author: HENDRICKS, J.

text:
    LONG v. SMITH et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.
    Rehearing Denied Jan. 3, 1914.)
    1. Parent and Child (§ 2) — Custody of Children.
    A husband was not bound by his wife’s attempted deathbed disposition of his child to her parents.
    [Ed. Note.- — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.]
    2. Habeas Corpus (§ 99) — Disposition op Child.
    While it is presumed that the best interest of the child demands that it be placed with its parents, such presumption may be rebutted.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    3. Habeas Corpus (§ 99) — Custody op Children — Jurisdiction op Court.
    Under Const, art. 5, § 8, giving general control over minors to district courts, such courts may dispose of the custody of a minor for its best interest, even by depriving the parents of such custody, though neither had relinquished their custody.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    4. Habeas Corpus (§ 99) — Custody op Child — Jurisdiction op Court.
    The district court, in the exercise of its chancery power, has jurisdiction to deprive the parents of the custody of a minor child, though they have not actually relinquished their custody.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    5. Evidence (§ 472) — Opinions — Matters Directly in Issue.
    A question to a witness in habeas corpus for a child, which, from his knowledge of the wife’s parents and of the father and his mother with whom he was living, witness considered the better place for the child to be reared, was properly excluded; the answer sought being the question to be determined by the court.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.]

      6. Habeas Corpus (§ 86) — Proceedings por Custody oe Child — Admission oe Evidence.
    In habeas corpus by a father for the custody of his minor child from the maternal grandparents, evidence that the father was willing to abide by the decision of the arbitrators to make certain payments to his wife for the child’s benefit would have been but of slight, if any, aid in determining the issues, and there was no error in excluding it.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.]
    7. Trial (§ 404) — Findings oe Court — Contradiction — Declarations oe Judge.
    The findings of the trial judge cannot be contradicted or affected by oral declarations of the judge, though such declarations are embodied in a bill of exceptions in view of Rev. Civ. St. 1911, art. 1990, requiring the court to render judgment on the conclusions of fact found and separately stated, unless a new trial is granted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 957-962; Dec. Dig. § 404.]
    8. Habeas Corpus (§ 99) — Custody oe Child — Sufficiency oe Evidence.
    Evidence, in habeas corpus by a father for the custody of his minor child, the custody of which was claimed by maternal grandparents, •held to show that the child’s best interest would justify the award of its temporary custody to such grandparents with the right of visitation by the father.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    Appeal from District Court, Briscoe County; D. S. Kinder, Judge.
    Habeas corpus by J. E. Dong against S. B. Smith, and others. From a judgment for de-
    fendants, relator appeals.
    Affirmed.
    R. E. Green, of Tulia, and Geo. L. May-field, of Plainview, for.appellant. Martin & Zimmermann, of Tulia, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexe

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Replr Indexes

   HENDRICKS, J.

J. E. Long, the appellant in this court, and the father of Aline Long, a minor female child, of the age of about 22 months, at the time of the trial in the lower court, sought to recover the custody of said child by writ of habeas corpus from the ap-pellees, S. B Smith and wife, the maternal grandparents, and, upon the hearing before the trial court, the temporary custody of the infant was awarded to the maternal grandparents, Smiths. The record discloses that, about five years prior to the trial of this case, J. E. Long, the appellant herein, was married to Audie Long, at which time he was only 16 years old and the wife was of the age of 26, and that some time during the year 1912 relator and his wife separated, which existed until the time of the death of the wife on January 28, 1913, at which time the mother just previous to her death requested of her parents, the respondents herein, that they retain the custody of her child, Aline Long, stating that J. E. Long, the father of the child, was unfit to have the care and custody of the same.

The trial court, after hearing the evidence, upon the request of the relator and appellant, J. E. Long, filed the following conclusions of fact, which conclusions of fact we adopt as our conclusions in the disposition of this case:

“Conclusions of Fact.
“I find that relator, J. E. Long, and Audie Long, the daughter of respondents herein, were married on the 26th day of August, 1908, and lived together as man and wife until about the 15th day of August, 1912 ; that there was born of their marriage one child, Aline Long, who is at this date about 23 months old and who is the subject of this controversy. This child was left in the custody of the respondents, who are its grandparents, on January 28, 1913; its mother requesting on her deathbed that respondents retain custody of the child and rear and educate it, the reasons assigned by her being that relator was unfit to do so.
“I further find at this date that the relat- or is not worth anything above his exemptions, and that he had no permanent home; that at this time he is working for his mother and brother at $25 per month and would have no home other than that of his mother to take the child in controversy if he were awarded its custody; and that there are in the house of his mother four children. I find that relator, J. E. Long, is at this time less than 22 years of age, not settled in life and possessing the habits and characteristics of the usual boy of his age. I find that, a short time prior to the fatal sickness of Audie Long, relator placed her in the home of her father, where she was .to remain while he was absent from home cutting feed; that without any cause he loaded up her personal belongings and left them at her sister’s the day after she was taken fatally sick; that before he had learned of her fatal sickness he notified the doctors that he would not be responsible for any accounts made by her; that he did not pay the expenses of her last sickness; ' that previously to this time he habitually cursed and abused her in the presence of her friends and the child in controversy, and other children, evidencing a total disregard of her feelings and showing a lack of responsibility and just appreciation of his duties as a husband and father; that, though assisted in some- measure by both his mother and father-in-law, he has not accumulated anything since his marriage; that during the marriage relations, and some time previous to the separation, he cut his wife’s dress with a knife and afterwards, in anger, threw a quart medicine bottle at her in the presence of her friends and family.
“I further find that the respondents are Christian people, upright and thrifty; that respondents have a good home and ample means, to take care of the child in controversy and are attached to it, it having been in their home for some time previous to the death of its mother and having been nursed by them through a serious spell of sickness after the death of its mother, from which it had just emerged; and that they are without other children to care for, except one other child.
“I find in conclusion that the facts brought out in the trial are such as to show relator to be lacking in a sense of responsibility and just appreciation of his duties as a father, and to be unable and unfit at this time to take care of an infant of tender years.
“Conclusions of Law.
“I find, as a matter of law, that the best interests of the child, Aline Long, demand that it remain in the temporary custody of its grandparents, the respondents herein, until such time as the relator shows himself fit and able to rear and care for it.”

We believe that the evidence in' the case substantially sustains the findings of fact made by the trial court, and in addition we think the trial court could have found more explicitly and stronger the disposition of cruelty, although ten years younger than his wife, manifested by him towards her. The evidence indicates a development of tuberculosis by his wife quite a while prior to the time of her death; and of course, while there may be some extenuation on account of the youth of the husband, there are suggestions in this record of manifestations on his part towards her almost amounting to savagery, the following incident father illustrating this disposition: “I did not kick her on the shin so that I made a big sore. * * * No, sir; that little sore was itching one time and she kinder scratching it and it would not quit itching, and I had a bone in my hand and I taken (it) and just rubbed it with that bone and it made it sore.” His manifestations in regard to cutting his wife’s dress are as follows: “We were over at Silverton at a show and when she came out of the show we were talking out a little ways out there and I said to her, ‘Here you have got on this old dress that I never did like for you to wear;’ and she says, Wes,’ and I says, T have a very good notion to cut it off of you;’ and she says, ‘Take to it;’ and I taken out my knife and taken to it. There was no row between us. It was just in fun. No one stopped me. I just got my play out and stopped. I cut that short place there” (which was about three inches in the neck of her dress).

Mrs. Mary Oook, a witness for the respondents, in regard to this incident, as far as her knowledge went, testified as follows: “The first part of August, 1909, I was at a medicine show here in Silverton with Mrs. Long and Mr. Smith and other members of the family. I heard Earl quarreling and cursing. His wife come to the wagon and told me that her dress was cut. She told it there In our presence. She did not show me the dress. That night she did not really say but she was worried and bothered and feeling bad about it.” Another incident which is testified to by this witness in regard to the disposition of this relator we quote as follows: “As we passed the courthouse he rode up by the wagon and threw a quart medicine bottle at her. The bottle broke and spilled over everybody.” There is an explanation by the relator himself that he merely rode by on his horse while the others were in the vehicle, stating to her that, “Here is your medicine,” pitched into her lap the bottle, and it fell to the .wagon bed and broke. This same witness, Mary Oook, testified that she was in Earl Long’s home last August (1912) for about two weeks. “That was a little while before she took sick. He got mad once while I was there and cursed before me and my little girl, who will be four years old next July. He would get mad at something she would do that he didn’t like. She was in bad health and scarcely able to be up at all while I was there.”

Of course the husband, Long, was not bound in any way on account of the attempted deathbed disposition of the child by its mother to her parents. Thereafter the only acquiescence that we are able to ascertain with reference to the possession by the maternal grandparents of this child is the statement made by him that on account of the condition of the weather and a spell of sickness of the child, at the home of the maternal grandparents, it being ill with pneumonia, he would not move the child from their home at that time; and we are confronted in this record by the proposition, although unassigned, and not discussed, whether or not, where there has not been a previous relinquishment of the custody of the child by the father to respondents, the court has the power upon writ of habeas corpus to perform any other judicial act, except to award thé custody of the child to the father. In the ease of Ex parte Robert Andrew Sams, 161 S. W. 388, decided by us November 15, 1913 (cause No. 487), the proposition was urgently insisted that, the evidence of relinquishment by the father in that case being lacking, it was the duty of the court, irrespective of any other consideration, to award the custody of the child to the father, without any further inquiry. We did not concede the legal proposition announced by appellant in that cause, but found the evidence to sustain a conclusion that the father had relinquished the custody of the infant child to the maternal grandparents, which, of course, devitalized the proposition as a purported legal principle, attempted to be asserted by the father in that cause. The writ of habeas corpus, used in this state as a form of procedure for the purpose of litigating questions as to the proper custody of infants, and inquiring into their status to that end, is not really a procedure, when you sound the cases, calling in question an illegal restraint of children in the sense of a false imprisonment, by persons who may have their custody, though, of course, it may be used for that purpose, but is one of a development of the law on that subject, addressed to the equity powers of courts of chancery for the protection of the child’s welfare; the change of custody, if made, following the ascertainment of this problem as a remedial right.

Our courts have held the proposition that presumptively the best interests of the child is with the parent; but where conditions overcome this presumption, the infant’s interest being the real issue, blended with the interests of society, this presumptive right of the parent is negatived and destroyed, and society and the government, as well as that of the child’s interests, arise requiring a different custody.

It is true, in so far as we are able to ascertain, where the aid of a. statute does not assist the court, questions of this character have been litigated where one or both of the parents have relinquished the custody of the child to others, and the relative merits of these two opposing parties, as determining the child’s welfare, are inquired into; but we take it that under section 8, art. 5, of the Constitution of this state, giving original jurisdiction and general control over minors to district courts, that such courts would have the power guarding the rights of all parties, where the right of the child and the interests of society would warrant it, to dispose of the custody of the minor child for its best interests, depriving either or both parents of that- custody in such cases, though neither had, strictly speaking, relinquished their custody to the opposing party. A prior Legislature, by article 8502a of the Revised Statutes (prior to the revision of 1911), attempted to take this power from the district courts by enacting that on the petition of any citizen or citizens to the county judge, where he or they reside, setting forth that certain persons other than the natural guardians having in charge children under 12 years of age, to their injury, that said county judge may determine at a regular or called term the matter of such petition and by order of court rescue such children from the custody of such persons and place them in the custody of the person so petitioning, upon satisfactory proof that such change will benefit such children. The Supreme Court, in the case of Ex parte Reeves, 100 Tex. 617, 103 S. W. 478, decided that such a statute was void and that the Constitution intended to confer on the county courts only the matter of guardianship over the persons and estates of minor children, and that the equitable jurisdiction of courts of chancery, formerly exercised with reference to the custody of minors, was committed to the district courts. It seems also that under the system of England, from the opinion of the Supreme Court, that courts of chancery, in addition to the jurisdiction to award the custody of the child according to its best interests, exercised jurisdiction to appoint guardians upon the estate and for the persons of minors, which with us is now committed by our Constitution to probate courts. Justice Gaines, quoting from Pomeroy, vol. 3 (3d Ed.) § 1303, says: “In addition to its power to appoint guardians (now in our county - court), the court of equity will also exercise its jurisdiction, in a proper case, and to promote the highest welfare of the infant, where there is already a guardian, natural or legal, by controlling the person of the infant, and by removing it personally from the custody of its natural or legal guardian, even from the custody of its own parent.” And our court further says that “this latter jurisdiction may be lawfully exercised by the district courts of this state is held in Legate v. Legate, 87 Tex. 248, 28 S. W. 281, and in other cases which need not be cited.”

If at last the real interests of the child is what a court of chancery is searching after (and infants were previously -wards in chancery), it is unreasonable and inequitable to say that the Ultima Thule of its jurisdiction is bounded by cases where the parent has relinquished the custody of the infant.

It cannot be said in this case that the custody of the maternal grandparents is an illegal custody in the sense of an illegal restraint, based upon trespass or wrong interdicted by law; of course in a sense it would be improper possession, if it is to the best interest of the child to take the custody away from them, but should not be a reason to confront a district judge in the exercise of its chancery power debarring him from inquiring into that problem and compelling arbitrarily a restitution to the complaining parent, irrespective of any consideration as to the welfare of the infant and the moral or other unfitness of the parent. As stated, the state and society follow the real interests of the child, and, having a profound interest in an inquiry of this character, a technical rule tending to a destruction of such an important question might in some cases become disastrous to the child and inimical to society.

Appellant assigns error that the trial court erred in refusing to allow certain witnesses to answer the following question: “From your knowledge of S. B. Smith and his wife and your knowledge of Earl Long and his mother with whom he is living, both from a financial standpoint and a moral standpoint, and from the general reputation of these parties, which, in your opinion, do you consider the better place for the child in controversy to be reared, in the home of Mrs. Long, where Earl Long.is living, or in the home of S. B. Smith and his wife?” announcing as a proposition that, “Whenever the condition of things is such that it cannot be reproduced and made palpable in the concrete to the court, then the witness may describe it by its effect upon his mind, even though such effect be an opinion,” quoting numerous authorities, which upon investigation we think are entirely inapplicable and inappropriate to the condition indicated. The judgment and opinion of these witnesses attempted to be proffered by the appellant is the very question to be decided by the court, and the abstract nature! of appellant’s proposition is in itself to a certain extent a refutation of its correctness as a legal principle. A question of this kind would compound so many elements affecting the surroundings, as well as the qualifications of these people, morally, mentally, physically, and otherwise, that we believe it would inject an anomaly into the law to permit such conclusions to go to a court or jury, and no authority, according to our views, is presented, neither can we find any.

The testimony of G. B. Mayfield, raised under the second assignment of error, which would have been to the effect that appellant Long was willing to abide by the decision of two arbitrators to make certain payments to his wife and for the benefit of his child, and which was rejected by the court, would, have been very little aid, if any, to the court in deciding the respective merits of these contending interests, as well as the interests of the infant. The record presents that Long could not have been bound by the arbitration, according to the articles of arbitration introduced in evidence, and was a matter decided by the arbitrators on account of the dispute between his wife and himself before her death and would very remotely, if at all, touch the real question at issue here.

The relator and appellant challenges the findings of fact and conclusions of law in this case on the ground that the oral statements made by the district judge at the time of his rendition of judgment were not in accordance with said conclusions of fact aft-erwards prepared and filed by him, as a part of the record of the case; appellant taking a bill of exceptions, embodying certain purported language of the court as to his conclusions at that time, which the court says he had no recollection of making and states in his modification of the bill, according to his best recollection, the expressions he did make at that particular time, all of which we think entirely inappropriate ■ in this record, as* the oral declarations of the judge of a court of record are not to be considered by us as an exposition of the real record in the cause, made in accordance with the statute. We are bound by the presumption that the rendition of the court’s judgment, where a case is tried without the assistance of a jury and conclusions of fact are filed, whether before or after such a judgment, that the entering of the judgment was based upon such conclusions of fact and not upon ex cathedra statements, even if made at a time when the judgment is rendered. Article 1990, Bev. Stat. 1911.

The appellant and relator assigns error that the judgment of the court is contrary to the law and unsupported by the evidence in that the court found no positive moral disqualification of the father which would disqualify him for the custody of his child. We think a perusal of the conclusions of fact of the district judge is a sufficient refutation of this assignment. In accordance with' our opinion in the case of Ex parte Robert Andrew Sams, decided at this term November 15, 1913, we held there and repeat here that, if it were not for the injection in the cause of the proffer of a home by the paternal grandmother, there could be no question, when you consider the age of the father in this case, not 21 years old at the time of the trial, and the infancy and helplessness of the child, about 22 months old, that the father, as compared with the maternal grandparents, when you consider the best interests of the child, would not be its proper custodian. Upon a divorce proceeding between the father and its mother, unless strong moral disqualification upon the part of the mother was shown, there would be no question but what a trial judge would award the custody of the child to its mother. Of course her rights would be stronger than the maternal grandparents since her death; but when we consider the acts of this husband, although a boy, suggestive of irresponsibility and misconception of proper conduct in the presence of others, and cruel manifestations towards his wife, they indicate a lack of developed moral sensibility and negative his fitness for the superintendence and control of the custody of this little girl at the present time, which would be the case if awarded her possession, notwithstanding his mother is assisting him in offering a home; and we think- the custody should have been awarded to the maternal grandparents, who nursed the child through a severe spell of pneumonia immediately upon the decease of their daughter, its mother. The appellant claims that in a discussion he had with certain people, residents of Silverton, before the institution of this suit, with reference to the custody of this child, he informed them he would take it to his mother; others claimed that he said he would not take it to his mother. It seems that, though according to his statement he is getting along very well with his mother,, he had a dispute with her and his brothers in regard to 160 acres of land which he claims to have inherited from his father and which his mother seems to concede. Differences, however, very apparent in this record, have existed between the mother and the other children and this particular relator, but just what those differences were is not shown. Long says: “There was a little hard feeling. I have not got the land yet but I know I will get it.” It is a matter of common knowledge that the division and distribution of inheritable property is often the cause of the most embittered feelings in families, and at the time of the trial there was no positive evidence that this matter had been definitely settled as to division.

At the time of the trial this relator was working for his mother and older brother for $25 per month, and it is speculative entirely, when you consider his disposition, what the immediate future of this baby girl would be if placed in the home of its paternal grandmother, if an estrangement should occur between the mother and son, and upon a change of headquarters change the environment of the child. It seems that when a mere boy, 15 years of age, he left his mother’s home for the home of others and had lived with the Smiths some eight or nine months prior to the marriage with their daughter, and which the father claims was done without his knowledge. Just why he left his parent’s home is not shown; and when you consider a boy of that age and the amount of land controlled and owned by the mother and the comfort of his mother’s home, and the environment such a home should have afforded, whichever way you view it, and however much you may conjecture, is a circumstance in this record sustaining the judgment of the trial court. The mother of Long, on the witness stand, says that she promised him that as long, as she lived she would keep the child for him and support it “if, it was necessary.” And further says: “I would support him and the child if necessary. * * * j did not think I would have it to do. I think that he is industrious enough to do it himself.” It is rather hard to understand just what the mother means with reference to this matter, though we do not undertake to say that she would not, if the necessitous condition arose, protect and nurture the child. The maternal grandparent, however, says: “After the mother’s death, the child had pneumonia and me and my wife nursed it. I think I am able to and am willing to take the child and rear it and educate it and I will do it. I am anxious to do it and school it well.” The respondents have only one other child at home, a little girl, nine years of age, all the others having married and departed; and the paternal grandmother has three others, a young man older than the relator, Long, a young lady, 19 years of age, and another boy 14 years of age. She seems to be possessed of more property than the Smiths but demands upon her at her home are also greater.

Following in the main the Sams Case, decided by us at this term, we think the judgment of the trial court, awarding only the temporary custody of the child to the maternal grandparents, with the right of visitation by the father at all times, which, if interfered with by the Smiths, constitutes a contempt of court, is correct and should be affirmed.

We have attempted to carefully consider all assignments and propositions not discussed by us, which we overrule. Affirmed.


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    LEWIS v. WALKER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 5, 1913.
    Rehearing Denied Jan. 7, 1914.)
    Wills (§ 630) — Constbuction—Intestacy.
    Testator, having an unmarried daughter, M., who was of weak mind, and plaintiff, another daughter, who had displeased him by her marriage, bequeathed to plaintiff $50 and devised the residue of his estate, except such $50, to trustees to apply the income to M.’s support, not exceeding a specified sum per month, and then declared that, if M. died leaving surviving a child or children, testator bequeathed to such child or children the whole of his fund remaining in the hands of the trustees, and if she died leaving a husband, but no children, surviving her, testator bequeathed to such husband $1,000, and all the residue of his property to the children of K., his brother, held, that the bequest to M.’s husband, should there be one, should be construed, not as a condition, on the happening of which the estate was to vest in K.’s children, but as a limitation which, to the extent of $1,000, would diminish the estate so given if the event happened; and hence the fact that M. died without having been married and without issue did not create an intestacy as to the remainder of testator’s estate so as to entitle plaintiff to share therein.
    [Ed. Note. — For other cases, see Wills. Cent. Dig. §§ 1464 — 1480, 1486, 1487; Dec. Dig. § 630.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Annie L. Lewis against John C. Walker, as executor, and others for the construction of the will of Charles Nolan, deceased. Decree for defendants, and plaintiff appeals.
    Affirmed.
    Van Velzer & Lewis and Gillaspie & Crawford, all of Houston, and Kleberg & Neethe, of Galveston, for appellant. Taliaferro & Armstrong, of Bryan, and Jas. B. & Chas. J. Stubbs, of Galveston, for appellees.

      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

This suit was instituted by John C. Walker,.sole surviving executor under the will of Charles Nolan, deceased, against James O. Kernole, J. C. Kemole, Mrs. Willie D. Wilson, and her husband, Ben C. Wilson, Charles H. Knoblaugh, minor, and Charles F. Knoblaugh, guardian of said minor, Annie L. Lewis, a widow, and Wiihelmi-na C. Nolan, the widow of Charles Nolan, praying for a construction of the will of Charles Nolan, which reads as follows:

“The State of Texas, County of Galveston:

“I, Charles Nolan, a resident of said state and county, being of sound mind and body, but knowing the uncertainty of life do hereby make this my last will and testament.
“(1) I hereby nominate and appoint as the executors of this my will, and also as trustees to carry out and execute the trusts herein provided and created, John C. Walker of Galveston, Charles Allen of Harris county and H. Kernole of Bryan, Brazos county, Texas, and direct that they shall not he required to give bond on security.
“(2) I direct that after my death all my property and shares in property real personal shall be kept undivided and together with the community share of my wife Williamina Nolan while she may remain a widow, but in ease my said wife should marry again, I direct that a division of all the community property of my said wife and myself, shall be divided at once and that all my share of the same shall be immediately vested in my said trustees who shall hold the same in trust, which trusts shall be executed in accordance with the provisions of this my will.
“(3) In case my wife should desire to sell any portion or portions of the lands of the community estate during her widowhood, I direct that she shall first submit the terms of such proposed sale or sales to my executors, or to those of them surviving, and if the said executors agree that such a sale or sales are for an adequate price, they shall join with my said wife in a deed or deeds, so as to make full and perfect title to the purchaser or purchasers of said property, and my share of the proceeds of all such sales shall be received by my executors and trustees, and by them held in trust as by this my will, provided.
“(4) I direct that my executors shall employ a competent man to manage and preserve my stock interests and I hereby authorize and empower my wife, Williamina Nolan, to sell and dispose of all steers and other cattle proper and suitable for sale on the market, without consulting my executors, such sales nQt to authorize her to dispose of cattle necessary for keeping up the stock. My said wife shall keep and render accounts to my executors of all such sales, and she shall immediately upon making any sale of cattle, pay over to my executors my share of the net proceeds of sale which money shall be held by my said executors and trustees upon the trusts herein provided.
“(5) I direct that my executors shall make annual divisions of the net income of the community estate of my said wife and myself, so long as said community estate may remain undivided my said wife to take her share of the same, and I direct that my executors and trustees shall take and hold my share of such income, upon the trusts herein provided and created.
“(6) I devise, give and bequeath to my said trustees, John G. Walker, Charles Allen and H. Kernole to be held in trust all my real and personal property, excepting fifty dollars, said property to include all that I now possess consisting of lands and tenements, horses, cattle, money in bank, stocks, bonds and all other property whatsoever which I may have or be entitled to at the time of my death, and I will and direct that my said executors shall take possession of the same upon the death of my wife, or whenever a division of the said community property may be made. My said trustees shall keep in bank or invested in the safest securities to be obtained all money coming into their hands from the sale of any property, or income of any description, and they shall hold the same in trust during the life of my daughter, Mary Virginia Nolan, and out of such trust funds they shall pay to my said daughter, Mary Virginia Nolan, monthly, a sum necessary for her support not to exceed seventy-five dollars per month.
“(7) In case my daughter, Mary Virginia Nolan, should die leaving surviving her a child or children, it is my will, and I hereby devise and bequeath to such child or children, the whole of my property and estate remaining in the hands of my said trustees after the death of said Mary Virginia Nolan. In case Mary Virginia Nolan should die leaving a husband but no children surviving her, I will and bequeath to her husband one thousand dollars, and I will, devise and bequeath in such case all the residue of my property to the children of H. Kernole of Bryan, Brazos county, Texas, share and share alike, and direct that my said trustees pay over the same to them.
“(8) I give and bequeath to my daughter, Anna L. Lewis, the sum of fifty dollars to be paid to her by my executors out of the first money which may come into their hands.
“In testimony whereof I have .hereto subscribed my name in the presence of Chas. L. Flake and M. E. Kleberg, attesting witnesses, who sign this, my will, in my presence and in the presence of each other, at my request on this, the 31st day of August, 1886. C. Nolan.
“Attesting witnesses: M. E. Kleberg. Charles L. Flake.”

Charles Nolan died in January, 1906, leaving surviving him his wife, Wilhelmina Nolan, and two daughters, Mary Virginia Nolan and Mrs. Annie Lewis. The property mentioned in the will was community property. One of the trustees mentioned in the will, Henry Kernole, died prior to Nolan’s death, while Charles Allen, another trustee, died several years after the death of Nolan, but before this suit was brought. The will was probated in 1906, and Charles Allen and John C. Walker qualified as executors and, acting also as trustees, took possession of the estate and jointly executed the trust until Allen died, since which time Walker has been acting as sole trustee and executor. Annie L. Lewis, joined by her husband, E. T. Lewis, filed a contest of the will in the county court, all parties, including the children of Henry Kernole, appearing in same, which contest was compromised and settled by agreement of all parties and approved by the court; the sum of $12,000 being paid out of the estate to said Annie L. Lewis, who, joined by her husband, executed and delivered to said Allen and Walker, as executors and trustees under the will, a conveyance, reciting that the $12,000 was paid out of Chas. Nolan’s estate, and conveying all of the right, title, interest, and claim, whether present or future, vested or contingent, of said Mrs. Annie Lewis in and to the estate of Charles Nolan, including all of the expectancies, reversions, and remainders of every kind and description which she or any person claiming by, through, or under her might then have or thereafter become entitled to, also any claim or right she then had, or thereafter might have, by reason of any lapsed or void provisions, legacies, or bequests in the will, or by reason of there being at any time no person to take said estate. It is further provided that Mrs. Lewis estops and bars herself, her heirs and assigns, from claiming any of the assets of said estate from any source whatsoever, and that the executors and trustees are to distribute the same in accordance with the terms of the will, or if that be impossible, or if at any time any of the provisions of the will lapse, fail, or be uncertain, they shall at all events deliver and distribute said estate to the children of H. Kernole, their heirs or assigns, and, if there be none, then to the persons entitled to receive the same under the law, other than Mrs. Lewis, her heirs or assigns.

This instrument is dated July 7, 1906, duly acknowledged by Mrs. Lewis and her husband, and on July 9,1906, the probate court, in which the contest of the will was pending, entered an order reciting that all parties had agreed to the compromise and confirming the same.

Mary Virginia Nolan died March 2, 1911. She never married and had no children. Her physical condition was fairly good, but mentally she was weak. Charles Nolan’s will was made shortly after the marriage of Mrs. Lewis. Nolan and his wife were displeased on account of her marriage. She did not visit her parents for about 18 months aft-ter her marriage, because she married against her father’s wishes, but after that visited them occasionally, at one time staying five weeks. ’She testified her father was a “little cool” towards her.

John C. Walker, executor, was the confidential attorney' and adviser of Charles Nolan from 1877 to the time of his death, and while Nolan was on his deathbed Walker was sent for and-asked Nolan if he wanted any writing done of any kind respecting his will or anything else, to which Nolan very positively replied that he did not, that he did not want to change anything.

Henry Kernole was a brother of Charles Nolan. They were orphans, reared by different people, and one of them took the name of the people with whom he lived.

Mrs. Wilhelmina C. Nolan left a will, dated March 25, 1911, probated November 22, 1911, wherein she bequeathed to Mrs. Lewis $5,000 for herself, and $4,000 in trust for such child or children of said Mrs. Lewis living at the time of testatrix’s death, and the residue to Mrs. Mary B. Walker, who, for $30,000 paid her out of the estate, conveyed to Mrs. Lewis all property and rights acquired by said Mrs. Walker under said will.

Upon these facts, the trial court held that upon the death of Mary Virginia Nolan, leaving neither husband nor children surviving her, the will vested title to the residue of Charles Nolan’s estate in the children of Henry Kernole, and decreed that the executor pay such residue in equal shares to James O. Kernole, J. C. Kernole, Mrs. Willie D. Wilson, and Charles P. Knoblaugh, guardian of Charles H. Knoblaugh. Mrs. Annie L. Lewis duly perfected an appeal from said judgment.

By the' first assignment of error it is contended the court erred in not holding that the will of Chas. Nolan lapsed upon the death of Mary Virginia Nolan, and that the property in the hands of Walker, as executor and trustee, vested in Mrs. Annie L. Lewis as heir at law and next of kin of said Chas. Nolan.

The particular paragraph of the will which is the bone of contention in this case is the one reading as follows: “In case my daughter, Mary Virginia Nolan, should die leaving surviving her a child or children, it is my will, and I hereby devise and bequeath to such child or children the whole of my property and estate remaining in the hands of my said trustees after the death of said Mary Virginia Nolan. In case said Mary Virginia Nolan should die leaving a husband, but no children surviving her, I will and bequeath to her husband one thousand dollars, and I will, devise and bequeath in such case all the residue of my property to the children of H. Kernole of Bryan, Brazos county, Texas, share and share alike and direct that my said trustees pay over the same to them.”

We quote, from Simpkins on Administration of Estates in Texas, the following tersely and accurately expressed rules for the construction of wills: “The first and primary rule is that the court must discover the intention of the testator, as expressed in the words of the will. All other rules are subordinate. * * * The intention must be reached by considering the whole will as an entirety, and not by any special clause independent of the others, and any special intent evidenced by a clause in the will, if inconsistent with the general intent, the latter must prevail. * ⅞ * Again, in reaching intention, we must put ourselves in the place of the testator, with all of his surroundings, where any ambiguity of expression is to be solved. It is a .light which may be often used effectively in place of applying arbitrary rules. Assuming the testator’s place, we can discern intention by implications that appear, though not expressed, and which the testator has assumed were understood. * * ⅝ In construing wills the presumption is that the testator intended to dispose of the whole estate. If the language can be so construed, the court will prevent a partial intestacy.”

The above rules are well settled, but various other rules have been applied, which, when treated as absolute, have sometimes defeated the will of the testator, and the tendency now is to consider the language of each will carefully as well as its general purpose, and the circumstances surrounding the testator and known to him at the time he made the will, and from the same determine his intention as expressed in the will.

In the present ease the testator was incensed at his daughter Annie at the time he made his will, because of her marriage, and thus had a motive for disinheriting her. Intending to give her $50, he deducted same from his estate in the clause in which he vested the remainder in certain trustees. He then provided that if Mary left children they should take all of his estate remaining in the hands of the trustees. Then, after providing for the contingency of Mary having no children, he does not turn to Annie for the purpose of giving her the estate but uses the clause wherein the Kernole children are mentioned, and in the very next words provides that Annie shall receive $50. He apparently wanted it distinctly understood that he had not overlooked his daughter Annie and therefore willed her $50, an amount so insignificant when compared to his estate that it shows clearly he did not care to lighten life’s burdens for her by giving her any appreciable portion of his ample estate. If he intended that she should have more than $50 under any circumstances, it cannot be understood why the leaving of a husband or children by Mary could have induced him to disinherit her. The conclusion is irresistible that there was a general intention on the part of the testator that his daughter Annie should receive no more than $50 out of his estate. By such will H. Ker-nole is made one of the trustees and executors, which evidences the fact that testator had confidence in his brother and shows that he was on good terms with him, because it is not the usual or customary thing for people to appoint, as executors or trustees, persons with whom they are not on good terms. If he felt kindly enough towards his brother to appoint him one of the executors and trustees, he undoubtedly felt kindly enough towards his brother’s children to act sincerely and in good faith towards them, and it cannot be conceived that he would be very generous to them provided Mary left a husband but would give them nothing if she left no husband • surviving her. If there should be no husband, there would be all the I more reason for giving the estate to the Ker-noles (if he did not want Annie to have it), and a construction, which leads to the absurd result of making a contingency operate against the Kernoles which should operate in their favor, should not be adopted if it can be avoided. Appellant’s counsel suggest that the devise to the Kernole children may have been in a spirit of irony, because based upon an almost impossible event, but this suggestion cannot be adopted by reason of any of the surrounding circumstances or by reason of any provisions of the will. To so conclude, we would have to believe that testator did not feel kindly towards the children of his brother whom he appointed as executor and trustee. If he expected his brother to guard the interests of his afflicted child through the years of her life, he certainly would not be so unkind as to make a devise to his brother’s children in a spirit of irony believing it would never become effective. It is much more probable that having decided to make the Kernole children his residuary devisees, and believing it highly probable they would receive the estate, he deemed it wise and proper to appoint their father as one of the executors and trustees so that some one directly interested in preserving the estate would be in a position to actively participate in the investment and management thereof.

The general intention of the testator, gathered from the will and surrounding circumstances, is that his daughter Annie should receive $50 and no more, and in order to carry out such intent, the other daughter being mentally afflicted, and it being, as appellants say, “beyond the comprehension of testator that she could lawfully contract marriage, and equally improbable that she should have any children,” he turned to his brother’s children as those to whom the estate should ultimately go, if Mary should die without issue. This general intent being manifest, it seems clear that the testator thought of and expressed the ease of there being a husband only with reference to the $1,000 he desired him to have, and not as a condition or contingency upon which the gift to the Kernoles was to depend. In other words, the existence of the husband was no inducement to make the gift to the Kernoles, and the testator did not recognize it as such but intended that if such event transpired the Kernoles should not take all the estate, because $1,000 would then go to the husband.

It is, however, contended that, owing to the peculiar wording of the seventh section of the will, it must be held that the testator gave the Kernoles only a balance remaining after the $1,000 was deducted and conditioned upon the double contingency of Mary dying without issue and leaving no husband, and that the failure to provide for the contingency of there being no husband is a casus omissus, something which had not occurred to the testator and was not provided for. Sometimes contingencies happen which did not occur to the testator and which are therefore unprovided for, but in this ease the contingency of Mary never marrying must have occurred to the testator, on account of her mental condition, and was present in his mind when he wrote the will. As the testator undertook to dispose of his entire estate, it is not reasonable to suppose that he intended to die intestate upon a contingency which he had in mind as not only possible but probable. It follows that we must presume that the testator did not wish such contingency to render him intestate, and that he made provision against such intestacy; and, if by any construction of his will, aided by implication, • it can be determined that he expressed such intention, we should uphold and give effect to the same. If no one takes under the will because Mary had no husband, then the testator is charged with the intention of rendering himself intestate upon a contingency which he knew was not only possible but probable. Mr. Redfield says: “The fact that the testator makes no provision in regard to the disposition of his estate, provided the event named for the devisee coming into full possession never occurs, shows very satisfactorily that it was not-in the mind of the testator to create a contingent estate, since the very fact of doing so would suggest the propriety of some provision for the disposition of the estate, in the event of that contingency not happening, as no one leaving a will would purposely leave property undisposed of.” In Metcalf v. Framingham Parish, 12S Mass. 370, the court said: “If the reading of a whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication and so mould the language of the testator as to carry into effect, as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.” This language is quoted with approval by the Court of Civil Appeals for the Fifth District in the case of Sanger v. Butler, 45 Tex. Civ. App. 527, 101 S. W. 459, also by the Supreme Court of the United States in the case of Robinson v. Portland Orphan Asylum, 123 U. S. 702, 8 Sup. Ct. 327, 31 L Ed. 293.

In the case of Connor v. Gardner, 230 Ill. 268, 82 N. E. 643, 15 L. R. A. (N. S.) 79, the Supreme Court of Illinois, in speaking of devises by implication, said: “A gift is made without any express words of gift, if an intention to give clearly appears from the will as a whole. Rood, Wills, § 495. A devise upon implication cannot rest upon conjecture ; but it is not required that the inference should be absolutely irresistible. It is enough if the whole circumstances, taken together, afford such an inference as leaves no doubt in the mind of the judge- who has to decide as to the intention of the testator.”

We think the general intention to make the Kernole children his devisees in case Mary dies without issue is so manifest that it necessarily follows, under the rules considered by us herein, that the bequest to Mary’s husband, should there be one, must be construed, not as a condition upon the happening of which the estate was to vest in the Kernoles, but as a limitation which, to the extent of $1,000, would curtail and diminish the estate given the Kernoles if the event happened. Appellant’s counsel contend earnestly that we cannot do this, and support their position with very lengthy arguments which show great research as well as marked ability in applying the rules laid down in the many cases they have examined. When the language of section 7 alone is considered in the light of many of the cases cited by them, there appears to be much force in their contention that intestacy results as to all the estate except the $50; but, when we put ourselves in the place of the testator at the time he made the will and consider the entire will, the conviction is forced upon us that, were we to adopt appellant’s construction of the will, we would destroy the intention of the testator. Many of the cases relied upon by appellant are cases in which the estate was vested and was to be divested upon the happening of certain events, and in such eases the rule that the law favors the vesting of estates has been relied upon to justify a strict construction of the language, and the consequent requirement that all conditions be literally fulfilled before the estate could be divested. Where the estate has vested under the will, the courts are not confronted with the presumption against intestacy, to which great weight has always been given in construing wills. However, we do not agree-that in all the cases of this character cited by appellant the courts have arrived at the-intention of the testator by applying the rule favoring the vesting of estates.

The next four assignments relate to the same matter as the first and are overruled-for the reasons given for overruling the first. The judgment must therefore be affirmed, and it is unnecessary to decide whether appellant is precluded from recovering by reason of the conveyance made by her to the executors.

Judgment affirmed.


author: HALL, J.

text:
    HAMMEL v. BENTON et ux.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1913.)
    1. Deeds (§ 70) — Validity—Misbepeesenta-tions — Actions—Defenses.
    In an action to set aside a conveyance of property vAieh was made on account of defend-

      ant’s misrepresentations as to the contents of the contract and as to extraneous matters, it is no defense that plaintiff, by diligence, might have discovered the falsity of the representations.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. § 70.]
    2. Trial (§ 252) — Instruction.
    In a suit to set aside a conveyance of property on account of defendant’s fraudulent misrepresentations, where there were a number of such representations relied on, an instruction submitting to the jury the bare abstract principle that, to affect a contract, fraudulent misrepresentations must relate to a material matter on which a party relied to his injury, and that, if the means of information were equally accessible to both parties, the party relying on the representations must abide the consequences of his own negligence, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    3. Appeal and Error (§ 1001) — Review-Findings.
    Where there is evidence to sustain all the issues submitted to the jury, their verdict is conclusive as to its sufficiency.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    4. Trial (§ 260) — Instructions—Refusal.
    The refusal of instructions covered by those given is proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]
    5. Trial (§ 331) — 'Verdict— Sufficiency.
    A verdict is not so uncertain that it will not support the judgment where any uncertainty in its terms is made clear by a reference to the rest of the record.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 783; Dec. Dig. § 331.]
    Appeal from District Court, Gray County; L. C. Barrett, Special Judge.
    Action by J. T. Benton and wife against H. J. Hammel and another. From a judgment for plaintiffs, defendant Hammel appeals.
    Affirmed.
    R. M. Vaughan, of Hillsboro, and Ewing & Dial, of Miami, for appellant. Crudgington & Works and Lloyd Fletcher, all of Amarillo, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellee filed this suit against I-I. J. Hammel and G. M. Counts on the 31st day of July, 1912, for the purpose of rescinding a trade, and prayed in the alternative for damages.

In an amended petition, plaintiff alleged in substance that appellee J. T. Benton entered into a written contract with H. J. Hammel and G. M. Counts, whereby plaintiff agreed to convey to the defendants section 85, block M — 2, in Gray county, Tex., together' with the rents from the wheat and oat crops thereof for the year 1912 (except a block of 40 acres), also a half interest in a secondhand Deering Header, and other personal property, and in consideration of said conveyance the defendant Hammel agreed to convey to plaintiff sections 9, 10, 15, and 22, in block B — 12, free school land in Winkler county,

Tex., and in addition thereto to pay plaintiff $3,000 for said property. It was further alleged that defendant agreed to pay $2,000 for immediate possession of plaintiff’s property in Gray county; that in compliance with the contract the said Hammel, on or about the 2d day of April, "1912, conveyed to the said Benton the land in Winkler county, and on or about the 15th day of April Benton conveyed to Hammel the Gray county property, and in connection therewith Hammel caused to be paid to plaintiff $1,130 in money, and executed vendor’s lien notes against said section 85 aggregating $1,870, making the total difference of $3,000; that Counts was the agent of Hammel in the trade; at the time of the exchange and transfer of property plaintiff resided in Gray county, about 350 miles from Winkler county; that he was wholly ignorant of land values in that vicinity; that defendant Counts accompanied plaintiff, Benton, from Gray county to Winkler county, where, together with Hammel, plaintiff, Benton was shown the land; that Counts and Hammel took plaintiff Fo a certain stake in Winkler county which defendants represented to be the center or common corner stake of all four of said sections, and that they represented to plaintiff that four sections lay in a solid body, and in the form of a square, two miles each way; that the north line of said four sections was located about one-fourth to one-half of a mile north of the house located on the land, and some distance south of a range of sand dunes extending east and west across the neighborhood, and also in pointing out to plaintiff the four sections of land, as they lay on the ground, included certain desirable lands of a better grade than any other included in said sections conveyed to plaintiff by Hammel; that plaintiff was ignorant of the actual location of said four sections; that defendants knew this fact, and that plaintiff was further wholly dependent upon defendants for information in regard thereto; that in truth and in fact said four sections of land did not lay in a square; that sections 10, 15, and 22 formed a rectangle, extending three miles from north to south, and one mile from east to west, and section 9 joined section 10 on the west, whereby said land lay in the form of an inverted L or figure 7, being two miles across the north end, and three miles on the east side; that about one-half of section 10 and one-fourtli of section 9 was in sand dunes and mounds, and, that the same was practically worthless; that section 16, block 12, of said land, which was not conveyed to plaintiff, and which lies in the L made by the west line of section 15, the south line of section 9, and which contained some of the best land pointed out by defendants to plaintiff, as being a portion of the land sold, was not at all owned by said defendants, or either of them; that the defendants •were with plaintiff upon section 16, block 12, of said land, and stated and represented to plaintiff that said section was a part of the four sections of school land proposed to be traded to plaintiff; that section 22, which was pointed out by the defendant to plaintiff, which lies south of section 15, was largely made up of sand dunes, and mounds, and rock points, and is much poorer and cheaper land than section 16; that at the time of the making of said trip of inspection the defendant Counts claimed to be in a great hurry to go. to Hale county to look after his children, claiming that his wife had recently died, and urged plaintiff to close said trade without taking time to investigate said land values, or. inquiring as to the same in that neighborhood; that, in order to accommodate the said Counts, plaintiff did close said deal without taking time to inquire as to land values, which otherwise he would have done; that on said inspection trip defendant represented to the plaintiff that said land which they were selling was of the value of more than $5 per acre bonus above what was due the state of Texas, and that the plaintiff had reposed the greatest confidence in defendants, and each of them, in regard to the statements made concerning the desirability, location, and the price of said lands to the state; that said land contained the roots and turf of wild alfalfa, which grew up in the spring and made the most desirable pasture; that the defendants also represented that about two weeks prior to the date of said trade surveyors had been down over a portion of said land for the purpose of surveying out a prospective railroad, and that arrangements were being made for the building of same, which would greatly enhance the value of the land. Plaintiff alleges that in truth and in fact no surveyors had been over said land, and no arrangements had been made for building any railroad. It is further alleged that the defendants represented that the soil of said land was fertile, was from two to six feet deep, and very productive, and that the soil' rested upon a day foundation; that in truth and in fact said land was not fertile, and the soil not of the depth represented; that defendant represented to plaintiff that there was not exceeding 200 acres of sandy land on the entire tract, while in truth and in fact about 1,000 acres of such land was practically worthless; that the value of the land sold by defendant to plaintiff did not exceed $1 per acre bonus above the amount due the state; that it did not lie in a square, but in an L shape; that section 16 was not included in the sale, and that in the absence of any prospective railroad the shallowness, unfertility, nonproductiveness of the soil, and the injured condition of section 22, by reason of the cattle passing over and across it frequently, reduced the value of said land very greatly; the land as actually pointed out as covered by said trade would not exceed $2 per acre bonus above what was due the state, and that plaintiff’s land in Gray county at the time of said deal was reasonably worth $25 per acre; that defendants represented to plaintiff that there was not exceeding an average of $2 per acre due the state of Texas for said land, and that the deal was entered into upon -that basis; that in truth and in fact there was due the state of Texas $4.25 per acre on sections 9 and 10, and $3.25 on sections 15 and 22, or an average of $3.88 per acre; that, if plaintiff had known the true form in which said land lay, the true amount due the state, the market value thereof, the nature, kind, and condition of the soil, he would not have made said deal; that he was induced to make the trade by the false and fraudulent representations above set out, and by reason thereof the title to their property in Gray county, together with the rents and personal property, has never passed from him.

It is further urged that, in addition to the frauds and representations above set out, there also entered into the making of said contract a mutual mistake as to the amounts to which plaintiff was entitled, in this : That at and prior to the execution of the written contract of sale, in their negotiations in regard to the exchange of property, it had been agreed that plaintiff’s Gray county land should be estimated in the trade at $25 per acre, a total of $16,000, and that said items of personal property and said grain rents were to be figured in with said land at that price; that said Winkler county land should be figured in at $5 per acre, or a total of $12,800; that, deducting the sum of $3,450, the amount of indebtedness against plaintiff’s land, would make the net value some $12,550, or practically the same as said bonus price of said Winkler county land, and, figured at this price, defendant I-Iammel would pay $3,-000 for grain rents, personal property, etc., which would be done by the payment of a note to the bank of Miami, for $630; that they should pay plaintiff $500 in cash, and execute three notes for $633.33⅛ each, which makes a total of $3,000 difference; that the immediate possession of the Gray county land carried with it plaintiff’s dwelling house, about 150 acres of land in cultivation, together with pasture lands, and plaintiff should have $2,000 additional, or a total net consideration of $17,550. It was further alleged that they agreed all said stipulations should be reduced to a written contract which should contain all matters agreed upon; that defendants prepared first a preliminary memorandum of agreement, and later a full and complete contract, which was acted upon as a final agreement between the parties; that, in the drawing and preparation of said contracts, defendant intended to embody and have embodied therein all stipulations and agreements entered into during said trade by which the plaintiff should have a difference of $3,000 between equities in said property, and, in addition thereto, $2,000 for immediate possession; that, by mistake and oversight of the draftsmen in drawing said contract, no consideration was figured in for immediate possession, but both the plaintiff and defendants executed and signed the contract, believing that said stipulation as to immediate possession was figured therein; that, in the hurry to sign said contract, neither of the parties observed the mistake, and that plaintiff would not have signed and entered into said contract if he had observed the mistake, which they say is mutual; that, should the plaintiff be mistaken in regard to the mutual mistake, then he alleges that he was induced to sign the contract, as well as the preliminary draft thereof, by and through the fraudulent acts, misrepresentations, and statements of the defendants, in this: That on the night preceding the preparation and execution of said complete and final contract of sale the defendant drew up a preliminary or brief contract, and in connection therewith made all of the figures in determining the provisions of the contract after the same had been fully agreed upon; that plaintiff left the making of the figures to defendant, the same being done at night in defendant’s home, with only one light, and that plaintiff was unable to read or make figures at night by candlelight without great effort, and that he had reposed in defendants full confidence in the drawing of the contract, and relied implicitly upon their honesty and fair dealing; that, in the preliminaries of the making of said contract, the defendants made the figures and calculations in a way to eliminate from the total result the $2,000 that plaintiff was to have for immediate possession of the premises, making it appear by their figures that, although the written contract did not include the $2,000, yet the net result of the figures made resulted to plaintiff’s benefit; that they falsely and fraudulently represented that the net result of their figures and the reading of the contract as prepared by them secured the plaintiff the full consideration, notwithstanding said statements therein as to said amounts due the state of Texas on the Winkler county land, the amount due the plaintiff on Gray county land, the debt to be paid the bank, the notes to be executed, the cash to be paid, etc.

Mrs. Maggie Benton alleged that she is the wife of the plaintiff, J. T. Benton, and that the Gray county land, at the time of the preparation of the contracts of sale, was their homestead, and set out her homestead rights therein, electing out of the 642 acres 200 acres described in the petition, by metes and bounds; that, as soon as the trade was made, plaintiff, with his family, moved to Winkler county, where they resided until they discovered the frauds, at which time they abandoned the same, and moved to Gray county, and thus in moving they incurred an expense of about $400. It is alleged that the defendant Counts participated in all the false and 'fraudulent representations and deceits practiced on plaintiff, and was a confederate of the defendant Hammel, by reason of which defendants are jointly and severally liable unto plaintiff. Plaintiff further alleged tha't he tendered in open court a deed recon-veying to defendant Hammel the Winkler county land, with possession thereof, and that he offered to repay the money received by him in said dealing. Plaintiff prayed for judgment canceling the sale and exchange of the property between the parties, the recovery of the title and possession of his lands in Gray county, and the personal property, and $400 damages in moving to and from Winkler county.

The defendants answered with a general demurrer and general denial, specially pleading that the contract was entered into April 1, 1912, between the parties, declaring upon the same in full; that the same was dictated by plaintiff and the defendant Counts to defendant Hammel, and that defendant Ham-mel reduced the same to writing. G. M. Counts declared that he had no interest in any part of the sale except as an agent for defendant Hammel, and that he signed the same only as the agent of Hammel; that, after the execution of the memorandum of agreement, the parties proceeded to the office of an attorney at Midland, Tex., who, by agreement, drew the contract as stated in plaintiff’s petition. Defendant further averred that the contract was duly and legally acknowledged by Hammel, Benton, and Counts at the time of its execution, at which time the plaintiff, Benton, executed his applications for the purchase of sections 9, 10, 15, and 22, addressed to X T. Robinson, Commissioner of the General Land Office, which applications set out the amount due per acre on the land, and were forwarded at the expense of plaintiff, Benton, to the Commissioner of the Land Office, where they were filed on May 8, 1912; that, in pursuance of these applications and obligations, the said plaintiff made his proof of occupancy on said land on the 4th day of May; that the defendant Hammel kept and performed all and singular the terms and covenants in said contracts contained; that the trade of the personal property was an independent and separate trade from the exchange of the land.

On April 10, 1913, the plaintiff filed its first supplemental petition, which consisted of a general demurrer, general denial, and special plea, to the effect that, at the time the plaintiff, Benton, signed the applications and obligations to the state, the same was done in connection with and as part of the scheme and device to cheat, wrong, an 1 deceive plaintiff, as alleged in his amended petition, and that said acts of fraud and deceit were imposed while the plaintiff was under the influence of the defendants, as shown in the petition. It is further alleged that plaintiff, Benton, discovered the frauds only a short time before the required three years of occupancy, and that -they remained on the land only for the purpose of protecting defendants in the premises. It is also further alleged on the part of plaintiff Mrs. Maggie Benton that she claimed a homestead on the Gray county land.

On the 10th day of April, 1913, the case was tried before a jury, resulting in the following verdict: “We, the jury, find for plaintiffs, and against defendant H. J. Hammel, that the contracts in question he rescinded and canceled. We also find damages in favor of plaintiffs to the amount of $630.00 and $500.00, and interest balancing said two amounts mentioned in the pleading and in the charge of the court we find for G. M. Counts, one of the defendants.” Upon this verdict, judgment was rendered canceling and rescinding the contract.

The first assignment briefed insists that the court erred in not instructing the jury that J. T. Benton was bound to know the contents of the contracts and obligations if he signed the same without reading them, and that, having failed to read them, he could not be heard to complain that the stipulation for the payment of $2,000 for immediate possession of the Gray county land was omitted, and that the price per acre due the state of Texas as stated in said obligations was greater than as represented by defendants. A special charge was asked by defendants to this effect. The plaintiff alleged fraud, misrepresentation, and mutual mistake in the execution of the contracts and obligations, and alleged facts showing a want of opportunity to inform himself as an excuse for failure to examine into the facts; alleged confidence in the. vendor, which, we think, warranted the court in refusing to give the special charge. A person injured by false representations of another is not bound to exercise diligence to discover the falsity of the representation, but, in the absence of knowledge to the contrary, is entitled to rely and act on the ■ statements of the wrongdoer. Western Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061. One induced by reliance on false representations to enter into a contract is not precluded from defeating its enforcement by the fact that by ordinary diligence he could have discovered their falsity before acting upon them. Hall v. Grayson County National Bank, 36 Tex. Civ. App. 317, 81 S. W. 762; Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Holstein v. Adams, 72 Tex. 485, 10 S. W. 560. The first and third assignments, relating to the same general question, are overruled.

The second assignment is predicated alone upon the fraudulent misrepresentations alleged to have been made by the defendants as to the amounts due the state of Texas on | the Winkler county lands, and complains of the court’s refusal to give special charge No. 2. The special charge appears nowhere in the assignment, and the substance of it is stated as follows: “By said charge the defendant requested the court to instruct the jury that fraudulent misrepresentations, to effect a contract, must relate to matter material to it, and in regard to which the other party had a right to rely, and did rely to his injury; but, if the means of information as to the matters represented were equally accessible to both parties, they will be presumed to have informed themselves, and, if they did not avail themselves of such opportunity, they must abide the consequences of their own negligence.” This charge is simply the statement of an abstract principle of law, without informing the jury of its application to the issues. The court should apply the law declared in its charge to the issues, and a failure to do so in this case might result in injury. There are many false representations alleged, and which the evidence tends to' sustain, and the jury should not have been permitted to apply the principle announced in the special charge to any of the representations set out. The court did not err in refusing this charge. Hayward Lumber Co. v. Cox, 104 S. W. 403; Prentice v. Security Go., 153 S. W. 925; Byars v. Maxwell, 22 Tex. Civ. App. 269, 54 S. W. 789; Brockenbrow v. Stafford et al., 76 S. W. 576; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. This assignment has not been properly briefed, in that the requested charge refused has not been copied into the statement. Parker County v. Jackson, 5 Tex. Civ. App. 36, 23 S. W. 924; Holton v. Railway Go., 31 Tex. Civ. App. 128, 71 S. W. 408; Horseman v. Coleman County, 57 S. W. 304; Armstrong v. Elliott, 20 Tex. Civ. App. 41, 48 S. W. 605, 49 S. W. 635.

By his fourth assignment, appellant insists that the evidence of misrepresentation and fraud by defendants raised only one issue, that is, as to the actual location of the land purchased, and that the court should not have instructed upon any other issue. This assignment cannot be sustained/ There was some evidence to sustain each issue submitted to the jury. The question of its sufficiency is concluded by the judgment.

The fifth assignment complains of the refusal of the court to give special charge No. 6, requested by appellant. The substance of this charge is given in paragraph 3 of the main charge.

The sixth and seventh assignments are to the effect that the verdict is uncertain, and cannot support the judgment. By reference to the record, any uncertainty that may exist in the verdict is made clear. The plaintiff’s pleadings and the charge of the court upon the items for $630 and $500 mentioned in the judgment explain fully what the finding of the jury is with reference to them, and that they did not credit on said payments any amount as they were permitted to do under section 7 of t?ie court’s general charge.

Plaintiff’s assignments of error in this case recite at great length the evidence bearing upon the point urged in the assignment. Statements from the record of evidence, either verbal or written, tending to throw light upon the assignments should be set out in the statement following the proposition. Appellee has objected to the consideration of some of the assignments; hut we have disregarded the objection when we feel that possibly the assignment should have been disregarded.

Finding no reversible error in the record, the judgment is affirmed.