text:
    M. KANGERGA & BRO. v. WILLARD et ux.
    (No. 1680.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1916.
    Rehearing Denied Dec. 21, 1916.)
    1. Cancellation of Instp.uments <§=>37(5)— Pleading.
    One seeking judicial annulment of a contract on the ground it is not permitted by law must' allege facts which disclose its unlawful character.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent.'Dig. §§ 68, 74, 77, 79, 80: Dec. Dig. <§=>37(5).]
    2. Homestead <§=>133 — Mobtgage — Annulment — Pleadin g.
    In a suit to cancel deeds as a mortgage upon homestead, it was for plaintiff to allege facts showing the mortgage was one not permitted hy the constitutional provision on that subject (Const, art. 16, § 50).
    [Ed. Note. — For other cases, see Homestead, Dec. Dig. <§=>133.]

      3. Bills And Notes <§=>112 — Validity—In-cumbrance.-' ‘ '
    '/•’Notes -for which the consideration was the principal and interest paid by the payee on the purchase-money debt on the maker’s homestead and for moriey and material furnished to make improvements on the homestead prior to the date of the nótess were not invalid, although the effort of the parties to create a lien upon the homestead for, the entire debt" evidenced by the notes was ineffectual' because a part. of the redi 'consideration was something for which the homestead could not be incumbered; a mortgage upon a homestead not being an -immoral contract nor one which violates any penal statute.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 222; Dec. Dig. <§¿=>112.]
    4. Homestead <3=396 — Incumbrance — Rights of Mortgagees.
    ' To-the extent that the consideration expressed in notes secured by mortgage on a homestead represents the original purchase-money debt due on the homestead, they express a valid lien on the homestead.
    [Ed. Noté — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <3=396.]
    5. Subrogation @=323(6) — Payment of Debt —Lien on Homestead.
    • One paying for the vendee the purchase money due upon a homestead takes by an equitable assignment, if not by an actual transfer, the debt which he discharges, and is subrogated to the lien of the vendor.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 64; Dec. Dig. <§=>23 (6).]
    6. Homestead @=>96 — Liens—Renewal.
    If the debt owed to one for his payment of the purchase money on a homestead is extended by giving him- new notes, the old lien may be perpetuated without loss of validity.
    [Ed. Note. — For other cases, see Homestead, Cent. .Dig. §§ 147-153; Dec. Dig. @=>9&]
    7. Subrogation @=>41(8) — Incumbrance — Foreclosure — J ud gment.
    - Where at time of execution of notes for $3,-000 secured by mortgage on maker’s homestead there was due to payees $1,600, the balance of what they had previously paid for the maker upon his purchase-money notes for the homestead, the páyees, in suit to enforce the notes, were entitled to judgment foreclosing the vendor’s lien for $1,600, together with the interest and attorney’s fees stipulated in the original purchase-money notes.
    ,[Ed, Note. — For-ot,her cases, see Subrogation, Cent. Dig. § 117; Dec. Dig. @=>41(8).]
    8. Homestead <§=>96 — Mortgage—Oonsider- -- ation — Vendor’s Lien. ' • .
    Where- the consideration for a‘mortgage on a homestead was in part the balance of the original purchase money, the validity of such mortgage to the extent that it represented such balance was not affected by change in the form of the obligation.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <3=396.]
    9. Homestead @=>96 — Lien for Improve- • ments-. • • •

    Under Const, art. 16, § 50, providing that' no mortgage on the .homestead for improvements shall be valid" unless for work and labor contracted for in writing consented to by the wife, that part of a mortgage which represented money and material furnished for improvements put- on the premises after the homestead right Had attached and prior to the mortgage was not a valid lien for such improvements, notwithstanding the inortgagees were holders of the vendor’s lien on the homestead when such improvements were'made, since this did'not make them the real owners of the property at that time; for, although- their legal title was. superior, the real beneficial owner was the vendee.
    .[Ed. Note — For. other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <§=>96.]
    Appeal from’ District Court, Rusk County; W. C. Buford, Judge.
    Suit by 6. O. Willard and wife against M. Kangerga & Bro., in which defendants filed-cross-bill. From a judgment, defendants appeal.
    Reversed, and remanded for new trial.
    John R. Arnold and Futeb & Tipps, all of. Henderson,, for appellants. R. T. Jones and C. L. Brachfield, both of Henderson, for ap-pellees.
   HODGES, J.

This is a suit by tbe appel-lees, Willard and wife, in which they seek to have two deeds canceled upon the ground that they were executed as a method of creating a mortgage upon their homestead. The facts are substantially! as follows: In October, 1907, G. O. Willard, one of the appellees, purchased a tract of land in Rusk county from D, F. Spivey, and gave in payment six promissory notes aggregating $2,250. Each note contained the usual stipulations for the payment of interest at the rate of 8 per cent, per annum and 10 per cent, attorneys’ fees, and the reservation of a vendor’s lien to secure their payment.. The notes were so arranged as to mature in six. annual- installments, beginning one year after their date. Immediately following the purchase Willard, together with his family,- moved onto the land, and has since occupied it as the family homestead. The appellants at that time were engaged in conducting a mercantile business) in tbe city of Henderson. In 1908 Willard began trading with appellants, and purchased his family supplies from them each year till the latter part of 1915. At the end of each year the parties had some kind óf a, settlement. Some years Willard’s account was paid up in full, and at other times a balance was carried over. In tbe fall Willard usually delivered bis cotton to the appellants, by whom it was purchased and credits upon his account given accordingly. The advances made to Willard were usually secured by a chattel mortgage on the crops to be grown during the current year, and on -his stock. Willard and the appellants also had an agreement by which the latter were to take care of the interest and payments due on the l'and notes given to Spivey. Appellants paid the interest as it accrued, and under an agreement with Willard paid the principal also when Spivey demanded settlement. Spivey was paid something during the year 1913. On December 3, 1913, Willard and- his wife executed and delivered -to the appellants a deed absolute in form conveying tbeir homestead for a recited consideration’ of the cancellation of the Spivey notes. On the following day the appellants reconveyed the premises to Willard for a recited consideration of $3,000, evidenced by four promissory notes, two for $500 each, and two for $1,000 each, due in one, two, three, and four years from date, each bearing interest at the rate of 10 per cent, per annum from date and providing for the payment of 10 per cent, attorney’s fees in the event they were collected by law. The purpose of the suit filed by the appellees is to cancel those two deeds.

The appellees’ original petition alleges that those deeds were intended as a means of mortgaging the Willard homestead for an indebtedness claimed by the appellants, and “that in making the deed by the defendants to these plaintiffs defendants required the plaintiffs to give a note for $3,000 for a debt claimed to be due by these plaintiffs, and which note pretended to be a lien on the homestead of these plaintiffs purporting to be for the purchase money for said premises, when in truth and in fact the note was given for a pre-existing and pretended debt due by these plaintiffs to defendants.”

The appellants answered by general and special exceptions and a general denial. In addition to these defenses the appellants alleged that they were the owners and holders of the six vendor’s lien promissory notes theretofore executed by Willard to Spivey as the purchase price of the land in controversy ; that these notes bore interest at the rate of 8 per cent, per annum from October 23, 1907, and also provided for 10 per cent, collection fees. The notes are fully described in detail in a manner that is unnecessary to repeat. It is further alleged that all of those notes had matured before December 3, 1913; that Spivey had executed to the appellants a deed conveying his interest in the notes and the lien evidenced thereby, and all right of title reserved by him as the grantor in the deed of conveyance to Willard; that on December 4, 1913, there was due the appellants on the notes the principal and accumulated interest, amounting to $2,587.35, no part of which had ever been paid; that on or about the 4th of December, 1913, the Spiv-ey notes were canceled and the debt renewed by the giving of the four notes mentioned in the deed from defendants to the plaintiff Willard; that the conveyance from Willard to defendants and from defendants to Willard were executed in an effort to renew the past-due notes and to make a record of such renewal in order to prevent the lien and right of recovery from becoming barred. It is further alleged that on December 4, 1913, Willard executed and delivered to the defendants his four promissory notes aggregating $3,000. Then follows a detailed description of the notes, with their dates, terms, and provisions as to interest and attorney’s fees. In that connection it is averred that the notes contained what is called a “default maturity clause,” and that the defendants have de-dared the whole of such notes to be due and unpaid because of the failure to pay the principal and interest on the matured notes. It is also alleged that by reason of the failure to pay the aforesaid notes and the bringing Of this suit the defendants have been compelled to employ attorneys and sue on those notes, by reason of which they are entitled to the attorney’s fees provided for.

Appellants also alleged that they are the legal owners and holders of the premises described in the plaintiffs’ petition, and because of the failure to pay the notes at maturity they are entitled to the possession of the premises. But they say, if it should be determined they are not entitled to recover possession of the land, that they are entitled to the foreclosure of the vendor’s lien and the contract lien which is thereafter set out. In addition to the foregoing as a basis for the-consideration of the notes given by Willard to the appellants, they also plead that at the special instance and request of Willard, and under a valid contract, they furnished money and material to erect improvements on the premises to an amount aggregating in value $413.65. The cross-bill concludes with a prayer for general relief.

The appellees filed supplemental pleadings, which were followed by still other pleadings by the appellants not necessary to notice.

The following are the special issues submitted and the answers returned:

(1) “How much of the Spivey notes was still due and unpaid on December 4, 1913? Ans. $1,600.”
(2) “Did the plaintiff direct that any of the proceeds of cotton sold by them to the defendant be applied to the payment of interest or the principal of the Spivey notes? Ans. Yes.”
(3) “At what time were the improvements on the homestead finished? Ans. Prior to December 4, 1913.”
(4) “Did the defendants, M. Kangerga & Bro., furnish to the plaintiffs any material or furnish any money with which material was bought or paid out for improvements on the homestead? If so, how much and at what time was it furnished? Ans. $413.65, furnished prior to December 4, 1913.”

Upon these findings the court entered a judgment in favor of the appellees canceling the two deeds made in December, 1913, and the notes aggregating $3,000 given as the consideration in one of them. Judgment was then rendered in favor of the appellants for $1,600 as the balance due upon the original purchase-money notes given by Willard to Spivey, and for a foreclosure of a vendor’s lien for that amount. Interest was allowed only from date of the judgment. A personal judgment was also awarded in favor of the appellants against Willard for the sum of $413.65, but no lien for that amount was fpund or foreclosed.

Kangerga & Bro. alone have appealed from that judgment. The failure of the court-to allow interest and attorney’s fee on the judgment for $1,600 and $413.65 and the refusal to find and foreclose a, lien in their favor upon the real estate for the payment of the latter sum are the first errors assigned. There are other assignments, which attack the refusal of the court to sustain exceptions to the appellees’ original petition, which should first be considered. A party who seeks judicial annulment of a contract upon the ground that it is not permitted by law must allege facts which disclose its unlawful character. It is not every mortgage upon the homestead that is void. Valid incumbrances may be created for the purchase money and for improvements made thereon. Const. art. 16, § 50. This being a suit to cancel deeds solely upon the ground that they were-designed to operate as a mortgage upon the homestead, it devolved upon the plaintiffs to allege facts showing that the mortgage was one not permitted by the Constitution. If their petition is not fatally defective in that respect, it is at least lacking in that clearness and certainty required for good pleading. We have concluded, however, that for all practical purposes the original petition of the appellees may be disregarded and this suit treated as one by the appellants to recover upon the notes executed in December, 1913, and shall discuss the issues from that standpoint. The refusal of the court to sustain the exceptions to the plaintiffs’ original petition may be treated as immaterial and harmless.

According to the pleadings of the appellants and the evidence offered.by them, the consideration for the four notes, aggregating $3,000 and executed by Willard on December 4, 1913, was made up of the principal and interest paid to Spivey by the appellants at Willard’s instance on the purchase-money debt and $413.65 for money and material furnished Willard by appellants to make improvements upon his homestead some time prior to the date of the notes and deeds. It is not contended that any portion of those notes has since been paid; neither is there any pleading or evidence which tends to impeach their validity as personal obligations on the part of Willard. It follows, then, that a personal judgment for their full amount, together with interest and the stipulated attorney’s fees, should have been rendered for the appellants against Willard. It is true the appellees pleaded in a general way that a portion, and probably all, of the Spivey debt had been paid, but the transactions relied upon to prove such payments occurred before the four notes above referred to were executed. The principal controversy seems to be about how much of the original purchase money of the homestead was unpaid at the times those notes were given, - and formed a part of their consideration. The action of the court below in canceling those notes and in refusing to consider them as a basis for a personal judgment for any portion of the debt which they evidenced indicates that for some reason he regarded them as invalid personal .obligations. The only argument suggested in the briefs of the appellees as supporting that conclusion is one founded upon the rule which applies to illegal contracts. Appellees insist that, inasmuch as it was shown that a portion of the consideration for the notes held by the appellants was not the original purchase-money debt, such notes were for that reason alone invalid and unenforceable for any amount. While the effort of the parties to create a lien upon the homestead for the entire debt evidenced by the notes was ineffectual because a part of the real consideration was something for which the homestead could not be incumbered, that fact alone did not invalidate the notes or affect the lien for that part of the consideration which represented the original purchase-money debt. Girardeau v. Perkins, 59 Tex. Civ. App. 552, 126 S. W. 634. The rule invoked by the appellees which holds that, if a portion of the consideration of a contract is illegal, the courts will refuse to enforce any part of the agreement, applies to contracts which are contra bonos mores, or which violate some penal statute designed to prevent the making of such agreements. A mortgage upon a homestead is not an immoral contract, nor is it one which violates any penal statute. The constitutional inhibition against mortgaging the homestead was made for the pecuniary benefit of the party who may claim such an exemption. If there were any occasion for a discussion of this proposition, ample authority to support it might be found in that line of cases which enforce liens against the homestead when created under circumstances which conceal from the mortgagee the homestead claim. Moerlein v. Scottish Mortgage Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948; Steves v. Smith, 49 Tex. Civ. App. 126, 107 S. W. 147; Scottish Co. v. Scripture, 40 S. W. 215.

To the extent which the consideration expressed in the notes sued on by the appellants represented the original purchase-money debt due upon the homestead, the notes expressed a valid lien enforceable in this suit. Black v. Rockmore, 50 Tex. 88; National Bank v. Taylor, 91 Tex. 78, 40 S. W. 880, 966; Wasson v. Davis, 34 Tex. 159; Swain v. Cato, 34 Tex. 395; Glaze v. Watson, 55 Tex. 568; Clark v. Burke, 39 S. W. 306. One who pays for the vendee the purchase money due upon the homestead takes by an equitable assignment, if not by an actual transfer, the debt which discharges, and is subrogated to the lien which his vendor held. Flanagan v. Cushman, 48 Tex. 241; Pinchain v. Collard, 13 Tex. 333; Joiner v. Perkins, 59 Tex. 302. If the debt is thereafter extended by the giving of new notes, the old lien may be perpetuated without losing any of its validity. Lippencott v. York, 86 Tex. 283, 24 S. W. 278; Watkins v. Spoull, 8 Tex. Civ. App. 427, 28 S. W. 356. The jury in this instance found that on the 4th day of December, 1914, the date upon which the nptes in controversy were executed, there was still due the appellants the sum of $1,600 for what they had previously paid upon the purchase-money notes to Spivey. Upon that finding the appellants were entitled to have a judgment foreclosing the vendor’s lien for that amount, together with the interest which had accrued up to the date of trial at the rate of 8 per cent, per annum, and 10 per cent, attorney’s fees. Honaker v. Jones, 115 S. W. 650. Counsel for appellees justify the refusal of the court to allow interest and attorney’s fees upon the ground that appellants can claim a lien in this suit only by subro-gation, and that such lien is limited to the sum that will reimburse the appellants for what they actually expended in discharging the original purchase-money debt. As supporting that proposition they refer to Cleveland v. Carr, 40 S. W. 407. In that case it was held that, where guarantors on notes secured by a trust deed paid the notes and took an assignment of them, together with the deed of trust, their rights against the principal debtor were derived from subrogation, and not from the assignment, and their recovery from him was limited to the sum actually paid by them with legal interest, not the rate stipulated in the notes. That rule has no application to cases of this character. The appellants were not sureties or guarantors for Willard, nor parties in any form to his contract with Spivey, and consequently were under no legal obligation to answer for Willard’s default. Their payment to Spivey was the consideration for the purchase of Willard’s debt, not the discharge of a legal obligation. The rights which they acquired were measured not by what they had paid, but by what Spivey might have claimed from Willard had he remained the creditor. They are in the same attitude in which they would have been had Spivey transferred to them the original purchase-money debt by a written indorsement. Their, payment to Spivey did not discharge the debt, but merely changed creditors.

Where the consideration for the debt is the original purchase money, the form in which the lien to secure it is expressed or perpetuated is immaterial. The parties may, without violating any legal or constitutional provision, change the form of the mortgage after the making of the original purchase-money contract. A form which would have been valid in the first instance would not be invalid if thereafter adopted. The parties in this case had the right to agree upon and adopt any form they saw proper for perpetuating the debt and lien acquired by the appellants from Spivey; and the deeds in evidence, even though intended as a form of mortgage, were not for that reason void. They were valid as to what remained of Willard’s original purchase-money obligation, together with the accumulated interest and attorney’s fees thereon. We therefore conclude that the court erred in holding to the contrary.

Under the facts as found the appellants were not entitled to the foreclosure of a lien for the $413.65. This portion of the consideration of the notes held by the appellants is for money and material furnished for improvements put upon the premises after the homestead right had attached. To be valid such liens must be created before the material is furnished. Taylor v. Huck, 65 Tex. 238; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; Lippencott v. York, supra. It is urged by the appellants that they were the real owners of the property at the time the improvements were made. As supporting that contention, they refer to that portion of the evidence which shows a conveyance made to them by Spivey, in which the latter transferred his lien and all the legal and equitable rights he then held in the property. That, conveyance merely vested in the appellants the lien and the superior legal title remaining in the vendor which enables him to rescind the contract upon default in the payment of the purchase money. Until a rescission occurred the real beneficial ownership of the property was in the vendee, Willard. The court correctly refused to allow a foreclosure for this sum.

The appellants insist that the judgment in this case should be reversed because of the failure of the court to grant a new trial on account of the newly discovered evidence. This evidence consisted substantially of testimony which would tend strongly to impeach or contradict the testimony of the appellee Willard as to payments for which he received credit in the findings of the jury. While the character of this newly discovered evidence and the circumstances surrounding its discovery and subsequent presentation as a basis in the motion for a new trial are not, when standing alone, sufficient to require the granting of a new trial, yet we are inclined to think, upon a review of the entire record, that the ends of justice would be better sub-served by reversing and remanding the cause, in order that it may be tried in accordance with the views herein expressed.

The judgment will therefore be reversed, and the cause remanded for a new trial.
      <§=>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 ill all Key-Numbered Digests and Indexes’


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    SMITH v. OUR UNITED BROTHERHOOD et al.
    (No. 1694.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1916.
    On Motion for Rehearing, Jan. 4, 1917.)
    1. Insurance @=j-719(1) — Beneficial Insurance — Alteration in By-Laws — Prospective Operation.
    A by-law of a fraternal benefit society, providing that should a member become permanently disabled, his policy shall be declared paid up for life, will, in the absence of language indi-eating contrary intention, be considered intended to apply only to those thereafter becoming members, and not to one already a member, who under an existing by-law was entitled, on becoming totally disabled, to payment of half the amount of his policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. «=>719(1).]
    2. INSURANCE «=>719(1) — BENEFICIAL INSURANCE — ALTERATION of By-Daws — Statutes.
    Act May 1, 1909 (Acts 31st Leg. [1st. Ex. Sess.] c. 36) § 8, providing that changes of bylaws of a beneficial association shall bind a member as though made before he became a member, does not apply to a by-law intended to operate only on members whose certificates were issued after it was adopted.
    [Ed. Note- — For other cases, see Insurance, .Cent. Dig. § 1855; Dec. Dig. «=>719(1).]
    3. Insurance «=>705 — Beneficial Insurance-Consolidation of Associations— Liability.
    A beneficial association with which another is consolidated, and which in consideration of transfer of all assets and property of the other assumes the insurance contract liabilities of the other, is liable for benefits to a member of the other.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1840; Dec. Dig. «=>705.]
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Action by Joseph. B. Smith against Our United Brotherhood and another. From an adverse judgment, plaintiff appeals.
    Affirmed in part, and in part reversed and rendered.
    “Our United Brotherhood” was a fraternal benefit society under the laws of Texas. In 1912 it issued one of its benefit certificates to appellant, then about 30 years old. By the terms of the contract evidenced by the certificate appellant was—
    “entitled to participate in the benefits provided by this society in accordance with the provisions of its articles of incorporation and by-laws as they now are or may be lawfully amended, as follows: First, not to exceed $3,000 — on the death of said member to be paid to Cora C. Smith, related to said member as wife, subject to and in connection with the conditions and covenants hereinafter provided. Second, one-half of the amount that would have been paid to the said member, if demanded, within 90 days from the receipt of satisfactory proof of total and permanent disability that renders said member entirely unable to follow any vocation or pursuit. Such disability may be either the result of accident, disease contracted after becoming a member, or old age.”
    Claiming that as the result of disease contracted by him after the certificate was issued as stated, to wit, on or about May 1, 1913, he became totally and permanently disabled from following any vocation or pursuit, appellant demanded of said brotherhood that it pay him the sum of $1,500 as stipulated for in the certificate, and on its refusal to do so commenced suit against it.
    In its answer to the suit, filed October 30, 1914, the brotherhood, among other things which need not be mentioned, relied upon the stipulation in the contract that appellant’s participation in the benefits provided by the society was to be “in accordance with the provisions of its articles of incorporation and by-láws as they now are or may be lawfully amended,” alleging that:
    “At the time the plaintiff made his application for membership in said order section 128 of the constitution and by-laws of said order provided for the payment of certain portions of the certificates issued as a life certificate to each member upon such member becoming totally disabled to pursue any vocation, as is set out in the certificate attached to plaintiff’s petition ; that on the 11th day of June, 1913, and prior to the time plaintiff claims to have become disabled, the defendant in regular order and according to the constitution and by-laws amended section 128, and by such amendment no member was authorized to collect any amount in cash for a total disability, but upon proper showing and proof to the company the certificate of any member becoming totally disabled should become fully paid up and such member should be exempt from further assessments and dues; * * * that according to the terms of said application and certificate, if plaintiff is entitled to any of the benefit under said certificate the same is no more than a right upon proper showing to have issued to him a paid-up policy of insurance not to exceed the maximum amount stated in said policy.”
    It appears from the record that by an agreement in writing, entered into October 29, 1914, between the brotherhood and the Independent Order of Puritans, a fraternal beneficiary society under the laws of Pennsylvania, the latter, in consideration of the transfer to it of all the “assets and property of whatsoever kind and description” belonging to the former, assumed the “unpaid death, accident, and disability claims” against the brotherhood, and attached to the certificate which the brotherhood' had issued to appellant a rider by which it agreed “to assume the insurance contract liabilities” of the brotherhood “as set forth in the contract to which this rider is attached.”
    December 17, 1915, appellant filed his second “amended original petition,” on which the trial was had, making the Puritans, instead of the brotherhood, the defendant. February 28, 1916, the Puritans filed an answer, in which it adopted the answer to the suit made by the brotherhood, and alleged that as a fraternal beneficiary association it was subject only to the law governing such association which did not authorize it to take over the insurance of any other company; that its funds were raised by assessment of its members for their use and benefit; and that at the time of its consolidation, or attempted consolidation with the brotherhood, the latter also was—
    “a fraternal beneficiary association, and operated as such without capital; that by the constitution and by-laws of the said order it was provided that special fund was created by regular assessments of its members for the purpose of paying disability claims; that such disability claims were to be paid only out of the said special fund and out of no other fund; that at the time of the attempted consolidation of the two companies there was according to the report made to the commissioner of insurance only the sum of $99.70 in the said fund, and there was at said time the claim herein sued on and another claim that was unadjusted, amounting to the sum of $1,000; that no portion of the funds of this defendant can be used by it except in the payment of death and disability-claims against it in favor of policy holders holding policies written by this defendant, and the funds of this defendant cannot be diverted and used for any other purpose save and except for such purpose. Wherefore this defendant says that if the plaintiff can recover anything at all, it will be for only his pro rata part of the sum of $99.70.”
    On special issues submitted to them the jury found that appellant, within the meaning of the certificate issued to him, on or about November 1, 1913, became totally and permanently disabled, “so as to render him entirely unable to follow any vocation or pursuit.”
    On these findings and findings of his own the court rendered judgment that appellant take nothing by his suit, and that the brotherhood and Puritans “go hence without day” and recover costs of appellant.
    L. W. Davidson and S. M. Long, both of Mt. Vernon, for appellant. R. T. Wilkinson, of Mt. Vernon, for appellees.
   WILLSON, C. J.

(after stating the facts as above). Part of section 98 of the brotherhood’s constitution and by-laws in force at the time the certificate was issued to him, was as follows:

“Second, one-half of the amount that would have been paid to said beneficiary in case of the death of said member, shall be paid to the said member, if demanded, within 90 days from the receipt of satisfactory proof of total or permanent disability rendering said member entirely unable to follow any vocation or pursuit. Such disability may be either the result of accident, disease contracted after becoming a member, or old age; provided further, that should the said total and permanent disability be the result of old age after reaching the age of 70, then the payment shall be in accordance with that section of the by-laws relating to old age disability.”

The (jury having found that appellant about November 1, 1913, became totally and permanently disabled, within the meaning of the certificate issued to him and the law above set out, and, it not being pretended that appellant for any reason was not then in good standing as a member of the brotherhood, and therefore not entitled to the benefits specified in that certificate and law, it must be assumed the trial court in rendering judgment against him did so because he was of opinion a change in the brotherhood’s constitution and laws applicable to the case was effected by section 128, adopted June 11, 1913, which operated to deny appellant a right to the relief he sought. Said section 128, so far as it need be stated, was as follows:

“Should any member carrying the whole life level policy as mentioned in this section, and while not suspended for payment of dues, become totally and permanently disabled as a result of either accident or disease contracted after becoming a member rendering such member totally and permanently physically unable to follow any gainful avocation, pursuit or employment, or to. do or perform any physical labor-whatever, prior to attaining age 60, then upon satisfactory proof of such fact the Supreme Executive Committee shall declare such policy paid up for life; provided that should it later appear, that such disability was not in fact total or permanent, then such member shall upon notice from the Supreme Executive Committee resume the payment of his or her-original rate of contribution and shall pay same until death, but shall not be required to pay for any part of the time such disability existed prior to age 60.”

It will be observed that the by-law just set out did not by its express terms apply to members “carrying the whole life level policy,” as appellant (did, at the time it was adopted, and that there is nothing in its language directly negativing an intention that it should affect the rights of others than those who should become members after it' was adopted. The rule applicable to changes in the laws of such an association has been stated as follows:

“Alterations in the by-laws of the association will not be given a retrospective operation where to do so would result in the impairment of vested rights; and even where no rights have become vested such alterations will not be construed to operate retrospectively, unless an intent that they shall have such operation clearly appears and no other reasonable construction is possible.” 7 C. J. 1081.

And see 29 Cyc. 72 et seq., and, as illustrating the rule, Woodmen of the World v. Thornton, 115 Ga. 798, 42 S. E. 236; United Workmen v. Brown, 112 Ga. 545, 37 S. E. 890; Kaemmerer v. Kaemmerer, 231 Ill. 154, 83 N. E. 133; United Workmen v. Stumpf, 24 Tex. Civ. App. 309, 58 S. W. 840; Knights Templar & Mason’s Life Indemnity Co. v. Jarman, 187 U. S. 197, 23 Sup. Ct. 108, 47 L. Ed. 139.

In the Thornton Case the court said:

“It will be presumed that an amendment to the by-laws was not intended to affect a contract of insurance previously issued by the society, and it will be so construed as to give it a retroactive force only when the intention to have it so operate is clear and undoubted. This is no new doctrine in law. It applies to acts passed by the Legislature of a state as well as to laws enacted by a benefit society. It is a reasonable and just rule of construction for such acts. While a member may agree in his contract that laws thereafter passed shall bind' him, such a láw, in order to have that effect, must show clearly the intention of the lawmaking power that it shall become a part of the contract. The member is then put upon notice that his contract has changed, and he can either acquiesce in the change, or leave the association.”

In the Brown Case the court said:

“It is a well-recognized rule in the construction of statutes that a legislative enactment will be given a prospective operation only in the absence of a clear intent that it shall act retrospectively. End. Interp. St. § 273; Dwar. St. 681. It is not enough that general terms are employed -broad enough to cover past transactions; for laws are to be construed as prospective only, if possible. Sedg. St. & Const. Law, 161, note ‘a.’ * * * The fact that Harvey (to whom the certificate was issued), agreed to comply with all of the laws, regulations, and requirements which might be enacted by the order subsequently to the issuance of his certificate does not alter the rule that they should be given a prospective operation, in the absence of a clear intent that they shall act retrospectively.”

In the Stumpf Case the court quoted approvingly as follows from Wist v. Grand Lodge, 22 Or. 271, 29 Pac. 610, 29 Am. St. Rep. 603:

“Rights will not be interfered with unless there are express words to that effect. It is not enough that upon some principles of interpretation a retroactive construction could be given to the law, but the intent to make it retroactive must be so plain and demonstrable as to exclude its prospective operation. ‘It is not enough that general terms are employed broad enough to cover past transactions,’ for laws ‘are to be construed as prospective only, if possible.’ Sedg. St. & Const. Law, 161. In fact, so great is the disfavor in which such laws are held, and so generally are they condemned by the courts, that they will not construe any law, no matter how positive in its terms, as intended to interfere with the existing contracts or vested rights, unless the intention that it shall so operate is expressly declared or is to be necessarily implied.”

As we are of opinion section 128, when considered with reference to the rules indicated by the quotations made above, must be held to have operated prospectively only, and therefore did not affect the contract evidenced by the certificate which, before its adoption, had been issued to appellant, notwithstanding he agreed, when he accepted it, “to be governed by the laws and by-laws of the supreme lodge,” and had a right to benefits provided only in accordance with the “by-laws as they now are or may be lawfully amended,” it is unnecessary to determine whether, if said section 128 should be otherwise construed, its operation should be held to be limited “to such regulations as have reference to the member’s duties and conduct as a member, and did not embrace an act that would produce a radical change in his rights” (Ericson v. Fraternal Mystic Circle, 105 Tex. 170, 146 S. W. 160), as contended for by appellant.

If section 128 should be construed as applying only to contracts evidenced by certificates issued after the date of its adoption, as we have indicated we think it should be, then of course section 8 of the act of May 1, 1909 (General Laws, p. 358), invoked by appellee, did not authorize the ruling made by the trial court. The statute cited provided, with reference to such certificates, that:

“Any changes, additions or amendments to said charter articles of association, constitution or laws duly made or enacted subsequent to the issuance of the benefit certificate, shall bind the member and his beneficiaries and shall govern and control the contract in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership.”

Obviously, we think, the statute should be held to apply only to members whose rights as holders of certificates were intended to be affected by changes made in the laws of the association. As we have seen, the section 128 in question adopted by the brotherhood operated only on members to whom certificates were issued after it was adopted.

It follows that we think the judgment should be reversed; and the judgment should be here rendered for appellant for $1,500, the sum sued for, and to which he was entitled by the terms of his certificate, unless, as is contended by appellee, appellant in any event was entitled to recover only a pro rata part of $99.70, which, it appeared, was the total of the disability fund owned by the brotherhood at the time it transferred its property to the Puritans and the latter assumed the unpaid disability claims against the former. We do not think the contention should be sustained. The fact alone that the brotherhood’s disability fund amounted to only $99.70 October 29, 1914, when it transferred its assets to the Puritans, we think would have fallen short of showing that a recovery by appellant against the brotherhood should have been limited to that sum or a part of it had the brotherhood continued in business; and certainly was not a reason why a recovery against the Puritans should have been so limited, for it assumed, without limitation, the unpaid disability claims against the brotherhood.

The judgment in so far as it is in favor of the brotherhood will be affirmed; but in so far as it is in favor of the Puritans it will be reversed, and judgment will be here rendered that appellant recover of it the sum of $1,500, interest thereon from November 1, 1913, and the costs of this court and the court below.

On Motion for Rehearing.

By the terms of the contract appellant was entitled to receive on account of the disability suffered by him as found by the jury, one-half of the sum the beneficiary named in the certificate would have been entitled to had appellant died at the date of such disability. It was stipulated in the contract that should appellant die “after 18 months and before 24 months,” the society should be liable for only 99 per cent, of the amount ($3,000) named in the certificate. Appellant became disabled within the meaning of the contract more than 18 months and less than 24 months after the time the certificate was issued to him, and therefore was entitled to recover only one-half of 90 per cent, of $3,000, or $1,350, instead of $1,500, as determined by the judgment rendered here. To correct this error, the motion will be granted in so far as it is for such relief, and the judgment will be so modified as to award appellant a recovery of $1,350, instead of $1,500. In other respects the motion will be overruled.
      €=s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      i=>For other cases see same topic and KEY-NUMBER in all Key-Number.ed Digests and Indexes


author: HODGES, J.

text:
    CRAIG et al. v. McFADDEN et al.
    (No. 1698.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 28, 1916.
    Rehearing Denied Jan. 4, 1917.)
    1. Wills <§=>506(1) — Construction—“Heirs.”
    The word “heirs” as a word of description will not always be taken in its strict legal significance, where testator’s intention to use it in a different sense is shown, and it may be used to describe those who answer to the description at a specified time after testator’s death.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1090; Dec. Dig. @=>506(1).
    For other definitions, see Words and Phrases, First and Second Series, Heirs.]
    2. Wills @=>524(6) — Construction — Remainders — Heirs.
    Where testator devised his estate . to his wife for life with full power of disposition and the remainder, “if any,” at her death to be divided into two moieties, one to his “heirs” and one to his wife’s “heirs,” the word “heirs” referred in both cases to those answering the description at his wife’s death, and distribution in view of Rev. St. 1911, art. 2468, to be per capita; such heirs taking a contingent and not a vested remainder upon death of the wife.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1122; Dec. Dig. @=>524(6).]
    Appeal from District Court, Smith County; R. M. Smith, Judge.
    Suit to construe a will by Mrs. Annie McFadden and others against Mrs. Lelia Craig and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    J. W. Craig, of Dallas, for appellants. J. M. Edwards, of Tyler, for appellees.
   HODGES, J.

In January, 1900, T. P. Smith died, leaving a will of which the following is a copy as to its material provisions :

“First. I nominate and appoint my beloved wife, Mary Bell Smith, sole executrix of this, my last will, and direct that no bond or other security of any kind shall be required of her as executrix.
“Second. It is my will that no other action shall be had in the county court pertaining to estates, or in any other court, in the administration of my estate, than to prove and record this will and to return an inventory and ap-praisement of my estate.
“Third. I desire that all my just debts and funeral charges shall by my said executrix be paid out of my estate as soon after my decease as shall by her be found convenient.
“Fourth. I direct that one thousand dollars be set aside and appropriated out of my estate to erect tombstones or monuments over my grave and over the grave of my said wife, and to enclose the same with suitable fence, such part of the same to be by my executrix, as she may think proper, used during her lifetime to erect tombstone or monument over my grave and to enclose the same, and the balance to be used after her death to erect tombstone or monument over her grave and to enclose the same.
“Fifth. It is my wish and desire that my beloved wife be properly supported and cared for during her lifetime and that she be provided with every convenience and comfort, and to this end I give and bequeath to my beloved wife, Mary Bell Smith, during her lifetime, all the rest and residue of my separate estate, if any, and all the rest and residue of the community estate of myself and my wife, as well as her separate estate, if any, to be by her managed and controlled, for her own sole benefit, use and enjoyment during her lifetime, and at her death or so soon thereafter as shall be found convenient, I direct that all the rest and residue of my separate estate, if any, and all the rest and residue of our community estate, and my said wife’s said separate estate, if any, all treated, inventoried and consolidated, as one estate, be divided into two equal moieties or halves, and that one of said moieties or halves be distributed, according to the laws of descent and distribution of the state of Texas, among the heirs of my said wife, Mary Bell Smith, to the exclusion of my own heirs, and the other remaining moiety or half to be distributed, according to the laws of descent and distributions of the state of Texas, among, my own heirs, to the exclusion of my said wife’s heirs.
“Sixth. It is my will that my said executrix, my beloved wife, Mary Bell Smith, direct, manage and control each and all of said estates as she may see proper and as may suit, her convenience, using her discretion in all things, and to this end I hereby authorize and empower her, my said executrix, to sell and dispose of all or any part of either one of said estates, real or personal, at public or private sale, in any manner that may seem best to her for the management of said estates, and make conveyance of the same.”

At the time this will was made, and at the time Smith died, he and his wife each owned separate property and some community property. The separate property of Mrs. Smith exceeded in value that of her husband. They had no children or their descendants at the time the testator died. Mrs. Smith, notwithstanding she owned the larger portion of the property disposed of by the will, acquiesced in its provisions. At the time Smith died, his only heirs besides his wife were two sisters, Mrs. Johnson and Mrs. Shuford, and a niece, Mrs. Oraig, the appellant, who was the daughter of a deceased brother of the testator. At the time of the death of Mrs. Smith, which occurred in 1914, Mrs. Johnson and Mrs. Shuford, the two sisters of the testator, were both dead, but were survived by a number of children, who are the appellees in this suit. In the partition of the estate, the heirs of Mrs. Smith made a satisfactory division of that half bequeathed them, and they are in no way connected with this controversy. But in the division of that moiety left to the heirs of the testator a controversy arose as to how the distribution should be made — whether per capita or per stirpes. The appellees contended that their portion of the estate should be distributed per capita; that all of the heirs, being nieces and nephews of the testator, should share equally in the division. The appellants insisted that under a proper construction of the will Mrs. Smith took only a life estate, and that the remainder vested in the heirs living at the death of the testator; that the children of Mrs. Shuford and Mrs. Johnson took only such portions of the moiety left to the heirs of the testator as their parents would have taken had they been living at the time the distribution was to be made. In other words, the appellants contend that the heirs Of the testator took a vested remainder at the time of his death; while the appellees insist that they took only a contingent remainder, and that the heirs among whom distribution was to be made were to be determined as of the time when the life tenant died.

The trial court in construing the will held that the heirs of the testator were those living at the time Mrs. Smith died, and rendered a judgment making an equal distribution among all of the nephews and nieces interested in that moiety of the estate.

The only complaint made on this appeal is that which assails the judgment as an erroneous construction of the will upon the issue above referred to. ' It is conceded by both parties that Mrs. Smith took only a life estate with a power of disposing of any portion which she might elect to sell or convey. The question then is: Did the heirs of the testator who were living at the time of his death take, under the terms of the will, a vested remainder, or was the interest of the heirs then living merely a contingent one, depending upon their being alive at. the death of Mrs. Smith, the life tenant? In other words, did the testator mean those answering 'to the description of heirs at his death, or at the death of his wife? It is unnecessary to here repeat what has so often been defined as a “vested remainder.” The rule as to the' vesting of remainders is thus stated by Mr. Underhill, in volume 2 of his work on Wills (sections 610, 611):

“610. In the absence of a clear indication of a contrary intention, it is the rule that the words ‘heir,’ ‘next of kin,’ or ‘relations,’ in a devise by the testator to his ‘heirs,’ ‘next of kin,’ etc., mean those who are such at his death. This is usually the rule if the devise to the heirs is vested, though an intermediate estate is given which postpones the possession. This interest vests at once, though the testa-tor has given a life estate to another. If a gift by the testator is in remainder to the heirs of another, the testator will be presumed to mean those who are the heirs of that person at the time of his death, and the remainder is therefore -contingent during the life of the ancestor.
“611. Under some circumstances, where a life estate precedes a gift in a will to the heirs or next of kin of the testator, it may appear that the testator intended to include among his heirs such' persons only as would answer to that description at the termination of th.e life estate. This question frequently arises where a testator gives a life estate to A., who, at the death of the former, is his sole or nearest of kin, and a remainder in fee to his heirs or next of kin, to vest in possession at the termination of the life estate. It would seem that the facts that the first taker was sole heir of the testator at the time of the testator’s death, and that he gave a remainder to his heirs, would indicate that he meant such persons to take as heirs who would have been his heirs had he (the testator) survived the life tenant. This has been held in many cases. Thus, where a testator gave his daughter a life estate with a remainder at his death, ‘as though I died intestate,’ it was held that he meant as -though he died intestate after the daughter, and consequently that his heirs at that time Would take. His daughter, the life tenant, who was his sole heir at his death, was therefore excluded. But where the testator devised land'in trust for his son D. ‘for and during the term of his natural life,’ and on the death of the son the testator gave the said property to ‘my (the testator’s) own right heirs,’ the court held that at once, at the death of the testator, the remainder vested in the then living heirs of the testator. The son and life tenant was the sole heir of the testator at his death, and when he subsequently died intestate and childless, the property went to his heirs rather than to the heirs of the testator living at the death of the son.
“But the cases are by no means harmonious on this point, and several hold that the fact that the previous estate is given expressly to the heir, to whom is also given the remainder, does not prevent the operation of the general rule that the word will be construed as meaning those who are heirs at the death of the testator. Where the testator, in the year 1830, gave land to his daughter and her husband, but, if the daughter should die without issue surviving, the land to go to the heirs of the testator, and the daughter died in 1884 without having had and without leaving issue, the court held that the testator meant those who were his heirs at the time of his death. Hence, as the daughter was sole heir of the testator, she took the fee in either event. So, too, where the testator says, ‘I give my property to my legal heirs, in the same proportion as they would have inherited if I had survived my wife,’ giving her in the will a life estate, he will be conclusively presumed to mean those who would have been his heirs if he had died immediately after his wife. And where the testator devises land to his wife for her life, and after her death to be equally divided among his and her heirs, he means the estate to vest in those of his heirs who survive the wife.”

The object in every instance is to ascertain the intent of the testator; and in the case before us we must look alone to the will itself, for there is no reference in the briefs of either of the parties to any extraneous facts which the court might have considered, unless it be the original rights of the life tenant in the property disposed of.

In this will the testator undertook to bequeath to others not only his own separate right, as well as that portion of the community estate which she had a right to claim at his death. But the language of the will makes it clear that there was no intention on the part of the testator to restrict his wife’s dominion over the property during her lifetime so as to interfere with the utmost freedom in its use and enjoyment. The terms “if any,” used in the directions for the consolidation and final distribution to be made of the estate after the death of Mrs. Smith, indicate that the testator contemplated that the entire estate might be consumed by her during her lifetime, and that there might be no residue to distribute. This fact is important only in determining when the testator intended the title to the remainders to vest— whether at his death or at the death of his wife. If he contemplated a possibility of there being no property to distribute at the latter date, that circumstance tends to disclose a purpose that no title in remainder should vest until it had been ascertained that there was property remaining. In this connection, we may also consider the terms in which the remainders are bequeathed. There are no words.of present gift or devise, but merely a direction for distribution of any residue of the property left at the death of the life tenant. While the language of the will is sufficient to confer a legacy upon those named as distributees, it is not inconsistent with the inference that the title to the legacy conferred was to begin at the. time the distribution was to be made.

Again, it is evident that the title to both of the two moieties in remainder were to vest contemporaneously in the heirs of the testator and those of his wife. It can hardly be said that the testator intended that upon his death one set of heirs should take a vested remainder and the other only a contingent interest. If all of the property had been left in remainder to his heirs after having definitely carved a life estate, there would be much force in .the contention that he meant those heirs living at the time of his death. On the other hand, if the devise had been to the heirs of his wife after having carved á life estate, the inference would be equally as strong that he meant the heirs who might be in existence at her death. Strictly speaking, Mrs. Smith, the life tenant, could have no heirs while living. Hence those who were to take a moiety of the remainder as her heirs must, if the legal signification be given to the word “heirs,” be thpse answering to that description at her death. It is true the word “heirs,” when used in such instances, will not always be given its strictly legal signification; but this will be done unless their is something which indicates that the testator intended to use it in a different sense. Wallace v. Minor, 86 Va. 550, 10 S. E. 423; 2 Underhill on Wills, § 608. In the case above referred to, the court had under consideration the provision of a will in some respects similar to the one before us. A life estate had been bequeathed to a daughter of the testator, with remainder to her heirs. In discussing the signification which should be given to the word “heirs,” the court said:

“The word in question has a well-known technical meaning, and we think technical words are prima .facie to be understood in their legal sense, unless, from the contents of the will, it plainly .appear that the testator .intended to use them in a different sense; and when the testator uses only technical phrases the court is bound to understand them as such,, because the court cannot say that he did not know their meaning. But if the testator uses other expressions in other .parts of his will, which show he did not mean to use those phrases technically, then the .intention must prevail. It is in conformity with these principles that, if the testator uses legal .or technical phrases only, his intention should be construed by. legal rule; and, if he uses common words, his intention .should, be-regulated according to. the common understanding, thereof.' * * * ‘When , the word “heirs” is used, not to denote succession, but to describe a l,egat,e,e, .and .ther.e. is.no.pop-text to explain it otherwise, it seems that there is no reason to depart from the natural and ordinary sense of the word “heir.” ’”

If, then, we give the word “heirs” its legal meaning, the conclusion is irresistible that the title to the moiety devised to the heirs of the wife did not vest till her death. It follows,‘then, that unless the two moieties composing the remainders vested at different times, both were postponed till the death of Mrs. Smith. In holding that the testator intended such postponement, no violence is done to the language of the devise to his Theirs; for the term “heirs”' may be used as appropriately to describe those who would answer to that description at a specified time after the death of the ancestor, as those who might be such immediately upon his decease. The fact that the nephew and nieces who' are treated as his heirs at the time Mrs. Smith, the life tenant, died, could not have inherited from him at the time he died, because their parents were then living, does not militate against that construction. In section 630, 2 Underhill on Wills, the author discusses who are meant by the words “next of kin,” and says: . .

“The power of the testator to,attach á meaning to the words ‘next'' of kin’ by proper language that will include those persons only who would be his next of kip if he .should die intestate at some future uoriod, is undoubted. Thus, where the provision in effect postpones the vesting until a future period, when the property is to vest among the next of kin of the testator, those persons. will fake as legatees who would have been' his next of kin had he died at the date of the vesting, and the persons who are then capable of taking as the testator’s next of kin- are the proper • and lawful claimants, irrespective of the fact that at the, death of the testator they were not his next of kin.”

In this instance the testator might, if he .had chosen to do so, have expressly' directed that the remainder of his heirs should be limited to those answering to that description at the' date of his wife’s death ; and it would' have gone. to the appellees, notwithstanding they could not at the date of his death have taken an estate' from him by inheritance. In looking to the use of the term “heirs” for the testator’s intention, it is more reasonable to assume that in referring to'his heirs he meárit, thoSe who occupied that relation had he 'clied at or after his wife’s decease, than to say that in referring to his wife’s heirs he meant those who were only apparently, such, while..she still lived.

• There is another feature of this, will which should not be overlooked. If the testator had intended that the- remainder to be distributed among his-heirs'was to vest immediately upon' his . death;' then his wife, the life tenant, .being herself' ah heir, would; under the laws of descent and distribution, have taken a fee in all of the moiety set'apart to 'his héirs, if the" property' weré' personalty, ¡and to. th.e greater' portion of it ⅛, it were mixed.' Under the;..¿ecú.liar .wording of this will, it is evident that the testator did not intend that his wife’s heirs should take more than one-half of what remained at the expiration of the life estate. Yet they would have taken considerably more by inheritance from the. wife had she participated in the ownership of the title to the vested remainder. The granting of a like estate with a remainder to the heirs of the testator does not necessarily exclude the life tenant who would also be an heir from participating in the remainder when it vests upon the death of the testator. 2 Underhill on Wills, § 611, and cases cited; also, In re Kenyon, 17 R. I. 149, 20 Atl. 294. If the testator intended to vest a remainder immediately upon his death, and did not intend to exclude his wife from her legal rights as an heir, then the provisions of the will with reference to a division into two moieties and the distribution to be made at her death could not have been complied with. No one answering to the description of an heir can be excluded from the benefits which that relationship confers under the terms of a will, except the will itself; and under the authorities referred to above, as well as those which follow, the mere conferring of a life estate does not alone operate to exclude the life tenant from the benefits resulting from the relationship of heir to the testator.

After considering all of the provisions of this will, we have concluded that it was correctly construed by the trial court; that the heirs referred to who were to take the two moieties of the estate were those who answered to that description at the time Mrs. Smith, the life tenant, died. When that occurred, all of those who were entitled to participate stood in the same degree of relationship to the testator. They were his nieces and nephews, and under article 2468 of our statute took per capita. The following cases, in addition to those previously cited, we think support that conclusion: Forrest v. Porch, 100 Tenn. 391, 45 S. W. 676; Wallace v. Minor, supra; Leonard v. Haworth, 171 Mass. 496, 51 N. E. 7; Womack v. Smith & Tinsley, 11 Humph. (Tenn.) 478, 54 Am. Dec. 51; Welch v. Brimmer, 169 Mass. 204, 47 N. E. 699.

The judgment of the district court will therefore be affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HEVT, J.

text:
    RIDLING v. MURPHY.
    (No. 1696.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1916.
    Rehearing Denied Jan. 4, 1917.)
    Guardian and Ward &wkey;>114 — Estate of Ward — Debts—Power oe Probate Court to Order Payment — Statutes.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4155, 4160, giving the probate court power to sell a ward’s realty for Ms education ahd maintenance or to pay debts against the estate, or when the interest of the ward will be promoted by a sale, when the court ordered a guardian to sell particular land; the homestead of their deceased father, the court could direct the guardian, on application of a creditor of the wards, to pay the debt with the proceeds of sale, despite article 3787, exempting the funds of the voluntary sale of a homestead for six months from the date of sale.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 399; Dec. Dig. @=3114.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Application to the probate court by Carey Murphy for an order for the payment of his claim against the estate of minors by A. B. Ridling, their guardian. From an order directing the guardian to pay the claim, he appealed to the district court, and from the order of the district court, he appeals.
    Order affirmed.
    Appellee, a creditor, applied to the probate court from an order for the payment of his claim, alleging that there were funds in the hands of the guardian subject thereto. The probate court granted the application and entered an order directing the guardian to pay the claim. The guardian appealed to the district court, and then appealed from the order of the district court to this court. The proceeding on appeal is upon the agreed statement of facts, as follows:
    “(1) That said Murphy is the owner of said claim, that same was duly filed in said cause on June 25, 1908. and on the same day entered on the claim docket, and that no part of said claim has been paid.
    “(2) That prior to the filing of such claim same had been duly allowed by J. A. Ridling, who was then duly appointed and acting guardian of said estates, and that afterward on Au'gust 1, 1908, said claim was duly approved in writing upon said claim and upon the claim docket in said cause for the entire sum of $105.62 by Hon. H. A. Cunningham, who was then the qualified and acting judge of said county, and said claim was then and there by said judge classified as fourth class.
    “(3) That A. E. Ridling qualified as guardian of the said estates on April 6, 1914.
    “(4) That said A. E. Sidling, under order of the county court of said county on April 26, 1915, executed and filed in said court and cause as such guardian a new bond in the sum of $1,600, with W. H. Nevill and L. K. Crawford as sureties thereon, which said last-named bond was by said court approved April 27, 1915.
    ' “(5) That on April 19, 1915, said A. E. Rid-ling as such guardian applied to said court for an order to sell the two-fifths undivided interest, being the interest of said wards Mary and Gladys Ridling in part of J. P. Simpson survey of land situated in the city of Bonham, Fannin county, Texas, being S. E. one-fourth of block 33; thence north 53 varas; thence west 53 varas; thence south 53 varas; thence east 53 varas to the beginning.
    “(6) That said application for said sale of said two-fifths interest in said property was on 25th day of April, 1915, granted by said court.
    “(7) That on 26th day of April, 1915, said Ridling as such guardian reported to said court that he had sold said two-fifths interest in said property to W. M. Halsell for the sum of $780 in cash.
    “(8) That afterward on 3d day of May, 1915, said court duly approved and confirmed said sale of said interest in said land and ordered conveyance thereof to be made to the purchaser upon the payment of said sum. _

      “(9) That on 5th day of May, 1915, in obedience to said order of said court, said Ridling, as such guardian, executed and delivered to said Halsell his, the said guardian’s deed, conveying said two-fifths interest in said property to the said Halsell, and that in consideration thereof the said Halsell paid the said Ridling as such guardian said sum of $780.
    ‘‘(10) That said two-fifths interest of said property belonging to said two wards and said sum of $780 so received therefor from said Halsell was the property of said wards in equal shares.
    “(11) That said Ridling as such guardian had at the time of the filing of Murphy’s motion herein and still has in his possession enough of said proceeds of said sale to satisfy said Murphy’s said daim, if such proceeds are subject to such payment.
    “(12) That said wards have neither father nor mother; that their mother died prior to the death of their father; that the property mentioned was the homestead of their father at his death; and that his estate was solvent when he died.
    “(13) That no order of probate court was ever made authorizing the guardian of either of said wards to occupy said property as. the homestead for either of said wards, or for either of said wards to so occupy said property.
    “(14) That the only question involved in this motion and litigation is whether or not said proceeds in said guardian’s hands is subject to the payment of said Murphy’s said claim; that up to the time of sale of said two-fifths interest in said property both said minors lived in the house on said property with their adult brother A. E. Ridling; and that they owned no other property at the time of said sale and had always lived in said property.
    “(15) That A. E. Ridling is now 28 years of age and has always been a single man, and that his father and the father of said Mary and Gladys Ridling died in 1901, at which time A. E. Ridling was 13 years of age; that for several years prior to the sale of this property, and up to the time of the sale, A. E. Ridling had been contributing to the support of said minor sisters ; that this suit was filed June 23, 1915, in county court of Eannin county; that said property was never worth as much as $5,000.”
    Rosser Thomas and J. W. Gross, both of Bonham, for appellant. Thos. P. Steger, of Bonham, for appellee.
   HEVT, J.

(after stating the facts as above). The agreed question for decision is “whether or not said proceeds in said guardian’s hands is subject to the payment of Murphy’s said claim.” The question presented should be, we think, answered in the affirmative, that the probate court has the power, as exercised here, to subject the funds in the hands of the guardian to the payment of the duly established claim of Mr. Murphy against the minor’s estate. In respect to the question presented it is the contention of appellant guardian that article 3787, exempting the funds of the voluntary sale of the homestead for six months from the date of sale, has application and restricts the authority of the court to pay the claim. It is within the power of the probate court by terms of the statute to sell the ward’s real estate when such a sale is necessary for the ward’s education and maintenance, or to pay debts against the estate, or when the interest of the ward will be promoted by a sale. Articles 4155, 4160, Vernon’s Sayles’ Stat. And it is not provided by statute that the proceeds arising from the sale of the particular land under order of the court shall not be used for the ward’s benefit or debts, as may be determined by the probate court, for any specified time after the sale. Hence, when the probate court exercises its power, as it did here, to order a sale of the ward’s particular land, as in the best interest of the estate, the proceeds of the sale of the particular land may, by direction of the court, as within its power so to do, be used for the ward’s benefit in such way as the' probate court may determine. And article 3787 does not necessarily restrict nor regulate the exercise of the power of the probate court respecting the use of the fund of such sale to the ward’s benefit, as to the probate court may seem best. If the probate court had determined that it was to the best interest of the wards to reinvest the funds in a lot or house, the power would exist to do so. And likewise the power exists in the probate court to determine that it was for the best interest of the minors not to reinvest the funds in another lot or house.

Affirmed.
      <IS=4For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    ARNOLD v. PIKE.
    (No. 1038.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1917.)
    1. Appearance <&wkey;9(7) — What Constitutes —Abatement op Attachment Proceedings —“Answer.”
    Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 1882, providing that any answer filed constitutes an appearance, as all defensive pleadings are properly styled “the answer,” and any motion or plea calling on the court to exercise its jurisdiction is a general appearance, a plea in abatement of an original attachment proceeding brought under article 240 against a nonresident, raising an issue as to the authority of plaintiff’s agent to execute the bond, was as much a part of defendant’s answer as if filed to that part of the suit seeking to establish the debt itself, and constituted an appearance which authorized a personal judgment against defendant..
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. § 51; Dec. Dig. <&wkey;9(7).
    For other definitions, see Words and Phrases, First and Second Series, Answer.]
    2. Attachment &wkey;>204r — Proceedings—Evidence.
    An original attachment proceeding against a nonresident, under Vernon’s Sayles’ Ann. Civ. St. 19Í4, art. 240, is not merely an ancillary proceeding, but is issued with a view to obtaining service for the purposes of a judgment in rem, and before plaintiff is entitled to such a judgment he must not only establish his debt, but prove the attachment lien.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 659-663; Dec. Dig. &wkey;>204.]
    Appeal from Wheeler County Court; M. M. Miller, Judge.
    Action by T. N. Pike against Lewis Arnold. •Judgment for plaintiff, and defendant appeals.
    Affirmed.

      H. B. Hill and J. B. Clark, both of Shamrock, for appellant.
   HALL, J.

Appellee Pike sued appellant on a" pro.inissory note for $600. In the original'petition it is alleged that appellant is. a resident citizen of the "state of Illinois, and an attachment writ was sued out and levied upon certain property situate in Wheeler county, alleged to belong to; appellant. At the November term, 1915, of the county court of Wheeler county, appellant filed a “motion to quash the attachment,” because of defects in the affidavit, bond, and writ, and because the officer making the levy levied upon real property “when "there" was personal property belonging to the defendant subject to such levy.” No evidence was introduced upon this issue. It is stated in the motion that .“defendant, by his attorneys, makes his appearance for the purpose of,pre-sen ting the motion, to quash the attachment and for this purpose " only.” .Upon the same day appellant filed two “pleas in abatement.” By the first he seeks to abate the attachment proceeding because the affidavit for attachment shows that it was made by, an agent, and fails to show that the agent Had Written authority for making it, and in the plea “denies that) W. F. Detherage, who purports to be the agent of the plaintiff,'has authority frota the plaintiff to execute fee said affidavit herein, and demands "strict proof of the same.” Evidence was introduced and heard by the court upon this issue of fact.

The second plea -in abatement' attacks fee sufficiency of the bond, in that it is signed by ,a 'siippo.sed agent, and fails to,"show any authority on the part of the agent to execute said bond, and raises the same issue of fact as is raised’ in the first plea by denying the authority, of Detherage to. execute the bond for" plaintiff. Evidence- was also, introduced upon this", issue of fact. It appears that a notice to serve nonresident defendant was issued, but the .return of the .party who attempted to serve it is defective. No motion was made in the court beldw" to qüásh this service,, arid the return itsfelf has" not,‘been amended. Any answer filed constitutes an appearance even without the service, of a citation. Vernon’s Sayles’ Civil Statutes, art. 1882. If appfellant had simply moved to quash fee attachment proceedings there is some question, under the decisions of this state, whether .such motion should be held a general appearance. Sam v. Hochstadler, 76 Tex. 162, 13 S. W. 535; Hochstadler et al. v. Sam, 73. Tex. 315, 11 S. W. 408.

In the case of McLain v. McCollum & Frazier, 72 S. W. 1027, McLain filed a plea of privilege, alleging his residence to. be in Nacogdoches county, but in the same pleading invoked the jurisdiction of the court, seeking to quash a writ of sequestration. James, Chief Justice, said:

“It will be observed that in this pleading which, sets up his privilege, he also invokes the jurisdiction of • the court to determine something else than the question of his right to be" sued in Nacogdoches county, viz. the sufficiency of the writ of sequestration. He not only invoked, but procured, action of the court upon this matter by having the writ quashed. This was. sufficient to give jurisdiction over him' for all purposes.”

The record shows that the attachment in the instant case was quashed. In view of the conflict and uncertainty in the decisions, we do not hold that a mere motion by a nonresident to quash an attachment, by reason of infirmity' or, insufficiency appearing up.on the face of the proceedings, would constitute an appearancé for all purposes, though it is held in other jurisdictions- that such.a motion amounts to a .general appearance. Straus v. Weil, 5 Cold. (Tenn.) 120; Withers v. Rodgers, 24 Mo. 340; Sawyers v. Smith, 41 Miss. 554; Barrow v. Burbridge, 41 Miss. 622; Wood v. Furtick, 16 Misc. Rep. 289, 39 N. Y. Supp. 173.

We think the denial by appellant of the authority of the agent Detherage to make the affidavit and to execute the bond was a defensive pleading raising an issue of fact. This being a suit against a. nonresident, the attachment was not merely an ancillary proceeding, but, as required by V. S. Civ. St. art. 240, was issued with the view of obtaining service for the purposes of a judgment, in rem. Before plaintiff would have been entitled to such a judgment he would not only, have been required to establish his' debt, but also to prove the attachment lien. In order to defeat the attachment part of the action, the pleas in abatement were interposed and the ^issues, of fact presented. The rule is that any motion or plea calling on the court to exercise its jurisdiction is a general appearance. 2 Stand. Proc. 491, 493. The rule is announced in this state that all defensive pleadings are-a part of and are properly styled “the answer." York v. State, 73 Tex. 651, 11 S. W. 869; Fairbanks & Co. v. Blum, 2 Tex. Civ. App. 479, 21 S. W. 1009; Grizzard v. Brown, 2 Tex. Civ. App. 584, 22 S. W. 252; Townes Texas Pleading (2d Ed.) 444, 445. In our opinion, a. plea in abatement of the attachment proceedings in a suit against a nonresident defendant, or under the Texas system of pleading, is as much a pdrt of the defendant’s answer as if a defense had- been filed to that part of the suit seeking to establish the debt "itself, and by such pleas, appellant having presented issues of fact thereby made himself a party to the suit, and- the court was authorized to render' a personal judgment against him.

The judgment is therefore affirmed.

BOYCE,, J., not sitting.,
      £z^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    RASBERRY v. STATE.
    (No. 4279.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1917.)
    1. Homicide <&wkey;30(l) — Parties to Offense— “Principal.”
    On a charge of murder, mere presence of accused at the time and place of killing by a third person is not sufficient to constitute accused a principal, but it must be shown that he agreed to the commission of the offense, or aided or encouraged it by words or gestures within the meaning of the statute.
    [Ed. Note — Eor other cases, see Homicide, Cent. Dig. § 48; Dec. Dig. &wkey;>30(l).
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    2. Criminal Haw <&wkey;1091(9) — Bill of Exceptions — Sufficiency.
    A bill of exceptions, which quotes a requested instruction and recites that it was requested at the trial, before argument and before the charge was read, and that such requested instruction was refused and was not embodied in the charge as given, when approved without qualification by the trial judge, is sufficient under statute.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2818, 2831, 2943 ; Dec. Dig. &wkey;1091(9).]
    Appeal from District Court, Fisher County; John B. Thomas, Judge.
    Alfred Rasberry was convicted of murder, and he appeals.
    Reversed and remanded.
    J. F. Cunningham, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State..
   DAVIDSON, P. J.

This conviction was for murder with 25 years sentence ,in the penitentiary.

The court submitted the case for conviction upon the proposition that Will Human did the .killing, and appellant was present aiding him by acts and encouraging him by words or gestures to commit the offense, and, further, that appellant was a principal by reason of ,the fact that he had previously agreed to the commission of the offense and was present at the time of the killing. This was the state’s theory. Appellant, before the argument , began, asked an appropriate instruction to the effect that the mere presence of defendant at the time and place of. the difficulty was not sufficient to constitute him a principal, j but the evidence must show that the defendant did something which would bring him within the statutory rule constituting him a principal, and unless this was shown by the evidence ;to the exclusion of reasonable doubt, defendant would be entitled to a verdict of not guilty, even if the offense was committed by Will,Human. This was asked in connection with the main charge because the court had not embodied this proposition either in fact or in ¡substance in the main charge.

It is contended the bill of exceptions does not show that appellant ¡brought himself within the rule of our recent statute by excepting in the manner and form as therein required; that his bill Js not technically in conformity with that statute. In order that there may be no question about this matter, so far as the bill is concerned, ,it will be here reproduced:

“Be it remembered that on the trial of this cause, and before the court’s main charge was read to the jury, and before the argument began thereon, the defendant made and presented to the court his special instruction No. 1 as follows, to wit: * * * Gentlemen of the jury, you are instructed that the mere presence of the defendant at the place and time of the killing is not sufficient to show that he was a principal offender. But the evidence must go farther and show that the defendant either agreed to the commission of the offense, or aided by act, or encouraged by words or gestures, the said Will Human to kill the deceased, and unless you find from the evidence beyond a reasonable doubt that the defendant agreed to the commission of the offense, if any committed, by Will Human, or aided by acts or encouraged by words or gestures the said Will Human to kill the deceased, then .you will find the defendant not guilty, and that too even though you believe Will Human guilty of murder or manslaughter.
“Refused. Jno. B. Thomas, Judge.”

The bill further recites that appellant—

“asked the court to approve said charge and give it to the jury in connection with the main charge of the court, but the court refused to give said special instruction to the jury, and refused, to instruct in substance, the law embodied in said special charge in his main charge to the jury, and said special charge was not submitted to the jury, to all of which the defendant in open court excepted, and now tenders his bill of exceptions for approval.”

This bill is. approved by the judge as correct without qualification. We are of opinion that this bill is a sufficient compliance with the law in presenting this matter to the trial court. It recites the fact that the court did not embody this principle in his charge, and, because he did not do so, this special charge was requested, presenting that issue, and the court refused it, and all this occurred before the argument began, and before the charge was read to the jury. It would be difficult to understand how or why the trial court did not understand fully from this bill of exceptions that he had made this omission in his charge, and not only so, but that, when it was presented, he understood fully and refused to give it, and thereby, we suppose, holding that the issue was not raised. The bill recites that it was called to his attention by the charge and for the reason he had not embodied it in the general charge. The writer will not discredit the trial judge by stating that he failed to understand this, because he approves fully the bill of exceptions, which recites that he did understand it and refused to give it. The bill will be treated then as technically sufficient to call the court’s attention to it at the proper time and in the proper way, and is entitled to consideration on appeal.

Upon this issue, the State’s evidence, as to the immediate facts of the killing, was introduced through the witness Addie Bostick, daughter of deceased. The state also intro-dueed Mr. Pruitt and Ms wife as to some corroborative facts, showing the parties were together before they reached the place of the homicide. Miss Bostick was the only eyewitness. She is the daughter of deceased, and was with him at the time he was killed. Her testimony is to the effect that Human did the shooting, and the defendant - did not fire a shot. Her exact words are these:

“The other man did all the shooting. Just one of them did the shooting, and that was Iranian, the other man.”

The evidence further shows, for the state, that Iranian and appellant were brothers-in-law, and that Bostick had previously killed a brother of the defendant, who was also a brother-in-law of Human, and had also stated that Human was a cow thief and his wife was a whore. This seems to have been the first meeting after this information was conveyed to Human. Appellant and Human were seen together riding in the direction of where the killing occurred, coming down a mountainside; when they reached a certain point, they dismounted; that appellant was standing about 25 or 30 yards from Human at the time of the shooting. Miss Bostick testified she saw appellant standing back on the bank, doing nothing; that he was looking on, and she did not see him with a gun at that time, but after the shooting he came down to the brink of the bluff, and she then saw he had a gun. The evidence of the sheriff shows all of the shells whch were fired were fired by Human; he found them where tracks of Human were made, and where he was standing. There is no evidence that appellant fired, but it is shown he did not shoot.

The theory of the state, therefore, briefly stated, is that appellant and Human were acting together and therefore principals. This is denied by appellant, and there is evidence to sustain him. It is unnecessary to go into a detailed statement of the testimony. The question is raised that appellant, though present, was not a principal, and did nothing to encourage Human, and did not advise Mm to do. the killing, or do anything which would bring him within the purview of the statute with reference to principals. The explanation was that appellant and his brother-in-law were hunting an animal in that neighborhood which belonged to appellant and was in that pasture, and that the meeting was accidental, and that deceased began the difficulty. Whatever the jury or the court may have thought about it, the issue was raised, and the court not only did not give affirmatively this phase of the law, but refused a charge requested presenting it. Wherever an issue is presented for solution by the jury on the facts, an appropriate charge should be given, and if it is favorable to the defendant, an affirmative charge must be given, so the jury may pass directly upon that question in reaching their verdict. The solution of all questions of this sort is relegated to the jury under appropriate instructions. It cannot be solved by the court on the facts. It is his province and duty to charge the law, and the jury to decide the weight of the testimony and credibility of the witnesses. The court cannot refuse a charge because he may have agreed with the state’s side of the case, and thus withdraw from the consideration of the jury matters raised by the evidence which are favorable to the accused. Whatever the testimony may be, whether strong and cogent for the state, or with less strength for the defendant, if the issue is in the case it is the duty of the court to submit appellant’s side of it.

Because the court failed to so charge and' refused the special instruction requested, the judgment is reversed, and the cause remanded.
      <&=s>E or other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: DAVIDSON, J. DAVIDSON, P. J.

text:
    McCULLOCH v. STATE.
    (No. 4324.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.
    On Motion for Rehearing, Jan. 31, 1917.)
    1. Ceiminal Haw <&wkey;1081 — Appeal — Dismissal-Absence op Notice.
    Even if an appeal bond in a criminal ease is deemed sufficient to operate as an appeal recognizance, the jurisdiction of the Court of Appeals does not attach in the absence of a notice of appeal.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2722-2724, 2962; Dec. Dig. &wkey;1081.]
    On Motion for Rehearing.
    2. Criminal Haw &wkey;>1128(4) — Appeal—Record-Affidavit.
    Where no notice of appeal in a criminal ease is in the record, an affidavit showing that accused gave notice of appeal in the trial court, but it was not entered of record, is insufficient.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. § 2952; Dec. Dig. &wkey;>1128(4).]
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    T. C. McCulloch was convicted of violating the pistol law, and he appeals.
    Appeal dismissed, and motion for rehearing overruled.
    G. H. Crane, of Sulphur Springs, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the pistol law; his punishment being assessed at a fine of $100.

This record contains neither a statement of facts, bill of exceptions, motion for new trial, nor notice of appeal, and the attempted recognizance seems to be an appeal bond. Without notice of appeal, even if this bond should be counted shfficient to operate as a recognizance, the jurisdiction of this court does not attach. For these reasons the appeal therefore must be dismissed; but, even had the jurisdiction of this court attached, the record as presented would require an affirmance.

The appeal therefore is dismissed.

On Motion for Rehearing.

DAVIDSON, P. J.

This case is presented for review on motion for rehearing. The record failed to contain notice of appeal, and a document was filed supposed to be a recognizance, or to operate as such. It is stated in the original opinion that this document is more in the nature of an appeal bond than a recognizance.

Appellant undertakes now, by affidavits, to show that he gave notice of appeal in the trial court, but it was not entered of record. This is an insufficient showing. Appellant’s counsel states in his affidavit that after the conviction of his client the early part of January he secured a narrative form of the statement of facts taken by the stenographer and presented same to the county judge prior to the adjournment of court, asking him to review the matter and sign the bills of exception and statement of facts if found correct; otherwise to so change them as to conform to the real facts. He states the county judge informed him that he and the county attorney found the bills of exception and statement of facts incorrect and would not approve them. The county judge filed an affidavit that such statement of facts and bills of exception were not presented to him as stated by counsel for appellant, and, substantially, that he knew nothing about the statement of facts and heard nothing about it until perhaps in May subsequent to the adjournment of court the 22d day of January. It seems also upon request of appellant’s counsel the judge gave 30 days after adjournment of court in which to file statement of facts, and later extended that to 60 days. The transcript shows an application was made to the court on the 6th day of January; the conviction having occurred on the 4th. The application was for 60 days. The transcript does not contain the order either granting or refusing to grant the time. Under the decisions more than 20 days beyond the term of court could not be granted for filing these papers.

It will be noticed further in this connection that the court adjourned on 22d of January, 1916. The transcript was certified by the clerk of the county court of Hopkins county on the 25th day of November, 1916, and was filed in the Court of Criminal Appeals on the 6th day of December, 1916. Without the statement of facts or bills of exception in the record, and without any showing why they are not there, the case was submitted for decision on December 20, 1916. Subsequent to the writing of the opinion all these affidavits and counter affidavits and matters of that sort were gotten together and filed in connection with the motion for rehearing. Why this delay is not explained. Appellant and his counsel must have known the condition of the case long prior to making up the transcript, and legally know under such condition that his ease could not be reviewed on the questions involved in the statement of facts and bills of exception. This matter does not present itself as being meritorious. The whole matter manifests an utter want of diligence on the part of appellant and his counsel in preparation of the appeal.

We have not discussed the merits of these conflicting affidavits. It is to be greatly explored that such things will occur. We call the attention of the authorities of Hopkins county to these matters. There is that about these matters which requires investigation.

The motion for rehearing is overruled.

MORROW, J., absent.
      t&soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes