CEEDS.

The charge of the court authorized a recovery if plaintiff's right foot is paralyzed so that he cannot use the same. This charge can be construed as authorizing a recovery for a temporary loss of the use of a foot, and this is so, although another clause of the charge instructed them that the paralysis must be total. There might be a total paralysis of the foot depriving plaintiff for the time being of its use, yet, if it did not deprive him of the permanent use of the same, he could not recover. The charge of the court was er

ror.

The evidence above set out tends to show in our opinion that the plaintiff may recover the use at least in part of his foot. The appellee requested a charge which the court refused, seeking to have this phase of the evidence passed upon by the jury. The charge is as follows: "Gentlemen, you are told that, in order that plaintiff can recover herein, the loss of his foot must be total and permanent. If you find, therefore, from the evidence that plaintiff has recovered the use of his foot in whole or part, or if you find that he will in the future recover the use of said foot in whole or part, then you will find for defendant." We do not approve this charge. Had it been given, the jury might have concluded that there had been a partial recovery of the use of the foot by reason of appellee's being able to work his toes. Such use of the foot did not come within the meaning of the language of the constitution of the order. There must be some substantial and practical recovery of a partial use of the foot to bring the recovery within the meaning of the contract. It would have been proper to have given a charge along this phase of the evidence.

For the errors pointed out, the judgment is reversed, and the cause remanded.

Where the will gave the executors power to mortgage, sell, or otherwise dispose of any or all of the property, and prescribed the use to be made of the proceeds, the executors could mortgage or sell the land of the estate, irrespective of the existence of debts or the necessities of the heirs, so that the mortgagee would not be bound to see that the executors appropriated the loan, as provided in the will, if he acted in good faith.

and Administrators, Cent. Dig. §§ 614-620; [Ed. Note.-For other cases. see Executors Dec. Dig. § 151.*]

3. MORTGAGES (§ 154*)-BONA FIDE PUBCHASER-FACTS PUTTING ON INQUIRY.

Where the mortgagee examined an abstract before accepting the mortgage, which showed that the land was community property, and the husband's will, which was copied into the abstract, showed that testator and his wife had children, in absence of a showing that the would have made under the circumstances, he mortgagee made such inquiry as a prudent man will be charged with knowledge that the property belonged to the community, and of the existence of children, and hence of the fact that the husband could not devise all of the prop

erty.

[Ed. Note.-For other cases, see Mortgages, Dec. Dig. § 154.*]

4. EXECUTORS AND ADMINISTRATORS (§ 357*)— ACTIONS-EVIDENCE-MATERIALITY.

In an action by heirs to restrain the sale of property of the estate under a trust deed by the executors, on the ground that they had no authority to mortgage, declarations as to what the executors intended to do with the borrowed money were immaterial, where they had authority to borrow; the lender having no interest in the use they intended to put it to. and Administrators, Dec. Dig. § 357.*] [Ed. Note.-For other cases, see Executors

5. EXECUTORS AND ADMINISTRATORS (§ 357*) -ACTIONS-SUFFICIENCY OF EVIDENCE.

In an action by heirs to restrain the sale of property under a deed of trust by the executors because of their alleged lack of authority to make it, evidence held to show that the money was borrowed, and the trust deed executed by the executors as such.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 357.*]

6. BILLS AND NOTES (§ 534*) — ATTORNEY'S FEES-ALLOWANCE-RIGHT.

Where the note provided for 10 per cent.

CO. et al.†

(Court of Civil Appeals of Texas.

1910. On Motion for Rehearing,
April 6, 1910.)

1. HUSBAND AND WIFE (§ 274*)-COMMUNITY

PROPERTY-PERSONS TAKING-CHILDREN.

Under Rev. St. 1895, art. 1696, providing that upon dissolution of the marriage by death all community property shall go to the survivor, unless there are children, when the survivor shall have one half, and the children the other half, upon a wife's death leaving children, onehalf of the community property would go to the children subject to community debts, so that the husband could not dispose of such half by will. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. § 274.*]

Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § [Ed. Note. For other cases, see Bills and 534.*]

7. HUSBAND AND WIFE (§ 274*)—COMMUNITY ESTATE-RIGHTS OF SURVIVOR.

While the father could have set off gifts to his children against their interest in the community estate, he could not authorize his executors to do so by disposing of the part of the community estate which would go to the children; the right to sell the community estate being exclusively in the survivor.

[Ed. Note. For other cases, see Husband and Wife, Dec. Dig. § 274.*]

and was told by the person introducing him that Tomlinson wished to borrow $1,000 to pay off some pressing obligation of the estate of which he was executor. The inventory of the estate showed an indebtedness of $731. The $1,000 was used by Mason Tomlinson for his own use and benefit, and the estate obtained no benefit from it whatever.

At the death of Georgia M. Tomlinson in 1900 her one-half community interest in the lot in controversy passed to her children, subject to community debts. The language of the statute is: "Upon the dissolution of the marriage relation by death all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants of such child or children, then the survivor shall be entitled to one half of said property, and the other half shall pass to such child 1696, Rev. St. 1895. We need not discuss the rights and powers of the survivor over the community estate, because those questions do not arise in this case. The land in contro

or children, or their descendants." Article

versy was kept intact by the husband after the death of the wife, and was occupied by him and his children as a homestead. He had no power of disposition of any but onehalf of the property, through his will, and the children's right and title to the half of the property inherited by them from their mother was not in any manner affected by the will. It could not authorize its sale by the executors for any purpose. The title to one-half of her property vested in the heirs of Mrs. Georgia M. Tomlinson at her death, subject only to community debts. It was theirs, and could not be disposed of by the will of J. J. Tomlinson. Hair v. Wood, 58 Tex. 77; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Stone v. Ellis, 69 Tex. 325, 7 S. W. 349; Proetzel v. Schroeder, 83 Tex. 684, 19 S. W. 292. One-half of the land being the property of the heirs, J. J. Tomlinson by his will conferred no power or authority upon his executors to sell their property, and in so far as that half was concerned, the deed of trust executed by the executors was of no force and effect whatever. The will of J. J. Tomlinson gave to the executors "full power and authority to mortgage, sell or otherwise dispose of any and all property [of which] testator may die possessed," and prescribes the use that should be made. We think the will gave full authority to the executors to mortgage or sell the land of the estate; and, while the purposes for which the proceeds of such mortgage or sale should be used are fully set forth and prescribed, that was a matter necessarily confided to the probity and honesty of the executors, and a mortgagee or purchaser could not be held responsible for the use and application of such proceeds. If he

executors, or in paying them purchase money, he could not be held to be bound to follow up the matter and see that the fund was appropriated as provided in the will. The power to sell did not arise because of the existence of debts, but the power to sell or mortgage is full, and is not dependent upon the existence of debts or the absolute necessities of the heirs. The will merely indicates how the proceeds of mortgage or sale shall be used.

H. P. Drought was put upon inquiry through the abstract of title presented to him, as to whether the property sought to be mortgaged was the community estate of Tomlinson and wife, and the will which was copied in the abstract, and which Drought admitted that he had before him prior to making the loan, charged him with knowledge of the existence of children of J. J. Tomlinson and his wife. The will was necessarily a link in the chain of title sought to be conveyed by the executors. In the absence of evidence showing such inquiry as a prudent man ought to make under such circumstances Drought will be charged with knowledge that the property was the community estate of J. J. Tomlinson and his wife, and that the whole of it was not subject to disposal under the will of the former. As said in the case of Hill v. Moore, 85 Tex. 335, 19 S. W. 162: "The conveyances in this case pointed out sources from which information as to the right of the mother of appellants might have been obtained, and there can be no inference or presumption that it would not have been if due inquiry had been made." No doubt a simple inquiry, addressed to the executors, would have elicited the fact that the property was community estate. Drought made no inquiries whatever, and it is not contended in the brief of appellant that he was not charged with notice of the community character of the estate. Ferguson v. Land Co. (Tex. Civ. App.) 25 S. W. 1074.

The declarations made by Tomlinson or Hildebrand as to what the executors desired to do with the borrowed money was utterly immaterial, and its introduction could not have prejudiced appellants. The executors had the authority to borrow money and give a mortgage to secure it, and the use they made of it was a matter between them and the estate, and was not a subject of interest to the lender of the money. Sanger v. Moody, 60 Tex. 96; Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542. The latter case is directly in point, not only as to the authority of the executors under the will, but as to the proposition that the mortgagee was under no obligation to see how the borrowed money was used. We are of opinion that the deed of trust and note should be taken as forming one transaction, and when they are so taken together, and the other circumstances sur

clude that the money was borrowed by the executors in that capacity, and the mortgage executed in the same capacity. It is alleged in the petition that the deed of trust was executed by "Mason Tomlinson and James Tomlinson, as executors of the estate of J. J. Tomlinson, deceased."

The allegation in the answer of appellees as to attorney's fees was that the note provided for attorney's fees, if it was placed in the hands of an attorney for collection, and that appellees had "placed said note for collection and suit in the hands of W. W. King, an attorney at law, and agreed to pay him, as a fee therefor, the 10 per cent. stipulated in said note." That allegation was sufficient, and it was shown by the evidence that W. W. King was appellees' attorney, and that he was defending the suit and prosecuting judgment on the note. There was no denial upon the part of appellants that the note was executed, nor that it provided for attorney's fees, nor that the attorney had it for collection, nor that appellees had not agreed to pay him 10 per cent. for collection. Under the allegations the 10 per cent. attorney's fees became a part of the indebtedness, and appellees were entitled to recover them. Martin v. Perrill, 77 Tex. 199, 13 S. W. 975; Bolton v. Gifford (Tex. Civ. App.) 100 S. W. 210. In the case last cited it was held that it devolved on the party defending against the note to plead and prove matters that would destroy the claim for attorney's fees. There is no force in appellees' contention that, because the heirs received through the will of their father an amount equal to what they inherited from their mother, the executors could dispose of the last-named estate. The father might, while living, have offset what he gave his children against their interest in community property, but that right could not be passed over to his executors. None of the decisions cited by appellees asserts such a doctrine. All of them proceed upon the theory that the survivor has the right to dispose of one-half of the community property, and the heirs cannot complain if they get a sum equal to one-half of the estate. Brown v. Elmandorf, 87 Tex. 56, 26 S. W. 1043. J. J. Tomlinson could have disposed of any part of the common property, and the children could not complain if they received an amount equal to their mother's one-half, but the right to sell off the community estate could not be given the executors by the husband and father. The right to sell the community estate is confined to the survivor. When J. J. Tomlinson died his children had the absolute right to all the community property not disposed of by him, and the executors had no power or authority over it whatever.

versed, and judgment here rendered that the temporary injunction restraining the sale of the property in controversy, granted by the district judge, be perpetuated as to an undivided one-half of the property described in the petition, that appellees, H. P. Drought & Co. recover of the executors of the estate of J. J. Tomlinson the amount of the note, interest, and attorney's fees, and that their lien be foreclosed on one-half of the property, and that appellants recover all costs of this appeal.

On Motion for Rehearing.

We are of opinion that appellees should recover the interest of James Tomlinson and Mason Tomlinson in the estate of their mother, on the ground that they are estopped, by their deed of trust on the whole of the property as administrators, to deny that all their interest in the land was conveyed. They conveyed the land as the property of the estate, and should not be allowed to claim that a part of it was theirs, and not the property of the estate. As said in Millican v. McNeill, 114 S. W. 106, 21 L. R. A. (N. S.) 60, by the Supreme Court of Texas: "The principle controlling this case is that which estops the maker of a deed, purporting to convey an estate of a particular kind, from afterwards asserting that such an estate did not pass. McNeill owned the life estate when he made the deed in question, and had full power to convey it then. His deed undertakes to convey the lot itself, and full title to it, as the property of the estate, without mention or reservation of any claim of his own. Although he assumes to convey as administrator, he assumes as well that the title is in the estate, and he should not be heard afterwards to assert that any part of it was in himself." The opinion is well supported by authority. The quotation applies with much force in this case, where the money was used, not for the estate, but for the private benefit of at least one of the executors. The judgment rendered in this court will be changed so as to exclude the interest of James Tomlinson and Mason Tomlinson, in that part of property inherited from their mother, from the operation of the injunction, and that the lien of appellees be foreclosed on that interest, as well as on the half of the property belonging to the estate of J. J. Tomlinson, and that appellees shall be held to pay only the costs incurred by Elsie B. Tomlinson, Agnes Mildred Morrill, Mrs. Willie Wilson, and Shields Tomlinson, and the remainder of the costs in this and the lower court be assessed against James Tomlinson and Mason Tomlinson and the estate of J. J. Tomlinson. The motion for rehearing is granted so far as indicated here

et al.

(Court of Civil Appeals of Texas. April 1,

1910.)

Laws 31st Leg. 1909, c. 39, took effect July 10, 1909, and gave an appellant 30 days after adjournment in which to file a statement of the facts. Laws 1907, p. 509, in force before that time, gave only 20 days, and under that act appellant was erroneously granted 30 days from adjournment of court, which was on June 29, 1909. Held, that the act of 1909, being reme; dial, would be construed to be retroactive, and hence, since the 20 days allowed by the old law had not expired when the act of 1909 took effect, the time was thereby extended to 30 days, and the statement filed on July 27, 1909, was in

time.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 564.*]

2. APPEAL AND ERROR ($563*)-STATEMENT OF FACTS-NARRATIVE FORM-STATUTES.

Acts

Laws 31st Leg. 1909, c. 39, § 6, requires that a statement of facts be filed by appellant which shall consist of the evidence adduced on the trial, stated in a succinct manner and without unnecessary repetition, provided that the official reporter shall on request prepare a statement of facts in narrative form in duplicate, and deliver same to party appealing. 1907, p. 509, the law formerly in force, expressly required a statement of facts in narrative form. Held that, in view of the fact that the law was new and remedial, it would not be construed too strictly; and hence a statement of facts consisting only of conclusions and answers of witnesses, comprising 40 pages, containing about 30 questions, would not be considered a flagrant departure from the statute, though usually a narrative form was the only proper method.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 563.*]

journment for filing the statement of facts. The statement of facts was filed July 27, 1909. The act of 1907 (Laws 1907, p. 509), which was in force when the case was tried, when the motion for new trial was overruled, and when the order allowing 30 days in which to file a statement of facts was made, limited the time for which an order might be made allowing statement of facts to be filed after the court adjourned to 20 days; and appellees' contention is that, as the statement of facts in this case was not filed within 20 days, it was filed too late, and thereThe act of fore should be stricken out. 1909 (Laws 31st Leg. 1909, p. 376) provides, in express terms, that the parties to the suit shall be entitled to, and by that act are granted, 30 days after adjournment of the court in which to prepare and file a statement of facts and bills of exception. That statute was approved by the Governor on May 1, 1909, but did not take effect until 90 days after the Legislature adjourned, which was on April 11, 1909. In other words, that law took effect on the 10th day of July, 1909, and at that time the 20 days which appellant was entitled to under order of the court for filing the statement of facts had not expired. The order referred to, while it undertook to grant 30 days, which at that time the court had no power to grant, had the effect of allowing 20 days within which

that time had expired, the act of 1909 took effect, which by its terms allowed 30 days after adjournment, unless it should be held to apply only to cases tried after that law took effect. Being a remedial statute, we see no reason why it should be given such

the motion.

KEY, C. J. Having overruled appellees' motion to strike out the statement of facts, and as that ruling involves a construction of that portion of the act of the Thirty-First Legislature regulating the appointment of official stenographers, and the method of making up and filing statements of facts, which relates to the latter subject, it is deemed proper to reduce our conclusions to writing (Laws 1909, c. 39).

Two grounds were assigned in the motion for striking out the statement of facts. These were, first, because it was not filed within the time permitted by law; and, second, because it did not state the facts proven in narrative form, but was composed largely

hold that it applies to this case, and had the effect of granting 30 days after the adjournment of the court for the purpose of filing the statement of facts and bills of exception

2. The other ground of the motion requires a construction of section 6 of the act of 1909. That section reads as follows: "Sec. 6. Upon the filing in the office of the clerk of the court by the official shorthand reporter of his transcript as provided in section 5 of this act, the party appealing shall prepare or cause to be prepared a statement of facts in duplicate, which shall consist of the evidence adduced upon the trial, both oral and by deposition, stated in a succinct manner and without unnecessary repetition, together with copies of such documents, sketches, maps and other matters as were