text:
    CITY OF FT. WORTH et al. v. CAPPS LAND CO.
    (No. 8879.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 11, 1918.)
    1. Constitutional Law <@=3316 — “Due Process of Law” — Charter Provisions — Right of Appeal.
    A charter provision for an appeal within 10 days from the. order of city commissioners overruling the protest of a property owner to a paving improvement did not constitute a taking of property without due process of law, in violation of Const, art. 1, § 19.
    [Ed. Noté. — For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]
    2. Appeal and Error <§=>2 — Right to Appeal-Constitutional Limitations.
    The Legislature cannot take away the right to appeal given by the Constitution, although it may enact rules of procedure limiting the exercise of the right, and may increase, diminish, or change, civil or criminal jurisdiction.
    3. Municipal Corporations <®==>568(2) — Public Improvements — Suits to Recover Payment — Evidence.
    In proceeding against a property owner to recover the cost of a paving improvement, the certificate of special assessment was admissible as part of the plaintiff’s cause of action pleaded.
    4. Municipal Corporations <@=^444 — Public Improvements — Submission of Engineer’s Report.
    That a delay of 7 months occurred between the making of a contract for street paving by the board of commissioners and the submission to the board of the engineer’s report was not a jurisdictional defect, .and did not deprive a property owner of his rights as to notice of the character and extent of the burden to be placed on his property.
    5. Municipal Corporations <S=>295 — Public Improvements — Entry of Formal Judgment.
    Where a city charter does not provide that a judgment of the board of commissioners of a city providing for a street improvement shall be entered on the minutes, the failure to enter such formal judgment is not conclusive that it was not in fact rendered.
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Suit by the City of Ft. Worth and others against the Capps Land Company. From a decree for defendant, plaintiffs appeal.
    Reversed and remanded.
    D. W. Odell,, of Ft. Worth, L. M. Dabney, of Dallas, and W. W. Wilkinson, of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short, and Robert Sansom, all of Ft. Worth, for appellee.
   BUCK, J.

This suit was instituted by appellant, city of Ft. Worth, for the use and benefit of the Texas Bituli'thic Company, a private corporation, to recover of appellee, a corporation, a special assessment levied against it by said city of Ft. Worth, in the sum of $1,043.75, its pro rata part of the cost of the paving of Jennings avenue between Berry and Shaw streets, in front of lots 7 to 12, inclusive, in block 35, South Hemp-Mil Heights addition to the city of Et. Worth. ' Appellant, plaintiff below, alleged that it ordered the improvement of said portion of Jennings avenue, that specifications were ordered, prepared, and were approved by the city commissioners, bids advertised for and contract entered into with the Texas Bitulithic Company, notice given to property owners, and an ordinance passed levying and assessing the special assessment against the lots mentioned and against the appellee company ; that said work and improvement was completed and was accepted by the city and said assessment became due and payable within 30 days after said acceptance. Defendant answered by general demurrer, by special exceptions, and by general denial, and by various special pleas to the merits. It alleged that William Capps was the president and general manager of defendant corporation, and the only person authorized to transact the business of said defendant; that when approached by a representative of the paving company with a request that he, acting for defendant, sign a petition to- the board of commissioners of the city of Ft. Worth requesting that Jennings avenue between Shaw and Berry streets be paved, said Capps refused to sign said petition, and advised said representative of the paving company that he did not deem it advisable to have the street in front of the lots owned by appellee paved, as said lots were low, and not desirable .for residence purposes; that there were very few houses in that part of the city; that the lots were intersected by a ravine, and abutted in the rear on the railroad right of way; that the lots, because of their location and character, would have to be sold to persons of very moderate means, who would not be able to pay therefor a price sufficient to include the then value of the lots increased by the cost .of paving; and that, generally, the paving would not be beneficial to the owner of said lots, and would not enhance the value of said lots to the extent of the cost of the pavement. It was further alleged that the paving company was the owner of a patented process for paving and that it would not permit other paving companies to use said process or to lay paving of a similar nature to the “bitulithic,” which is a composition similar to asphalt laid on a concrete base; that the commissioners of the city of Ft. Worth knew that by designating and requiring that the paving to be done should be bitulithic it practically excluded from the privilege of bidding on said paving other paving companies doing business in Ft. Worth, which were prepared to lay paving essentially of the same kind and wearing quality, but which were not permitted to lay bitulithic pavement without paying to the Texas Bitulithic Company an exorbitant sum for the privilege of doing so. It was further alleged that in so requiring the paving to be bitulithic, the commissioners were guilty of Collusion and fraud, and that thereby they practically stifled and suppressed competitive, bidding. It was further alleged that the cost and charge for bitulithic pavement was approximately $2.08% per square yard, and that said amount was greatly in excess of the value of said pavement, and that in truth and in fact pavement essentially similar and' durable could be laid for an amount not exceeding $1.50 per square yard. It was further alleged that shortly after the acceptance by the city commissioners of the bid of the Texas Bitulithic Company, the defendant duly and legally filed its protect with said board of city commissioners, protesting against the pavement of said street; that said protest was considered by the said commissioners on or about No-ber 8, 1911, and that proceedings with reference to -the paving of said portion of Jennings avenue were dropped, and nothing further done with reference thereto, and that defendant believed and had reason to believe that the paving thereof had been abandoned and would not be further proceeded with; that on July 9, 1912, some seven months after the protest was filed, and while defendant’s president and general manager was out of the state for an extended stay, the board of commissioners, knowing this, and in order to take advantage thereof, caused the city secretary of the city of Ft. Worth to issue notice to the property owners that a hearing would be given to the said owners on July 23, 1912, and that on said date, while defendant’s general manager and president was out of the state, and with the fraudulent and collusive purpose to deprive the defendant of the right to be heard on said hearing, passed an ordinance levying a special assessment against defendant’s aforesaid property. It was further pleaded that said assessment was greatly excessive and greatly in excess of any enhancement in value by reason of the construction of said pavement, or any benefits to said property by reason thereof. It was further alleged that the levy made and the lien attempted to be fixed against defendant’s property and the charge against defendant itself was invalid for various reasons, among which were: (1) That no judgment was rendered by the board of commissioners after the hearing, as required by section 9 of chapter 14 of the charter of the city of Ft. Worth; (2) that the charter provision providing for an appeal from the order and judgment of the city commissioners overruling the protest of a property owner or property owners affected by the paving was unreasonable, invalid, and unconstitutional, in that said charter provision requires that the appeal be perfected within ten days after the hearing. It was alleged that at the time when the property owner is required to take such an appeal and file such suit in the district court under the penalty of being forever barred from doing so the very thing against which he is required to appeal is not in existence, and the property owner does not and cannot know at the time he is required to file such action whether the paving as it is finally laid will enhance the value of his property to the amount of the cost of the same assessed against said property; that the assessment and the fixing of the lien against the property affected, under the circumstances, would constitute the taking of property of a citizen without due process of law, and therefore he violative of article 1, § 19, of the Constitution of the state of Texas.

The trial was had before a jury, and at the conclusion of the evidence a verdict was rendered for defendant, upon a peremptory instruction, and the plaintiff has appealed. In the briefs of appellant and appellee the question of the constitutionality of the charter provision above noted is not discussed, and there is nothing in the judgment rendered to suggest that the court so instructed the jury upon the theory that the charter provision mentioned was unconstitutional. Therefore we are perhaps justified in concluding that the trial court did not base the peremptory instruction given upon the theory of the uneonstitutionality of this provision, nor are we prepared to hold that the provision referred to is violative of the section and article of the Constitution cited. In 1 Page & Jones, Taxation by Assessment, § 142, it is said:

“If sufficient notice of the original making and apportionment of the assessment is given and a full hearing upon the merits is provided for, appeal is not essential to a compliance with the provision forbidding a taking of property without due process of law, and may accordingly be dispensed with. The fact that an appeal is not allowed in the case of improvements in towns, though it is in improvements in cities, does not, by reason of such discrimination, amount to a denial of due process of law. So if notice and hearing are given upon the question of benefits as well as upon other questions, hut on appeal the owner is not allowed to show that his land receives no benefit from the contemplated improvement, such restriction upon the issues to he tried on appeal does not violate the constitutional provision requiring due process of law.”

In section 134 of the same work it is stated that:

“Whether an opportunity for an appeal is a sufficient compliance with the constitutional requirement forbidding the taking of property without due process of law is a question depending upon the nature of the hearing allowed on appeal. If an opportunity is given. on appeal for a full and complete hearing upon the merits, the rights of. the property owner are protected .and the porceeding constitutes due process of law.”

In section 141, Id., wherein the author discusses the validity of statutes limiting the time in which objections may be made by property owners to the assessment, it is said:

“A three-day limitation has been upheld, even where on account of sickness the property owner was not able to file his remonstrance within the time limited.”

While the right of appeal from,an adverse judgment may not be said to' be an inherent right, yet the right to appeal to certain superior courts from the judgment of certain inferior courts is one guaranteed by the Constitution and laws of Texas. Eppstein & Co. v. Holmes, 64 Tex. 560; Ferris v. Streeper, 59 Tex. 312; Texas v. Smith, Dallam, Dig. 407. The Legislature cannot take away the right, either expressly or by implication. Edwards v. Morton, 92 Tex. 152, 46 S. W. 792; Weems v. Watson, 91 Tex. 35, 40 S. W. 722. Yet the Legislature is empowered to enact rules of procedure controlling and limiting the exercise of the right of appeal, and may by law increase, diminish, or change civil and criminal jurisdiction. Baumberger v. Allen, 101 Tex. 352, 107 S. W. 526; Powdrill v. Powdrill, 134 S. W. 272; Muela v. Moye, 185 S. W. 331; S. A. & A. P. Ry. Co. v. Blair, 108 Tex. 434, 196 S. W. 502, 1153. In the last-cited case, which involved the validity of the statute (Acts 1917, e. 76, p. 142), authorizing the -Chief Justice of the Supreme Court or any two of the Justices thereof to designate a committee of the justices of the Courts of Civil Appeals to pass upon petitions for writs of error seeking a review of causes by the Supreme Court, Chief Justice Phillips, speaking for the court said:

“It is not to be questioned that the Legislature has the authority to establish the manner in which the appeal shall be taken, and, in doing so, declare where shall rest the authority of determining the right to have it entertained. Titus v. Latimer, 5 Tex. 433. To fix any given mode for an appeal is but to prescribe a regulation by means of which jurisdiction to hear the appeal may be acquired. * * * These provisions of the law did not come from the Constitution. They are the creatures of the Legislature. What the Legislature may create, it may alter. Unless granted by the Constitution, the right of appeal itself is but a privilege; it is not an irrevocable right. It pertains. merely to the remedy, and may be modified by the Legislature at discretion.”

The right of appeal in this character of proceeding is not one guaranteed by the Constitution specifically, and the mode and manner of exercising it is peculiarly within the control of the Legislature. In granting the charter to the city of Ft. Worth, the Legislature provided the terms under which the right or privilege of appeal should be exercised. In so doing, we do not think the Legislature deprived an aggrieved property owner of any rights in or to property without due process/ of law. This particular question was discussed in Jones v. City of Houston et al., 188 S. W. 688, and the Court of Civil Appeals for the First district upheld the validity of the provision of the Houston charter providing for an appeal, which provision is practically in me saíne language asi that used in the Ft. Worth charter. The Legislature constituted the city commissioners a quasi judicial body, authorized and empowered to determine the issues presented by protesting property owners. It also provided the means and mode of appeal from the judgment of the city commissioners, acting as a quasi court. We do not think that the mere fact that at the- time of the hearing and within the period allowed for perfecting an appeal from the decision of. the commissioners, the owner of the property affected by the proposed public improvement and consequent assessment could not fully and definitely determine what the final results would he as to the enhancement in •value of his property by the paving being' laid would operate as a deprivation of any property rights without due process of law. Under the charter provision the protesting property owner has the right to present to the commissioners the testimony of his witnesses • with reference to this matter, and on appeal to the district court he again may submit evidence as to this issue. Should the paving not be done in compliance with the specifications made by the paving company, it is to be presumed that the city commissioners will require the defect to be remedied. There■fore we conclude that thé trial court did not give and should not have given the peremptory instruction because of any alleged unconstitutionality of the charter provision mentioned.

This last conclusion is strengthened by the fact that the appellee, in its brief, seeks to sustain the giving of the peremptory in- ' struction and the judgment rendered on only 'two stated grounds: (1) That the commissioners did not render any formal judgment determining the issues raised by the hearing for the benefit of the protesting property .owners, and did not by any formal decree determine that the value of appellee’s property would be enhanced in amount equal to the cost of paving; (2) that the city engineer did not “at once” prepare a statement containing the names of persons firms, etc., owning property abutting on the portion of the street sought to be paved,-with a sufficient description of the lots abutting thereon, and submitting an estimate of the total costs of the proposed improvement and the cost to be assessed against each owner and his property, as provided in section 8 of chapter 14 of the Et. Worth City Charter. There was evidence in the trial court: (1) That a petition of the owners of property abutting on this section of the street sought to be paved was filed July 11,1911. This petition did not contain the names and signatures of the owners of 60 per cent, of the property to be affected by the proposed improvement, and therefore was not in compliance with chapter 14, § 14, of the Charter. The board of commissioners •have the authority, under section 5 of this- . chapter, by resolution to undertake themaking of public improvements, by a majority vote, without notice. It also may undertake the improvement to be made upon a petition signed by the owners of 60 per cent, of the frontage of property abutting on the street to be improved. (2) The resolution of the board of commissioners, of date July 11, 1911, ordering the paving in question to be done, does not disclose that the same wasi based on a petition filed, and we must, probably, assume that it was not done upon petition, but by independent resolution. This resolution was offered in evidence and excluded by the court, to which action of the court the defendant reserved its bill of exception. (3> Specifications of the Texas Bitulithic Company for the paving were shown to have been filed September 19, 1911. (4) Bids were submitted to the board of commissioners October 10, 1911. (5) By resolution, dated October 17, 1911, the commissioners awarded the contract to the Texas Bitulithic Company. (6) The written petition of William Capps, for appellee, seeking for a postponement of the paving, was filed with the board' of commissioners November 8, 1911. (7) By resolution the commissioners approved the contract with the Texas Bitulithic Company December 5, 1911. (8) Newspaper notices to the property owners were issued and published for five consecutive days beginning July 10, 1912, and also personal notices to each property owner affected was ordered issued. The hearing was set for July 23, 1912, upon which date no protesting property owners appeared. (9) The report of the city engineer was filed July 2, 1912.

All of this evidence was offered, but some of it was excluded and exceptions taken to the action of the court with reference thereto. The plaintiff also offered in evidence the certificate of special assessment upon which suit was filed, and upon objection by defendant this evidence was excluded. It has been held that this character of evidence is admissible as prima facie proof of the compliance by the board of commissioners with the necessary steps to fix the lien of the special assessment against the property affected and to fix the personal liability against the owners thereof. Taylor v. Boyd, 63 Tex. 533, 544; Withers v. Crenshaw et al., 155 S. W. 1189. See Kernagan v. City of Ft. Worth, 194 S. W. 626, where this court questioned; without deciding, the constitutionality of such provision, but we think the certificate was admissible as a link in the chain of proof to support plaintiff’s cause of action pleaded. It based its cause of action upon the possession and ownership of a certificate, and its issuance to it by the city, and if the necessary steps had been followed to fix the lien, the certificate was admissible as the instrument evidencing plaintiff’s ownership of any right to sue upon the cause of action. If notice of the hearing had been published, and the hearing had, and no suit was filed by defendant within 10 days from the conclusion of such hearing for the purpose of contesting the validity of said assessment and the proceedings with reference thereto, as provided in chapter 14, § 10, of. the Charter, then defendant might . be 'estopped or concluded from setting up in this suit any defect or omission in such proceedings which were not jurisdictional in their nature. Gallahar v. Whitley, 190 S. W. 757, writ refused.

Section 8, c. 14, of the City Charter provides:

“When the contract or contracts for improvements have been executed and approved, if any .part of the cost is to be assessed against property, or its owner or owners, the city engineer shall at once prepare a statement containing the names of persons, firms or corporations or estates owning property abutting on the highway, ■or section thereof, to be improved,” etc.

It further provides that this estimate of the city engineer shall he submitted to the board of commissioners for approval by them, and any errors therein corrected, and when approved, the board shall then determine and declare the necessity of assessment in part of the cost of’ the proposed improvements against such owners and their property, etc. The evidence shows that some seven months, from December 5, 1911, to July 2, 1912, elapsed between the making of the contract between the board of commissioners, for the city of Ft. Worth, and the paving company and the submission to said board by the engineer of his report.

The question to be decided by us is, Does such delay, especially in the absence of an appeal by defendant from the hearing accorded to the property owners and from the judgment rendered by the board of commissioners, constitute a jurisdictional defect •or infirmity? Appellee urges in support of its contention that the answer should be in the affirmative, that by reason of said delay appellee was lulled into a sense of security, in the belief that the city, through its board of commissioners, had concluded to drop the matter of having the paving done, and that because the appellee’s president and general manager was out of the city at the time of the hearing on July 23, 1912, appellee was deprived of an opportunity to present its protest to the board of commissioners and to be heard thereon. The record suggests that in the protest filed by William Oapps for appellee on November 8, 1911, the principal insistence was for a postponement of the paving, not for an abandonment thereof. Therefore it may be inferred that 'by permitting the delay in having the estimate of the city engineer prepared and presented to the board of commissioners said board in part complied with appellee’s request for a postponement. If so, and especially in the absence of an appeal from the action of the commissioners of July 23, 1912, in ordering the paving to be made and the assessment to be levied, we do not feel justified in holding that the delay deprived appellee of any right accorded it under the law, or that it was deprived of any notice of the character and extent of the burden to be placed on its property and the charge to be assessed against it personally. In Page & Jones, supra, § 1006, the following is said:

“If, however, notice has in fact been given sufficient to apprise the property owner of the pendency of the proceedings, such notice is sufficient to give jurisdiction, although it is irregular.”

In McEneney et al. v. Town of Sullivan, 125 Ind. 407, 411, 25 N. E. 540, 541, it is said:

“The record shows that a petition was presented to the town trustees, and that they adjudged it to be sufficient. This was an adjudication upon a jurisdictional fact, and it is conclusive against a collateral attack. For many years, and by many decisions, it has been held by our court that the decisions of an inferior tribunal upon jurisdictional facts is conclusive where the attack is collateral and not direct.”

In support of the above statement the court cites a number of authorities, among which is Knox County v. Aspinwall, 21 How. 539-544, 16 L. Ed. 208; Town of Coloma v. Eaves, 92 U. S. 484, 23 L. Ed. 579. We might say the authorities are numerous, however, which hold that municipal corporations’ power to levy special local assessments must be strictly construed, every material condition precedent complied with, and the money applied only to the very purpose for which such assessment was made. Gould v. City of Paris, 68 Tex. 511, 4 S. W. 650; 2 Dill. Mun. Corp. (4th Ed.) § 769; City of Dallas v. Ellison et al., 10 Tex. Civ. App. 28, 30 S. W. 1128, writ denied, and cases there cited. In 2 Page & Jones, Taxation by Assessment, § 813, it is said:

“In many jurisdictions provision is made by statute for tie preparation and filing of estimates, plans or specifications before the public improvement for which the assessment is to be levied is undertaken. These requirements are made for several different reasons. The legislative intent in requiring estimates, plans and specifications is, in part, to make sure that the public officials who undertake the improvement will have before them an amount of information concerning the cost and character of the proposed improvement sufficient to enable them to decide intelligently upon the necessity therefor and the character thereof. An additional reason for requiring such estimates, plans and specifications is that the property owners may be advised of the character and probable expense of the proposed improvement, and have an opportunity for remonstrating against it, if they decide that the assessment will be greater than they care to pay for such improvement. By many statutes it is provided that estimates must be made and filed before the improvement is undertaken. Most of the statutes which make this requirement are mandatory, and the failure to file the estimate as required by such statute invalidates the subsequent proceedings and the assessment. Under such statutes the making and filing of a proper estimate is jurisdictional and without it the public authorities have no power to proceed with the improvement and levy an assessment. * * * A statutory provision requiring the city engineer to report the probable cost of a contemplated improvement, and give the names of the owners of the property abutting on the street and the number of feet owned by each property owner is mandatory. In cases where the estimate cannot subserve the pux-pose for which one is intended by statute, it is ordinarily held, in the absence of a statutory provision requiring it even in such cases, that the Legislature did not intend to require an estimate.”

For the, reasons above given and in the light of the authorities cited, we have con-eluded that while the making of the estimate by the city engineer and the submission of the same to the board of commissioners was essential to the validity of the assessment, yet in this case the delay in making said estimate does not constitute a jurisdictional defect. The defendant below had notice of the proposed improvement as shown by the protest filed November 8,1911. Proper notice by advertising was given of the hearing before the board of commissioners on July 23, 1912, and personal notice was alleged by plaintiff to have been given to the defendant, a corporation, and the defendant in its answer practically admitted that such notice had been given to it, but alleged that it was given at a time when the president and general manager was out of the state, and that no one else was authorized to act for or represent the defendant. The charter provides (section 8, c. 14) that notice of the hearing shall be served by publishing same in some newspaper published in the city of Ft. Worth, and by mailing a copy thereof by registered letter to the addresses of each owner, if known, but if not known, then to the address of its agent or attorney, if known; but that service of the notice by advertisement shall be conclusive and binding, and the service by letter shall be merely cumulative. Therefore we conclude that the peremptory instruction cannot be sustained on the theory that no notice was given defendant of the hearing. Since the evidence raises the question, if it does not establish the fact, that defendant had notice of the hearing and therefore legally an opportunity to contest the levying of the assessment against its property, we conclude that the delay in submitting the engineer’s report does not constitute a material omission or defect, and that it is not jurisdictional in its nature.

As to the other question raised by appel-lee, that no judgment was rendered by the board of commissioners upon the hearing ordered by it for the benefit of the property owners, it is perhaps sufficient to say that the record discloses that on the date set for the hearing no property owners were present to protest against said improvements, and that thereupon the ordinance was presented and passqfl pi'oviding for the improvement and assessing a portion of the cost of said improvement against the property abutting on that section of the street and against the owners thereof.

We do not think that the fact that no formal entry of a judgment was entered on the minutes of the board of commissioners precludes the idea that there was in fact a judgment rendered, and that the board of commissioners determined the controversy in favor of having the paving done and the assessment made. The charter does not provide that such judgment shall be entered of record, nor do we think that the law so requires.

Wihile we have not attempted to discuss each of appellant’s several assignments, yet, from what has been said hereinabove, it follows that in our judgment the trial court erred in giving the peremptory instruction in favor of defendant, and that the judgment should be reversed, and the cause remanded; and it is so ordered.

Reversed and remanded.

CONNER, O. J., not sitting, serving on writ of error committee at Austin.
      <g^For other cases see same tojgic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BOYOE, J.

license: Public Domain

text:
    ST. LOUIS UNION TRUST CO. et al. v. HARBAUGH et al.
    (No. 1329.)
    (Court o# Civil Appeals of Texas. Amarillo.
    April 10, 1918.
    Rehearing Denied May 15, 1918.)
    1. Appeal and Error <@=>742(4) — Assignment op Error — Sufficiency.
    A counter proposition attacking the finding of the jury on the issue of limitations, which attacked the suiiiciency of the evidence to establish a trust in plaintiffs’ favor, was not a suiiicient assignment to require a consideration of the sufficiency of the evidence.
    2. Trusts <@=>44(2) — Express Agreements— Evidence.
    In an action of trespass to try title, wherein all the parties claimed under the will of the same testator, and that the testator’s son had had the legal title subject to a trust in plaintiffs’ favor, evidence helé to sustain a finding that a partition was made upon agreement that it should be included in the deed to testator’s son, who, upon further information, would divide the land between himself and plaintiffs.
    3. Trusts <@==>271 — Execution of Trust-Right of Trustees.
    In such case the trustees under the will had no right to divest themselves of the duty of partitioning the property in settlement of the will, and to confer upon testator’s son the power to subsequently handle the property for the beneficiaries.
    4. Trusts <@=>137 — Validity — Estoppel to Question.
    In such case the son could not, by reason of such wrong, acquire the property free from the equitable title of plaintiffs, as he would be estopped from setting up the invalidity of a contract in which he had himself participated, and to which the beneficiaries of the trust were not parties.
    5. Trusts <@=>138 — Title Adverse to Beneficiary.
    Under no circumstances can a trustee claim or set up a claim to the trust property adverse to the cestui que trust or deny the title of the cestui quo trust, as a trustee must assume the validity of a trust under which he acts.
    6. Trusts <@=>356(1) — Conveyance by Trustee-Rights of Beneficiaries.
    Plaintiffs having an equitable interest in land under a will, if the trustee sought to convey it free from such interest in violation of the terms of the will, could follow it into the hands of any outsider, not an innocent purchaser for value, and could also follow it into the hands of one of the trustees.
    7. Trusts <@=>96 — Parol Trust — Constructive Trust.
    ' Even if a trustee could question the validity of the alleged oral trust on which the land ■was conveyed to him, equity would enforce a constructive trust against him for the protection of the wronged beneficiaries.
    8. Limitation of Actions <@=>103(2) — Trust —Limitation as Against Beneficiary.
    Where property was taken and held in recognition of a trust,, the limitations did not begin to run against the beneficiaries until a repudiation of the trust by the trustee.
    9. Limitation of Actions <@=>199(1) — Question for Jury — Repudiation of Trust-Adverse Possession.
    In an action of trespass to try title, wherein all the parties claimed under the will of the same testator, and that the testator’s son had legal title subject to a trust in plain tiff s’ favor, held that it was a question for the jury whether there was such a repudiation of the trust and notice thereof to the beneficiaries as made tiie alleged trustee’s possession, after 1902, adverse.

      10. Trusts <@=>138 — Adverse Possession by Trustee.
    To constitute the possession of a trustee adverse to the beneficiaries, the repudiation of the trust must be clear and unequivocal, and the beneficiaries must have notice thereof.
    11. Adverse Possession <@=>70 — Title to Support Olaim.
    The title acquired by an alleged trustee as to two-thirds of the land to which he had a legal title, the beneficial interest in which belonged to plaintiffs, was not such title as would support the three-year period of limitations as to such interest.
    12. Evidence <@=>347, 355(1), 357 — Documentary Evidence — Judicial Records — Private Memoranda — Letters.
    In an action of trespass to try title, wherein all the parties claimed under the will of the same testator, and that the testator’s son had had the legal title, subject to a trust in plaintiffs’' favor, certified copies of a decree in chancery proceedings in another state, in which another was appointed trustee of the two trusts, a memoranda statement in the books of one who had assisted in the partition of the estate under will showing an allotment of the interests, letters of the agents while it was being handled by the substituted trustee, and a deed from such trustee conveying the trust property handled by him, were admissible to corroborate the positive testimony of a witness as to the agreement under which the property was conveyed to the testator’s son in trust. •
    13. Appeal and Error <@=>1050(1) — Harmless Error — Conclusion of Witness.
    In such action testimony of a witness that, in a proceeding resulting in the entry of certain decrees, the lands were treated as belonging one-third to the son and one-third to each of the alleged beneficiaries, though in the nature of a conclusion of fact, was not harmful error, where the facts leading to the conclusion were detailed by the witness.
    14. Witnesses <@=>149(2) — Competency—Declarations of Decedents — “Legal Representatives.”
    In an action against a testamentary trustee by alleged beneficiaries, who claimed that testator merely held a legal title to the property involved in trust for plaintiffs, in which action testator’s! devisees intervened as defendants, none of the parties were “legal representatives,” within Rev. St. 1911, art. 3690, as to testimony of transactions with decedent against the legal representatives, though the trustee was also made executor, the will not having been probated in Texas, and therefore testimony of a plaintiff as to a conversation with testator, in which he admitted he held the land in trust, was competent.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Legal Representative.)
    15. Trial <@=>251(2) — Instructions — Applicability to Issues.
    In an action of trespass to try title, wherein all the parties claimed under the will of the same testator, and that the testator’s son had. had the legal title subject to a trust in plaintiffs’ favor, affecting an undivided two-thirds interest growing out of the settlement of such will, the refusal to give special instructions was not error, where they were not appropriate in connection with the issues, and would have tended only to confusion in the consideration of those issues.
    Appeal from District Court, Young County; Wm. N. Bonner, Judge.
    Trespass to try title by Mary O. Harbaugh and others against the St. Louis Union Trust Company and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Frank A. Thompson, of St. Louis, Mo., J. E. Gilbert, of Dallas, and Kay & Akin, of Wichita Falls, for appellants. Coke & Coke, of Dallas, C. W. Johnson, of Graham, and W. D. Isenberg, of Los Angeles, Cal., for ap-pellees.
   BOYOE, J.

The appellees, in an action of trespass to try title, recovered of appellants a two-thirds interest, theretofore undivided, in 10 surveys of land located in several different counties in this state. All the parties claim under the will of John B. Ghio. The appellants have the legal title to the entire interest, but the appellees claim that it is subject to a trust affecting an undivided two-thirds Interest growing out of the settlement of the will of the said John B. Ghio. In addition to denying the trust, appellants claim to have acquired the entire interest under the 3, 5, and 10' year periods of limitation.

John B. Ghio, being the owner of the land in controversy and a large estate, situated in Missouri mostly, died in 1885, leaving a will. He left three children, or their descendants, for whom he sought to provide in the will: First, a son, James 0. Ghio, who is now deceased, being the husband and father of the individual appellants who claim •the land as beneficiaries under his will, of which the appellant the St. Louis Union Trust Company is trustee; second, Mary (wife of Francis X. Barada, now deceased), whose children are Andrew S. and John G. Barada, also Mary E. Barada, who is now also deceased, and whose sole devisee is W. Pratt Layton; third, Mary O. C'ummiskey (now Harbaugh), a granddaughter.

By the terms of his said will the said John B. Ghio devised all of his property except certain parts set apart to his wife, and with which we are not concerned, to his son, James G. Ghio, his wife, Elizabeth M. Ghio, and his friend, William Booth, in trust, directing them as soon as the estate was set-tied in the probate court to partition the property, with the assistance of three other named persons, in three equal parts, and convey by deed, joined in by said assistant par-titioners, one of said portions to the said James C. Ghio, in fee simple, clear and free of the trust. Said will further directed that one portion of said property so partitioned was to be designated by deed duly signed by the said trustees, joined by the said assistant partitioners, as being held by the said trustee in trust for the use and benefit of the said Mary Barada, and the income of said trust was to be paid to the said Mary Barada during her life, and after her death to the guardian of her children, and as they should attain their majority each child should be entitled to have delivered his portion of said trust estate. This trust will be referred to as the Barada trust. The third portion of said trust estate was also to be designated by deed similarly executed, and to be held by said trustees in trust for the use and benefit of the granddaughter Mary O. Cummiskey, who was to receive the benefit of the income until she should be 25 years of age, when the trust should cease and said property turned over to her. This trust will be referred to as the Cummiskey trust. The appellees aré the claimants of the property under the said Cummiskey and Barada trust provisions of the will.

The partition was effected in 1887 by the three trustees named, aided by assistants designated in accordance with the provisions of the will, and certain property by deeds, such as were provided for in the will, set aside to the Barada and Cummiskey trusts, respectively, and certain property conveyed in fee to the said James C. Ghio. The 10 surveys of land in controversy were included in the said conveyance to James O. Ghio, the conveyance reciting that the property was conveyed free of the trust, in accordance with the provisions of the will; but appel-lees claim that, on account of the lack of information on which to make an intelligent partition of these lands, it was decided by the trustees and assistant partitioners, at the time of the partition of said land and execution of said conveyances, that an equal partition should be made of all of the other property, and that said Texas lands should be conveyed to James C. Ghio, who was to hold this property in his name, one-third of it in his absolute right, and convey one-third of it to his sister, Mary L. Barada, and one-third to his niece Mary O. Cummiskey, or it was to be held in trust by him and disposed of as they should direct. We will make such further statement as is necessary in connection with the assignments as we discuss them.

Two general issues of fact were submitted to the jury: (1) “Was the partition of the Texas land by the commissioners under John B. Ghio’s will made upon the agreement that said Texas lands should be included in the deed to James C. Ghio, so they would be clear of any trust created by John B. Ghio’s will, so that, when further information was had than was then in possession of the commissioners, he (James C. Ghio) could then divide said land between himself and the Cummiskey and Barada trusts, one-third each, or to the beneficiaries direct?” (2) Whether said James C. Ghio had been in adverse possession of said property for 5 or 10 years, the issues being submitted separately, prior to the filing of the suit. These issues were answered against the appellants.

On oral argument, the finding of the jury on the first issue was vigorously assailed. We find no assignment briefed raising this question, though appellants do, under a counter proposition attacking the finding of the verdict on the issue of limitations, attack the sufficiency of the evidence to establish the trust This would not be a sufficient assignment to require a consideration of this question. However, we believe the finding is amply supported by the evidence. The positive testimony of the agreement at the time of the partition and execution of the deed given by one of the partitioners was corroborated to some extent by the evidence of another one of the partitionei's and also by these additional facts: From the year 1888 to 1893 the property was handled by the trustees of the Barada and Cummiskey trusts as belonging, one-third to James C. Ghio, and the other two-thirds to the said trusts. In 1893, in two proceedings instituted in the chancery court in St. Louis by William Booth, one of the trustees, to secure his release, and the appointment of a successor in said two trusts, to which proceedings James C. Ghio and all parties at interest wei-e parties, an agreed decree was entered in each ease, discharging the said three original trustees, and appointing Francis X. Barada as sole trustee thereafter. Said decieos set forth the property subject to the trust, and in each instance described a one-third interest in the said lands in Texas as being a part of the trust estate involved in the particular proceeding. The decree directed said former trustees to deliver said property to the new trustee thus appointed, and provided for the execution of receipts, in quadruple by the new trustee, for the personal property delivered, and provided that one of such receipts should be delivered to- each of the trustees and one receipt filed in said cause. The receipt filed was introduced in evidence. It was executed by the old trustees, including James O. Ghio, and the new trustee, Francis X. Barada, and recited that the said retiring trustees had delivered to the said Francis. X. Barada, successor in said trust, “all and singular the real estate described in said judgment and decree.” The testimony also tended to show that the consent decrees referred to were submitted to and approved by James G. Ghio. After this appointment of the new trustee, and until about the year 1902, tbe property was bandied by tbe Bar-ada-Gliio Real Estate Company, a corporation, of which James C. Ghio was director and vice president, the tases paid, and rents collected as belonging one-third to the said Ghio and one-third to each of the said trusts; and statements of such transactions were regularly made and delivered to the said James G. Ghio. Several of the beneficiaries of the two trusts, to wit, W. Pratte Layton and Andrew S', and John G. Barada, testified as to conversations with James C. Ghio during his lifetime, in which he admitted the existence of the trusts. There was some evidence tending to contradict some of the evidence we have stated, but these contradictions were for the jury to determine, and we think the evidence referred to is clearly sufficient to support the findings of the jury. McBride v. Briggs, 199 S. W. 342, and Ellerd v. Ellison, 165 S. W. 876, and authorities cited in those cases.

Appellants, by the first and seventh assignments of error, contend that. the trustees under the will were without power to create the parol trust in James C. Ghio, since it would thereby defeat the provisions of the will, and consequently said attempted parol trust must fail, and appellants, holding under the will of James O. Ghio, would take the land absolutely free from the claims of the beneficiaries of the Barada and Cummiskey trusts. It is true, we think, that the trustees under the will had not the right to divest themselves, and the assistants to be designated to assist in the partition, of the duty of partitioning said property, and to confer upon James O. Ghio said power and the power of subsequently handling said property for the beneficiaries. So that there was at least a technical violation of the trust duties under the will. It does not follow, however, that James Q. Ghio could, by reason of this wrong, acquire the property freed from the equitable title of the appellees. In the first place, he would be estopped from setting up the invalidity of a contract in which he himself participated, and to which the beneficiaries of the trust were not parties. He might possibly, while the original trust was being administered, have insisted that the property be delivered to the trustees for administration under the provisions of the will, rather than delivered direct to the beneficiaries; but since these trusts have expired, and the beneficiaries are now entitled to receive the trust property absolutely, this possible right is not now material. The said James O. Ghio and those claiming under him are in no position to set up one wrong against the beneficiaries of the trust as a justification for the perpetration of still further wrong to defeat them of their ultimate right to the property.

“Under no circumstances can a trustee claim or set up a claim to the trust property adverse to the cestui que trust, nor can he deny his title. * *• * A trustee must assume the validity of the trust under which he acts.” Perry on Trusts, § 433; Neyland v. Bendy, 69 Tex. 712, 7 S. W. 497. In the footnote to the above quotation it is stated that “a trustee who has accepted and entered upon the administration of the trust cannot allege the invalidity of his appointment as a reason for not accounting for the trust property.” Citing Harbin v. Bell, 54 Ala. 389; Saunders v. Richard, 35 Ela. 28, 16 South. 679. The appellees had an equitable interest in the land under the will of John B. Ghio, and if the trustees thereof, James C. Ghio, Elizabeth M. Ghio, and William Booth, had sought to convey such property absolutely free from such interest, in violation of the terms of the will, the appellees could follow such property into the hands of any outsider even, so long as such person was not an innocent purchaser for value. Oliver v. Piatt, 3 How. 401, 11 L. Ed. 653; Schneider v. Sellers, 98 Tex. 380, 84 S. W. 421. Certainly then they could follow it into the hands of one of the trustees themselves acquiring it in violation of the terms of the trust, so that, even if the trustee could question the validity of the alleged parol trust under which the land was conveyed to him, equity would enforce a constructive trust against him in the protection of the wronged beneficiaries. Pomeroy’s Equity Jurisprudence (3d Ed.) §§ 1052, 1053. So in no event do we think it could be said that James O. Ghio acquired the property free from the beneficial interest of the appellees. If he had acquired the property in absolute and acknowledged hostility to the trust, it may be that such acquisition -would be itself a repudiation of the trust, and limitation might begin to run against the beneficiaries as they attained their majority. But as the property was taken and held in recognition of the trust, limitations would evidently not begin to run against the beneficiaries until a repudiation of the trust by the trustee.

Appellants further contend that, if any trust was ever charged against said lands in the hands of the said James O. Ghio, he repudiated it as far back as the year 1902, and has sinc<?said time been in adverse possession of said lands, and appellants were entitled to judgment under the 5 and 10 year periods of limitations. In order to dispose of these assignments which question the sufficiency of the evidence to support the answer of the jury to the issues of adverse possession submitted, it will be necessary to make some further statement of the facts. The beneficiaries of the Barada trust, Andrew S. and John G. Barada, and Mary E. Layton, who died after the filing of the present suit, and whose husband and sole devisee was W. Pratte Layton, and the beneficiary of the Cummiskey trust, Mary O. Harbaugh, at various times from 1899 to 1902 became entitled to have delivered to them their respective shares of the trust property. During this period complications arose and litigation ensued. The St. Louis Union Trust Company, surety on the bond of Erancis X. Barada, trustee, took charge of the trust property and of the Barada-Ghio Real Estate Company, of'which the trustee, Erancis X. Barada, up to that time had been the president and managing influence. During this time the beneficiaries of the trust learned that the title to the Texas property was in the name of James C. Ginn, and he was requested to convey to them their respective interests in said lands, and deeds were prepared and presented to him for execution. He did not execute these deeds, some of the witnesses stating that he declined absolutely, asserting that at this time he owned the entire interest in the property. The beneficiaries of the trust, however, denied ever having any knowledge of any claim, on the part of James C. Ghio that the property belonged to him, and testified that he recognized the trust, and promised from time to time, as late as a period within less than five years before the filing of the suit, to take action necessary to settle their claims. James C. Ghio died in 1914, and the suit was filed on April 24, 1915. W. Pratte Layton, the husband of one of the beneficiaries under the Barada trust, and later entitled thereto, himself, as above shown, consulted a lawyer about the year 1902, in contemplation of taking some legal action in reference to this matter. Such attorney testifies that he conferred with William B. Thompson, James O. Ghio’s attorney at the time (and who by the way was one of the assistant partitioned under the will, and who on this trial testified positively as to the agreement under which the property was conveyed to James C. Ghio, and who prepared the decree in the proceedings in which Erancis X. Barada was appointed trustee), and that said Thompson at this time claimed that James C. Ghio was the owner of the Texas lands absolutely. Said attorney further testified that “he did not bring suit to recover this property because the only living witness who knew the facts was hostile at that time.” Layton, however, testified that James* O. Ghio never did refuse to sign deeds to the property, but, on the contrary, agreed to do so, declaring such to be his purpose until about a year before his death. John G. and Andrew S. Barada testified to the same effect. About the year 1902 the said James O. Ghio took the property out of the hands of the Barada-Ghio Real Estate Company, which had been handling it for him and the trustee, as indicated in our preliminary statement, and thereafter managed the property himself, leasing it through the same agents that had been handling it before, but in his own name, and paying the taxes and receiving the rents, and did not thereafter render any accounting to the beneficiaries of the Barada and Cummiskey trusts of these transactions. About this same time the said James C. Ghio i : : ! . ■ * also placed of record in the counties in Texas in which the land is located the said deed from the trustees under the will conveying the land to him. It seems to be conceded that the possession of most of the land, though there is some dispute as to a few of the tracts, which in view of the disposition we make of the case it is not necessary to settle, was such as to be sufficient under the statute of limitations, the issue being largely as to whether this possession is to be considered as being adverse to the appellees.

; : ; : : Under these facts we think it was properly a question for the jury as to whether there was such repudiation of the trust and notice thereof to the beneficiaries as made James G. Ghio’s possession during this time adverse. In order to constitute the possession of a trustee adverse to the beneficiaries of the trust, the repudiation of the trust by the trustee must be clear and unequivocal, and the beneficiaries must have notice thereof. Lewis v. Castleman, 27 Tex. 422; Home Insurance Co. v. Strange, 195 S. W. 851; Perry on Trusts (6th Ed.) § 864; Wood on Limitations, 220b. James C. Ghio owned an undivided one-third interest in the lands in any event. So that by reason of this fact, and under the terms of the verbal trust agreement, he was not bound to allow the lands to be handled by Francis X. Barada. The evidence discloses that the management of the trust property by the said Barada and the Barada-Ghio Real Estate Company, the agency through which the trustee had managed the property, had resulted in “complications” which necessitated the taking charge of the trust property and the affairs of the said real estate company by the St. Louis Union Trust Company, a surety on Barada’s bond. The taking of the property out of the hands of the said real estate company was not therefore necessarily an act in repudiation of the trust, under which James C. Ghio held the legal title to a two-thirds interest therein. Neither was the consulting of the lawyer by W. Pratte Lay-ton conclusive evidence of knowledge on his part of a repudiation of the trust by James C. Ghio. Nuckols v. Stanger, 153 S. W. 931; Snouffer v. Heisig, 130 S. W. 916. In the first case cited a suit was even instituted by the beneficiary against the trustee, which was dismissed under promise that an accounting would be had. “Procrastination” was described as one of the characteristics of James C. Ghio, and while Layton may have become impatient of this, and attempted, through the services of a lawyer, to put an end to it, yet, according to Layton’s testimony, the issue was not forced to a final culmination. According to appellants’ statement, the rentals from the lands had been about sufficient to pay the taxes, so that the failure to render an accounting of the expenses and income on the land would not be as important as it would perhaps if the lands had been bringing a large net income. Under all the circumstances, we cannot say that the evidence is conclusive that there was an unequivocal repudiation of the trust by the trustee and notice thereof brought home to the appellees.

The title acquired by James O. Ghio as to two-thirds of the land, the beneficial interest in which belonged to appellees, is not such title as will support the three-year period of limitations as to such interest. A very full and clear discussion of the meaning of “title,” as used in these provisions of the statute, will be found in an opinion written by Chief Justice Phillips of the Supreme Court, in the case of Burnham v. Hardy Oil Co. (Sup.) 195 S. W. 1142-1145. It is shown in that opinion that “title,” as it is used, in the statute, embraces not only the legal title, but the beneficial interest acquired in land under the grant from the state relied on to support it, but does not refer to interest outside of the grant from the sovereign. “The statute does not recognize as title any mere apparent right to the land granted. While it has reference only to the title originally evidenced by the grant (from the state), and disregards all other title, at no stage does it deal with any apparent right under that title, or with any right less than the actual ‘interest’ or ‘estate’ created by the grant. The claimant’s title must connect with the grant; it does not connect with the grant unless he holds the right vested by the grant. He does not hold such right unless he has acquired, to the extent that the grant conferred it, the real and beneficial interest in the land.” We therefore overrule appellant’s sixth assignment based on the refusal of the court to submit the issue of three years’ adverse possession.

We will consider together a number of assignments to the introduction of evidence embracing those objections to the following testimony: (1) Certified copies of the decrees in the two chancery proceedings in the St. Louis court, in which Francis X. Barada was appointed trustee of the Barada and Oum-miskey trusts; (2) a» memorandum statement in the books of Julius Pitzman, one of the partitioned assisting in the partition of the John B. Ghio estate under the will, which statement contained a. list- of the property and valuation thereof allotted to each of the three interests entitled thereto under the will; (3) letters of Webb and Hill, the Texas agents handling the property while it was being managed by the Barada-Ghio Real Estate Company, as stated before; (4) deed from Francis X. Barada, trustee, executed in 1899, by which he conveyed to Mary O. Cummiskey (later Harbaugh) the trust property handled by him, including a one-third interest in the Texas lands.

All this testimony was, we think, admissible as tending to corroborate the positive testimony of William B. Thompson, as to the agreement under which the property was conveyed to James C. Ghio. The memorandum of Julius Pitzman was shown to have been made prior to the time of the partition, and was the basis upon which the partition was made. According to this list, the Missouri property was divided into three parts, the total valuation of each interest was the same, and immediately following the list and total valuation of such property there appeared to be assigned to each interest three surveys of the Texas land, valued at $2 per acre. The testimony showed that the division was made in accordance with this list, except the Texas property, which was all conveyed to Ghio, and which would thus show on the face of the valuation an overbalance of values in his favor. In connection with this list, it was also shown that it was at first thought to value the Texas property arbitrarily at so much per acre, and set aside a certain acreage to each of the interests; but when the partition came to be finally made the trustees and partitioners, since they had no accurate knowledge of the relative value of the lands, concluded that this method of partition might not prove satisfactory, and agreed upon the conveyance to James C. Ghio. The memorandum in connection with the testimony of the witnesses thus tends to show that James O. Ghio obtained his full share of the estate aside from the Texas property, and tends to corroborate the evidence of Thompson as to the agreement under which the property was conveyed. The letters of Webb & Hill only showed .that the land was being handled by them as agents for the Barada-Ghio Real Estate Company, which recognized the existence of the Barada and Cummiskey trust interest in the land. There is no question that during this time the interests were so recognized by the Barada-Ghio Real Estate Company, so that the admission of said letters at any rate would be harmless error, if they were not admissible. There is some doubt about the admissibility of the deed from Francis X. Barada to Mary O. Cum-miskey. The will did not provide for the execution of such a deed; nevertheless it would be perhaps a natural method of closing up the trusteeship; and as it was the outgrowth of the recognition of the treatment of the property as belonging to the trust, a part of which at least was apparently acquiesced in by James C. Ghio, we are inclined to think that the deed was admissible. At any rate, we do not think its admission would constitute reversible error.

The appellant requested the court to' qualify the admission of the two decrees referred to above by limiting of the consideration to the purpose for which they were admitted in evidence. If the decrees were admissible in evidence only for limited purposes, the appellants should have requested a proper instruction of limitation, which they did not do. In any event, they were admissible in the consideration of the only issue submitted in connection with which the jury could have possibly considered them, to wit, the issue as to the agreement under which the lands were conveyed to James C. Ghio.

d^he witness Thompson was permitted to state in his testimony that, in the proceedings culminating in the entry of these decrees, the Texas lands referred to were treated as belonging one-third to James O. Ghio and one-third to each of the trusts. This statement is perhaps in the nature of a conclusion, though it is a conclusion of fact. All of the facts which led to the conclusion itself were detailed by the witness, from which it appears conclusively that such was the fact, so that there was no harmful error in the admission of the statement.

By the eleventh assignment appellants complain of the action of the lower court in admitting the testimony of W. Pratte Lay-ton as to conversations with James O. Ghio, in which the said James G. Ghio admitted facts tending to show that he held the land in trust as claimed by the appellees; it being asserted under this assignment that the appellant the St. Louis Union Trust Company is tha legal representative of James O. Ghio, deceased, and that the testimony of the said W. Pratte Layton is inadmissible under the provisions of article 3690, Rev. St. The suit was originally brought by Mary O. Harbaugh against the Union Trust Company, to which James C. Ghio had devised his property in trust for the benefit of his wife and children. W. Pratte Layton and John G. and Andrew S. Barada, claimants under the Barada trust, intervened, assuming the position of plaintiffs, and the wife and children of James C. Ghio, beneficiaries under his will, also intervened, assuming the position of defendants. While under the terms of the will the St. Louis Union Trust Company was also made executor, the will was not probated in Texas, and the only right of said company as recognized by our courts would be that of a devisee. Under the will the St. Louis Union Trust Company held the property in trust for management for the benefit of James O. Ghio’s wife and children and his children’s children. The interest of the intervening beneficiaries under this will was also that of devisees and not heirs. None of the parties defendant were therefore “legal representatives,” as that term is used in the statutes. They were not claimants of James C. Ghio’s property under the law, but their right was under the will, and the estate was not being, administered under the law. Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Clark v. Clark, 21 Tex. Civ. App. 371, 51 S. W. 337; Caffey’s Executors v. Caffey, 12 Tex. Civ. App. 616, 35 S. W. 738; Haldeman v. Openheimer, 103 Tex. 279, 126 S. W. 567.

Complaint is also made of the refusal to give several special instructions, the effect of which is as follows: (1) That the deed from Francis X. Barada to Mary Cum-miskey (Harbaugh) did “not constitute title” ; (2) that appellants had a “perfect legal record title lo the lands in controversy” ; (3) that “where suit for the recovery of real estate is barred by the provisions of the 10-year statute of limitation the person having such peaceable and adverse possession shall be held to have full title, precluding all claims”; (4) that a certain schedule of lands, prepared by C. R. Jones & Co., and introduced in evidence, was “not a partition of the lands in controversy.” In explanation of the last objection, we will say that the schedule referred to was introduced in evidence in connection with testimony of W. Pratte Layton, who testified that in a conversation with James C. Ghio, in which the said James C. Ghio admitted that the lands had been conveyed to him in trust, the said Ghio claimed that a partition of said lands had ali-eady been effected, and in connection with this claim produced this schedule of partition prepared by C. R. Jones & Co. of Austin, who he claimed had been employed to partition the land. This schedule divided the land into three parts, leaving one tract undivided. It was styled, “Partition of estate of J. B. Ghio in Texas, into three moieties,” and had affixed to it an affidavit by an officer of O. R. Jones & Co., stating that according to information the division was correctly and equally made. This instrument was evidently before the trustees and the partitioners befoi-e they acted on the partition, as it antedated their action and the Pitzman listing of Texas lands in moieties follows it. No issue of title or partition was submitted; in fact, the entire case was tried on the theory that the legal title was in defendants and there had been no partition of plaintiffs’ and defendants’ interests. As we have before stated, the issues submitted were' as to whether the parol trust agreement was made at the time of the conveyance to James C. Ghio, and whether he had “adverse possession” of the land for 5 or 10 years. Full instructions as to the law in connection with these two issues were submitted, of which the appellants are not now complaining. Under these circumstances, there was no error in refusing to give the instructions requested as above stated. While they may have correctly stated the law, they were not appropriate in connection with the issues of fact submitted, and would have tended only to confusion in the consideration of those issues of fact.

We have found no revei’sible error assigned, and the judgment will be affirmed.

HALL, J., concurs. HUFF, C. J., not sitting.
      igs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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