[1-3] A portion of the ground of negligence alleged was that the engine crew failed to ring a bell or blow the whistle to warn him of their approach. The writ of error was granted by this court because it then inclined to the view that the evidence was insufficient to charge the engineer and fireman with notice that Walters would alight from the car on which he was riding, and that he would run across the track on which the engine was moving. Upon a closer and a more mature consideration of the evidence bearing upon this question, we have reached a different conclusion. It is quite true that if the engine crew were not in possession of sufficient facts from which an ordinarily prudent person, under the same circumstances which surrounded them, would have anticipated or foreseen that Walters might alight from the car, and might enter upon the track where the engine was moving, or near enough thereto to receive the injuries which he did receive, or some similar injuries, then the law would absolve them from the duty of ringing the bell or blowing the whistle, or, rather, no such duty would arise. But while this is true, it is also a settled rule that if there was information which the engine crew possessed sufficient to place them upon notice that Walters might leave the car on which he was riding, and might place himself in a position of danger of being struck by the engine, then it became a question of fact for the jury to settle whether or not they should have foreseen that Walters would thus place himself in a position where he might be injured. It would then become a question of fact for the jury to determine whether, under such circumstances, the train crew was guilty of negligence in failing to ring the bell or blow the whistle, or otherwise warn Walters of their approach so that he might avoid coming in contact with the engine. Of course, it is true that, if there was no evidence which would charge the train crew with such notice, then the duty to warn Walters by ringing the bell or blowing the whistle, or otherwise, would not arise.

A careful investigation has convinced us that there was sufficient evidence to warrant

to support a finding by the jury that the engineer, notwithstanding his denial, did see Walters riding on the car. The evidence shows that Walters was riding on the side of the box car next to the track on which the engine was moving, and that the engineer and fireman were riding in their places in the engine which was backing, but that they were looking in the direction in which they were going, and that two men named Tucker were riding on the tender facing and looking the way they were going, or in the direc tion of Walters. The track on which the engine was moving was but ten feet from the track on which Walters was riding the car. They all knew that Walters was a car inspector, and was riding down to inspect the cars that were to be attached to the train. They knew the cars that had been kicked were going at an excessive rate of speed, if we give full credit to the findings of the jury, for the jury had a right to reach this conclusion from the testimony of Walters that they were going about six miles an hour. It is reasonable that the engine crew should conclude that Walters would alight from the car, either when the kicked cars struck the stationary cars, or just before doing so, for the purpose of making inspection of the cars. It might be deducible from the speed at which the cars were going that the engine crew had notice that the collision would be violent, and that Walters might become alarmed for his safety, and might alight from the car to escape injury. Before Walters alighted from the car, the yardmaster, Harlan, who was riding on the first of said cars next to the place of collision, alighted and ran across the track in front of the engine. From this it might be fair to conclude, and it was within the province of the jury to do so, that the engine crew had notice that Walters might attempt to do likewise, either from fright, or from some other reason. The jury had a right to conclude from the evidence that the engine crew would have notice that when Walters alighted from the car to inspect the stationary cars there would be considerable momentum on account of the excessive speed that the cars were going, which might cause his body to reach the track on which the engine was riding, or so near to it as to raise a probability of some serious injury to him. The tracks were only about ten feet apart, and of course the cars and engine would cover several feet of this distance, and Walters' body would occupy a considerable portion of the distance, so that the space was so small where he could alight that it might be reasonable for the jury to conclude that in alighting from the car, even without fear, at the speed it was going, he might come in contact with their engine. That the engine crew might have foreseen that Walters might enter upon their track

sufficient to support a finding by the jury [ that Walters was ignorant of the approach of the engine, and that the crew knew this, and not being advised thereof he might not be as careful about avoiding the track on which the engine was moving as he otherwise would be. The plaintiff testified that he did not know the engine was on this track; that he supposed it was not on this track, but that it was still at its position for the purpose of connecting with the main train and continuing its journey to Houston; that it was customary for the engines, when coming into this town, to secure their oil and water before they entered it, and he supposed that they were already equipped with oil and water, and that they would not return to the oil and water tanks which they had passed in coming in. He testified that it was customary for an engine, when moving in switch yards, to keep its bell ringing. The engine crew saw that Walters' back was to them, and this was some evidence of notice that he did not know of their approach. If they did not ring the bell or blow the whistle, as there was evidence to prove, this fact was some evidence that he was ignorant of their approach.

[4] From such facts as these the jury had a right to conclude that the train crew should have foreseen that Walters was ignorant of their approach, and that in his situation he might alight from the car on which he was riding and cross the track upon which the engine was moving, or place himself near enough thereto to receive the injuries; and if they had such notice, as the jury would be warranted in concluding, then it was a question of fact whether an ordinarily prudent person would have warned Walters by ringing the bell and blowing the whistle, or otherwise. The rule is well settled, from which this court has never wavered, that unless all reasonable minds would agree that the evidence was insufficient to prove that the train crew should have anticipated that Walters might leave the car on which he was riding, and place himself on the track, or near enough thereto as to be injured, then it became a question of fact for the jury, and the court would not be warranted in declaring as a matter of law that the engine crew could not anticipate such action on the part of Walters.

Measuring the point at issue by this rule, we have reached the conclusion that for us to hold as a matter of law that the engine crew had no evidence from which they could reasonably anticipate such action on the part of Walters would be to usurp the province of a jury in passing upon facts which it was their exclusive province to decide.

We have considered the other questions involved in this appeal, but have decided that they are without merit, and that the Court of Civil Appeals made the proper holding on each of them.

The judgment of the Court of Civil Appeals and of the district court should be affirmed, and it is, accordingly, so ordered.

CAPLES et al. v. WARD et al. (No. 2778.) (Supreme Court of Texas. Nov. 3, 1915.) 1. EXECUTION ~33 — PROPERTY SUBJECT VESTED REMAINDER.

A vested remainder is subject to execution against the remaindermen.

Cent. Dig. §§ 76-82, 86, 87; Dec. Dig. 33.1 [Ed. Note.-For other cases, see Execution,

2. WILLS 634-"VESTED REMAINDER." A remainder is vested, where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate; it being an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession postponed until the ending of a particular estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig.

634.

First and Second Series, Vested Remainder.] For other definitions, see Words and Phrases, 3. WILLS 634-VESTED REMAINDER-CREA

TION.

Where a will provided that the testator gave his residuary estate to his wife, M. A. C., der over upon her death to our five children, E. "for the term of her natural life, with remainT. C., J. C., W. C., R. C., Jr., and M. C., share and share alike," such will gave J. C. a vested remainder, as investing him with a present interest in the estate and a right to its future enjoyment.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. 634.] 4. WILLS 634 - REMAINDERS - CONSTRUCTION-FAVOR OF LAW.

The law will not construe a remainder as contingent where the estate can reasonably be taken as vested, since it favors the vesting of estates at the earliest possible moment. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. 634.] 5. WILLS 634-VESTED REMAINDER-PowER OF DISPOSITION IN LIFE TENANT. tate to his wife for life, with remainder over Where testator bequeathed his residuary esto his five children, the wife being granted power of disposition to sell, mortgage, etc., with remainder of a child was yet vested, since a rethe consent of the majority of the children, the mainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but take, the contingency that the estate may be by uncertainty as to the persons who are to exhausted by the life tenant's disposition being merely a condition subsequent, possibly affecting the amount of the remainderman's interest or upon a condition subsequent vests at once, subdefeating its enjoyment, while an estate limited ject to divestment.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. 634.] 6. WILLS 634-VESTED REMAINDER. estate to his wife, with remainder over to his Where a testator bequeathed his residuary five children by name, share and share alike, directing in another clause of the will that the descendants of any remainderman dying before the life tenant should succeed to the remainderman's share of the residuary estate, such direction will be construed as intended to prevent the lapsing of the legacies in favor of the remain

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1488-1510; Dec. Dig. 634.] 7. WILLS 634-VESTED REMAINDER.

The contingency that the death of a remainderman before the expiration of the life estate may prevent such remainderman from coming into possession of his interest does not render the remainder contingent, if otherwise vested. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. 634.]

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Margaret A. Caples and others against T. W. Ward and others. Judgment for plaintiffs, and defendants appealed to the Court of Civil Appeals, which reversed the order of the district judge and remanded the cause (170 S. W. 816), and plaintiffs bring error. Affirmed.

Stanton & Weeks and W. D. Howe, all of El Paso, for plaintiffs in error. J. G. McGrady, of El Paso, for defendants in error.

PHILLIPS, C. J. The appeal prosecuted in the case to the honorable Court of Civil Appeals was from an order of the district judge granting a temporary injunction, restraining the sale, under execution, of the interest of Joseph A. Caples in certain real property, a part of the estate of his deceased father, Richard Caples, theretofore levied upon to satisfy a judgment obtained against him by Ward, one of the defendants in error. It is only necessary to determine the question of whether Joseph A. Caples had such an interest in the real property levied upon as was subject to execution. The honorable Court of Civil Appeals reversed the order of the district judge and remanded the cause, holding that he had such an interest; and the writ of error was granted on account of probable error in that decision.

The estate of Richard Caples was devised by will, the provisions of the will pertinent to the issue here, being as follows:

such child or children in turn so designated shall designate some one to carry out said trust after their decease, but should my said wife or children fail to make such designation or at any time the trusteeship provided for fail, then it is my will that the mayor of the city of El Paso become the trustee for said fund and discharge said trust.

"Fifth. All the rest and residue of my estate, real, personal and mixed, consisting of my half of the community property of myself and my said wife, Margaret Ann Caples, and such separate property, if any, of which I may die seised or possessed, or to which I may be entitled, wheresoever the same may be situated, I give and bequeath to my beloved wife, Margaret Ann Caples, for the term of her natural life, with remainder over upon her death to our five children, Edward Thomas Caples, Joseph Caples, William Caples, Richard Caples, Jr., and Margaret Caples, share and share alike. "Sixth. It is my will and desire that my said property shall be managed by my wife during her life as it has been hitherto controlled by me as to the best interest of my said estate that any nearly as may be. Should my said wife deem it portion of same should be sold, alienated, conveyed, mortgaged or incumbered, it is my will and desire that she with the written consent of the majority of our said children, then living, who are of age or married, shall have full power to sell, alienate, convey, mortgage or incumber such part of same as in her judgment and that of the said majority of said children may seem proper and to the best interest of said estate.

"Seventh. It is my desire that upon the death of my said wife and the termination of the life estate in her hereby created, that all of my estate consisting of my half of the community property of myself and my said wife, real and personal of whatsoever character, as well as all separate property of whatsoever character, if any, and wheresoever situated, of which I may die possessed or be entitled to, or which may have accrued to my estate, shall be divided equally between all of my above-named five chilshare alike; that is to say such descendants of dren then living, or their descendants, share and any deceased child shall have that portion to which their ancestor, if living, would have been entitled to."

[1] Under the terms of the will the residuary estate of Richard Caples, of which the real estate levied upon to the extent of the interest of Joseph Caples (called in the pleading Joseph A. Caples) is a part, is clearly bequeathed to Margaret A. Caples, the wife of Richard and the mother of Joseph, for life, with remainder over to the five children, by name, including Joseph, share and share alike. Each of the five children was living at the time of the testator's death. Margaret A. Caples is still living, and the life estate in her, therefore, not determined. The real estate levied upon is alleged to be of the market value of $598,500, and the value of Joseph Caples' interest, an undivided onetenth, $59,850, Ward's judgment against him, with costs, amounting to $3,412.30. The question is whether the remainder created by the will in favor of Joseph Caples is a vested or contingent estate. If a vested remainder, it is subject to execution against Joseph

[3] According to these established rules, the fifth clause of the will plainly gives Joseph Caples a vested remainder in the residuary part of the estate, for, in terms as positive as those applied to the creation of the life estate, it invests him with a present interest and right to its future enjoyment.

We have, then, only to consider whether the remainder is rendered contingent by the subsequent provisions of the will. The only provisions which may be regarded as having that force are those embodied in the sixth clause, whereby the life tenant is clothed with the power of sale if exercised with the consent of a majority of the remaindermen; and in the seventh, directing that the descendants of a remainderman shall succeed to his portion of the estate in the event of his death before the termination of the life

estate.

[4] The law favors the vesting of estates at the earliest possible period, and will not construe a remainder as contingent where it can reasonably be taken as vested. Bufford v. Holliman; Doe v. Considine, 6 Wall. 458, 18 L. Ed. 869.

[5] Whatever the consequence of the grant of property to another generally or indefinitely with the power of disposition, an express limitation of the grant to that of a life estate, with such power added, does not raise the estate to a fee. There is merely constituted an estate for life, with the power of disposition annexed. Though the test of a vested remainder is the existence of an ascertained person having an immediate right to the possession on its becoming vacant by the termination of the intervening estate, this does not imply any certainty as to the quantity and value of the remainderman's interest. The remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take. Heilman v. Heilman, 129 Ind. 59, 28 N. E 310. With certainty existing as to the person who is to take, with that person named in the will and in being at the time of the testator's death, and with no condition imposed upon his right to the possession except

could not be said to prevent the vesting of the estate of the remainderman at the death of the testator. The remainder vests, subject to the power of sale in the life tenant. Whether there will be any of the estate remaining under the exercise of the power presents a contingency, it is true. But under the will the vesting of the interest of Joseph Caples, and the other remaindermen, is not made dependent upon that contingency. It is not a condition precedent to the vesting of his interest, but only a condition subsequent, which may affect the amount of his interest, or defeat its enjoyment. An estate limited upon a contingency, to which the effect of a condition subsequent only is given, vests at once, subject to be divested upon the happening of the contingency. Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135; A. & E. Enc. of Law (2d Ed.) vol. 24, 393. In 4 Kent. 204, it is said:

"A limitation, after a power of appointment, as to the use of A. for life, remainder to such use as A. shall appoint, and in default of appointment, remainder to B., is a vested remainder, though liable to be divested by the execution of the power."

A. & E.

It is held, generally, that a power of sale in the life tenant does not prevent the vesting of the estate of a remainderman. Enc. of Law (2d Ed.) vol. 24, 389; Roberts v. Roberts, 102 Md. 131, 62 Atl. 161, 1 L. R.

A. (N. S.) 782, 111 Am. St. Rep. 344, 5 Ann.

Cas. 805, and notes; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135; Pedigo v. Botts (Ky.) 89 S. W. 164.

of the will that the descendants of any re[6, 7] The direction in the seventh clause mainderman dying before the expiration of the life estate should succeed to his share of the residuary estate should be construed, we think, as intended to prevent the lapsing of the legacies in favor of the remaindermen. It is to be noted that the devise to Joseph Caples, and the other remaindermen, is not made contingent upon his or their surviving the mother. In the fifth clause his and their interests are devised directly. The only contingency which, under the will, will prevent Joseph Caples from coming into the possession of his interest is his own death before the expiration of the life estate; and this, it is settled, does not render the remainder contingent. The remainder is vested, defeasible on a condition subsequent, his death before the expiration of the life estate, his share, in such event, passing to his descendants. In 2 Redfield on Wills, § 17 (12), it is said:

"It is also settled that where a devise is made to one for life, and afterwards to certain other persons by name, and in the event of any such persons entitled in remainder dying during the continuance of the life estate, leaving issue, to go to such issue, it creates a vested interest in