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spect. See Dees v. Thompson, supra, and was located and patented. When and where other cases above cited.

this administration was had the record does Prior to the promulgation of the rule relied not disclose. upon and Courts of Civil Appeals rules Nos. III. On August 13, 1859, M. M. Bonham, 23 and 24 (142 S. W. xii) the Supreme Court acting for himself and the other heirs of of this state and the Courts of Civil Appeals James B. Bonham, through his attorney, uniformly held that a party appealing from James C. Walker, petitioned the Court of a judgment by the court without a jury had Claims to issue to said heirs the donation the right to appeal without filing a motion certificate to which they were entitled as for a new trial. Bell County v. Alexander, such heirs. 22 Tex. 357, 73 Am. Dec. 268, Luther V. IV. On October 15, 1859, said certificate Western Union Tel. Co., 25 Tex. Civ. App. No. 37 was issued to said heirs. 31, 60 S. W. 1029, and Greer v. Featherston,

V. M. M. Bonham filed his petition to the 95 Tex. 654, 69 S. W. 69.

probate court of Freestone county to the SepMr. Justice Brown, in the case of M., K. & tember term, 1859, of said court, to be apT. Ry. Co. v. Beasley, 155 S. W. 183 et seq., ' pointed administrator of the estate of James in passing upon a somewhat similar question B. Bonham. This petition was signed by to the one here involved, held that the Su- "Walker & Bradley, Attys., per L. D. Bradpreme Court could not by rule set aside a ley." statute, and that the rules of court must be

VI. At the October term, 1859, of said so construed as to harmonize with the arti- court, letters of administration were issued cles of the Revised Statutes, and with the to said M. M. Bonham. former decisions of that court. We there

VII. September term, 1860, M. M. Bonham fore have no hesitation in holding that the filed a petition for the sale of said certificate, rules relied upon by appellees will not war- alleging claims against said estate, aggregatrant us in sustaining their contention; but, ing $453.76, of which $198.56 was alleged to on the contrary, we hold that, where the case be due said M. M. Bonham. This petition has been tried before the court without a ju- was signed by Walker & Bradley, Attorneys. ry, and conclusions of fact and law have

VIII. On September 24, 1860, said probate been filed by the trial court, and the judg- court ordered M. M. Bonham to sell said cerment duly excepted to, as in the instant case,

tificate to the highest bidder for cash. that the appellant has the right to appeal ministrator reported that he had sold said

IX. At the November term, 1860, said adand file assignments of error without a motion for a new trial, and therefore we over certificate, as ordered by the court, to L. D. rule appellees' motion to strike out appel. Bradley at 41 cents per acre.

X. On November 6, 1860, M. M. Bonham, lants' assignments of error,

administrator, deeded said certificate to L. Motion overruled.

D. Bradley. This deed was recorded May 5, 1882.

XI. At the December term, 1860, of said MOODY V. BONHAM et al. (No. 5508.) court, said sale was approved. (Court of Civil Appeals of Texas. Austin. XII. On September 9, 1861, S. C. Simmons, Oct. 13, 1915.)

E. Steele, and L. D. Bradley entered into a Appeal from District Court, Freestone written agreement with each other, which reCounty; H. B. Daviss, Judge.

cited among other things: On motion for additional findings of fact.

"That heretofore, in the year 1860, the said

parties entered into a copartnership for the purFindings made.

pose of purchasing and locating land certifiFor opinion, see 178 S. W. 1020.

cates, under which copartnership they have purAnderson & Moses, of Fairfield, for appel- chased and located the following certificates." lant. M. L. Bonham, of Anderson, S. C., W.

Among others is mentioned: W. Ballew, of Corsicana, and T. H. Bonner donation certificate No. 37 for 640 acres; 18642

"45392 acres by virtue of James B. Bonham's and Boyd, Bell & Fryer, all of Fairfield, for acres by virtue of James B. Bonham's donation appellees.

certificate No. 37."

This agreement further states that said Additional Findings of Fact on Motion for Bonham certificate had been paid for by L. D. Same.

Bradley, and that other certificates therein JENKINS, J. The appellant having com- mentioned had been paid for by the other plained that our findings of fact herein are parties, but that they were to pay the same not sufficiently full, we make the following amount and be equal partners in said lands. additional findings of fact:

XIII. On May 30, 1862, the land in conI. James B. Bonham was killed at the troversy was patented to the heirs of James Alamo in 1836.

B. Bonham by virtue of said donation cerII. The record in this case indicates that tificate. his estate was administered upon and his XIV. The parties hereto filed a written land was partitioned among his heirs, from agreement, as shown by our original findings

Tex.)

WICHITA VALLEY RY. CO. v. SOMERVILLE

671

tween persons and classes of persons." To NATIONAL LIVE STOCK INS. CO. v. this the court replied: GOMILLION. (No. 5482.)

"The plaintiff in error is a foreign corpora(Court of Civil Appeals of Texas. Austin.

tion, and what right of contract has it in the

state of Texas? This is the only inquiry, and Oct. 13, 1915.)

it cannot find an answer in the rights of natural COURTS 247 — APPELLATE JURISDICTION persons. It can only find an answer in the CERTIFICATION-WRIT OF ERROR GRANTABLE. rights of corporations and the powers of the

What those rights are and The Court of Civil Appeals will not certify state over them. a case to the Supreme Court, where that court what that power is has often been declared by

this court. has jurisdiction to grant a writ of error. [Ed. Note. For other cases, see Courts, Cent.

The court quotes with approval from Paul Dig. $$_437, 749, 751–754, 757, 759, 760, 762-v. Virginia, 8 Wall. 168, 19 L. Ed. 357, as 767; Dec. Dig. Om 247.]

follows: Appeal from Caldwell County Court; J. other states, but depending for such recognition

"Having no absolute right of recognition in T. Ellis, Judge.

and the enforcement of its contracts upon their On motion for rehearing. Overruled. assent, it follows, as a matter of course, that For former opinion, see 178 S. W. 1050.

such assent may be granted upon such terms

and conditions as those states may see proper to E. B. Coopwood and Nye H. Clark, both of impose. They may exclude the foreign corporaLockhart, for appellant. 0. Ellis, Jr., S. R. in their discretion."

tion entirely. * The whole matter rests Graves, and T. B. Monroe, all of Lockhart,

As a conclusion of this whole matter the for appellee.

court said:

“The statute of 1889 (which was assailed as JENKINS, J. our original opinion being unconstitutional), therefore, was a conherein we held that article 4951, R. S. (ar- dition upon the plaintiff in error within the ticle 3096eee, C. 69, Acts 28th Leg.), was limitations were upon the power of contracting,

power of the state to impose, and whatever its constitutional. A careful examination of the whatever its discriminations were, they became able brief and argument of appellant herein conditions of the permit and were accepted on its motion for a rehearing has not chang

with it." (Italics ours.) ed our views as to this.

It will be observed that article 4951, R. S., Appellant vigorously assails our opinion does not discriminate between foreign and herein, wherein we held that appellant was domestic insurance companies. This is a not in a position to attack the constitutional- suit to recover on an insurance contract, ity of the enactments of the Legislature reg- and the appellant seeks to read into that conulating the admission of foreign corpora- tract questions and answers in the applications to do business in this state for the rea- tion for the policy, when under the provison that in accepting such permit it agreed sions of title 71, R. S., hereinbefore referred to be bound by such enactments. Article to, such questions and answers did not be4972 makes the provisions of title 71, R. S., come a part of such policy, for the reason conditions precedent upon which foreign in- that a copy thereof did not accompany said surance companies shall be permitted to do policy. business in this state, and provides that

For the reasons stated in our original opinsuch companies by doing business in this ion herein, we overrule appellant's contenstate "shall be held to have assented there- tion that appellee was not entitled to a judgto.” The law is a part of every contract. ment for the penalty and attorney's fees reUnder the law of this state when a foreign covered. insurance corporation obtains a permit to do For the reasons stated herein, appellant's business in this state, every provision of ti. motion for a rehearing is overruled. tle 71 of the Revised Statutes, in so far as s The Supreme Court has jurisdiction to applicable to its line of business, becomes grant a writ of error in this case, for which a part of its contract to do business in this reason the motion to certify is also overrulstate. Having accepted said provisions and ed. Jones v. Lopez, 172 S. W. 992, 993; Day agreed to be bound thereby, it will not, after v. Mercer, 175 S. W. 766. doing business under such permit (and with

Motion overruled. out which it could not have any business in this state), be heard to question the validity of such provisions.

WICHITA VALLEY RY. CO. V. SOMERSuch we understand to be the effect of the

VILLE et al. (No. 808.)

Amarillo. decision of the Supreme Court of the United (Court of Civil Appeals of Texas.

(Court.c. 16, 1915? On Motion for ReStates in Waters-Pierce Oil Co. v. State of

hearing, Nov. 6, 1915.) Texas, 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed.

1. WILLS Om792–ELECTION-QUESTIONS FOR 657. In that case it was contended by appel JURY. lant that the statute of Texas was unconsti A husband at the time of his death owned tutional, in that it took away “the property i two lots with a hotel thereon, constituting comand liberty assured by the fourteenth amend.munity property, on which he and his wife had

been living. His will gave the property to a ment of the Constitution of the United con, subject to the payment of rent to the States," and made "many discriminations be widow for life, and also gave the widow all of

the furniture. The son had been living with station, an erroneous instruction allowing her his father and mother as one of the family, to prevail under the five-year statute, though and continued to live there and manage the she had not paid city and school taxes, could hotel without any change being made in the not be held immaterial, unless she was entitled management of the property. He had the will to a peremptory instruction under the ten-year probated, but, though named as executor, never statute, as it was probable that the jury did qualified, and never exercised any authority as not investigate the question of adverse possuch, nor attempted to carry out the provisions session for longer than five years, and it thereof the will, further than to pay certain sums fore probably caused the rendition of an imto the other children as provided in the will. proper verdict within rule 62a (149 S. W. x), The hotel was subsequently sold, the widow providing that no judgment shall be reversed for and son both signing the deed, and part of the an error of law in the course of the trial, unless furniture being turned over to the purchaser ap- the appellate court shall be of opinion that parently passing with the sale of the hotel, and the error amounted to such a denial of appelnot being sold for any fixed price or as the lant's rights as was reasonably calculated to siroperty of the widow. The widow claimed cause, and probably did cause, the rendition of that she did not know the contents of her hus- an improper judgment. band's will, and never accepted the provisions [Ed. Note.-For other cases, see Appeal and thereof, but continued to occupy the premises, Error, Cent. Dig. $8 4219, 4221-4224; Dec. Dig. claiming her community and homestead rights. Om 1064.] Held, that the facts did not conclusively show an election by her to accept the provisions of 7. ADVERSE POSSESSION Cm115—EVIDENCEthe will, and whether there was such an elec

ISSUES. tion was a question for the jury.

A husband at the time of his death was [Ed. Note.-For other cases, see Wills, Cent. residing with his wife and son on two lots on Dig. ss 2049-2052, 2061-2063; Dec. Dig. Om munity property. He gave the property to the

which was a hotel and which constituted com792.]

son, subject to the payment of rent to the 2. WILLS C 792-ELECTION - ACTS CONSTI-widow during her life. The son had been livTUTING.

ing with his father and mother as one of the An election by a widow to take under her family and working for them as during his mihusband's will in lieu of her community and nority, and after his father's death he continhomestead rights must be unequivocal and with ued to manage the hotel; no change being the intention to make an election.

made in the management of the property. The [Ed. Note.--For other cases, see Wills, Cent. widow also continued to occupy the lots, and, Dig. $$ 2049–2052, 2061-2063; Dec. Dig. On though the son was named as executor of the 792.]

will, he never qualified or exercised any au3. ADVERSE POSSESSION Cm103-EXTENT OF thority as executor. Title to a portion of one RIGHTS ACQUIRED.

of the lots was in plaintiff. There was evi. Where a husband at the time of his death dence tending to show an election by the widow was in possession of two lots constituting com- to take under the will, þut she denied this and munity property, but the record title to a small claimed to have been in possession, claiming part of one of the lots was in a third party, her community and homestead rights.' In plainand he had not acquired title thereto by limi: tiff's suit against the widow and son in trestation, if the wife remained in peaceable ad- pass to try title there was no testimony that perse possession, cultivating, using, and enjoy the son was his mother's tenant, and it was ing the land in question under a claim of title shown that after the expiration of five years, for the required period, she acquired title to but within ten years from the commencement the whole thereof, and not merely to an undi- of the adverse possession, he leased the disvided one-half interest.

puted land from plaintiff, and there was tes[Ed. Note. For other cases, see Adverse Pos- that the widow knew of this lease and ac

timony, though contradicted, tending to show session, Cent. Dig. $8 590-594; Dec. Dig. Om quiesced therein. Held, that the widow was not 103.]

entitled to a peremptory instruction under the 4. ADVERSE POSSESSION 86_PAYMENT OF ten-year statute of limitations, and an erroneTAXES-STATUTORY PROVISIONS.

ous instruction allowing her to prevail under Under Vernon's Sayles' Ann. Civ. St. 1914, the five-year statute, notwithstanding nonpayart. 5674, providing that every suit to recover ment of taxes, was not immaterial, as the facts real estate as against any person having peace- raised an issue as to whether the son was not able and adverse possession, cultivating, using, in possession, and the widow merely living or enjoying it, and paying taxes thereon, if with him, and also raised the issue of a mixed any, and claiming under a deed duly registered, or joint possession or occupancy, and, if this shall be instituted within five years, the party was the case, she was not in peaceable adverse in adverse possession must pay all of the taxes, possession during the time the son was also in and where defendant claimed title by limitation possession under the lease from plaintiff. under such article, she was bound to show the [E.. Note.-For other cases, see Adverse Pospayment of city taxes, as well as a special session, Cent. Dig. $$ 314, 691-701; Dec. Dig. school tax levied by an independent school dis-m115.] trict.

[Ed. Note. For other cases, see Adverse Pos- 8. ADVERSE POSSESSION Cm68 - MIXED Possession, Cent. Dig. & 504; Dec. Dig. Om 86.]

SESSION-EFFECT.

When two persons are in mixed possession 5. APPEAL AND ERROR 1064 - HARMLESS of the same land, one by title, and the other by ERROR-BURDEN OF NEGATIVING PREJUDICE. wrong, the law considers the one who has

It must appear that an erroneous charge title as in possession to the extent of his rights, calculated to mislead the jury did not have that so as to preclude the other from taking advaneffect, or the judgment will be reversed.

tage of the statute of limitations. [Ed. Note. For other cases, see Appeal and [Ed. Note. For other cases, see Adverse PosError, Cent. Dig. 88 4219, 4221-4224, Dec. session, Cent. Dig. 88 387-393; Dec. Dig. Om Dig. Om 1064.]

68.] 6. APPEAL AND ERROR Om 1064 - HARMLESS 9. ADVERSE POSSESSION 112-EVIDENCEERROR-INSTRUCTIONS.

BURDEN OF PROOF. In trespass to try title, where defendant In trespass to try title against a mother pleaded the five and ten year statutes of limi-1 and son, where it appeared that both had been

Tex.)

WICHITA VALLEY RY. CO. v. SOMERVILLE

673

living on the property, and that the son, with-In discussing this case. we shall refer to in the period of limitation, had taken a lease Mrs. Sarah Somerville, who was the interfrom plaintiff, the burden was on the mother to show that she, and not the son, had possession venèr in this case, as appellee, and her son, under a claim of exclusive ownership.

C. F. Somerville, either by name or as the [Ed. Note. For other cases, see Adverse Pos- son. session, Cent. Dig. $$ 651, 653, 654, 657-659,

On the 4th day of November, 1911, appel661-663, 665, 666; Dec. Dig. Ow112.]

lant, Wichita

Wichita Valley Railway Company, 10. TRIAL On 255—INSTRUCTIONS-NECESSITY

brought suit in trespass to try title against OF REQUESTS.

In trespass to try title against the widow of appellee C. F. Somerville for a small tria former owner of lots, embracing the tract angular piece of land out of lot 2, block 211, in controversy, if plaintiff desired the submis- in the town of Wichita Falls, Tex. Theresion of the question as to the wife's election to take under her husband's will in lieu of her after, on the 16th day of August, 1912, Mrs. community and homestead rights, or if it de- Sarah Somerville filed her petition for insired its theory of the case presented, it should tervention in this suit, setting up her right have requested proper charges.

to the land in controversy. Both C. F. Som[Ed. Note. For other cases, see Trial, Cent. erville and Mrs. Sarah Somerville pleaded Dig. 88 627–641; Dec. Dig. Om 255.]

that they were each the owners of the land 11. ADVERSE POSSESSION Om 116 - TRIAL-IN

by deed, and also pleaded the five and ten STRUCTIONS.

In trespass to try title against a mother year statutes of limitation, seeking separate and son, both of whom had been living on the recoveries. We will not set out the pleadland, and each of whom pleaded title by limi-ings of appellant and appellees more at length tation and claimed to have had possession, where it appeared that the son, after his fa- at this time, as we believe that the statether's death, continued to live as theretofore ment of the facts will sufficiently present the as a member of the family and to manage the is

issue. property, and that within the period of limitation he accepted a lease to the property from

The Wichita Valley Railway Company plaintiff, the refusal of an instruction that, if alone is appealing.' C. F. Somerville does he had actual control and management of the not appeal, but he is made an appellee in property, and was authorized by his mother to this case. The court submitted the case to control and manage her property, and that in leasing it he was acting within the scope of the the jury on general charges, instructing the authority granted to him, the jury should find jury substantially that appellant had title for plaintiff as against both defendants, was not to the land sued for, unless defeated by the error.

[Ed. Note. For other cases, see Adverse Pos- statutes of limitation pleaded by the respecsession, Cent. Dig. § 66; Dec. Dig. Om 116.]

tive parties, and submitted the case on that 12. APPEAL AND ERROR Om 1068 — HARMLESS

theory alone. The jury returned a verdict ERROR - ERRORS RENDERED HARMLESS BY in favor of the intervener, Mrs. Sarah SomVERDICT.

erville, upon which judgment was rendered In trespass to try title against a mother for her, decreeing her the land as against and son, each of whom claimed title, the refusal of an instruction to find against the son both appellant and C. F. Somerville, For the under certain facts was immaterial where the purposes of this opinion we do not believe jury found for the mother, as it thereby, in ef- it will be necessary to set out the title of fect, found against the son.

[Ed. Note. For other cases, see Appeal and the respective parties, but we find the recError, Cent. Dig. 88 4225–4228, 4230; Dec. ord title is shown to be in appellant, and it Dig. Om 1068.]

should recover, unless defeated by the stat

utes of limitations. For convenience, and Appeal from District Court, Wichita Coun- for the purpose of getting generally the isty; E. W. Nicholson, Special Judge.

sues in this case, we will adopt the stateTrespass to try title by the Wichita Valley ment made by appellee, but will, as we conRailway Company against C. F. Somerville, sider the several assignments, refer to such in which Mrs. Sarah Somerville intervened. facts as may be deemed necessary in conFrom a judgment in favor of the intervener, sidering the same: plaintiff appeals. Reversed and remanded.

"On the 14th day of March, 1901, A. D. Thompson & Barwise, of Ft. Worth, and Anderson, Frank Kell, and J. J. Lory conveyed Carrigan, Montgomery & Britain, of Wichita to A. J. Somerville, by their deed of that date, Falls, for appellant. A. A. Hughes and T. R. lots 1 and 2 in block 211 of the town of Wichita

Falls, which deed embraces the land in conBoone, both of Wichita Falls, for appellees. troversy. Said deed was duly recorded in the

deed records of Wichita county, Tex., on the HUFF, C. J. This case was reversed and knowledged. Immediately after said land was

25th day of March, 1901; said deed was duly acremanded upon a written opinion by the conveyed to A. J. Somerville, he and his wife, court. In its rendition we overlooked an Sarah Somerville, moved into the hotel building, agreement by the parties, filed in addition which was situated on both the said lots, and to the record, in which it was agreed that had a fence built around the entire lots, inclos

ing the same by said fence. This fence was the filing of appellee's (Mrs. Somerville's) in- built the last of March or about the first of tervention was on the 16th day of August, April, 1901. The intervener was at that time 1912. This will necessitate a reconsidera- the wife of A, J. Somerville, and they lived in tion of the entire case. The former opinion in until some time in November, 1903, when

the said house and ran a hotel business thereby this court will therefore be withdrawn. A. J. Somerville died. During the lifetime of

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

A. J. Somerville the appellee C. F. Somerville, , These lots were deeded to her husband in who was the son of A. J. Somerville and Sarah March, 1901, and were fenced in April of Somerville, lived in said hotel with them, and that year, and remained so until after the in a large part managed said hotel for them. C. F. Somerville had lived with his father and suit was instituted against her son, C. F. mother all of his life; had never left them, Somerville, November 4, 1911. She lived in had never worked for wages, but had lived the hotel on the lots and made it her home with them and worked for them just as he did during all those years. Under the will, she when he was a minor, without making any account against him for the money that he receiv- was to have all the hotel furniture and the ed or making any account for his clothing, and rents from the property during her life. he charged nothing for his services; in other She testified she did not accept such property words, he lived with them just as one of the family, as he did before he grew to manhood. or rents in lieu of the community interest He managed the hotel for them during the life or of her homestead rights. It appears after of A. J. Somerville and under his direction. this suit was brought the hotel was sold to A. J. Somerville died in 1903, and left a will, one Perkins, and that she and her son signwhich was duly probated in the county court of Wichita county, Tex. The will provided that ed the deed. Part of the furniture was turnC. F. Somerville should be the executor. It ied over to Perkins. The testimony does not further provided that small sums of money show that it was sold as her property or should be paid to each of his other children, and that any fixed price was placed on it, but that the widow, Sarah Somerville, should receive the rent from said hotel during her life, it rather suggests that the property passed and should have all of the furniture, but devised simply with the sale of the hotel. The mere the fee to Chas. Somerville, subject to the fact that the furniture was used in the payment of said rent. C. F. Somerville had the hotel, or that it was transferred with the will probated and filed an inventory, but never qualified as executor, and, so far as the records hotel, does not conclusively show she acceptshow, never exercised any authority as executor ed the personal property in lieu of her inor attempted to carry out the provisions of the terest in the land. It is just as conclusive will, further than to pay the said sums of money to the other children as provided in the that the son claimed it as that she did, and will.

the deed is just as conclusive that she claim"Lots 1 and 2 in block 211 was the community ed the land as that she claimed the personal property of A. J. Somerville and intervener, and

property. Its use by her was not incondeath, and after his death intervener, Sarah sistent with her undivided interest and right Somerville, continued to occupy the same as to exemption therein, and not conclusive that her homestead just the same as she did before she accepted it in consideration for the rehis death, and C. F. Somerville continued to

Unmanage the hotel for her just as he did for X. linquishment of her rights in the lots. J. Somerville during his lifetime; in other der the will, the son would take the father's words, the business continued after the death interest, even if the wife did not accept, and of A.' J. Somerville just as it did before his the sale of the property and the manner of death, no changes being made whatever in the it indicates it was so treated by both mother management of the property.

"C. F. Somerville testified on the stand that and son. The husband had no right to dishe considered he had an interest in the property pose of her interest without her consent. after his father's death, but explained what he There is no express election shown, and we meant by stating that it would come to him think the evidence must show such election, after his mother's death.

"Sarah Somerville continued to occupy said and that she received property of value unlots and building inclosed by a fence up to the der the will to which she was not entitled time she intervened in this suit and for some otherwise. She had the right to retain the time thereafter. She testified she did not know the contents of A. J. Somerville's will, and did personal property until it was divided, since not accept the provisions thereof, and did not she had an undivided interest therein, all accept the rent and furniture in lieu of her which was furniture for the hotel and houselegal rights, but that she continued to occupy hold and kitchen purposes. She was not callthe house and premises, claiming her legal rights to the property and claiming her homestead ed upon to divide the same by any of the rights therein until after she filed her plea of heirs, and no

and no reason is shown why she intervention in this suit."

should relinquish her right of possession [1, 2] The first assignment is urged to the thereto. In the sale the son is shown to have action of the court in refusing to instruct participated therein as much as did the peremptorily a verdict to find for appellant. mother. The action of election must be unThe proposition under this assignment, and equivocal and with the intention to make an the only one, is there was no evidence suffi-election. 40 Cyc. 1976, 1977; McClary V. cient to authorize the jury to find either for Duckworth, 57 S. W. 317; Mayo v. Tudor the defendant or the intervener, under the Heirs, 74 Tex. 471, 12 S. W. 117; Gilroy v. pleading setting up the statutes of limitation. Richards, 26 Tex. Civ. App. 355, 63 S. W. We take it from the statement that the ap- 664; Chace v. Gregg, 88 Tex. 552, 32 S. W. pellant's main reliance under this assign- 520; Cobb v. MacFarland, 87 Neb. 408, 127 ment is that the evidence is conclusive that N. W. 377; Archer v. Barnes, 149 Iowa, 518, Mrs. Sarah Somerville elected to accept un- 128 N. W. 967. der the will made by her husband. In this We think the evidence raised the question we do not agree with appellant. She testi- of election, which was for the jury to defied that she did not do so, but at all times termine under a proper charge by the court. claimed her community interest in the prop-At this time we will not notice the questions

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