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ly statements apparently more violative of FEIST et al. v. BOOTHE et al.

the rules than this one seems to be, but to

make such order in regard to the costs as the (Court of Civil Appeals of Texas. Nov. 23, 1893.)

facts render proper,--a task upon which we

do not feel inclined to enter in behalf of STATEMENT OF Facts — Wife's SEPARATE PROPERTY--NOTICE TO PURCHASER-INSTRUCTION.

parties who have agreed to the statement. 1. A statement of facts agreed to by the

The assignments of error in substance comparties, and approved by the trial judge, will plain that the charge of the court made the not be stricken out because it contains both verdict of the jury depend upon the deterthe questions and answers of the witnesses, in

mination of one issue, when there were othapparent violation of the rules of court, where some of the questions were inserted for the

ers, a decision of which in favor of appelpurpose of revealing the evasive and contra lants would have entitled them to a recovery. dictory nature of the answers of the witnesses. In order to exhibit the merit of this conten2. In an action by a wife to have a deed

tion, we will state briefly the questions upon absolute on its face declared a mortgage on her separate estate, and to have said mortgage de

which the case ought to have been tried. clared void as having been executed by her to The plaintiffs claimed that the deed from secure a debt of her husband, the question

themselves to Boothe, though absolute on its whether the grantee in the deed had notice of the fact that the land was her separate prop

face, was executed to secure the loap of $300 erty is immaterial, if the transaction was in made by Boothe to Gustave Feist, and that fact a mortgage; but, if the deed was in there was not at the time such loan was tended to evidence an absolute conveyance, then the wife's right to recover the land de

made, or at any subsequent time, an absolute pends on the question whether it was her sepa

conveyance of the land. If this contention rate property, and whether the grantee had no was true, they were entitled to recover, tice of this fact.

Whether the land was the separate property 3. In a civil case it is error to instruct that plaintiff must prove his case to the "satisfac

of Mrs. Feist or not. The defendant Boothe tion" of the jury, as this imposes too heavy a | admitted that at the time the money was obburden of proof.

tained by Feist there was no conveyance to Appeal from district court, Harris county;

him of the land, claiming that the money was James Masterson, Judge.

loaned to Feist upon the security afforded by Action by Rosa H. Feist and her husband

the indorsement of Schwab alone, and that against W. S. Boothe and others to have a

no deed to the land was then delivered to deed absolute on its face declared a mort

him, but, if any was then executed, that it gage. From a judgment in defendants' fa

was left with Schwab to protect him as vor, piaintiffs appeal. Reversed.

Feist's surety. He asserted, however, that

subsequent to the making of the loan another E. Raphael and C. W. Bocock, for appel

transaction occurred between him and Guslants. Harwood & Harwood and J. M. Cole tave Feist, in which the latter sold him the man, for appellees.

land in payment of the debt, and then de

livered to him for the first time the deed in WILLIAMS, J. This cause has been twice question. If this was true, he acquired a before the supreme court, and its nature may good title to the land, unless it was separate be seen from the report of the first decision property of Mrs. Feist, and unless Boothe of it. 80 Tex. 141, 15 S. W. 799. At a trial had notice of that fact before he consumwhich occurred since,-a later decision, coy mated the purchase from Feist. And it is ering a judgment in favor of the present ap only in the event that there was an absolute pellants (19 S. W. 398),-verdict and judg- sale by Gustave Feist to Boothe that the ment were rendered in favor of the defend- question whether or not the land was owned ants in the suit from which this appeal by Mrs. Feist in her separate right, and comes up. A motion has been made to strike whether or not Boothe had notice of that out the statement of facts on the ground that fact, becomes important. The portion of the it consists of the stenographer's notes of the charge which stated the predicament of facts evidence taken at the trial, containing both upon which the jury should render a verdict the questions and answers of witnesses. An for the plaintiffs made their right depend examination of the statement shows that this wholly upon the issue last explained; in othis not entirely true. Some of the questions er words, it required a finding that the propare inserted seemingly for the purpose of re erty was the separate estate of Mrs. Feist, vealing the evasive and contradictory nature and that Boothe had notice of this, before the of the answers of the witnesses. The state plaintiffs could recover. This was clearly erment is agreed to by the parties and ap

roneous. There was positive testimony that proved by the trial judge, and we presume it there was never a sale or a transaction of was supposed to be necessary for the facts any sort by which the character of the deed to be thus shown to this court to enable it was changed from that of a security to an to pass intelligently upon the question pre absolute sale and conveyance. Unless there sented (an opinion in which we by no means was such a transaction, plaintiff's had the concur). It has not, however, been the prac right to recover, whether the property was tice of the supreme court to expunge entire

common or separate. The charge, in the first

part of it, informed the jury correctly that, * Rehearing denied.

if the deed was made as a security for the v.27s.w.no.143

debt only, it would be a mortgage, but this G. B. Turner and J. H. Turner, for appelrule was not applied and enforced in the sub- lants. Davis & Garrison, for appelle:e. sequent passages, in which were specified the facts upon which plaintiffs could recover. GARRETT, C. J. This appeal is from a No special charges were asked by the de- judgment of the district court of Rusk counfendants, but we regard the charge as mate- ty rendered on appeal from a judgment of rially erroneous, and calculated to confuse the county court in the matter of the account the minds of the jury. A special charge giv- of the appellee, Z. B. Garrison, for final seten at the request of the defendant instructed tlement of the administration of the estate the jury in substance that the plaintiffs must of R. S. Higgs, deceased, and the objection prove to their satisfaction" that the land be- of the appellants thereto. The return of longed to Mrs. Feist in her sep:urate right; ' said account was ordered by the county court and must also prove to their "satisfaction" on the application of the appellants, and that Boothe had notice of that fact. These when it was filed they objected thereto; and, instructions are attacked on the ground that on trial in the county court, judgment was they exacted a higher degree of proof than rendered striking out a number of credits the law requires. The evidence was suffi- claimed by the administrator, and restating cient to have warranted the jury in ading the account, showing a balance against him. both of these facts in favor of plaintiffs, if The administrator appealed to the district their witnesses were believed. The testi- court. The contestants moved to dismiss the mony on the question of notice was directly appeal because, as stated in their motion, conflicting, and it cannot be held that the in- one of the sureties on the appeal bond was structions were harmless. We cannot argue also a surety on the bond of said Garrison, that the jury would have found under a as administrator. This motion was proper instruction as they did find under one ruled, and, the cause having been called for which imposed too heavy a burden of proof trial, the court awarded the opening and upon the plaintiffs. That such charges were conclusion of the argument to the adminiserroneous is now well settled. Wallace v. trator, to which the contestant excepted. Berry, 83 Tex. 330, 18 S. W, 595; Railway After examination of the account, the court Co. v. Matula, 79 Tex. 582, 15 S. W. 573; Mc- struck out a few items thereof, and then apBride v. Banguss, 65 Tex. 174. For the er- proved the same, showing a small balance

indicated the judgment must be re- 'in favor of the administrator, and discharged versed. Reversed and remanded.

him, but taxed him with the costs, because he had made no reports, as required by law.

over

rors

Conclusions of Fact.

(1) S. R. Higgs died testate in 1875, leaving HIGGS et al. v. GARRISON.

an estate of real and personal property. J. (Court of Civil Appeals of Texas. May 24, D. Higgs qualified as executor of the will in 1894.)

April, 1875. In 1876 he was removed, and TRIAL-ARGUMENTS OF COUNSEL-ACCOUNTING BY on February 9, 1876, S. M. Boles was apADMINISTRATOR.

pointed administrator with the will annexed. 1. In a proceeding by an administrator for Boles died in September, 1877; and Z. B. final settlement, where objections are filed to Garrison, the appellee, was appointed temhis account, the court may award him the opening and closing of the argument, under

porary administrator to collect rents and Rev. St. art. 1299, as having the burden of

debts, and to take care of the property. In proof on the whole case.

December, 1877, Garrison was appointed per2. An administrator de bonis non need not

manent administrator de bonis non of said account for all of the property that came into the hands of his predecessor, but only for such

estate, with will annexed, and qualified as as came into his own hands, and for want of such. He received from the representatives reasonable diligence in collecting assets not

of Boles the property belonging to the estate, collected by his predecessor. 3. Where the last account of an adminis.

as shown by the inventory returned by him, trator shows a balance in his hands for the

consisting of lands and claims in the form estate, his successor may avoid liability there- of notes. There were also some judgments. for by showing that such balance was paid (2) When J. D. Higgs was removed as exby his predecessor, after filing his account, to those entitled thereto, by order of court.

ecutor, his account showed him to be in

debted to the estate in the sum of $87.12. Appeal from district court, Rusk county; He and his sureties were insolvent. (3) W. J. Graham, Judge.

Last account of S. M. Boles showed that he Petition by Z. B. Garrison, administrator had money on hand, belonging to the estate, of the estate of R. S. Higgs, for final settle- to the amount of $320. This was accounted ment of the administration. J. D. Higgs, for by the payment of the sum of $282.55 Jr., and others objected to certain items made by Boles to J. D. Higgs, the guardian claimed by the administrator, which objec- of the estate and person of the plaintiffs, tions were sustained. From a judgment of who were the only surviving heirs of S. R. the district court modifying the judgment of Higgs, deceased, and were entitled to his esthe county court, said Higgs and others ap- tate, which left a balance not amounting to peal. Affirmed.

the commissions with which Boles was ep.

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titled to be credited. The money paid to J. by said Boles, and in failing to hold said deD. Higgs was for an account in his favor, fendant liable for rents due the estate." As for the board, etc., of the minors which shown by the report of sales of the personal had been approved by the court in the property made by Boles, and his annual acguardianship of said minors then pending count, there was a difference between the in said county court; and the order di- amount reported and collections thereon, of recting the administrator to pay the same $197.34; and the difference between the was entered in the proceedings of the guard- amount for which the land was reported to ianstip, and not in those of the estate. (4) have been rented and the collection of rent After Garrison took charge of the estate, he reported is $35.58. The administrator testisold, under proper orders of the court, and fied that when he qualified he went to the with its approval, all of the lands belonging representatives of S. M. Boles for a settleto the estate, for which he received the sum ment, and received from them the property of $1,143.18. The notes received by him shown by his inventory, which contains a list were on insolvent parties, and the court be- of notes and judgments amounting to more low found that he should not be charged than the amounts above mentioned, but it is therewith, except as to two small items, not shown that they were for the personal which he should have collected. The credits property or the rent. It was shown that allowed by the court were sufficient to bal- these claims were all upon insolvent persons, ance the account. (5) Garrison made no re- and the administrator was allowed credit for port of the condition of the estate, as re- them. He is not required, as under the law quired by law. It could have been closed in of 1870 (2 Pasch. Dig. Laws, art. 5738), to ac1579. (6) Contestants put in evidence the count for all the property that came into the report of S. M. Boles, former administrator, bands of his predecessor, but his duties exof the sale made by him on February 7, 1876, tend only to the property not administered. of personal property belonging to the estate. Rev. St. arts. 1959–1963; Todd v. Willis, 66 Said report was filed March 7, 1876, and Tex. 707, 1 S. W. 803. And they are such as showed sales to the amount of $422.80. It are required by the principles of the common showed also that he had rented out lands of law, when these do not conflict with the statthe estate for the year 1876, for the sum ute. Rev. St. art. 1815. He is bound by the of $135.10. They also introduced his annual statute to the exercise of ordinary diligence report, filed April 17, 1877, which showed to collect every claim due to the estate he repthat he had collected on said sales $225.46, resents, and to recover possession of all propand on said rents $99.25. The estate of erty to which the estate has a right. Id. art. Boles, and the sureties on his bond as admin. 1933. His duty at common law is to conect istrator, were solvent.

the assets of the estate with all reasonable

diligence. 7 Am. & Eng. Enc. Law, p. 307. Conclusions of Law.

There are no facts in evidence that would 1. We are inclined to the opinion that the render Garrison liable for the failure of his court below did not err in overruling the predecessor, Boles, to collect all of the notes motion to dismiss the appeal from the county given for the personal property. nor for the court; but there is no bill of exceptions, nor uncollected portion of the rent. It will be anything in the statement of facts to show presumed, in the absence of evidence to the that one of the sureties on the appeal bond contrary, that the sales were made in accordwas also a surety on the bond of the admin- ance with law, and that the notes were taken istrator. We cannot take notice of what pur- with personal security; and, such being the ports to be the administrator's bond, copied case, Boles himself would only be liable for into the transcript, for it is a loose paper, the failure of diligence to collect, and not abin no manner shown to have been before the solutely. Rev. St. art. 2094, however applies court below, or considered by it in evidence. only to real estate. The last account ren

2. The burden was on the administrator dered by Boles showed that he was indebted to show the correctness of his account, and to the estate in the sum of $320, and it was the court properly awarded the opening and the duty of Garrison to show why he did not closing of the argument to him. Rev. St. collect this amount; but he did this by showarts. 1980, 2142. · See, also, Kennedy v. Up- ing that, after the filing of the account, Boles shaw, 66 Tex. 448, 1 S. W. 308. This, how- had paid to the contestants-who were the erer, would not be cause for a reversal of heirs of S. R. Higgs, and entitled to receive the judgment, when it is apparent no injury his estate the sum of $282.55, and was enresulted from the ruling if erroneous.

titled to commission in an amount that would 3. Appellant's fourth assignment of error more than cover the balance. The order diis not accompanied by such a statement as recting the payment of this money, it is true, is required by the rules, and we must decline was entered in the guardianship, and not the to consider the same.

estate; but it was paid to the use of the per4. The fifth error assigned is that "the sons who were entitled to receive the estate, curt erred in not charging the administrator and they had credit therefor in the account of with the sum of $197 shown in the report of their guardian. sale made by S. M. Boles, former administra- 5. There are no sufficient statements under tor, and which had never been accounted for the sixth and seventh assignments of error; but we find that the conclusion of the court prosecuting the suit, and, by agreement, he below was correct,—that Garrison had an es- was made a party, and the trial proceeded tablished claim against the estate for $60, with. Before the trial commenced, the de. which was properly set off against his note to fendant admitted that the plaintiffs had a the estate for $55, and the evidence of Garri- good cause of action, as set forth in the petison was properly received.

tion, except as it might be defeated by the 6. Appellants assign as error the action of matters of defense which might be estabthe court in failing to deduct from the $282.55 lished on the trial, basing its defense solely paid by Boles to J. D. Higgs, the guardian of on the ground of a breach of the conditions contestants, the sum of $87.12, which was ad- of the policy by the suicide of the insured, judged against Higgs in favor of the estate Richard Hayward. Said admission was enwhen he was removed as executor. It no- tered of record, and the defendant was alwhere appears that Boles did not collect and lowed to open and close the case, having asaccount for this amount.

sumed the burden of proof of suicide. The 7. The judge should not have approved the policy of insurance was dated August 5, statement of facts, as an agreed statement, 1890, and the condition, the breach of which after making changes therein. He was not was the defense relied on, is upon the warrequired to approve the statement, however, ranty contained in the application of the merely because the parties had agreed there- assured for the policy, as follows: "I also on. Rev. St. art. 1377. Appellants' bill of warrant and agree that I will not die by my exceptions gives them whatever advantage own act during the said period of two years." there may be in their not having agreed to A trial by jury resulted in a verdict and the statement sent up, but there is no cause judgment in favor of the plaintiffs. for reversal shown. The judgment of the The first assignment of error presented in court below will be affirmed. Affirmed. the brief of appellant is, "that the verdict of

the jury was wholly unsupported by the evidence, in that defendant established, by

the manifest weight of the evidence, that MUTUAL LIFE INS. CO. OF NEW YORK

Richard Hayward did die by his own act V. HAYWARD et al.

within two years from the date of the issue (Court of Civil Appeals of Texas. April 29,

of the policy.” We are of the opinion that 1894.)

this assignment is well made. Briefly stated,

the facts show that the insured died at the LIFE INSURANCE--SUICIDE – SUFFICIENCY OF Evi

Hotel Mosor, in the city of St. Louis, Wednes1. Where suicide of deceased is the sole

day, December 16, 1891. He was a resident issue tried in an action on a life insurance of Houston, Tex., but was in St. Louis for policy, and deceased left a note referring to the purpose of preparing himself to go to his death, with directions for sending a telegram, and the evidence shows death from mor

work as a traveling salesman for the Curtis phine poisoning, a judgment for plaintiffs will & Co. Manufacturing Company of St. Louis, be set aside.

by which he was engaged as such on Novem2. In an action on a life insurance policy, ber 11, 1891. He reached St. Louis about where suicide is the issue, testimony that there was nothing to indicate that deceased intended

November 20th, and remained there until he to take his own life is inadmissible, being mere- died. He was stopping at Hotel Mosor, and ly a conclusion of the witness.

went daily to the place of his employer, to 3. In an action on a life insurance policy, the burden of proving suicide as a defense re

prepare to start upon his first trip as travelmains on defendant throughout, and is not

ing salesman. On Monday, December 14th, shifted by the verdict at the coroner's inquest. he was at his employer's place of business, Appeal from district court, Harris county;

seemed cheerful and in good spirits, and left S. H. Brashear, Judge.

there, expecting to return about 4 o'clock in Action by Mollie C. Hayward and others

the afternoon, the next day. He did not reagainst the Mutual Life Insurance Company

turn, and John Stuart, the secretary of the of New York on a policy. From a judgment

Curtis & Co. Manufacturing Company, who for plaintiffs, defendant appeals. Reversed.

happened to be in the neighborhood of his

hotel, called to see him at his room between Fisher & Towns, for appellant. Kittrell & 9 and 10 o'clock Tuesday night, and remained Allen, for appellees.

with him about an hour, and left him about

10 o'clock. Stuart found Hayward at his GARRETT, C. J. This suit was brought room in bed, complaining of a fever and by Mollie C. Hayward against the Mutual headache; and, as Stuart had heard, he had Life Insurance Company of New York to re- not been out of the hotel that day. Stuart cover on a policy of insurance issued by it saw medicine in the room, but Hayward did in her favor upon the life of her late husband, not seein to be seriously ill. On Wednesday Richard Hayward. The defense is that the morning, December 16th, between 7 and 8 insured committed suicide, contrary to the o'clock, as Patrick Cassidy, houseman for the express provisions of the contract. During hotel, was passing through the halls, he heard the trial Mrs. Hayward suddenly died, and groaning and heavy breathing in Hayward's W. H. Beasley was appointed temporary ad- room. He knocked at the door, but, receivministrator of her estate, for the purpose of ing no answer, he unlocked it with a pass

DENCE.

no

key, and entered the room, where he found Hayward at about eight o'clock in the mornHayward lying on the bed in his shirt and ing. I went to his room in the Hotel Mosor, drawers, and partially covered with a blank- and found him in a comatose condition, et. He was unconscious, and appeared to breathing heavily, with a bluish cast about be dying, and his skin showed a bluish dis- the face, and he had all the symptoms of a coloration. There was no one else in the person under the influence of morphine. I room. Cassidy called for a doctor through gave him the usual remedies for morphine a speaking tube connecting the room and poisoning. He never became conscious, but botel office, and Whitser, the bookkeeper of continued to grow weaker up to the time of the hotel, went up immediately. The two his death, which took place between two and then made an examination of the room. three o'clock that same afternoon. My conCassidy testified that he "saw some papers, clusion was that he died from an overdose like powder papers, used by doctors and of morphine. I recollect the case, and have druggists, open on the table, but their con- also refreshed my memory from the records tents were gone.” He also saw on another of the recorder's office. I observed the effects smaller table a small empty bottle, with no of morphine,-deep heavy breathing, with a label on it, but could not tell what the con- slight discoloration of the skin, contraction tents had been, either by looks or smell. of the pupils of the eyes, and unconsciousHe looked to see if he could find any trace ness. In my opinion, as a physician, an overof morphine or other drugs. He also saw dose of morphine was the cause of Hayon the small table some letter heads and en

ward's illness and of his death." On crossvelopes of the Curtis & Co. Manufacturing examination, Dr. Irwin stated that there was Company, and on the same table a note no post mortem examination of the body. written on a scrap of paper, apparently torn Hayward was in an unconscious condition off a letter head. His recollection of the when he first saw him, and remained so all contents of the note were that it was ad- the time up to the time of his death. He dressed to some one. He did not remember made no analysis of any bottle found in the the name. It directed the person to tele

room. He remembered a small bottle or vial graph some one at Houston, Tex., whose in the room, but, at the time he testified, did Dame he did not remember; and then fol- not remember whether there was a label on lowed the words: "I have broken my sworn

the bottle or not. Dr. Beasley testified that vow. I have ceased to live, and am he had known Hayward for about eight longer a man." He did not remember years, and had attended him in sickness sevwhether any name was signed or not. Other eral times. The last time he had treated witnesses testified as to the existence of the

him was for apoplexy, about eight or nine note and its contents. The note was not

months before his death. He had noticed produced on the trial, but its existence was this apoplectic tendency in Mr. Hayward the conclusively established, and as to the con- one time. That was eight or nine months tents the testimony of the witnesses varied before he went to St. Louis. He thought the but little. It was addressed to John Stuart,

external conditions of Hayward, as related and according to the testimony of Edmon- by counsel, were not conclusive proof of stone, the police reporter of the St. Louis morphine poisoning. There was much mediRepublic, who made a copy thereof, it ran: cal expert testimony as to whether the con*Telegraph Sam Allen, lumber dealer at ditions indicated morphine poisoning or apoHouston, Texas, I have ceased to be a man. plexy, the decided weight of which was, as I have broken a sworn vow. Richard Hay- we think, that morphine poisoning was the ward." Allen testified that about December cause of the death. In order to show a mo16, 1891, he received a telegram from St. tive for the commission of suicide, the deLouis, from the man who kept the hotel fendant showed that Hayward was involved where Hayward is said to have died, signed in debt, but, on the other hand, it appeared Mosor, he thought in substance as follows: that he was cheerful and anxious to get start“Sam Allen, Houston, Texas: Richard Hay- / ed upon his trip. Evidence that he was tard dead. I have broken the sworn vow. drinking to excess while at the hotel was met I have ceased to be a man. R. Hayward.” with evidence, not only as to his general temThis telegram he gave to Mrs. Hayward. perate habits, but the testimony of Stuart There can be no doubt that Hayward wrote and others, with whom he was associated in this note.

St. Louis, that he was daily at his work, and Dr. J. D. Irwin, a witness, testified: "My drank nothing during the day, except perhaps name is Judson D. Irwin. I reside in the a glass of beer at luncheon. We have not city of St. Louis, Mo., and am a physician by deemed it necessary to state other evidence profession. I graduated from the Rush Med- than that of facts immediately attendant ical College of Chicago in the year 1879, and upon the death of Hayward, because, if it have practiced ever since. I remember the were not for the note which was found upon death of one Richard Hayward on or about the table in the room, there would be no reaDecember 16, 1891, a guest at the Hotel son to disturb the verdict of the jury. The Mesor, in the city of St. Louis, Mo. I was note, however, cannot be accounted for upon the physician in attendance on the said Hay- any other hypothesis, consistent with the ward on the day of his death.

I first saw facts in the case, than that Hayward died

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