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1. A statement of facts agreed to by the parties, and approved by the trial judge, will not be stricken out because it contains both the questions and answers of the witnesses, in apparent violation of the rules of court, where some of the questions were inserted for the purpose of revealing the evasive and contradictory nature of the answers of the witnesses.

2. In an action by a wife to have a deed absolute on its face declared a mortgage on her separate estate, and to have said mortgage declared void as having been executed by her to secure a debt of her husband, the question whether the grantee in the deed had notice of the fact that the land was her separate property is immaterial, if the transaction was in fact a mortgage; but, if the deed was intended to evidence an absolute conveyance, then the wife's right to recover the land depends on the question whether it was her separate property, and whether the grantee had notice of this fact.

3. In a civil case it is error to instruct that plaintiff must prove his case to the "satisfaction" of the jury, as this imposes too heavy a burden of proof.

Appeal from district court, Harris county; James Masterson, Judge.

Action by Rosa H. Feist and her husband against W. S. Boothe and others to have a deed absolute on its face declared a mortgage. From a judgment in defendants' favor, plaintiffs appeal. Reversed.

E. Raphael and C. W. Bocock, for appellants. Harwood & Harwood and J. M. Coleman, for appellees.

WILLIAMS, J. This cause has been twice before the supreme court, and its nature may be seen from the report of the first decision of it. 80 Tex. 141, 15 S. W. 799. At a trial which occurred since,-a later decision, covering a judgment in favor of the present appellants (19 S. W. 398),-verdict and judgment were rendered in favor of the defendants in the suit from which this appeal comes up. A motion has been made to strike out the statement of facts on the ground that it consists of the stenographer's notes of the evidence taken at the trial, containing both the questions and answers of witnesses. An examination of the statement shows that this is not entirely true. Some of the questions are inserted seemingly for the purpose of revealing the evasive and contradictory nature of the answers of the witnesses. The statement is agreed to by the parties and approved by the trial judge, and we presume it was supposed to be necessary for the facts to be thus shown to this court to enable it to pass intelligently upon the question presented (an opinion in which we by no means concur). It has not, however, been the practice of the supreme court to expunge entire

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ly statements apparently more violative of the rules than this one seems to be, but to make such order in regard to the costs as the facts render proper,-a task upon which we do not feel inclined to enter in behalf of parties who have agreed to the statement. The assignments of error in substance complain that the charge of the court made the verdict of the jury depend upon the determination of one issue, when there were others, a decision of which in favor of appellants would have entitled them to a recovery. In order to exhibit the merit of this contention, we will state briefly the questions upon which the case ought to have been tried. The plaintiffs claimed that the deed from themselves to Boothe, though absolute on its face, was executed to secure the loan of $500 made by Boothe to Gustave Feist, and that there was not at the time such loan was made, or at any subsequent time, an absolute conveyance of the land. If this contention was true, they were entitled to recover, Whether the land was the separate property of Mrs. Feist or not. The defendant Boothe admitted that at the time the money, was obtained by Feist there was no conveyance to him of the land, claiming that the money was loaned to Feist upon the security afforded by the indorsement of Schwab alone, and that no deed to the land was then delivered to him, but, if any was then executed, that it was left with Schwab to protect him as Feist's surety. He asserted, however, that subsequent to the making of the loan another transaction occurred between him and Gustave Feist, in which the latter sold him the land in payment of the debt, and then delivered to him for the first time the deed in question. If this was true, he acquired a good title to the land, unless it was separate property of Mrs. Feist, and unless Boothe had notice of that fact before he consummated the purchase from Feist. And it is only in the event that there was an absolute sale by Gustave Feist to Boothe that the question whether or not the land was owned by Mrs. Feist in her separate right, and whether or not Boothe had notice of that fact, becomes important. The portion of the charge which stated the predicament of facts upon which the jury should render a verdict for the plaintiffs made their right depend wholly upon the issue last explained; in other words, it required a finding that the property was the separate estate of Mrs. Feist, and that Boothe had notice of this, before the plaintiffs could recover. This was clearly erroneous. There was positive testimony that there was never a sale or a transaction of any sort by which the character of the deed was changed from that of a security to an absolute sale and conveyance. Unless there was such a transaction, plaintiff's had the right to recover, whether the property was common or separate. The charge, in the first part of it, informed the jury correctly that, if the deed was made as a security for the

debt only, it would be a mortgage, but this rule was not applied and enforced in the subsequent passages, in which were specified the facts upon which plaintiffs could recover. No special charges were asked by the defendants, but we regard the charge as materially erroneous, and calculated to confuse the minds of the jury. A special charge given at the request of the defendant instructed the jury in substance that the plaintiffs must prove to their "satisfaction" that the land belonged to Mrs. Feist in her separate right; and must also prove to their "satisfaction" that Boothe had notice of that fact. These instructions are attacked on the ground that they exacted a higher degree of proof than the law requires. The evidence was suffi cient to have warranted the jury in finding both of these facts in favor of plaintiffs, if their witnesses were believed. The testimony on the question of notice was directly conflicting, and it cannot be held that the instructions were harmless. We cannot argue that the jury would have found under a proper instruction as they did find under one which imposed too heavy a burden of proof upon the plaintiffs. That such charges were erroneous is now well settled. Wallace v. Berry, 83 Tex. 330, 18 S. W. 595; Railway Co. v. Matula, 79 Tex. 582, 15 S. W. 573; McBride v. Banguss, 65 Tex. 174. For the errors indicated the judgment must be reversed. Reversed and remanded.

HIGGS et al. v. GARRISON. (Court of Civil Appeals of Texas. May 24, 1894.) TRIAL-ARGUMENTS OF COUNSEL-ACCOUNTING BY ADMINISTRATOR.

1. In a proceeding by an administrator for final settlement, where objections are filed to his account, the court may award him the opening and closing of the argument, under Rev. St. art. 1299, as having the burden of proof on the whole case.

2. An administrator de bonis non need not account for all of the property that came into the hands of his predecessor, but only for such as came into his own hands, and for want of reasonable diligence in collecting assets not collected by his predecessor.

3. Where the last account of an administrator shows a balance in his hands for the estate, his successor may avoid liability therefor by showing that such balance was paid by his predecessor, after filing his account, to those entitled thereto, by order of court.

Appeal from district court, Rusk county; W. J. Graham, Judge.

Petition by Z. B. Garrison, administrator of the estate of R. S. Higgs, for final settlement of the administration. J. D. Higgs, Jr., and others objected to certain items claimed by the administrator, which objections were sustained. From a judgment of the district court modifying the judgment of the county court, said Higgs and others appeal. Affirmed.

G. B. Turner and J. H. Turner, for appellants. Davis & Garrison, for appellee.

GARRETT, C. J. This appeal is from a judgment of the district court of Rusk county rendered on appeal from a judgment of the county court in the matter of the account of the appellee, Z. B. Garrison, for final settlement of the administration of the estate of R. S. Higgs, deceased, and the objection of the appellants thereto. The return of said account was ordered by the county court on the application of the appellants, and when it was filed they objected thereto; and, on trial in the county court, judgment was rendered striking out a number of credits claimed by the administrator, and restating the account, showing a balance against him. The administrator appealed to the district court. The contestants moved to dismiss the appeal because, as stated in their motion, one of the sureties on the appeal bond was also a surety on the bond of said Garrison, as administrator. This motion was overruled, and, the cause having been called for trial, the court awarded the opening and conclusion of the argument to the administrator, to which the contestant excepted. After examination of the account, the court struck out a few items thereof, and then approved the same, showing a small balance 'in favor of the administrator, and discharged him, but taxed him with the costs, because he had made no reports, as required by law.

Conclusions of Fact.

(1) S. R. Higgs died testate in 1875, leaving an estate of real and personal property. J. D. Higgs qualified as executor of the will in April, 1875. In 1876 he was removed, and on February 9, 1876, S. M. Boles was appointed administrator with the will annexed. Boles died in September, 1877; and Z. B. Garrison, the appellee, was appointed temporary administrator to collect rents and debts, and to take care of the property. In December, 1877, Garrison was appointed permanent administrator de bonis non of said estate, with will annexed, and qualified as such. He received from the representatives of Boles the property belonging to the estate, as shown by the inventory returned by him, consisting of lands and claims in the form of notes. There were also some judgments. (2) When J. D. Higgs was removed as executor, his account showed him to be indebted to the estate in the sum of $87.12. He and his sureties were insolvent. (3) Last account of S. M. Boles showed that he had money on hand, belonging to the estate, to the amount of $320. This was accounted for by the payment of the sum of $282.55 made by Boles to J. D. Higgs, the guardian of the estate and person of the plaintiffs, who were the only surviving heirs of S. R. Higgs, deceased, and were entitled to his estate, which left a balance not amounting to the commissions with which Boles was en

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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, for the board, etc., of the minors which had been approved by the court in the guardianship of said minors then pending in said county court; and the order directing the administrator to pay the same was entered in the proceedings of the guardianship, and not in those of the estate. (4) After Garrison took charge of the estate, he sold, under proper orders of the court, and with its approval, all of the lands belonging to the estate, for which he received the sum of $1,143.18. The notes received by him were on insolvent parties, and the court below found that he should not be charged therewith, except as to two small items, which he should have collected. The credits allowed by the court were sufficient to balance the account. (5) Garrison made no report of the condition of the estate, as required by law. It could have been closed in 1879. (6) Contestants put in evidence the report of S. M. Boles, former administrator, of the sale made by him on February 7, 1876, of personal property belonging to the estate. Said report was filed March 7, 1876, and showed sales to the amount of $422.80. It showed also that he had rented out lands of the estate for the year 1876, for the sum of $135.10. They also introduced his annual report, filed April 17, 1877, which showed that he had collected on said sales $225.46, and on said rents $99.25. The estate of Boles, and the sureties on his bond as administrator, were solvent.

Conclusions of Law.

1. We are inclined to the opinion that the court below did not err in overruling the motion to dismiss the appeal from the county court; but there is no bill of exceptions, nor anything in the statement of facts to show that one of the sureties on the appeal bond was also a surety on the bond of the administrator. We cannot take notice of what purports to be the administrator's bond, copied into the transcript, for it is a loose paper, in no manner shown to have been before the court below, or considered by it in evidence.

2. The burden was on the administrator to show the correctness of his account, and the court properly awarded the opening and closing of the argument to him. Rev. St. arts. 1980, 2142. See, also, Kennedy v. Upshaw, 66 Tex. 448, 1 S. W. 308. This, however, would not be cause for a reversal of the judgment, when it is apparent no injury resulted from the ruling if erroneous.

3. Appellant's fourth assignment of error is not accompanied by such a statement as is required by the rules, and we must decline to consider the same.

4. The fifth error assigned is that "the court erred in not charging the administrator with the sum of $197 shown in the report of sale made by S. M. Boles, former administrator, and which had never been accounted for

fendant liable for rents due the estate." shown by the report of sales of the personal property made by Boles, and his annual account, there was a difference between the amount reported and collections thereon, of $197.34; and the difference between the amount for which the land was reported to have been rented and the collection of rent reported is $35.58. The administrator testified that when he qualified he went to the representatives of S. M. Boles for a settlement, and received from them the property shown by his inventory, which contains a list of notes and judgments amounting to more than the amounts above mentioned, but it is not shown that they were for the personal property or the rent. It was shown that these claims were all upon insolvent persons, and the administrator was allowed credit for them. He is not required, as under the law of 1870 (2 Pasch. Dig. Laws, art. 5738), to account for all the property that came into the hands of his predecessor, but his duties extend only to the property not administered. Rev. St. arts. 1959-1963; Todd v. Willis, 66 Tex. 707, 1 S. W. 803. And they are such as are required by the principles of the common law, when these do not conflict with the statute. Rev. St. art. 1815. He is bound by the statute to the exercise of ordinary diligence to collect every claim due to the estate he represents, and to recover possession of all property to which the estate has a right. Id. art. 1933. His duty at common law is to conect the assets of the estate with all reasonable diligence. 7 Am. & Eng. Enc. Law, p. 307. There are no facts in evidence that would render Garrison liable for the failure of his predecessor, Boles, to collect all of the notes given for the personal property. nor for the uncollected portion of the rent. It will be presumed, in the absence of evidence to the contrary, that the sales were made in accordance with law, and that the notes were taken with personal security; and, such being the case, Boles himself would only be liable for the failure of diligence to collect, and not absolutely. Rev. St. art. 2094, however applies only to real estate. The last account rendered by Boles showed that he was indebted to the estate in the sum of $320, and it was the duty of Garrison to show why he did not collect this amount; but he did this by showing that, after the filing of the account, Boles had paid to the contestants-who were the heirs of S. R. Higgs, and entitled to receive his estate-the sum of $282.55, and was entitled to commission in an amount that would more than cover the balance. The order directing the payment of this money, it is true, was entered in the guardianship, and not the estate; but it was paid to the use of the persons who were entitled to receive the estate, and they had credit therefor in the account of their guardian.

5. There are no sufficient statements under the sixth and seventh assignments of error;

but we find that the conclusion of the court below was correct,-that Garrison had an established claim against the estate for $60, which was properly set off against his note to the estate for $55, and the evidence of Garrison was properly received.

6. Appellants assign as error the action of the court in failing to deduct from the $282.55 paid by Boles to J. D. Higgs, the guardian of contestants, the sum of $87.12, which was adjudged against Higgs in favor of the estate when he was removed as executor. It nowhere appears that Boles did not collect and account for this amount.

7. The judge should not have approved the statement of facts, as an agreed statement, after making changes therein. He was not required to approve the statement, however, merely because the parties had agreed thereon. Rev. St. art. 1377. Appellants' bill of exceptions gives them whatever advantage there may be in their not having agreed to the statement sent up, but there is no cause for reversal shown. The judgment of the court below will be affirmed. Affirmed.

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LIFE INSURANCE-SUICIDE-SUFFICIENCY OF EVIDENCE.

1. Where suicide of deceased is the sole issue tried in an action on a life insurance policy, and deceased left a note referring to his death, with directions for sending a telegram, and the evidence shows death from morphine poisoning, a judgment for plaintiffs will be set aside.

2. In an action on a life insurance policy, where suicide is the issue, testimony that there was nothing to indicate that deceased intended to take his own life is inadmissible, being merely a conclusion of the witness.

3. In an action on a life insurance policy, the burden of proving suicide as a defense remains on defendant throughout, and is not shifted by the verdict at the coroner's inquest.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Mollie C. Hayward and others against the Mutual Life Insurance Company of New York on a policy. From a judgment for plaintiffs, defendant appeals. Reversed. Fisher & Towns, for appellant. Kittrell & Allen, for appellees.

GARRETT, C. J. This suit was brought by Mollie C. Hayward against the Mutual Life Insurance Company of New York to recover on a policy of insurance issued by it in her favor upon the life of her late husband, Richard Hayward. The defense is that the insured committed suicide, contrary to the express provisions of the contract. During the trial Mrs. Hayward suddenly died, and W. H. Beasley was appointed temporary administrator of her estate, for the purpose of

prosecuting the suit, and, by agreement, he was made a party, and the trial proceeded with. Before the trial commenced, the defendant admitted that the plaintiffs had a good cause of action, as set forth in the petition, except as it might be defeated by the matters of defense which might be established on the trial, basing its defense solely on the ground of a breach of the conditions of the policy by the suicide of the insured, Richard Hayward. Said admission was entered of record, and the defendant was allowed to open and close the case, having assumed the burden of proof of suicide. The policy of insurance was dated August 5, 1890, and the condition, the breach of which was the defense relied on, is upon the warranty contained in the application of the assured for the policy, as follows: "I also warrant and agree that I will not die by my own act during the said period of two years." A trial by jury resulted in a verdict and judgment in favor of the plaintiffs.

The first assignment of error presented in 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 Richard Hayward did die by his own act within two years from the date of the issue of the policy." We are of the opinion that this assignment is well made. Briefly stated, the facts show that the insured died at the Hotel Mosor, in the city of St. Louis, Wednesday, December 16, 1891. He was a resident of Houston, Tex., but was in St. Louis for the purpose of preparing himself to go to work as a traveling salesman for the Curtis & Co. Manufacturing Company of St. Louis, by which he was engaged as such on November 11, 1891. He reached St. Louis about November 20th, and remained there until he died. He was stopping at Hotel Mosor, and went daily to the place of his employer, to prepare to start upon his first trip as traveling salesman. On Monday, December 14th, he was at his employer's place of business, seemed cheerful and in good spirits, and left there, expecting to return about 4 o'clock in the afternoon, the next day. He did not return, and John Stuart, the secretary of the Curtis & Co. Manufacturing Company, who happened to be in the neighborhood of his hotel, called to see him at his room between 9 and 10 o'clock Tuesday night, and remained with him about an hour, and left him about 10 o'clock. Stuart found Hayward at his room in bed, complaining of a fever and headache; and, as Stuart had heard, he had not been out of the hotel that day. Stuart saw medicine in the room, but Hayward did not seen to be seriously ill. On Wednesday morning, December 16th, between 7 and 8 o'clock, as Patrick Cassidy, houseman for the hotel, was passing through the halls, he heard groaning and heavy breathing in Hayward's room. He knocked at the door, but, receiving no answer, he unlocked it with a pass

key, and entered the room, where he found Hayward lying on the bed in his shirt and drawers, and partially covered with a blanket. He was unconscious, and appeared to be dying, and his skin showed a bluish discoloration. There was no one else in the room. Cassidy called for a doctor through a speaking tube connecting the room and hotel office, and Whitser, the bookkeeper of the hotel, went up immediately. The two then made an examination of the room. Cassidy testified that he "saw some papers, like powder papers, used by doctors and druggists, open on the table, but their contents were gone." He also saw on another smaller table a small empty bottle, with no label on it, but could not tell what the contents had been, either by looks or smell. He looked to see if he could find any trace of morphine or other drugs. He also saw on the small table some letter heads and envelopes of the Curtis & Co. Manufacturing Company, and on the same table a note written on a scrap of paper, apparently torn off a letter head. His recollection of the contents of the note were that it was addressed to some one. He did not remember the name. It directed the person to telegraph some one at Houston, Tex., whose name he did not remember; and then followed the words: "I have broken my sworn Vow. I have ceased to live, and am no longer a man." He did not remember whether any name was signed or not. Other witnesses testified as to the existence of the note and its contents. The note was not produced on the trial, but its existence was conclusively established, and as to the contents the testimony of the witnesses varied but little. It was addressed to John Stuart, and according to the testimony of Edmonstone, the police reporter of the St. Louis Republic, who made a copy thereof, it ran: "Telegraph Sam Allen, lumber dealer at Houston, Texas, I have ceased to be a man. I have broken a sworn vow. Richard Hayward." Allen testified that about December 16, 1891, he received a telegram from St. Louis, from the man who kept the hotel where Hayward is said to have died, signed Mosor, he thought in substance as follows: "Sam Allen, Houston, Texas: Richard Hayward dead. I have broken the sworn vow. I have ceased to be a man. R. Hayward." This telegram he gave to Mrs. Hayward. There can be no doubt that Hayward wrote this note.

Dr. J. D. Irwin, a witness, testified: "My name is Judson D. Irwin. I reside in the city of St. Louis, Mo., and am a physician by profession. I graduated from the Rush Medical College of Chicago in the year 1879, and have practiced ever since. I remember the death of one Richard Hayward on or about December 16, 1891, a guest at the Hotel Mosor, in the city of St. Louis, Mo. I was the physician in attendance on the said Hayward on the day of his death. I first saw

Hayward at about eight o'clock in the morning. I went to his room in the Hotel Mosor, and found him in a comatose condition, breathing heavily, with a bluish cast about the face, and he had all the symptoms of a person under the influence of morphine. I gave him the usual remedies for morphine poisoning. He never became conscious, but continued to grow weaker up to the time of his death, which took place between two and three o'clock that same afternoon. My conclusion was that he died from an overdose of morphine. I recollect the case, and have also refreshed my memory from the records of the recorder's office. I observed the effects of morphine,-deep heavy breathing, with a slight discoloration of the skin, contraction of the pupils of the eyes, and unconsciousness. In my opinion, as a physician, an overdose of morphine was the cause of Hayward's illness and of his death." On crossexamination, Dr. Irwin stated that there was no post mortem examination of the body. Hayward was in an unconscious condition when he first saw him, and remained so all the time up to the time of his death. He made no analysis of any bottle found in the room. He remembered a small bottle or vial in the room, but, at the time he testified, did not remember whether there was a label on the bottle or not. Dr. Beasley testified that he had known Hayward for about eight years, and had attended him in sickness several times. The last time he had treated him was for apoplexy, about eight or nine months before his death. He had noticed this apoplectic tendency in Mr. Hayward the one time. That was eight or nine months before he went to St. Louis. He thought the external conditions of Hayward, as related by counsel, were not conclusive proof of morphine poisoning. There was much medical expert testimony as to whether the conditions indicated morphine poisoning or apoplexy, the decided weight of which was, as we think, that morphine poisoning was the cause of the death. In order to show a motive for the commission of suicide, the defendant showed that Hayward was involved in debt, but, on the other hand, it appeared that he was cheerful and anxious to get started upon his trip. Evidence that he was drinking to excess while at the hotel was met with evidence, not only as to his general temperate habits, but the testimony of Stuart and others, with whom he was associated in St. Louis, that he was daily at his work, and drank nothing during the day, except perhaps a glass of beer at luncheon. We have not Ideemed it necessary to state other evidence than that of facts immediately attendant upon the death of Hayward, because, if it were not for the note which was found upon the table in the room, there would be no reason to disturb the verdict of the jury. The note, however, cannot be accounted for upon any other hypothesis, consistent with the facts in the case, than that Hayward died

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