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(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 ap For the reason that the verdict in this case pellee Speer acted in self-defense, but there was against the uncontradicted evidence, the was no testimony to indicate that the other judgment of the trial court is reversed, and appellees did so.

this cause is remanded for a new trial. [2] Upon another trial of this issue, if Reversed and remanded. 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 McHATTON'S ESTATE et al. v, PEALE'S ESreason that the assault occurred when ap

TATE,

. (No. 1393.)* pellant went to where the appellees and others were attempting to construct a culvert, (Court of Civil Appeals of Texas. El Paso. and forbade them to do so; he claiming that Jan, 11, 1923. Rehearing Denied the land was the property and in the posses

Feb. 8, 1923.) sion of his father, who was present, and in

1. Wills whose behalf appellant was acting. Appel

0608(3)— Rule in Shelley's Case"

stated. lees denied that the land was either the prop

The "rule in Shelley's Case" is that, if erty of or in the possession of appellant's father. If the land was the property of and an estate for life or any other particular esin the possession of appellant's father, he to his heirs, the first taker shall be held to

tate of freehold be given to one with remainder had the right, not only to forbid them to con- have the fee, and the heirs will take by descent struct the culvert thereon, but also to use and not by purchase. such force as was reasonably necessary to prerent them from so doing. If the jury and Phrases, First and Second Series, Rule in

(Ed. Note.--For other definitions, see Words should find that the land belonged to appel. Shelley's Case.) lant's father, and was in his possession, and that appellees struck appellant in their nec-2. Wills Em 608(1)-Rule in Shelley's Case not essary self-defense, against a threatened at

applicable where will gives no immediate es

tate.
tack on the part of appellant, the issue should
be submitted as to whether they used more

The rule in Shelley's Case does not apply force than was reasonably necessary to pro- where the will vested no immediate estate in tect themselves from such threatened assault. the persons whose heirs were to receive the re[3] Appellant submits several propositions the executors as trustees.

mainder, but vested the immediate estate in under his assignments of error as to the admission and rejection of testimony. There 3. Wills Om608(1) Rule in Shelley's Case is no merit in these assignments. The court

yields to testator's intention. did not err as to permitting the testimony

When the rule in Shelley's Case is applied 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 lant's head. This testimony was hearsay.

into effect if it can be ascertained from the 13. Also, the court did not err in permit- provisions of the will. ting testimony to the effect that appellee 4. Wills Ow73-Invalid unless estate thereby Speer was a road overseer, and that he was vests in some one at testator's death, acting under the direction of the county com Upon the death of a testator, his property missioner in attempting to erect the culvert. immediately vests in some one, either his heirs The claim upon the part of the county com- or devisees under the will, or in the trustee missioner was that the land beionged to the or executor, and a will which does not imcounty, and also at that time he was claiming mediately vest title in the heirs is not valid that the culvert was being erected on a pub- tee for the interim between the death of the

unless by construction it vests title in a truslic road. The Supreme Court at or near that testator and the time designated for closing or time decided the issue as to the public road distributing the estate. in favor of appellant. The jury might have found either way as to the ownership of the 5. Wills Em 672(3) Devise in trust implied land. Appellant was suing, not only for ac

where executors are given powers of trus

tees.
tual
, but also for punitory, damages; and,

Where a will expressly or by necessary im-
while a mistake as to a question of law on
the part of 'appellees would neither justify

plication creates certain trusts and imposes

upon the executor duties which are usually nor mitigate the actual damages, yet such a

performed by a trustee, the executor will take mistake, if they were acting in good faith, such interest or title as is requisite, though the would be a defense as to punitory damages. will does not specifically designate him as

There is no merit in the contention of ap- trustee, nor expressly bequeath or devise the
pellant that certain testimony excluded by property to him in trust.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

*Writ of error in Appeal of Hunter refused March 28, 1923.

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6. Wills 681(2)-Property held devised to , sire that my executors hereinafter named, shall executors as trustees.

keep said estate together for a reasonable time, Where a will designated two individuals as looking after the same and investing and reindependent executors, directed that the estate investing the same so as to bring in the best be kept together for a reasonable time, but possible returns, consulting and advising with authorized the executors to sell, exchange, or my daughter, Margaret Peale, and my son W. otherwise alienate the property for the benefit B. McHatton, who I do not join as executors of the estate, in such manner, at such time, for the reason they are nonresidents of the and on such terms as they deemed best, the state of Texas. will impliedly vested the fee to the real estate “Third. It is my desire and I so request, that in the executors trustees though there my executors shall from time to time divide was no express devise to them in trust.

equally between my daughter Margaret Peale

(whose present address is 607 Second avenue, 7. Wills Ow564(1)-Gift of entire income is Asbury Park, New Jersey), and my son W. B.

not gift of corpus, if contrary intention is McHatton (whose present address is 1730 manifest.

Fifth avenue, Los Angeles, California), the inA provision of a will that the legatees are come from my estate so that they may be to have the entire income of the estate during properly provided for until the same is entirely the period between the testator's decease and closed, when my said daughter and son shall the final delivery of the property, though evi- each receive one-half (12) of the remainder; dence of an intention to vest the estate in them and in the event of the death of either before immediately, does not have that effect where the final distribution, that portion which would the will clearly manifests a contrary intention. have gone to him or her should they be alive 8. Wills 564(2) - Devisee of income held shall go to his or her legal heirs. not to have interest which she could devise.

“Fourth. I desire that my gold watch and flat Where testatrix directed her executors to Martha McHatton, daughter of my son William

gold chain shall be given to my grand daughter. reserve her estate intact and pay the income B. McHatton as a special bequest to her. to a daughter and a son until such time as the executors should deem it advisable to close Stewart and F. E. Hunter, both of El Paso,

"Fifth. I make, constitute and appoint U. S. 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 ex

ecutors, and in the event of the death or rety; P. R. Price, Judge.

moval of either of them from El Paso county, Suit by F. E. Hunter, independent execu- Texas, I desire that the other shall continue tor of the will of Margaret E. Peale, de- to so act, but in the event of the death of ceased, against the executors of the estate of said U. S. Stewart, prior to my death or in Martha A. McHatton, deceased, and others. the event of his refusal to act, then I nominate Decree for plaintiff, and defendants appeal. and appoint J. F. Williams to act in his stead.

"Sixth. I realize that conditions are Reversed and rendered.

tinually changing and while it is my wish at Jos. U. Sweeney and W. M. Coldwell, both the present time that my property be kept inof El Paso, and Earle & McLaughlin, of Los tact, yet I realize that some changes may Angeles, Cal., for appellants.

happen where it would be advisable to sell, exGoggin, Hunter & Brown, N. J. Morrisson, change or otherwise dispose of some of the and R. B. Rawlins, all of El Paso, for ap- property. I give to said executors authority pellee.

to sell or exchange or otherwise alienate said

property for the benefit of my estate, in such HARPER, C. J. Mrs. Martha A, McHatton manner, at such time and on such terms and died November 21, 1920, leaving property conditions as in their judgment they may deem real and personal which she disposed of by for the best interest of my estate. the following will:

"Seventh. I leave to the good judgment of

my executors aforesaid, after consulting with "I, Mrs. Martha A. Mellatton, of the county my said son and daughter, as to the proper of El Paso, state of Texas, being of sound time to make a division of my property. mind and memory, and considering the uncer "In witness whereof, I hereunto set my hand tainty of life, do therefore make and declare and affix my seal the 11th day of October, this to be my last will and testament.

1918, in the year of our Lord, one thousand "First. I order and direct that my executors nine hundred and eighteen. hereinafter named, shall pay all my just debts

"Mrs. Martha McHatton. [Seal.]” and funeral expenses as soon after my de "The said will was duly probated in the prorease as conveniently may be.

bate court of El Paso county, Texas, and the "Second. As my estate in its present condi- executors named therein both qualified and are tion is bringing in good returns, it is my de- now acting."

con

*

(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 excited 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 be. Harold McHatton to obtain a construction of queath, grant, give, etc., to

propthe 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 In this case there are no such words as death of Mrs. McHatton, under the rule in could be construed to mean that any title to Shelley's Case, from which an appeal has any estate was thereby vested in any perbeen perfected by W. B. McHatton.

son except the named executors, as trustees, Appellants' proposition is:

and none would vest in any other by any of "The court erred in holding and adjudging its provisions until the time fixed, to wit, that by the terms of the will (especially of the when the estate is entirely closed. 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 owned by the said Martha A. McHatton at the carried into effect if it can be ascertained time of her death. Whereas, under said will from the provisions of the will. Kesterson 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 [4, 5] Upon the death of the testator, his should be entirely closed and finally distribut- property immediately vests in some one, eied, and, the said Mrs. Peale having died prior ther the heirs at law, devisees under the will, to such closing and distribution, no fee-simple or in the trustee or executor, and since it title to such half or such lands was taken by does not immediately vest title in the heirs her or can be taken by her. Such error was

it is not a valid will unless by construction caused by the court's erroneous application of the rule in Shelley's Case and by the error of it vests title in a trustee for the interim bethe court 'in holding that the words 'legal heirs' tween the death of the testator and the time in the third paragraph of said will were words designated therein for closing or, distributing of limitation and not of purchase, whereas said the estate. The rule in such cases is thatwords were merely a description of the per "Where a will expressly or by necessary imsous to whom said Mrs. McHatton devised in plication creates certain trusts, and imposes fee simple, that portion of her estate that upon the executor duties which are usually would have otherwise been taken in fee simple performed by a trustee, he

will take by such child of the testatrix as might die such interest or title in the property as is reg. before such closing and distribution and the uisite, although the will does not specifically court should have so decided and adjudged."

designate him as trustee, nor expressly beAppellee's counter propositions are: First, queath or devise the property to him in trust."

Patten v. Herring, 9 Tex. Civ. App. 640, 29 that the rule in Shelley's Case applies. That S. W. 388; Lane et al. v. Miller & Vidor Lumis , immediately upon the death of Mrs. ber Co. (Tes. Civ. App.) 176 S. W. 100; DulMcHatton, under the terms of the will, one lin v. Moore, 96 Tex. 135, 70 S. W. 742. half of her estate, the realty vested in fee simple in her daughter, Margaret E. Peale, [6] The will under discussion designates and the other half in her son,

U. S. Stewart and F. E. Hunter as inde[1] The rule in Shelley's Case, tersely pendent executors, for the purpose of keepstated, is (Brown v. Bryant, 17 Tex. Civ. ing same together, for a reasonable time. App. 454, 44 S. W. 399) :

She further declares: "That if an estate for life or any other par I realize that conditions are continually ticular estate of freehold, be given to one, with changing, and while it is my wish at the presremainder to his heirs, the first taker shall be ent time that my property be kept intact. vet held to have the fee, and the heirs will take I realize that some changes may happen where by descent and not by purchase.” it would be advisable to sell, exchange or oth

I [2] The first obstacle met with in trying erwise dispose of some of the property. to apply this rule to the provisions of this give to my said executors authority to sell, ex

change or otherwise alienate said property for will is that no immediate estate was vested the benefit of my estate, in such manner at by its provisions in either legatee, and none such time on such terms and conditions as in would or could vest in them until the estate their judgment may deem for the best interest is entirely closed.

The estate has not yet of my estate.”

These are the things usually performed by 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 (Court of Civil Appeals of Texas. Amarillo. fee in the named executors as trustees, but Jan. 24, 1923. Rehearing Denied Feb. 21, in trust for the son and daughter until such 1923. Second Petition for Rehearing Denied time as they might decide to distribute it. March 7, 1923.) If this was not the purpose of the will, why 1, Carriers 207(1)-Two contracts on samo did she make a will at all? They were the

shipment issued same day held to be cononly direct heirs and at her death would strued together, have taken the property by inheritance,

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 shipevidence 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. dren; the daughter, a widow, had none; 2. Carriers Om 20(11)-Shipper must show es. so in the case of the death of the son whilst tablished rate in suit for penalties and conthe property was held in trust before dis

tracts were not evidence thereof, but showed tribution, his share under the will was to go

intention to charge established rate. to his legal heirs, his children. But if she

A shipper, suing a carrier for penalties un. died before distribution of the trust estate der Rev. St. arts. 6559, 6669, for refusal to de

liver 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 daugbter 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 her mother.

live stock expressly reciting that the rate was [7] This brings us to the other theory or

subject to correction, proposition presented by appellee as a rea- 3. Carriers on 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 5812 cent rate to plainthe legatees are to have the entire income tiff's shipment and a 5642 cent rate to an. pending the period between the testator's ment on the weight shown on a scale bill at

other car, and a demand for an additional paydecease and final delivery of the corpus of tached to the waybill 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 conconstruction were the only thing to indicate tract and not treating holding of shipment the intention of the testator, they would for overcharge as conversion, held bound to have application here; but this is not the

continue to feed and water stock. only provision in this will which must be

Where a shipper continued to rely on his looked to in ascertaining the intention of contract when the carrier stopped the shipment Mrs. McHatton, and we must look to all of tional freight, instead of electing to treat such

and wrongfully or erroneously demanded addiits provisions for the purpose. McMurry v. act as a conversion, his caretaker was bound Stanley, 69 Tex. 227, 6 S. W. 412; Darragh, to continue to feed and water the live stock et al. v. Barmore (Tex. Com. App.) 242 S. W. pursuant to contract. 714. In fact, its contents are so clear and posi

Appeal from Lubbock County Court; P. tive that it needs no construction, but that it F. Brown, Judge. in fact clearly directs to whom her property Action by J. S. Guthrie against the Pan. sball 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 appel[8] We have concluded that E. Peale having died prior to distribution

Vickers & Campbell, of Lubbock, for appelof the estate as provided in the will, she

lee. had no interest which she could derise to appellees.

BOYCE, J. Plaintiff made a shipment of Reversed and rendered.

an emigrant outfit car from Bells, Tex., on

rs. Margaret lant.

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(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. tmcts, 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 shipm 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 could be no recovery for extortion, as defined of lading," and contains the following: by article 6669, Revised Civil Statutes, on ac"Description of Articles and Special Marks, count of the application of the 5842-cent

€. o. f. H. H. Goods, Farm Imps. and rate to this shipment, without showing the Live Stock on Cars.

rate established by the Railroad Commission, "Weight (subject to correction) 20,000; class We do not think the facts sufficient to show or rate 56.5.

"unjust discrimination" as defined by article "If charges are to be prepaid, write or stamp 6670, Revised Statutes, in the application of here, "To be prepaid.' Prepaid:

the 5812-cent rate to this shipment while "Received $113.00 3.39

applying a 564-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." freight on the 587-cent rate. The stopping

of plaintiff's car at Lubbock was evidently The other contract referred to the 10 head caused by the showing made by the scale of live stock in the car, and provided for ticket attached to the waybill that the ship transportation “at published tariff rates," ment weighed 28,800 pounds instead of 20,and contained this provision:

000 pounds, on which freight had been pre"This contract is subject to correction as to paid. So that the finding of discrimination rate, weight and classification so as to conform and extortion was probably based on the fact to the rates, rules and regulations legally ap- of claim for payment of freight on this explicable to the shipment."

cess weight. On this issue the defendant was On delivery to the Panhandle & Santa Fe entitled to have submitted to the jury an inRailway Company at Sweetwater another quiry to whether the overcharge "was unincontract was made which provided for trans- tentional and innocently made, through a

mistake of fact." portation by said railway company-

[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 and whether the injury to the stock was due the first part (the railway company], to which to such fact. We think this would be true, reference is here made."

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 Worth & Denver City Railway Co. v. Daggett, correction. We think the plaintiff, before he 87 Tex. 322, 28 S. W. 525. Having elected to would be entitled to recover the penalty pro- have the contract further carried out, we vided by article 1559, would be required to think he is bound by the terms thereof bindshow what the established rate was, and the ing him to feed and water the live stock. statement of the rate in the bill of lading Reversed and remanded.

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