*1 Procedure, filing applications Rules of writs Civil for the application. error and therefore be treated as jurisdiction therefore, grant not, has been invoked to him Our (cid:127) judgment Appeals. relief from the the Court of Civil Henwood, Vanover v. 787. judgment Appeals is affirmed. Court Civil Opinion May 4, delivered 1955. Hodge,
Wallace et al v. C. Executor A. A. Ellis
No. A-4768. Decided 1955. April Rehearing May 11, denied 1955. (277 900) 2d Series *2 Sewell, Decatur, Gettys, Nelen L. and C. T. John R. Lindsey„ Jacksboro, petitioners. *3 holding Appeals Court of part Civil erred in that a of the acquired community had been as when the showed evidence that the wife had substantial and was no evidence to show that with- she was amply out declining acquire means to same. court That also erred apply prevent plain- the doctrine of to Election taking property provided tiff from the for him in the will and given properties also the denied himto and to others. Tillman Jasper, 447, 763; v. Allen, 70 Texas 7 v. S.W. Allen 528; Goldberg Zellner, 107 v. S.W. S.W. 870. 235 Moore, Jacksboro, Roy Creighton, John W. J. of Mineral Wells, Fitsgerald, W. E. Falls. Wichita response In Furche, 1065; cited Sailer 22 2d S.W. Smith Butler, 1083; Davis, 85 19 S.W. 2d Davis v. 2d S.W. 681.
Mr. opinion Justice Garwood delivered the the Court. dispute present stage largely This at its one real over Jacksboro, County, (our estate in respondent) plaintiff Jack between the Ellis, of, A. A. as survivor and bene- ficiary (hereinafter under the will his late wife referred to testatrix) (our as and petitioners), the the defendants who (Wallace Hodge) remaining are her executor the C. bene- is, will, (Mrs. Hodge) ficiaries of the that her sister niece (Mrs. grandnephew (Avon Motley) Motley). and a From the judgment, upon jury gen- a non trial largely rendered and with findings, respondent-plaintiff relief, despite eral seeks no rulings, including adjudication petitioners- some adverse peti- County. properties in Wise of certain defendants rulings tioners-defendants, as to the however, appealed from the being by the Fort judgment affirmed Jacksboro 275-290. Appeals. of Civil Court Worth group question (a) property are: The items of property; as the Stewart tourist courts hereinafter referred to property; (c) another (b) apartment called the house (d) property; apartment property called (d) except in the stood homestead. All of them death in at her testatrix name duly pur- will, probated, in 1948 and and her executed specific disposition all in favor ports of them make respond- recognizes except petitioners-defendants, that (de- ent-plaintiff’s community homestead half-interest vising petitioners-defendants), “my community interest” to the except life estate is devised a that asserting respondent-plaintiff, (a) in item above. The funds, acquired has been were community along all, with a half in them awarded interest will, (a) under half of item life estate against testatrix’ all, petitioners-defendants contentions of the homestead, truly separate property of except testatrix, event community interest and his bene-
required between his to elect petitioners-defendants have also fruit- will. The fits under the argued provisions of will lessly the “no contest” petitioners-defendants violated As between suit. *4 dispute. themselves is no there principal question is, course, The of that of separate estate, and, observed, justly
versus as the below court by scarcity it is or rendered difficult reason of of detailed the positive Indeed, important points. on evidence various aside proceedings probate from the exhibits of the and the deeds and reflecting dispute, prac- *5 by and sold her for $5,625 “about” the latter time. There proof nothing way specific disposition was in the as to the of either sum last mentioned or inheritance. the $600 respondent-plaintiff
The further testified the testatrix (sev- during marriage received a rather substantial income properties month) eral hundred dollars a other than the homestead from the Jacksboro following respective acquisitions their early thereafter, per 1945 and from her about month $60 County onward, properties Wise some from 1937 as well as $3,000 $3,000 from her a nurse and as the services as about profit raising testimony from chickens. some is While overly convincing, saying testatrix does amount during marriage enough community approximately received made, least, very funds payments to have at cash on properties, having bought, Stewart been stated, last, entirely proceeds as before with the aof bank Indeed, many loan. testified in so words money pay that the testatrix used the chicken for the Walker place. appears It spouses or sometime other after had Jacksboro, moved apparently they opened around two accounts, bank (presumably each his or her own name with- any “separate out property” words like in the either ac- title of count) and kept that the testatrix in her account the funds com- mentioned, ing possession into her as above respond- while the ent-plaintiff kept in his account whatever funds came into his possession, including earnings carpenter. as a This evidently any agreement, without formal but at the time same objection by without party. either tes- tified also that at some unstated and in times some unstated deposited amounts each had in and checked the account of other, regular but it seems that practice, this was not a appear it does not that either ever knew what balance the other appears had. He bought to have personal property, real and giving checks therefor on considering his own account and as his own. separate system He said the was fol- lowed reasons,” “for business explanation. without further There is at least an testimony inference from his that some payments on the question came from the account testatrix, evidently none came from his. president bank testified without contradiction that at least large portion payments pur- on the note for the Wilson chase were made currency the testatrix in rather than nothing check. There inventory or in- otherwise to dicate that the testatrix during had but the one bank account marriage by inference from payments size the cash purchases. on the Jacksboro No relevant bank records concern- ing the evidence, accounts proof nor as to what amounts, separate, both, whether were in either
347 why her ac- any explanation any given of nor account at time inventory. each While the disappeared time of count had evidently at the time, deposits other, time to made from knew that the account, there is respective her in and drew checks on his or knowledge of consent one presence, or no evidence as deposit any particular or withdrawal party on the occasion of ac- other, of either of the creation or on the occasion count. knowledge
Despite testa- of affairs of the the business figures receipts trix of rentals with reference to the earnings personal dispute, from the various business, profits from the chicken well as other matters as to, testimony despite above referred his further that he generally including purchase property, knew each about one, closing, price at least and even in advance actually inspected and that was he had one or more before it purchased, despite prompt at of each deed record signature city of on the their residence and even his admitted purchase, bank note for the in- Wilson of, to, sisted that he of the never knew or consented the terms they purported respective premises deeds so far as to make the separate property In this connection he testatrix. gave of, pleaded, any no evidnce nor even duress or acts of part anyone fraud on her or that of else. presumption
The elemental in favor acquired during marriage spouse land in the name of either is, indeed, displaced by presumption sometimes in favor of separate acquisition estate of the wife where the deed of conveyed recites either that the land is to her as her estate, or consideration is from her types Purinton, or includes both of recitation. McCutchen v. 84 603, 710; Goldberg Zellner, Texas 19 S.W. v. Texas Comm. App., 529; 870; Buss, 235 v. 135 144 2d S.W. Smith S.W. Paudler, Cir., 765; Paudler v. 210 Fed. Evans v. Purinton, Tarlton, App., 158, per 12 Texas Civ. 34 S.W. C.J., Kahn, writ of in Kahn v. error refused. See also comments citing case, 114, 118, the McCutchen concerning presumption, 826. This latter most others like subject matter, cited, supra; generally same rebuttable. is Cases Kearse, App., also 690. And Kearse Texas Comm. course, application importance, its lies in the manner of its particular where, Goldberg example, of facts. For sets Paudler, Zellner, supra, v. Buss and Paudler v. Smith transaction, generally party the result husband is wife, to hold the even though the consideration husband, though
estate on and even the husband by way trial denies that of either to part the wife. And in such cases where all or of the considera *7 contractual, where, example, tion is for wife as the deed to the stating conveyance to be for her benefit and in separate funds, pursuant consideration of to an her is made wife, purchase installment expressly providing itself contract of the husband and payments sep for from to be made her funds, parol arate we have invoked the rule evidence to exclude proof by actually the husband that the consideration was com munity purchase actually community and the Lind benefit. say dayman, 593, Goldberg v. 151 254 Texas S.W. 2d 777! The cases, supra, executory and Paudler also involved consideration by signed purchase money in that- there were hus notes wife, though mentioning stipu band and not the source of the payments community. lated as or In the Smith case payable sepa the deferred consideration was the wife’s according signed alone, rate estate all re to notes as fully cited in deed. The in three decisions were all favor of estate, parol the wife’s in but do not terms rest on the evidence rule. party pur Where husband is a to the for the ported separate wife, though may interest of the even his name Buss, appear (see supra) not documents v. is Smith
good presume true, reason to the recitals in the deed to be be regards position community cause his as the wife and the is grantor, much the if same as he were the and in the latter situa tion it would at be least unusual that he should con intend to vey community already when the separate property. or even where it was his “Such construc holding equivalent passed tion would be it the title from community, or, words, the passed 475, 119, in other A.J., nothing.” Gaines, 470, Simon, in Lewis v. 72 Texas 554, 556, Kahn, quoted 10 114, S.W. Kahn v. 825, 826. the situation But is otherwise when the purchase. a party Kearse, husband is not In Kearse v. App., Texas Comm. S.W. where transaction was being daughter, between the wife and her the consideration signed by only, court, in the *8 parol proving evidence rule in nature of against transaction as recitals in deed, ap there more but also would seem to be little reason to ply presumption sep a from the recitals in favor of the wife’s apply presumption arate estate than to the elemental to the contrary accordingly say effect. is It reasonable to such case, probative a ing once is adductd evidence tend there force property purchased
to show the to have been with com munity funds, question property as to the status of the is ordinarily of fact. one
Applying principles case, these to the instant we first con joinder respondent-plaintiff clude that of the in the bank important note makes difference be Regarding tween purchases. it Stewart Walker latter, fully on, two may which we will discuss more further ground findings support implied
well be of the trial judge testimony respondent-plaintiff accord with the transactions, party to the effect that he was nowise a to the property purchased and that was funds. say respondent-plaintiff party But to that the was not a to the knowing generally, plus the face of he Wilson what admits expressly party the fact that he a was to the bank note and deed trust, experience, would be too much at variance with human proof part in the absence of or fraud duress on the bank, testatrix or the of which there was none. he was Since undoubtedly party transaction, may to the we hold the thus theory gift implied Wilson on the óf considering law, respondent-plaintiff
from the a matter of conveyed sep premises the recitals in the deed that the separate property consideration, arate whatever despite be the actual character of the that the consideration Goldberg Zellner, community. note have bound the v. Buss, Paudler, may say supra. Smith Paudler v. Or we equal certainty with almost by parol showing
cut off evidence rule the considera conveyed, tion or nature the estate should these be at variance Lindsay Clayman, Kahn, with the mentioned recitals. Kahn v. supra; McKivett, McKivett v. 694; Davis, Davis v. 2d 226. That the say (although speak note did did itself funds it Ellis”) “borrowed Willie Lesea and was not referred to in deed, change transaction, does not result. It was all one and the deed recited “from her estate.” passes full title to the Wilson therefore petitioners-defendants (in paragraph under Fourth will the judging stated) manner therein and the courts erred in ad- below respondent-plaintiff.
a half interest Regarding properties, the Stewart and the evidence suggests general approach. whether, two lines of The first is viewing whole, was, as a as a matter law, a party also, purchases to these which would in turn lead to the conclusion either that deemed to he should be have might made interest he have otherwise enjoyed parol or that he was barred contesting evidence rule from the recitals the deeds. The approach whether, assuming other him have con- not to been *9 purchases such, yet nected with the as that went into funds were, law, funds, separate them as a of matter the testatrix’ for indicating reasons such lack as of evidence them to be com- munity or prior purchases because his conduct had ef- gift fected a or other valid to her transfer the funds estate. signed papers he
Since no in connection with either transaction, impossible reject, law, it seems a matter of to testimony, “thin,” his however he had detailed knowl- that no edge deeds, especially when latter is consistent with undisputed parties customarily the more or less fact both degree acted “on their own” considerable business mat- bought earnings ters. From the that he land with his and fact necessarily it does not follow that considered it bought land with have whenever testatrix say gift her. To that he funds made a of that land to he knowledge of, parti- legally charged specific also and thus with prevail- merely cipation in, purchase, of the custom because each agreement ing them, equivalent approving an is the between determining face of our in the the status of future Collett, contrary. Texas Comm. Brokaw v. decisions to the See cited; 1090, Strickland App., 2d and cases therein 1 S.W. 1047; 23, 112 Wester, App., 131 Texas Texas Comm. Texas, Huie, Community Property in 13 Ver- Law of also XXVIII, Ann., p. In con- Sec. 9. non’s Texas Civ. Stats. Robbins, App., nection, Texas Civ. decisions such as Robbins Map, Bank v. Texas Civ. 2d 666 and Atlanta Nat’l. 125 S.W. findings 191, upholding in favor of App., trial court appear upon do not the wife’s estate inference overturning findings persuasive contrary as a matter of upon a Nor the 1948 amendment law similar state of facts. do Constitution, permitting formal Art. of our to Sec. XVI State community property, corresponding and the division Art. 4624a, (1949) purport Ann vali- Vernon’s Texas Civ. Stats. acquisition prop- informal date divisions advance erty change question existing law or otherwise on the general subject except expressly provided extent enactments mentioned.
Viewing according the matter then as one to be determined purchases, to what went funds into the there is evidence possession and funds into came testatrix, wit, $5,625 inheritance about 1937 $600 proceeds early of her Decatur around hand, County prop- and on erty other the rents from her Wise per very beginning of about month from the $60 marriage, earnings $3,000, her between 1937 and 1947 of about profits chicken business between 1942 and 1945 of $3,000 and, beginning early about the rents (between per month) the Stewart $200 $300 rentals, acquired. the other as these were earn- These ings profits undoubtedly community property — inception. largely their Aside from statements conclu- — money purchase, sions chicken went into Walker through and that all funds handled the testatrix went account, only bank we have inferences to what was done with type However, considering either the one of funds the other. community type the substantial amounts of the funds rela- *10 large separate tion to amount of funds involved and the the total paid properties, consideration for the as well as the absence of might been have separate that as to other evidence the some employed, permissible that is a inference there Trammell, v. community type purchases. Tramell the went into sep- judgment a for the 114, (5 Cir.) affirmed 269 Fed. which might situation, reached have generally arate estate in a similar in findings been contrary result, the trial court a had the things, among said, community. other favor of It was the testi- from the warranted would have been that “the trial court mony holding individual funds (the wife) appellee that community funds.” kept separate the bank community the funds portion of Conceivably the otherwise purchases, have might, prior types in the use of both testatrix, so separate property somehow become the being clearly separate be purchased property to result entirely But burden to acquired funds. cause show that fact would be on and we petitioners-defendants, If law. say they a matter of it as cannot that have established (as say funds well as we separate) of the erstwhile (whence there bank went into testatrix’ account made) purchase payments were such was some evidence that all presump necessarily separate funds. The make them would not concerning estab bank accounts tion status of Ann., 4622, does not lished apply Art. Vernon’s Civ. Stats. spouses themselves where the contest is between Appeals of Civil their successors. It was so held our Courts Clark, Callaway Rippy Rippy, a writ of we “refused” S.W. 2d each instance indicated, general practice wife of As before error. in her putting into a bank account erstwhile funds name, with the in effect concurs own even where the husband reasons,” hardly practice be considered “for business can thereby law, without from him of all such funds as matter of agreements prop validating acquired of future as to the status intermingling types erty. add the fact two We resegregate beyond ability itself them does of funds contrary. Rippy aggregate but rather the cause case, supra, Rippy, supra. hold other does not v. wise, The Trammell holding Jahns, in Amend v. Texas Civ. and the relevant 729, 731, than that App., no more amounts to commingling proceeds of husband’s bank account her title to “did not defeat of the wife’s sale having proceeds,” jury in her favor. found finding say trial court that we Since cannot wrong properties were Stewart *11 accordingly commu- law, them as a matter of we must treat nity. petitioners-defendants respond-
The contend that the further probate ent-plaintiff of who did not and does not contest will, provisions yet by suit the forfeiture has violated forbidding “question” (paragraph Eighth) thereof even proceeding” “any any judicial therefore clause in thereof by be will. should denied the benefits accorded him Fifth, directly only paragraph The will in refers to him which devises the Stewart my remarriage my sister,
“to husband life or his to until Hodge, living, Mae not Nellie if and if she be Whitaker she be * * * * * living *, Margie Hodge Motley my niece, then Nell * * assigns simple and her in heirs and fee *.” only paragraph The Fourth, other reference to him in is the indirect one niece,
which devises life the sister estates to remainder in grandnephew, fee and Wilson “my in” interest the homestead. dispositions respectively It is to be noted that the deal above specific premises. with vising Paragraph Third does likewise in de- County properties. the Wise that, being devices, specific, The contention is since the
purport dispose of the full of each the at- title tempt of to establish a half interest himself under “question” laws is “judicial “clause” of proceeding.” the will in a result same (and is attributed corresponding to his assertion award below) statutory the courts of a interest undivided life homestead, because, petitioners-defendants halves so the say, enjoyment by now life sister niece estates them necessarily devised in the estatrix’ half will frustrated occupancy respondent-plaintiff. the life of the whole foregoing might added, To the a “question,” well be the novel supplemental petition claim of the in his court, portion above-quoted trial to the effect that paragraph (Stewart property) operated give him, Fifth clearly fee, specified, the life estate therein but the because of defining the use of niece, “heirs” in the word the fee remainder to the says Shelley’s which he invokes the “Rule Case.” point say that, At this we must far so as the forfeiture con discussed, might tention, or the election contention hereinafter rights impair respondent- the award full homestead plaintiff, immaterial, meritorious. such are however contentions pleadings court, petitioners-defendants In their in the trial affirmatively rights, him the full which conceded to homestead pleadings asserted, judicial repudicate ad and did not change appeal. position mission until the came too late *12 validated, judgments and cannot now be below in this so the respect must remain undisturbed. applies
And in so far as the forfeiture contention respondent-plaintiff life estate of the in the Stewart probably practical purposes it becomes immaterial in view of our within conclusion he is faced with election and enjoy thus cannot both life estate and half the interest the of the fee Stewart are, Walker. The value of the doubt, two interests no such that he would not exchange Stewart, them for a life interest in the whole of the right if even he has not forfeited his to the latter choose as a pass provision result of the “no contest” of the will. thusWe question. to the election
Since,
indicated,
as above
the devises of the remainder
the Stewart and
petitioners-
the full
fee
the
specific, they
intending
defendants are
pass
must be taken as
to
merely
both undivided
halves and not
the testatrix’
half.
disposes
The will thus
respondent-plain
of the
tiff. At the same time
life
the
estate devised
himto
is a bene
fit,
might
deprived
by
one of which the testatrix
have
him
testamentary disposition
some
property.
alternative
What
the
nothing
he would
intestacy
taken in
have
case of her
has
to do
with the matter of
ques
benefits. For a discussion of all these
tions,
Wright Wright,
see our recent
decision
finding
was in under the effect suit to determine his will community survivor, pleaded, as ing with all relevant facts includ circumstances, will itself. such the failure of Under petitioners-defendants use the words “election” otherwise spell legal out the conclusion to follow from the facts shown pleadings Actually should not cut them trial off. court’s finding any property that the did testatrix devise intend to own, problem but indicates that the court had the election in mind. The award courts
aof life estate under in the will the testatrix’ half of the Stewart awarding community while at the same him his time in half properties, the Stewart and was thus erroneous Walker “disappointing” because he could not both take without the will. Wright Wright, supra. made, As to already whether an election do has been we prosecution consider result, be this suit to have that cause is in effect an but effort be allowed to take to both against under and the will. Nor can it said that the evidence be otherwise of law. an way shows election a or the as matter one other Upon remand, the issue of actual election tried. be Election respondent-plaintiff to under re the will take sults, course, in prop in estate favor in the Stewart his erty remarriage, until his death or in his loss of the but also adjudge interest which we otherwise him in that to property property. and the Walker In such event remainder belong estate in the and all Stewart in the will interests Walker petitioners-defendants according to para to the terms of graphs hand, Fifth and Fourth of the On the other will. election against the will involves the loss Stewart, his devised life interest in the but immediate owner ship by him a properties, half interest going other petitioners-defendants half to the interests under will, respectively, Articles provided. and Fifth Fourth of the as therein property The result in the case of the Stewart would sis- testatrix’ interest of stipulated remainder possessory whole, presently ter, Hodge, becomes Mrs. respond- half, relinquished life estate as if the interest lapsed legacy. ent-plaintiff were a rulings present no noted, below Except hereinafter error. judgments extent hereinabove reversed to the below are to the
indicated, cause remanded affirmed. The but otherwise modify judgment so as to its trial with instructions court petitioners- property to the award full title of the Wilson by paragraph Fourth of provided manner defendants by the will, proceedings incident to election and for further rights in the Stewart between under in the former his life and paragraph estate opinion. with will in accordance this Fifth of the Opinion April delivered 1955. Smith, joined
Mr. Justices Calvert Justice dissenting part. Walker, concurring part agree with majority opinion points decided I on all holding exception the full title Wilson passed petitioners paragraph Four of under signing respondent joined the will. mere fact that The deed money was which borrowed of trust note to secure undis overcome the does not puted respondent the recitations did not know of evidence that found as fact contained in the deed. trial court community property. does not The evidence Wilson part respondent make a show an intent on the *14 Emerson- petitioners the case of cite to his wife. The App., Brothers, 194 Brantingham Implement Texas Civ. Co. 608, 609, (no history) support contention that its writ S.W. of a signing of trust is evidence note and deed property passed will as under the that the Wilson “that it was the evidence showed property. understanding In that case the parties agreement between should time transaction money on the note at the borrowed added). (Emphasis Brothers.” Mrs. be the present In case case. evidence in this have no such We money the effect that not contain recitations note does Ellis. The of Mrs. borrowed was obligation The note was in evidence. trust is not deed of Mortg. Bldg. community. & See Rosenbaum et al Texas Co., al, et 2d 506. Texas facts, court, upon
The trial controverted found that the Wil- Appeals and the of Civil son Court holding. say matter has affirmed such cannot as a Court .This separate property. law tract Opinion April delivered 1955.
Rehearing May denied 1955. Turnpike Authority Shepperd, v. John Ben Attorney General May 11,
No. A-5157. Decided 1955. (279 302) S.W. 2d Series notes the in of the tically testimony respondent- all the the of of evidence is plaintiff. The testatrix and married in were permanently 1937 and came in at some date live Jacksboro 1942, residing together between 1938 and her death. until Properties (a), (b), (c) acquired mentioned and above were respectively Stewarts, 1946 and 1947 from the Walkers grantors. respective respec- and Wilsons as the The deeds tively promptly upon recorded at execution. Jacksboro Each conveyed corresponding premises to the one stated the using separate four latter words these testatrix as her ones, although making express reference to the or similar no deferred) any (cash as or source of of the consideration except (actually community, deed in the case of Wilson or reference, deeds) brief “the sum two in which there was the * * In the Ten and estate.” More Dollars from her purchases both cash and the consideration was Stewart and an Walker figures note, corresponding in the former installment being $3,000, and and in latter and $3,000 $6,000, $5,000 duly Wilson, latest, which as recited deeds. In the was the $8,000 paid with a total consideration of was cashier’s a small check the First National Bank at Jacksboro sum, being bank, proceeds from cash both loan by $8,000 by upon evidenced a note for secured deed of trust other two. The notes Stewart signed alone, by transactions were the testatrix Walker Wilson, corresponding but that trust, well deed signed by spouses. None of the notes themselves (nor, apparently, trust) any deed Wilson made clear testatrix, although reference to the estate money note for did recite that it was “borrowed Willie Lesea Ellis from said First Bank.” National testimony susceptible marriage construction that at the time of the (1937) nothing testatrix County, owned except but real estate Wise for an inheritance of year; received earlier in the same $600 appears and it testimony from inventory such and the testatrix, estate of this same real was still death, on hand having at her adjudged, it been as first before stated, petitioners-defendants. inventory ap- praisement assets, reflects no personal, sep- whether real or community, arate or except County the Wise and Jacksboro properties. Unless it be the bare fact of the substantial cash payments made her in purchases, the Jacksboro there was suggest gifts no evidence to money inheritances testatrix parties during marriage, although third seems to be admitted that separate proptrty she owned as (Wise County) house Decatur purchased by her at some purchased date before she February, late
Notes
form notes the former ruling against separate property, emphasized claim wife’s nonparticipation distinguishing the fact of husband as Goldberg Zellner and Kahn cases like v. v. Kahn. Kearse Webb, case and our decision Van 215 difference, standpoint point up from the also is a the husband presuming a situations where between suggested by Professors party he not. As and those where is 956, especially Evidence, p. Ray, (Texas Law McCormick rule, parol a third 26) with the evidence connection Note way grantor, one party not interested standing whereby impose particular another, charac no has conveyed; in his deed be the recital ter on the estate so existing fact, may proper regarded which merely of an as one distinguished operative by evidence, from an ly disputed be deed, probably portion where the husband which it ought by parol. party Lind which contradicted is a say recognizes dayman, supra, clearly inapplicability husband, parol claim rule in which the evidence to situations ing community, party pur was not a chase. only Thus the latter instance not is the husband free of