last illness. The case was finally narrowed down by amended pleadings so as to present that issue, and the trial court, in his charge, instructed the jury that in no event could plaintiff recover for any expenditures made, or services rendered, for and on behalf of Mrs. Morey, except such as were made or rendered during her last illness, and then only such as they might find and believe from a preponderance of the testimony were reasonably necessary for the ease and comfort of the said Mrs. Morey during her last illness. He further instructed the jury that if they found from a preponderance of the evidence that such expenditures and extra services were reasonably worth more than the $30 per month paid to the plaintiff by the defendant McLean, trustee, then, and in that event only, they should find for the plaintiff in the amount of such excess, unless they found for the defendant under other paragraphs of the charge.

There was considerable testimony on the part of plaintiff as to the sickness of Mrs. Morey during the period of her stay in plaintiff’s home, and of expenditures claimed to have been made, and extra services claimed to have been rendered during said time, and appellant has, in several assignments, urged error to the admission of such testimony, inasmuch, as claimed, such expenses were not incurred during the deceased’s last illness, and therefore the estate of Mrs. Dodd could not be chargeable therefor. Since the court in his charge limited the plaintiff’s right of recovery to the expenditures made and services rendered during the last illness of Mrs. Morey, we think the admission 'of the testimony of which complaint is made does not constitute error. The deceased was quite an old lady, some 84 years old at the time of her death, and the testimony shows that she was subject to sick spells during practically the entire time of her stay at plaintiff’s residence though she was up and down and was able to leave the premises and even go to town up to as late as May before she died in September, 1912. Mrs. Breen testified that she was sick practically all of the time from February, 1912, and required almost constant nursing, both night and day. As to what constitutes the last illness of a deceased, is often times a question of fact which must be decided from all of the evidence pertaining to the condition of health of deceased covering a long period of time. Mrs. Morey was afflicted with ailments naturally incident to her extreme age. As testified to by both Mrs. Breen a.nd the physician in attendance, she was afflicted with a chronic diarrheal trouble, causing her to have very little control over her bowels, and rendering her very weak. It was this phase of her sickness that caused, as alleged by plaintiff, so much extra laundering, and caused the carpet, mattress, pillows, linen, etc., to be no longer usable after deceased’s death.

The court, we think, properly defined what is'meant by the term, “last illness,” the definition being as follows:

“The term ‘last illness,’ as used in this charge, means the sickness which is terminated by the death of a patient. The last illness of a patient is an affirmative fact which must be proved as any other fact to the satisfaction of the jury by a preponderance of the evidence, and must be found and determined by the jury from the facts and circumstances in the case. No definite length of time can be described [defined?] by the court as being- the last illness of a patient, but the duration of the last illness must be determined in each case by the jury from the circumstances and facts in each [such] case and by a preponderance of the evidence.”

The meaning of the term “last illness,” as used in this will, is somewhat different from the meaning of the expression when used in the statute governing nuncupative wills. In the latter case, the term is more nearly synonymous with in extremis. But where used in wills, wherein provision is made for the payment of the funeral expenses and expenses incurred during the last illness, or in statutes making claims for such expenses preferred claims, no hard and fast rule or fixed definition .may be given, except that the illness must have been that of which the patient died. In the case of Huse v. Brown, 8 Me. (8 Greenl.) 167, the court says:

“The nature of the disorder and its progress are particularly described in the exceptions, and the court instructed the jury that they would decide whether the testator died of the cancer under which he was laboring, when the plaintiff attended upon him, and whether it was a continuing complaint or disorder until his death; and if they should decide those questions in the affirmative, they might consider it his last sickness. And why might they not, whether any such instruction had been given to them or not? It would seem, to a plain understanding, to be an indisputable-fact, that the sickness which is terminated by the death of a patient is his last sickness. All taxes and debts due the state are to be paid before other debts, however long a time they may have been due; no limitation is here imposed; nor is there any as to the length of time which the last sickness of a man may have continued prior to his death ; and how can the court impose a limitation in the latter case with more reason that in either of the former? Sickness assumes so many forms and death approaches in so many different ways, that we know not how to lay down any legal principle in such cases, that can be applied by way of construction of the words, ‘last sickness.’ What is to be considered a man’s last sickness, seems to be a question properly determinable by the jury upon 'the facts in each case, which can seldom, if ever, be the same in two instances.”

As suggested in the case from which the above quotation is taken:

“The object which the Legislature had in view doubtless was that a sick man, though possessed of but very little property, should be in no danger of suffering by reason of the want of medical advice and assistance, even where unfeeling physicians, if there are any such, would be tempted to refuse or withdraw their professional attentions, apprehending they might lose their reward.”

And in this case we think that it is a permissible and natural construction of the provision in the will of Mrs. Dodd that the expenses of the last sickness and the funeral expenses of her sister should be paid out of the estate before vesting the remainder in the residuary legatee, was intended to safeguard the surviving sister against the possibility of any neglect or want during the latter’s last days, weeks, or .months, when, by reason of her sickness, the proper and reasonable care of the patient might necessitate expenditures in excess of the net income from said estate. As has been before said, neither the testatrix nor her sister had children or other heirs to inherit her property, and it was evidently intended by the testatrix that, to the extent of her estate, if need be, provision should be made for the aged sister left behind. It was thought, doubtless, by her that the net income would be sufficient to pay the current expenses of her sister while in health, but realizing that unusual expenses would naturally be incurred during the last sickness of her sister, she made provision in her will and authorized her chosen trustee to pay, out of the corpus of the estate, such extra expenses foreseen to be necessary.

As stated in United States v. Frisbie (C. C.) 28 Fed. 808:

“The last sickness means the sickness which results in death. It may be more or less extended, according to the circumstances of the disease. If it is an acute disease, where a man was well, until he was confined to his bed, and then died, it would count only from the time in which he was prostrated and confined to his bed. But if it was such a case as this was, lingering, and, while admitting of transient temporary recuperation, followed immediately by relapses, and every day adding to his aggregate weakness, why, the last sickness would commence from the time this consumption, in a pronounced way, set in.”

Therefore, we are of the opinion that no reversible error is presented in the several assignments attacking the action of the court in admitting, over objection, various bits of testimony as to extra services required and expenditures made and labor done, for and on behalf of Mrs. Morey, by plaintiff and his wife prior to the time when Mrs. Morey took to her bed for the last time, for under appropriate instructions it was for the jury to' determine when the last sickness began. Under the charge of the court, the jury were told that the plaintiff could not recover for any expenditures made or services rendered prior to the last sickness.

In the second assignment appellants urge error in the giving of paragraph. 3 of the court’s main charge, which is as follows:

“You are further instructed that if the plaintiff's wife undertook and agreed to take charge of and to care for the said Anna Morey during her last illness, and until the time of her death, at and for the sum of $30 per month, and if you further find that J. J. Breen ratified and confirmed said agreement, if any, and if you have found such to 'be the case from a preponderance of the evidence, then you will return a verdict for the defendants, and unless you so, find you will find for the plaintiff on such issues.”

The majority, at least, do not find any error in this charge, and hold that in any event this was a charge favorable to the defendant, and if it was unduly restrictive, which they do not concede, yet it was the defendant’s duty to tender a charge from which the restrictive terms had been eliminated and upon his failure so to do the objection would be held to have been waived. Yellow Pine Oil Co. v. Noble, 100 Tex. 358, 99 S. W. 1024; Water Co. v. Robinson, 146 S. W. 1052.

Moreover, defendant’s bill of exception No. 2 complaining of this paragraph of the charge urges the objection, that the same is upon the weight of the evidence, “and that the evidence clearly shows that the said J. J. Breen was a party to said contract, and that the court should not submit the ratification or [to] the jury at all.”

The proposition under this assignment is as follows:

“There was nothing in the record that justified the court in requiring the ratification by J. J. Breen, husband of Mrs. J. J. Breen, of the arrangement made with Mrs. Breen for the care of Mrs. Morey, as no contract was set up either by plaintiff or defendant with reference to the care of Mrs. Morey other than that Mrs. Breen was to take Mrs. Morey from the St. Joseph’s Infirmary to her house and care for her on the same terms as said Infirmary was caring for her. Plaintiff’s suit was on an account against the trustee for the care of Mrs. Morey, and the record shows that plaintiff and his wife were acquainted with the terms and provisions of Mrs. Dodd’s will.”

■Therefore the assignment, as restricted by the proposition thereunder, does not present the contention made in the objection urged in the trial court to this paragraph of the charge, to wit: It “is upon the weight of the evidence, and that the evidence clearly shows that the said J. J. Breen was a party to said contract and tha-t the court should not submit the issue of ratification to the jury at all.” If, as stated in the proposition, Mrs. Breen agreed “to take Mrs. Morey from St. Joseph’s Infirmary to her house and care for her on the same terms as said Infirmary was caring for her,” the plaintiff would not thereby be precluded from recovering compensation for extra expenses incurred during Mrs. Morey’s last illness. While Mrs. Morey was at the Infirmary she was .not confined to her bed, but, presumably, was able to take care of and wait on herself. Therefore the Breens may be held to have made the contract for board and room for Mrs. Morey on the basis of the latter’s not requiring any further outlay or trouble than as a boarder; but since as set out in the proposition under this assignment, “the record shows that plaintiff and his wife were acquainted with the terms and provisions of Mrs. Dodd’s will,” it may be assumed that they contracted for the care of Mrs. Morey with the understanding that the expenses of the last sickness could and would be paid for out of the corpus of the estate.

Since the trustee under the will of Mrs. Dodd would have been chargeable for the reasonable and proper expenses of the last sickness of Mrs. Morey, in any event, whether any contract had been made between the trustee and Mrs. Breen, or Mr. Breen, to that effect, or not, and since the court limited such right of recovery to the expenses of the last sickness of Mrs. Morey, we are of the opinion that the error, if any, is not prejudicial.

Assignments 3, 4, 5, 6, 7, and 10 are directed to the alleged improper admission of certain testimony by Mrs. Breen, which, in general, relates to alleged special services rendered to Mrs. Morey, expenses incurred in her behalf, the condition of her health during the period of her residence in the Breen home, the character of food necessary to be furnished on account of her condition of health, etc. Appellant urges error to the admission of this character of testimony, on the ground that it does not relate to matters incident to the last sickness of Mrs. Mor-ey. While we think that there was considerable testimony introduced by plaintiff that might properly have been omitted, yet, since the question of what constituted her last sickness was one primarily for the jury to decide, we think the character of testimony complained of was admissible as affecting, remotely though it may be, the issue as to when her last sickness began. This is true, particularly in view of the courts charge limiting the recovery, as before stated. Therefore said assignments are overruled.

It is urged in the eighth assignment that the verdict is excessive, and that in no event could plaintiff recover for the item of extra nursing more than was alleged in his petition, to wit, $25 per week for 15 weeks. We think it is undoubtedly true that plaintiff cannot recover as to any one item an amount in excess of that claimed to be due, and the writer, at least, is inclined to think that if the last sickness could not be held, under the pleadings and evidence, to extend over a longer period than 15 weeks, that probably the verdict is somewhat excessive. But, by reference to the pleadings, we find that the allegations of plaintiff’s petition do not restrict the period of the last sickness to 15 weeks, but allege:

“That the said Anna Morey was ill and in bad health continuously from the time she came to make her residence with the plaintiff and his wife; that she was the prey of various unnatural appetites and her vital organs were undergoing a process of degeneration and breaking down, which steadily continued and grew worse until her death; that the said Anna Morey was at no time while living with the plaintiff and his wife a well woman, but was all the time diseased and affected with abnormal conditions of her system which ultimately were the cause of her death; that she was not carried off by any sudden attack of sickness or new disorder of her health, but that her death was caused by the same illness which had steadily grown more severe and serious during all the time she maintained her residence with plaintiff and his wife. Plaintiff would further represent that the malady or failing of the vital functions with [which] the said Anna Morey was afflicted grew worse at times than others, so much worse as to require the whole time of one person, both day and night, to attend and nurse her, and that on account of the peculiarly] offensive nature of said Anna Morey’s affliction, no trained nurse or other person could be procured or induced to attend and nurse the said Anna Morey, and the plaintiff’s wife was compelled to and did attend to and nurse the said Anna Morey during said time.”

And then follow allegations as to the value of such nursing during 3 weeks in June, 1911, and 7 weeks during the fall of 1911, and 15 weeks immediately prior to her death, in the .total amount of $025.

Dr. G. V. Morton, attending physician, testified:

“When I first went to see her in June, 1911, her condition was generally depleted, run down, emaciated, weak, feeble, an old lady and the most prominent thing that I remember about her was that she was badly upset in her digestive tract. That condition was true back when I saw her first in June, 1911. The intestines seemed to be upset more than anything else, she had a badly coated tongue and loose bowels, and on these visits I made practically all the conditions seemingly were similar, except they were growing worse, getting more weak, feeble, and emaciated, as I remember it. The trouble was practically the same during all of my visits from June, 1911, up to- June, 1912; these apparent attacks she would have of stomach and bowels, bowels more than, probably, her stomach, on account of the upset diar-rheal condition, her stomach being probably responsible in that way for the disturbance in the bowels, probably not performing its functions. During the 3 months from June_, 1912, until she died in September, 1912, this was practically a continuation of the same condition and she was growing worse during that period, growing weaker. * * * .At the time I called to see her in 1911 and from the first time I ever saw her, I considered her a weak, feeble, and bad sick old lady. At the first time I saw her, her condition was such that death might be expected. She was getting these spells and I never could tell in any one of them whether I was going to pull her through it or not, was my recollection.”

Mrs. Breen and her two daughters and various neighbors who visited the Breen home during Mrs. Morey’s stay there, testified to facts and conditions which would reasonably sustain the theory, that although Mrs. Morey was able at intervals to he up and even to go to town, as late as May, 1912, yet she was during the period intervening between June, 1911, and her death in September, 1912, suffering from the same and continuous ailment of which she died. Therefore we are not able to say, taking this view of the matter, that .the verdict is excessive. Besides the item of nursing, there were other items alleged and proved, to wit, for medicine, stimulants, fuel, bedding, etc., furnished during and because of Mrs. Morey's last illness, amply sufficient to bring the amount alleged and proved up to and even beyond the amount found by the jury.

Binding no prejudicial error, the judgment of the trial court is in all things affirmed.
      (g^sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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