er the death of Mrs. Cooper and the probate | second, for the benefit of the sisters of of her will, plaintiff sued out a writ of attach- the testatrix as to such part of said estate, ment and caused the same to be levied on if any, as shall remain undisposed of or said house and lot as the property of the unappropriated at the time of Mrs. Williams' defendants W. N. Williams and wife, M. E. Williams. The court, on the trial of the case, refused to foreclose an attachment lien on said property. [9] The will vested the legal title to Mrs. Cooper's estate in W. N. Williams with power to sell and convey the same. The title so vested in him was, however, in trust for his wife. The will required him to use the whole property, or so much thereof as in his judgment should be so used, for her welfare and comfort. It expressly declared that he should have no power, authority, or interest in said estate except such rights and powers as were therein conferred. The only intimation of a personal interest conferred upon him by the will is the request that he and his wife occupy the house and lot aforesaid, as a home, until such time as in his judgment the interest and welfare of the beneficiary would best be served by the sale thereof. It does not appear that they, or either of them, ever saw fit to occupy said property. Occupancy by the beneficiary as a home for herself and her husband was merely one of the ways in which the trustee in his discretion might apply the property to her welfare and comfort. Until so occupied, it constituted a part of the trust estate in which the trustee had no interest except to discharge his duties under said trust. The character of his holding was known to plaintiff. The proposition that property belonging to a trust estate in the hands of a trustee in which property such trustee has no personal interest is not subject to seizure and sale for his individual debts is well established. 26 R. C. L. p. 1261, § 109. [10] The right of a testator to give property to one devisee with full power of use, sale, and appropriation, and at the same time, by a devise over to another, vest in such other a good and valid title to so much of said property as shall remain undisposed of and unappropriated at the death of the first taker, is expressly declared by our Supreme Court in McMurray v. Stanley, 69 Tex. 227, 234, 6 S. W. 412. The fact that Mrs. Cooper's will vested the legal title during the life of the first taker in a trustee in no way affects the application of this rule. The devise over in this case of so much of Mrs. Cooper's estate as shall be on hand at the death of Mrs. Williams, to her sisters, is a valid provision of said will. The trustee holds the property under the terms of the will, first, for the use and benefit of Mrs. Williams, to be applied in his judgment and discretion as her interest, welfare, and comfort may require, and in such manner and to such extent only; and, death. By the express terms of the will, Mrs. Williams has no right, interest, nor title to the property except the right to receive, use, and enjoy such part of the same as the trustee in the exercise of the discretion vested in him by the terms of said will shall deem proper and right to apply to her welfare and comfort and shall so apply. The duties imposed upon the trustee by the terms of the will are very general. He is granted express authority to sell, convey, collect, and hold the entire estate, and implied power to reinvest the same, because the testatrix expressly provides that all property on hand at the death of Mrs. Williams bought with funds belonging to her estate shall be inherited equally by her surviving sisters. Such, trust is not a mere passive trust, but an active one, and requires the performance of duties and the exercise of personal discretion and judgment on the part of the trustee. Lanius v. Fletcher, 100 Tex. 550, 555, 101 S. W. 1076. Was the property subject to levy and sale to satisfy plaintiff's judgment against Mrs. Williams? Mrs. Cooper, as the owner of the property in controversy, had absolute right to dispose of it by her will as she saw fit and to put upon the title thereto and upon the right to use and appropriate the same such limitations as she deemed proper, provided they were not in violation of law or against public policy. She had a right to devote her own property to promote and secure the welfare and comfort of her sister and to protect her against the vicissitudes of fortune. Mrs. Williams gave nothing for the benefits accruing to her under the will. Her ability to respond to the demands of her creditors was in no way lessened thereby. It was a pure bounty conferred by her sister, Mrs. Cooper, who had the right to prescribe the terms upon which such bounty should be enjoyed. Mrs. Cooper had the right to create a trust, to designate a trustee, and to put the property in his hands to be applied to the use, welfare, and comfort of her said sister, free from the demands of her said sister's creditors. Lanius v. Fletcher, 100 Tex. 550, 555, 101 S. W. 1076; Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388, and authorities there cited; Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254, and authorities there cited; McClelland v. McClelland (Tex. Civ. App.) 37 S. W. 350, 358-359 (writ refused); Wood v. McClelland (Tex. Civ. App.) 53 S. W. 381 (writ refused). [11] The right to incumber or alienate property is one of the usual incidents of ownership. If the property in controversy in this case is not subject to voluntary incumbrance and alienation by Mrs. Williams (248 S.W.) and not subject to seizure and sale in satis- entire trust fund or property over to the faction of her debts it is because Mrs. Cooper has so limited the gift of the same. It was not necessary that Mrs. Cooper's will, which created the trust in this case, should so declare in express and unequivocal terms. It is sufficient if it appears reasonably clear from the entire instrument construed in the light of attending circumstances that such was her intention, Nunn v. Titche-Goettinger Co. (Tex. Com. App.) 245 S. W. 421, 422; Patten v. Herring, supra. The will, by its terms, vests the legal title to the property in a trustee, and, while it provides that he shall hold it in trust for Mrs. Williams, it further provides that all the same on hand at her death shall pass to her surviving sisters. It further provides that she shall have no right in the property devised except for the purposes provided therein. The purpose declared by its terms is the application of said property to her welfare and comfort by the trustee, but such application is to be wholly within his discretion and only as he, in his judgment, deems best for her. It does not direct the trustee to pay or deliver the property to her as in his judgment her welfare or comfort may require, but to spend or pay the same himself to accomplish such purposes. [12] Mrs. Williams, so far as the record shows, owned no separate property. She was indebted to the plaintiff in the amount of the judgment sued on. The will was executed during the pendency of the suit. It was admitted that the value of the house and lot devised was small. If Mrs. Cooper's whole estate were applied to the satisfaction of this judgment, little, if any, would remain. In view of the fact that plaintiff was suing Mrs. Cooper at the time, charging her with fraud in the acquisition of said notes and seeking to deprive her of the proceeds of same, we think it was reasonably clear that it was Mrs. Cooper's purpose to provide for the application of her property to promote the welfare and comfort of her said sister and to deprive her of control over, or right to dispose of the same, and at the same time to exempt said property from the claim of the plaintiff, or any other creditor. Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388, 391, 392. [13] In the majority of cases involving such trust, the income only is directed to be applied to the support and comfort of the beneficiary; but such is not always the case, and the purpose of such a trust is not defeated by the fact that the trustee is authorized in his discretion to apply a part of the corpus of the fund to the use of the beneficiary in accordance with the terms of the trust. Neither is the purpose of such trust defeated by the fact that the trustee is authorized or even required to turn the beneficiary absolutely at some fixed time in the future. McClelland v. McClelland, supra; Wood v. McClelland, supra; Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456, 43 Am. St. Rep. 410; Robertson v. Schard, 142 Iowa, 500, 119 N. W. 529, 134 Am. St. Rep. 430, 433; Barnes v. Dow, 59 Vt. 530, 10 Atl. 258, 261; 1 Perry on Trusts, § 386a. [14] While trusts by the terms of which the property belonging thereto is put beyond the control of the beneficiary and exempted from seizure for his debts are commonly called "spendthrift trusts," it is not necessary that the instrument creating the same shall assign any reasons for such provisions, nor is it necessary that the beneficiary shall be in fact improvident, incapable, or a spendthrift. 25 R. C. L. p. 357, § 8. Such trusts are not sustained out of consideration for the beneficiary. Their justification is found in the right of the testator to control his bounty and secure its application according to his pleasure. Lanius v. Fletcher, supra; Nichols v. Eaton, supra; In re Morgan's Estate, 223 Pa. 228, 72 Atl. 498, 25 L. R. A. (N. S.) 236, 237, 238, 132 Am. St. Rep. 732. We therefore answer the fourth question as follows: 4. The will of Mrs. Sarah E. Cooper did not hage the effect to vest title to the property therein devised in such a manner as to render it, or any part of it, subject to execution for the payment of plaintiff's judgment against the defendants, W. N. Williams and Mrs. M. E. Williams, nor either of them. CURETON, C. J. The opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 2. Criminal law 1122(1)-Exception to refusal of special charges must appear by notation or bill of exceptions. peals for review a refusal of special charges, To bring before the Court of Criminal Apthe fact that refusal of such charges was then excepted to must appear, either on the charges by appropriate notation, or by separate bills of exception. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Criminal law 1092(13)—Exception not approved will not be considered as having been presented before argument or reading of main charge. Where an exception to a charge is not approved by the trial court, it cannot be considered on appeal as having been presented before the argument was begun or the main charge read to the jury. 4. Criminal law 1056(1)—Exception to charge must show it was presented before main charge was read or argument begun. Where an exception to a charge has no statement or notation of the fact that it was presented to the trial court before the main charge was read or argument begun, it is insufficient. 5. Criminal law 603 (2)—Application for continuance for absence of witnesses in seduction prosecution held insufficient. In a prosecution for seduction, it was not error to refuse a continuance, where the application stated that defendant relied upon his belief that the prosecuting witness was not going to testify to any damaging facts against him, based on a conversation he had with her, and that therefore he had procured no process for any witnesses, the allegation being added that he had a witness, but without stating where he lived nor why the case should be postponed to get him. 6. Seduction 46-Corroboration of prosecu. trix as to promise to marry held sufficient. In a prosecution for seduction on promise of marriage, evidence consisting of letters from accused and of testimony by the mother of prosecuting witness that she had read a letter which had been burned, in which he had discussed his engagement with prosecuting witness, held sufficiently to corroborate prosecuting witness as to the promise to marry. 25 years" the pleader misspelled the word "years" and made the same appear "yeard." Numerous authorities are cited under article 476 of Vernon's Ann. Code of Criminal Procedure, in support of the proposition that bad spelling does not vitiate an indictment when the meaning is plain. [2] Appellant asked three special charges, one of which was given. We cannot consider the alleged error in the refusal of the other two charges because of the fact that neither upon them nor by separate bill of exceptions is it made known to us that appellant excepted to the refusal of such charges. It is necessary in order to bring before this court for review the refusal of special charges, that either on the charges by appropriate notation, or by separate bills of exception is here presented the fact that such refusal was then excepted to. [3, 4] Appellant's exceptions to the court's charge appear in three separate documents marked A, B, and C. Exception A is not approved by the trial court and therefore cannot be considered by us as having been presented before the argument was begun or the main charge read to the jury. Kosarek v. State (Tex. Cr. App.) 235 S. W. 885. Exception B has on it no statement or notation of the fact that it was presented to the trial court before the main charge was read or the argument begun. Neither exception A nor B are presented here in separate bills. Edwards v. State (Tex. Cr. App.) 237 S. W. 933. Exception C presents four grounds, first, that the charge fails to instruct as to any phase of accomplice testimony. Inspection of the main charge demonstrates the incor7. Seduction 46-Prosecutrix held sufficient-rectness of this exception, for the court did ly corroborated as to carnal knowledge by accused. In a prosecution for seduction, evidence consisting of letters held sufficiently to corroborate prosecutrix as to the fact of carnal knowledge by accused. tell the jury that the prosecutrix was an accomplice, etc. The second ground is 80 worded as to present nothing to us by which we may ascertain what was intended. The third and fourth grounds fail here, in view of the fact that the special charge asked by Appeal from District Court, Polk County; appellant and given by the trial court inJ. L. Manry, Judge. Johnnie Rhodes was convicted of seduction and he appeals. Affirmed. Fox Campbell, of Livingston, and J. A. Mooney, of Woodville, for appellant. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Polk county of seduction, and his punishment fixed at confine ment in the penitentiary for a period of three years. [1] Appellant questioned the sufficiency of the indictment. Examining same, it appears that in alleging that the prosecutrix was an unmarried female "under the age of structs the jury that, if prosecutrix surrendered herself to the embraces of appellant on a conditional promise that is, that if she became pregnant he would marry heror unless they believed beyond a reasonable doubt that she did not so surrender her person to him upon such conditional promise, the jury should acquit. This special charge presented affirmatively the only defensive theory supported by testimony. There was no evidence offered in behalf of the appellant at all. [5] Appellant asked for a continuance, but an examination of his application shows it to be without merit. He states therein that he relied upon his belief that the prosecuting witness was not going to testify to any damaging facts against him, based on a con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Tex.) ANDERSON v. STATE "Dear: I want to know what you are going versation that he had with her, and therefore he had procured no process for any to tell them when they find this out. Dear, for witnesses. He follows this by an allegation God sake, don't tell that it was me. Dear * * * Dear if this goes to court what are that, if he had a witness present by the please tell them that it was some one else. name of Munson, he could prove by Munson you going to tell, are you going to talk against that he had carnal knowledge of prosecutrix me or not, Dear I hope you don't, and in first about the time of the commission of the of-place I hope you don't let it go to court. fense herein charged against appellant. It*. Your best loving friend, Johnnie Again in the letter written by him to prosecutrix in November, after the birth of her child, we find the following: is not stated where Munson lives, nor is any Rhodes. "I promised you that I would send you some money, but as it is I haven't got it all that I promised you, but don't you worry about that for I will try my best to get the rest of it in a will send you what I have on hand and I will short time, if I can't get it all just right now I send the other as fast as I can get it. Mary I am working every day and I will just send the money to you, I guess it will be all right won't it, dear. You write me and let me know if that will be all right with you or not." The sufficiency of the evidence is attacked. Prosecutrix testified fully to the promise of marriage and also to repeated acts of carnal intercourse between herself and appellant, granted on her part upon reliance upon his said promise. Upon her cross-examination she averred that she yielded her person to appellant upon his promise to marry her in the event she became pregnant, but later she retracted said statement and undertook to testify before the jury to the conversation that was had between them at the time of the first act. These matters of conflict were for the jury, and they have decided them against appellant. As above stated, this defensive issue was presented by a specially charge in language selected by appellant's counsel. [6] Upon the question of corroboration of the promise of marriage and of the act of carnal intercourse, the prosecutrix testified to having received three letters from appellant, two of which were read in evidence and the fact given in testimony that the third letter had been burned. In the burned letter she stated that appellant discussed Her mother teshis engagement with her. tified for the state, without objection, that she saw and read the letter from appellant in which he discussed with her daughter their engagement. This would seem to sufficiently corroborate prosecutrix upon the matter of promise to marry. On the ques The fear and agitation of appellant that this would be found out; his promise to send her money; his intimate association with prosecutrix-are for the consideration of the jury. [7] In our opinion the testimony sufficientcorroborated the prosecutrix upon both the elements required to be established in seduction cases, to wit: The promise of marriage and the fact of carnal knowledge. These matters have been so often discussed in this state that we do not deem it necessary to cite authorities. Finding no error in the record, the judgment will be affirmed. ANDERSON v. STATE. (No. 7053.) 1923. State's Rehearing Denied (Court of Criminal Appeals of Texas. Jan. 24, March 14, 1923.) On State's Motion for Rehearing. Criminal law 938 (4)-Rule that undisclosed evidence of witness present at trial will not be regarded as newly discovered subject to exceptions. The rule that evidence undisclosed by a witness present at the trial will not be regarded as newly discovered within Code Cr. Proc. 1911, art. 837, subd. 6, is subject to exceptions. shown to authorize new trial for newly dis2. Criminal law 939(1)-Sufficient diligence covered evidence. tion of carnal knowledge, it was beyond Affidavits of counsel for one convicted of assault with intent to murder that they conversed with one summoned as a witness by the state but not called to the stand by it or defendant, that she persistently denied knowledge of any facts relative to the offense For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes charged, and that they first learned after the, trial from her employer that she claimed knowledge of an important fact affecting defendant's claim of self-defense, showed sufficient diligence to authorize a new trial, under Code Cr. Proc. 1911, art. 837, subd. 6, on the ground of newly discovered evidence. 3. Homicide 319-Newly discovered evidence as to prosecuting witness' possession of pistol held sufficient to authorize new trial. favorable to the appellant; that efforts were made to ascertain from her what she knew about the case, she being in attendance under process issued on behalf of the state; that she stated in terms that she was in the house at the time of the fight and had no knowledge upon the subject. Because of these statements, she was not used as a witness. After the trial, Sarah Daniels revealed to the man for whom she was working that she knew additional facts, but that she was afraid at the time of the trial to reveal them. This knowledge was imparted to appellant's counsel, and, acting upon it, he obtained from both Sarah Daniels and Katie Austin affidavits which were before the court upon the hearing of the motion for new trial. The affidavit of Sarah Daniels, in addition to negativing any disclosure of her knowledge prior to the conviction, stated that she had gone to the dance in company with Tom Appeal from District Court, Rusk County; that Daniels' pistol was carried by Katie Daniels, Raymond Salty, and Katie Austin; Chas. L. Brachfield, Judge. Newly discovered evidence, after conviction of assault with intent to murder, that prosecuting witness, who defendant claimed had presented a pistol at him, had taken a pistol from the witness' possession only a few minutes before the difficulty occurred, held sufficient to authorize a new trial under Code Cr. Proc. 1911, art. 837, subd. 6, as against the objection that it was only cumulative, corroborative, and impeaching, and not likely to change the result. MORROW, P. J. Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of five years. Appellant struck Tom Daniels with an axe. This occurred at the home of Ora Neil. A dance was in progress. The parties, as well as the witnesses, were negroes. Tom Daniels testified that while he was standing upon the gallery talking to Katie Austin, the appellant, without provocation, struck him with an axe. Daniels said that he was unarmed, and made no threat or demonstration. Austin in her coat pocket; that after arriving at the place where the dance took place, and after Daniels saw the appellant there, he said to Sarah Daniels that he wanted his pistol; that she volunteered to go to Katie Austin and get the pistol; that she did so, intending to put it in the automobile; that while she was in the act of doing so, Tom Daniels caught her and took the pistol away from her. He then went to the place where he received the injury. Katie Austin in her affidavit verified the truth of the statement made by Sarah Daniels to the effect that she had the pistol and that Sarah Daniels came for it, stating that she intended to hide it. She described the pistol and said that it belonged to Daniels, and that it was the one he was using at the time the appellant struck him. The state filed a writing combating the legal sufficiency of the motion for new trial, but not denying that she would give the testimony imputed to her in the motion for new trial. Katie Austin, summoned by the state but used by the appellant, testified that she saw The verdict of the jury finding the appelthe encounter; that Daniels pointed his pis-lant guilty and assessing the penalty of five tol at the appellant and told him not to move years, when the minimum allowed by law was or he would kill him; that appellant was two years, reflects the rejection by the jury standing against the wall and seized an axe of appellant's theory of self-defense. The verand struck Daniels with it. This was the ex-dict rests upon the testimony of the injured tent of her testimony. In the motion for new trial, it was shown by the affidavits of the appellant and his counsel that they learned after the conviction that Katie Austin knew additional facts favorable to the appellant and that Sarah Daniels could also give material testimony in his behalf. In these affidavits it was shown that Katie Austin at the trial disclaimed knowing any facts save those to which she gave testimony, and that Sarah Daniels disclaimed knowing any facts at all party and another witness that Daniels was not armed. Katie Austin testified that he was armed, but the state witness Sarah Daniels resisted the efforts of the appellant's counsel to learn the facts within her knowledge. In fact, she denied the knowledge of any material facts. This is made evident by the uncontroverted affidavits of the appellant and his counsel appended to the motion for new trial, as well as by her affidavit. We understand that the state does not controvert its truth, but insists that it would not bring For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |