(248 S.W.) mit the issue separately as to each of them;, the court was opinion evidence and in reply for the reason that under the testimony to leading questions. the jury might possibly have found that appellee Speer acted in self-defense, but there was no testimony to indicate that the other appellees did so. For the reason that the verdict in this case was against the uncontradicted evidence, the judgment of the trial court is reversed, and this cause is remanded for a new trial. Reversed and remanded. MCHATTON'S ESTATE et al. v. PEALE'S ES- [2] Upon another trial of this issue, if the court is of the opinion that the evidence raises the issue of self-defense as to either or all of the defendants, the issue as to the ownership of the land where the difficulty occurred should be submitted. This for the reason that the assault occurred when appellant went to where the appellees and others were attempting to construct a culvert, and forbade them to do so; he claiming that the land was the property and in the possession of his father, who was present, and in whose behalf appellant was acting. Appel-1. Wills El Paso. (Court of Civil Appeals of Texas. stated. 608 (3)-"Rule in Shelley's Case" The "rule in Shelley's Case" is that, if an estate for life or any other particular estate of freehold be given to one with remainder to his heirs, the first taker shall be held to have the fee, and the heirs will take by descent and not by purchase. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Rule in Shelley's Case.] 2. Wills 608(1)—Rule in Shelley's Case not applicable where will gives no immediate estate. lees denied that the land was either the property of or in the possession of appellant's father. If the land was the property of and in the possession of appellant's father, he had the right, not only to forbid them to construct the culvert thereon, but also to use such force as was reasonably necessary to prevent them from so doing. If the jury should find that the land belonged to appellant's father, and was in his possession, and that appellees struck appellant in their necessary self-defense, against a threatened attack on the part of appellant, the issue should be submitted as to whether they used more force than was reasonably necessary to protect themselves from such threatened assault. [3] Appellant submits several propositions under his assignments of error as to the admission and rejection of testimony. There is no merit in these assignments. The court When the rule in Shelley's Case is applied did not err as to permitting the testimony objected to by appellant and in refusing to to wills, it is not allowed to override the maniallow a witness to testify as to what the doc-fest and clearly expressed intention of the testor said who sewed up the wounds on appel- tator, but such intention will always be carried into effect if it can be ascertained from the lant's head. This testimony was hearsay. provisions of the will. The rule in Shelley's Case does not apply where the will vested no immediate estate in the persons whose heirs were to receive the remainder, but vested the immediate estate in the executors as trustees. 3. Wills 608(1) — Rule in Shelley's Case yields to testator's intention. [4] Also, the court did not err in permitting testimony to the effect that appellee Speer was a road overseer, and that he was acting under the direction of the county commissioner in attempting to erect the culvert. The claim upon the part of the county commissioner was that the land belonged to the county, and also at that time he was claiming that the culvert was being erected on a public road. The Supreme Court at or near that time decided the issue as to the public road in favor of appellant. The jury might have found either way as to the ownership of the land. Appellant was suing, not only for actual, but also for punitory, damages; and, while a mistake as to a question of law on the part of appellees would neither justify nor mitigate the actual damages, yet such a mistake, if they were acting in good faith, would be a defense as to punitory damages. There is no merit in the contention of appellant that certain testimony excluded by property to him in trust. 4. Wills 73-Invalid unless estate thereby vests in some one at testator's death. Upon the death of a testator, his property immediately vests in some one, either his heirs or devisees under the will, or in the trustee or executor, and a will which does not immediately vest title in the heirs is not valid unless by construction it vests title in a trustee for the interim between the death of the testator and the time designated for closing or distributing the estate. 5. Wills 672 (3) Devise in trust implied where executors are given powers of trustees. Where a will expressly or by necessary implication creates certain trusts and imposes upon the executor duties which are usually performed by a trustee, the executor will take such interest or title as is requisite, though the will does not specifically designate him as trustee, nor expressly bequeath or devise the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. Wills 681 (2)—Property held devised to,sire that my executors hereinafter named, shall executors as trustees. Where a will designated two individuals as independent executors, directed that the estate be kept together for a reasonable time, but authorized the executors to sell, exchange, or otherwise alienate the property for the benefit of the estate, in such manner, at such time, and on such terms as they deemed best, the will impliedly vested the fee to the real estate in the executors as trustees though there was no express devise to them in trust. 7. Wills 564 (1)-Gift of entire income is not gift of corpus, if contrary intention is manifest. keep said estate together for a reasonable time, looking after the same and investing and reinvesting the same so as to bring in the best possible returns, consulting and advising with my daughter, Margaret Peale, and my son W. B. McHatton, who I do not join as executors for the reason they are nonresidents of the state of Texas. "Third. It is my desire and I so request, that my executors shall from time to time divide equally between my daughter Margaret Peale (whose present address is 607 Second avenue, Asbury Park, New Jersey), and my son W. B. McHatton (whose present address is 1730 Fifth avenue, Los Angeles, California), the income from my estate so that they may be properly provided for until the same is entirely closed, when my said daughter and son shall each receive one-half (2) of the remainder; and in the event of the death of either before the final distribution, that portion which would have gone to him or her should they be alive shall go to his or her legal heirs. "Fourth. I desire that my gold watch and flat gold chain shall be given to my grand daughter. Martha McHatton, daughter of my son William B. McHatton as a special bequest to her. A provision of a will that the legatees are to have the entire income of the estate during the period between the testator's decease and the final delivery of the property, though evidence of an intention to vest the estate in them immediately, does not have that effect where the will clearly manifests a contrary intention. 8. Wills 564(2) Devisee of income held not to have interest which she could devise. Where testatrix directed her executors to reserve her estate intact and pay the income to a daughter and a son until such time as "Fifth. I make, constitute and appoint U. S. the executors should deem it advisable to close Stewart and F. E. Hunter, both of El Paso, the estate and distribute the corpus, at which Texas, as joint executors of this my last will time it was to be divided equally between the and testament, hereby revoking all former wills daughter and the son, if both were living, but by me made, and as I repose special confiif either were then dead the share of that one dence in them and each of them, I desire that to go to his heirs, a daughter who died after no bond or other security shall be required of testatrix but before the division of the estate them, and that no action of the probate court had no interest therein which she could de- be had upon my estate, other than the probatvise, but her entire interest went to her broth-ing of this will and the making of such aper; there being no children. praisement as the law may require, but I desire Appeal from District Court, El Paso Coun- that they shall in all things be independent exty; P. R. Price, Judge. Suit by F. E. Hunter, independent executor of the will of Margaret E. Peale, deceased, against the executors of the estate of Martha A. McHatton, deceased, and others. Decree for plaintiff, and defendants appeal. Reversed and rendered. Jos. U. Sweeney and W. M. Coldwell, both of El Paso, and Earle & McLaughlin, of Los Angeles, Cal., for appellants. Goggin. Hunter & Brown, N. J. Morrisson, and R. B. Rawlins, all of El Paso, for appellee. HARPER, C. J. Mrs. Martha A, McHatton died November 21, 1920, leaving property real and personal which she disposed of by the following will: "I, Mrs. Martha A. McHatton, of the county of El Paso, state of Texas, being of sound mind and memory, and considering the uncertainty of life, do therefore make and declare this to be my last will and testament. "First. I order and direct that my executors hereinafter named, shall pay all my just debts and funeral expenses as soon after my decease as conveniently may be. "Second. As my estate in its present condition is bringing in good returns, it is my de ecutors, and in the event of the death or removal of either of them from El Paso county, Texas, I desire that the other shall continue to so act, but in the event of the death of said U. S. Stewart, prior to my death or in the event of his refusal to act, then I nominate and appoint J. F. Williams to act in his stead. "Sixth. I. realize that conditions are continually changing and while it is my wish at the present time that my property be kept intact, yet I realize that some changes may happen where it would be advisable to sell, exchange or otherwise dispose of some of the property. I give to said executors authority to sell or exchange or otherwise alienate said property for the benefit of my estate, in such manner, at such time and on such terms and conditions as in their judgment they may deem for the best interest of my estate. "Seventh. I leave to the good judgment of my executors aforesaid, after consulting with my said son and daughter, as to the proper time to make a division of my property. "In witness whereof, I hereunto set my hand and affix my seal the 11th day of October, 1918, in the year of our Lord, one thousand nine hundred and eighteen. "Mrs. Martha McHatton. [Seal.]" "The said will was duly probated in the probate court of El Paso county, Texas, and the executors named therein both qualified and are now acting." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) It was probated, and thereafter Margaret | been closed according to the agreed facts, E. Peale died before final distribution of the and further the named legatees must be alive property, leaving a will, F. E. Hunter, in- at the time the estate is closed, and Mrs. dependent executor, and this suit was in- Peale is dead. To illustrate, in all the cases stituted by said Hunter as independent ex cited by appellee, and all others for that ecutor of the latter will against the execu- matter, the will. in its beginning contains tors of the McHatton will and William B. words which alone would convey a present McHatton, Edsall, Marjorie, Martha, and estate to the legatees, such as "I hereby beHarold McHatton to obtain a construction of queath, grant, give, etc., to the third paragraph of the will copied above. erty in each case specifically mentioned, The lower court decreed that by the terms and by after provisions called for a construcof Mrs. McHatton's will a fee-simple title tion of the will to determine the intention of to an undivided one-half of the lands im- the testator. mediately vested in Mrs. Peale upon the death of Mrs. McHatton, under the rule in Shelley's Case, from which an appeal has been perfected by W. B. McHatton. Appellants' proposition is: prop In this case there are no such words as could be construed to mean that any title to any estate was thereby vested in any person except the named executors, as trustees, and none would vest in any other by any of its provisions until the time fixed, to wit, when the estate is entirely closed. "The court erred in holding and adjudging that by the terms of the will (especially of the third paragraph thereof) of Mrs. Martha A. [3] Besides, when this rule is applied to McHatton, immediately on the death of the said wills, it is not allowed to override the maniMartha A. McHatton, Mrs. Margaret E. Peale fest and clearly expressed intention of the took in fee simple an equal undivided half, sub-testator, but the intention will always be ject to administration, of the lands which were carried into effect if it can be ascertained owned by the said Martha A. McHatton at the from the provisions of the will. time of her death. Whereas, under said will Kesterson [4, 5] Upon the death of the testator, his property immediately vests in some one, either the heirs at law, devisees under the will. or in the trustee or executor, and since it does not immediately vest title in the heirs it is not a valid will unless by construction it vests title in a trustee for the interim between the death of the testator and the time designated therein for closing or distributing the estate. The rule in such cases is that no fee-simple title to said lands was devised V. Bailey, 35 Tex. Civ. App. 235, 80 s. w. to said Mrs. Peale, unless she should survive 97. until the time that the estate of said testatrix should be entirely closed and finally distributed, and, the said Mrs. Peale having died prior to such closing and distribution, no fee-simple title to such half or such lands was taken by her or can be taken by her. Such error was caused by the court's erroneous application of the rule in Shelley's Case and by the error of the court'in holding that the words 'legal heirs' in the third paragraph of said will were words of limitation and not of purchase, whereas said words were merely a description of the persons to whom said Mrs. McHatton devised in fee simple, that portion of her estate that would have otherwise been taken in fee simple by such child of the testatrix as might die before such closing and distribution and the court should have so decided and adjudged." Appellee's counter propositions are: First, that the rule in Shelley's Case applies. That is, immediately upon the death of Mrs. McHatton, under the terms of the will, one half of her estate, the realty vested in fee simple in her daughter, Margaret E. Peale, and the other half in her son. [1] The rule in Shelley's Case, tersely stated, is (Brown v. Bryant, 17 Tex. Civ. App. 454, 44 S. W. 399): "That if an estate for life or any other particular estate of freehold, be given to one, with remainder to his heirs, the first taker shall be held to have the fee, and the heirs will take by descent and not by purchase." * will take "Where a will expressly or by necessary implication creates certain trusts, and imposes upon the executor duties which are usually performed by a trustee, he * such interest or title in the property as is requisite, although the will does not specifically designate him as trustee, nor expressly bequeath or devise the property to him in trust." Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388; Lane et al. v. Miller & Vidor Lumber Co. (Tex. Civ. App.) 176 S. W. 100; Dulin v. Moore, 96 Tex. 135, 70 S. W. 742. [6] The will under discussion designates U. S. Stewart and F. E. Hunter as independent executors, for the purpose of keeping same together, for a reasonable time. She further declares: "I realize that conditions are continually changing, and while it is my wish at the present time that my property be kept intact, yet I realize that some changes may happen where it would be advisable to sell, exchange or othI erwise dispose of some of the property. give to my said executors authority to sell, exchange or otherwise alienate said property for the benefit of my estate, in such manner at such time on such terms and conditions as in their judgment may deem for the best interest [2] The first obstacle met with in trying to apply this rule to the provisions of this will is that no immediate estate was vested by its provisions in either legatee, and none would or could vest in them until the estate is entirely closed. The estate has not yet of my estate." These are the things usually performed by (Court of Civil Appeals of Texas. Amarillo. Jan. 24, 1923. Rehearing Denied Feb. 21, 1923. Second Petition for Rehearing Denied March 7, 1923.) a trustee and are necessarily the basis for PANHANDLE & S. F. RY. CO. v. GUTHRIE. the holding that title to the property not (No. 2057.) otherwise disposed of by the will vested in fee in the named executors as trustees, but in trust for the son and daughter until such time as they might decide to distribute it. If this was not the purpose of the will, why. did she make a will at all? They were the only direct heirs and at her death would have taken the property by inheritance. Carriers 207(1)-Two contracts on same shipment issued same day held to be construed together. Where plaintiff shipped an emigrant car There is another line of facts, heard by the outfit, containing goods, implements, and live court and agreed to by the parties, which stock, and received two contracts on the ship. evidence the intention of the testator. Mar- ment issued on the same day, one referring to garet Peale and W. B. McHatton were the the live stock, the two should be considered only surviving children. The son had chil-together. tablished rate in suit for penalties and contracts were not evidence thereof, but showed intention to charge established rate. dren; the daughter, a widow, had none; 2. Carriers 20(11)—Shipper must show esso in the case of the death of the son whilst the property was held in trust before distribution, his share under the will was to go to his legal heirs, his children. But if she A shipper, suing a carrier for penalties undied before distribution of the trust estate der Rev. St. arts. 6559, 6669, for refusal to deliver freight and for extortion on shipment of her brother would be the legal heir and thus goods and live stock on which two contracts the property be kept in her, the testator's were issued, was required to show what the family. And it is not doing violence to the established rate was, and the statement in the facts to presume therefrom that the moth-bill of lading was not evidence thereof, but er knew that her daughter was in poor the contracts were evidence of intention to health, for she died within one month after charge regularly established rate; that for the live stock expressly reciting that the rate was her mother. subject to correction. [7] This brings us to the other theory or proposition presented by appellee as a rea-3. Carriers 13(2)-Facts held not to show son why this decree should be sustained; unjust discrimination in rates charged. that is, that the provision in the will that Application of a 581⁄2 cent rate to plainthe legatees are to have the entire income tiff's shipment and a 562 cent rate to another car, and a demand for an additional paypending the period between the testator's ment on the weight shown on a scale bill atdecease and final delivery of the corpus of tached to the way bill differing from the weight the property is evidence of the intention of on which freight had been paid, held not to the testator to vest the estate immediately, show unjust discrimination as defined by Rev. citing authority sustaining the proposition. St. art. 6670, the higher rate being demanded We have no fault to find with these hold-on such other shipment after delivery. ings, and, if this provision in the will under [4. Carriers 211-Shipper, relying on con. construction were the only thing to indicate the intention of the testator, they would have application here; but this is not the only provision in this will which must be looked to in ascertaining the intention of Mrs. McHatton, and we must look to all of its provisions for the purpose. McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Darragh, et al. v. Barmore (Tex. Com. App.) 242 S. W. 714. tract and not treating holding of shipment for overcharge as conversion, held bound to continue to feed and water stock. Where a shipper continued to rely on his contract when the carrier stopped the shipment tional freight, instead of electing to treat such and wrongfully or erroneously demanded addiact as a conversion, his caretaker was bound to continue to feed and water the live stock pursuant to contract. Appeal from Lubbock County Court; P. F. Brown, Judge. In fact, its contents are so clear and positive that it needs no construction, but that it in fact clearly directs to whom her property Action by J. S. Guthrie against the Panshall go and when, that is, that Mrs. Peale handle & Santa Fé Railway Company. being dead the whole of the estate will From judgment for plaintiff, defendant apvest in appellant W. B. McHatton when by peals. Reversed and remanded. the named executors, as trustees, the estate Madden, Trulove, Ryburn & Pipkin, of is entirely closed, if he then be living; if Amarillo, Wilson & Douglas, of Lubbock, and not, then his heirs next. Terry Cavin & Mills, of Galveston, for appellant. [8] We have concluded that Mrs. Margaret E. Peale having died prior to distribution of the estate as provided in the will, she had no interest which she could devise to appellees. Reversed and rendered. Vickers & Campbell, of Lubbock, for appel. lee. BOYCE, J. Plaintiff made a shipment of an emigrant outfit car from Bells, Tex., on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) the Texas & Pacific to Shallow Water, Tex., [would not be evidence of such fact. Sabine & on the Panhandle & Santa Fé. The Texas & East Texas Railway Co. v. Cruse, 83 Tex. Pacific Railway Company issued two con- 460, 18 S. W. 755; G., C., & S. F. Ry. Co. v. tracts, dated the same day, and both signed Loonie, 84 Tex. 259, 19 S. W. 385; Wichita by the plaintiff and the railway company. Valley Railway Co. v. Nance (Tex. Civ. App.) One acknowledged receipt of the shipment for 25 S. W. 47. For this reason we overrule the transportation between said two points, "sub-appellee's cross-assignments. ject to the classifications and tariffs in effect [3] For the same reason we think there on the date of the issue of the original bill of lading," and contains the following: "Description of Articles and Special Marks, e. o. f. H. H. Goods, Farm Imps. and Live Stock on Cars. "Weight (subject to correction) 20,000; class or rate 56.5. "If charges are to be prepaid, write or stamp here, To be prepaid.' "Received $113.00 3.39 Prepaid: could be no recovery for extortion, as defined by article 6669, Revised Civil Statutes, on account of the application of the 58%-cent rate to this shipment, without showing the rate established by the Railroad Commission. We do not think the facts sufficient to show "unjust discrimination" as defined by article 6670, Revised Statutes, in the application of the 581⁄2-cent rate to this shipment while applying a 56%-cent rate to the Stegall car. The evidence shows that the defendant did, $116.39 apply on prepayment of after delivery, demand of Stegall payment of charges on the property described herein." The other contract referred to the 10 head of live stock in the car, and provided for transportation "at published tariff rates," and contained this provision: "This contract is subject to correction as to rate, weight and classification so as to conform to the rates, rules and regulations legally applicable to the shipment." On delivery to the Panhandle & Santa Fé Railway Company at Sweetwater another contract was made which provided for transportation by said railway company freight on the 581⁄2-cent rate. The stopping of plaintiff's car at Lubbock was evidently caused by the showing made by the scale ticket attached to the waybill that the shipment weighed 28,800 pounds instead of 20,000 pounds, on which freight had been prepaid. So that the finding of discrimination and extortion was probably based on the fact of claim for payment of freight on this excess weight. On this issue the defendant was entitled to have submitted to the jury an inquiry to whether the overcharge "was unintentional and innocently made, through a mistake of fact." [4] We think the court should have submit"at the rates and charges for which said live ted issues as to the failure of plaintiff's carestock may be lawfully carried as fixed and de-taker to feed and water the stock at Lubbock, termined by the established and published tariffs, classifications and rules of said party of the first part [the railway company], to which reference is here made." and whether the injury to the stock was due to such fact. We think this would be true, though the shipment was held at Lubbock in the assertion of the demand for more [1, 2] The two contracts executed with the freight than was collectible. If such demand Texas & Pacific Railway Company respect- gave the plaintiff the right to treat the railing the same shipment should be considered way company as a converter of the property, together. It is evident that it was the in- he did not assert such right. He elected to tention to provide that shipment should be treat the contract for transportation as still made under the regularly published and es-in force, and proceeded under it. He did not tablished rates-the live stock contract ex- have the right to rescind in part. Fort pressly provided that the rate was subject to correction. We think the plaintiff, before he would be entitled to recover the penalty provided by article 6559, would be required to show what the established rate was, and the statement of the rate in the bill of lading Worth & Denver City Railway Co. v. Daggett, 87 Tex. 322, 28 S. W. 525. Having elected to have the contract further carried out, we think he is bound by the terms thereof binding him to feed and water the live stock. Reversed and remanded. |